Notaries and EU PIL: Taking Stock of 5 Years of Case Law

On 19 May 2022, the CJEU rendered an inadmissibility order in case C-722/21, Frontera Capital. The request for a preliminary ruling originated from a Spanish notary, who delivered a European order for payment (EOP) under Regulation 1896/2006. She relied, for that purpose, on the parallel competence vested on Spanish notaries for the delivery of domestic orders for payment (Articles 70-71 of the Spanish law on notaries). The notary in question was subsequently sanctioned by the Dirección General de los Registros y del Notariado for having issued the EOP ultra vires. In her opinion, however, all the conditions set out by Regulation 1896/2006 were satisfied (§ 5 of the inadmissibility order), hence the referral to the CJEU.

While being inadmissible on a number of grounds (i.e., the lack of an actual dispute in the main proceedings and the doubtful characterisation of the referring authority as a ‘court or tribunal’ of a Member State under Article 267 TFUE: cf § 14 and § 16 of the order), this case confirms that the interaction between notaries, theirs competences under domestic law and the EU private international law (EU PIL) remains, to the present days, problematic.

This finding is further evidenced by the number of preliminary questions raised on this issue (nine in total) since 2015, ie the year when Pula Parking and Zulfikarpašić brought the relationship between notaries and EU PIL on the table of the Luxembourg judge for the first time.

Read in conjunction with this past case law, Frontera Capital provides the opportunity for a broader discussion on some recurrent obstacles that hinder the smooth interplay between EU PIL Regulations – particularly the statutory definitions they set out – and national laws, especially in the subject matters where the intervention of legal professionals other than judges is more common at the comparative law level.

Five Years of CJEU Case Law

Cross-border cases are nothing new to European notaries, who are generally well versed in PIL and eager supporters of its further harmonisation by the EU (see, for example, points 3, 4 and 5 of the Proposal of the Notaries of Europe for the Conference on the Future of Europe). The requests for preliminary rulings thus far decided by the CJEU and involving, more or less directly, these professionals can be broken down into three main categories.

In the field of civil and commercial matters, the referring courts in Pula Parking and Zulfikarpašić – concerning, respectively, the Brussels I bis and the EEO Regulation – asked for clarifications regarding the status of Croatian notaries as ‘courts’ for the purposes of those Regulations, in cases where these professionals were acting in the exercise of the powers conferred to them under domestic law with respect to the delivery of executive titles based on ‘trustworthy documents’. A similar question was raised – directly by the seized notary – in the more recent case Frontera Capital. As I argued elsewhere, the choice of the Spanish legislator as concerns the creation of a monitorio notarial was liable to create Pula Parking-alike scenarios. And, in fact, while the Spanish notary just asked if the EOP Regulation was correctly applied in the specific case, her question could be rephrased as concerning its own status as ‘court’ under Article 5 n 3 of the EOP Regulation, given that such characterization would enable a Spanish notary to issue EOPs in compliance with this instrument (as it is the case for Hungarian notaries).

A second group of cases concern the Succession Regulation, but raise similar questions. Cases WB and EE requested, inter alia,  an interpretation of its Article 3(2), thus prompting the ECJ to address both the ‘procedural preconditions’ and the substance of the definition of court set out by that provision, having specific regards to the tasks entrusted to Polish and Lithuanian notaries. More recently, case OKR also raised several questions concerning the interpretation of Regulation 650/2012. Just like Frontera Capital, the case was nonetheless deemed inadmissible because the referral came directly from a (Polish) notary, lacking the requirements set by Article 267 TFEU (as summarized by Dorsch Consult) to qualify as ‘national court or tribunal’ for the purposes of that provision.

A final group of issues, which is beyond the scope of this blogpost, originates from the joined cases C-267/19 and C-323/19, requiring the CJEU to assess again the Croatian legislation on the notarial competence in debt collection based on trustworthy documents. Here, the CJEU rejected the argument whereby the finding in Pula Parking and Zulfikarpašić, that is inapplicability of the EU uniform regimes on recognition and enforcement of judgments to Croatian notarial deeds, coupled by the non inter partes character of the Croatian procedure, could amount to an infringement of the principle of non-discrimination (Article 18 TFEU) and the right to a fair trial (Article 47 of the Charter). Similar arguments were advanced (and rejected) in case C-234/19.

Apart from this last group of cases – that are illustrative of the limited scrutiny the CJEU can exercise on domestic justice reforms – all the above mentioned preliminary rulings call into question the possibility of characterizing notaries as ‘courts’, for the purposes of either Art. 267 TFEU or specific EU PIL instruments (or both).

Notaries as Courts: Recurrent Difficulties

The difficulties thus far encountered in classifying notaries as ‘courts’ stem from the friction between the uniform statutory definitions (if any) of ‘court’ adopted by EU law and the ever-changing legal environment of 27 Member States, who lack a common understanding of the notarial profession (cf, on this point, the Specific Study of the CEPEJ on the Legal Professions: Notaries prepared by the CNUE)

On the one side, in the attempt of unburdening an ailing court system, the procedural laws of Member States tend to be inspired by ‘local’ policy choices, based on a culturally-embedded understanding of the role of each legal profession within the broader justice machinery. On the other side, however, EU law remains largely anchored to a more traditional (and uniform) concept of ‘court’, grounded in the exercise of ‘judicial functions’. For this reason, although notaries are, at present, often called to perform their duties in matters that fall into the scope of application of EU PIL Regulations, they are not, in most cases, entitled to initiate a direct dialogue with the CJEU thorough Art. 267 TFEU, when they harbour doubts as concerns the correct interpretation of their provisions or their own status as ‘courts’ under one of said instruments. Regarding this last issue, the problem seems exacerbated by the regulatory approach adopted by the EU legislator with respect to the statutory definitions of court or tribunal under the different EU PIL Regulations.

The (In)Direct Dialogue with Luxembourg

Cases such as OKR and Frontera Capital prove that notaries may feel the need to establish a direct communication channel with Luxembourg under Art. 267 TFEU when they harbour doubts as to the correct interpretation of a provision of EU PIL. And this not just for the sake of the proper application of EU law, but also to ensure the correct performance of their duties and avoid incurring in professional liability or sanctions. In this respect, however, the stance taken by the CJEU is quite clear and well-established: to be regarded as a ‘court or tribunal’ within the meaning of Article 267 TFEU, ‘it must be determined … whether [the referring body] is called upon to give judgment in proceedings intended to lead to a decision of a judicial nature’ (OKR, § 23).

In OKR, the CJEU deemed that, in the proceedings at stake in that case, the notary was not required to decide a legal dispute (§ 24), insofar as (s)he did not take decision of a judicial nature ‘either when he or she confirms his or her refusal decision or when he or she considers the complaint to be well founded’ (OKR, § 28). Nonetheless, the Court placed a special emphasis put on ‘the specific capacity’ and ‘the particular legal context’ in which the referring authority operates (OKR, § 23), which suggests that the question as to whether a notary could be considered a ‘court or tribunal’ of a Member State for the purposes of Art. 267 TFEU should be answered on a case-by-case basis, having due regard of the specific features of the notarial proceedings at issue.

In any case, it should not be too hastily concluded that the eventual exclusion of notaries from the procedure set out by Art. 267 TFEU is liable to hamper the uniform interpretation of EU law. According to the CJEU, the existence of complaints before courts against notarial decisions ensures, on any view, the effectiveness of the mechanism of the reference for a preliminary ruling and the achievement of its objective (cf. § 33 OKR). And, in fact, this is what happened after the OKR order, where one of the parties appealed the notarial order before a court, who then referred a new request for preliminary ruling to the Luxembourg Court (case C-21/22, pending).

The Plethora of Statutory Definitions of ‘Court’ in EU PIL

The second recurrent issue emerging from the CJEU case law concerns the characterisation of notaries as ‘courts’ under specific instruments of EU PIL. In this regard, the CJEU has explicitly acknowledged that the definitions retained by EU PIL Regulations may be broader than that developed under Art. 267 TFEU (§ 31 OKR). This means, in practice, that a notary could qualify as ‘a court’ for the purposes of EU PIL, without nonetheless be entitled to refer a request for preliminary ruling to the CJEU.

While a comprehensive analysis of the definitions of court set out by EU PIL Regulations would be beyond the scope of this blogpost, this table may be a useful starting point for identifying some very general trends in the drafting techniques used for this purpose.

Firstly, it is worth remarking that there is no ‘one-size-fits-all’ definition of ‘court’. Rather, definitions tend to be context-dependent (as evidenced by the Recitals of the Regulations dealing with family law, successions and insolvency) or even implied (as it was the case under the 1968 Brussels Convention and the Brussels I Regulation). Such definitions tend to be more sophisticated in matters where the intervention of authorities other than courts is more established (eg family and succession law).

Secondly, and relatedly, there is no single approach to the drafting and structuring of the definitions of court. Rather, current definitions make use of at least 5 different drafting techniques, including:

(a) the ad hoc assimilation, by the EU legislator, of specific non-judicial bodies to ‘courts’ in the main body of the Regulation, without nonetheless providing a ‘general’ definition thereof (e.g. Article 3 Reg. Brussels I bis and Article 4(7) of the EEO Regulation);

(b) the ‘open renvoi’ to domestic legal systems, based on sheer functional equivalence (i.e., not accompanied either by a uniform general definition of ‘court’ or by an obligation of notification to the Commission: e.g. Article 62 of the 2007 Lugano Convention and Article 2(2)(1) of the Brussels II ter , which follows in the footsteps of its predecessors: cf § 34 of the Opinion of AG Collins in C-646/20).

(c) the ‘conditional renvoi’ to the designation by Member States, where the domestic appointment of an entity as ‘court’ must be coupled by the notification to the Commission (e.g. Articles 5 n. 3 and 79 of the EPO Regulation);

(d) the establishment of a core-definition, setting out minimum requirements (e.g. the power to ‘take decisions’) but otherwise relying entirely on national laws (e.g. Insolvency Regulations).

(e) the establishment of well-rounded general definitions, complemented by detailed Recitals and accompanied by an obligation of notification to the Commission (most of the instruments dealing with family law and successions).

Thirdly, owing to the variety of drafting techniques used by the EU legislator, these definitions present variable degrees of flexibility and, therefore, a varying aptitude for prompt adaptability to domestic judicial reforms. In fact, under the approach sub a), any change to the scope of the definition of ‘court’, aimed at the inclusion of domestic notaries therein, cannot by attained based on analogical reasoning (see again here) and would probably require a legislative amendment of the main body of the concerned EU Regulation(s). This approach is indisputably more cumbersome than a sheer change to the Annexes (e.g. Art. 2(2) of Regulation 4/2009) or to the lists established by the Commission and made public through the European Judicial Network.

Finally, while the definitions set out in the field of family and succession law appear strikingly homogeneous as regards both their substantive contents and their increasing sophistication, including the explicit acknowledgment of the role played by notaries in those domains, the field of civil and commercial matters stands out of its sectoral inhomogeneity and remarkable methodological fragmentation. Of the 8 EU PIL instruments covering this domain, 3 (Brussels Convention, Brussels I Regulation; EAPO Regulation) are completely silent on the matter of knowing what constitutes ‘a court or tribunal’; 2 (Brussels I bis and the EEO Regulations) follow the approach sub a); 1 (Lugano Convention) adopts the approach sub b); 2 opt for the approach sub c) (the EPO and possibly the Small Claims Regulation). This lack of uniformity may unnecessarily complicate the application of those Regulations in practice.  

Lingering Doubts

In the light of the above, it is not surprising that the characterization of notaries as courts has posed important challenges in many concrete cases.  Nonetheless, the identification of what constitutes ‘a court’ for the purposes of EU PIL should be easy (or, at list easier) in the instruments that set out an obligation of notification to the Commission, called to draw up a list of such authorities that complements the statutory definition eventually established the legislator.

In this respect, the case WB has shed light on the normative value of such lists. Therein, the CJEU held that the notifications to the Commission, and the lists established on that basis, ‘creat[e] a presumption that the national authorities declared [therein] constitute ‘courts’’. Nonetheless, ‘the fact that a national authority has not been mentioned in such a notification cannot, per se, be sufficient for it to be concluded that that authority does not satisfy the conditions set out in Article 3(2) [of the Succession Regulation]’(emphasis added).

It is worth stressing that, in WB, the CJEU’s ruling finds a solid ground in the letter of a Regulation providing for one of the most sophisticate provisions on the meaning of ‘court’ to be found in EU PIL. Art. 3(2) of the Succession Regulation sets out a well-defined general definition, which is not only accompanied by specific and uniform minimum requirements, but also explicitly assimilates notaries to courts when they exercise ‘judicial functions’. These should be understood, in essence, as referring to the ‘exercise of decision making power’, irrespective of the (contentious or non-contentious) nature of the proceedings within which it takes place. Therefore, ‘an authority must be regarded as exercising judicial functions where it may have jurisdiction to hear and determine disputes’, that is to ‘rule on its own motion on possible points of contention between the parties’ (judgment in WB, § 55-56). In turn, this ‘exercise of decision-making power’ is what justifies the requirement of compliance with fundamental procedural principles (Opinion in WB, § 78).

In the post-WB era, the real question remains as to whether, and to what extent, the CJEU’s finding on the normative value of the lists established by the Commission is transposable to other EU PIL instruments, such as the EPO Regulation, where the obligation of notification is not coupled by an explicit statutory definition of ‘court’. Therein, there are no minimum requirementsagainst which the status of a non-judicial authority can be assessed in case it does not feature in the lists established by the Commission or by the concerned Member State. This was indeed the most interesting question raised by Frontera Capital: Article 5 n. 3 of the EPO Regulation extends the status of court to ‘any authority in a Member State with competence regarding’ not only ‘European orders for payment’, but also ‘any other related matters’. Therein, the real issue would have been as to whether a parallel competence regarding domestic orders for payment can be considered a ‘matter related to EOPs’, thus bringing Spanish notaries under the umbrella of the definition under Article 5 n. 3, despite the lack of formal communication to the Commission.

Future Outlooks

What happens if a notary does not fulfil the requirements for a characterisation as ‘court’? Extant CJEU case law, especially the rulings under the Succession Regulation, clarify that, in that case, the notary is not bound by the uniform rules of jurisdiction, and the resulting notarial deed won’t circulate in other Member States as a ‘judgment’. It could, however, circulate in other Member States under the regime for authentic instruments, if such deed corresponds to the uniform definition thereof.

As opposed to the definitions of ‘courts’, the notion of ‘authentic instrument’ profits from a remarkable uniformity across the several EU PIL Regulations, the baseline of these definitions being always the Unibank judgment, rendered by the CJEU under the 1968 Brussels Convention. Civil law notaries are, in most cases, among the authorities empowered to confer the character of ‘authenticity’ (see Recitals 31 of Regulations 2016/1103 and 2016/1104).

The CJEU has therefore readily vested the status of ‘authentic document’ upon a ‘deed of certification of succession, drawn up by a notary at the unanimous request of all the parties to the procedure conducted by the notary’ (WB, § 66, emphasis added) and upon a ‘national certificate of succession’, by which the notary ‘establish[es] the undisputed subjective rights of, and the legally relevant facts relating to, natural and legal persons, [thereby] protect[ing] the legal interests of those persons and of the State’ (EE § 52, emphasis added).

Consent, expressed through the unanimous request of all parties or through the idea of undisputed rights, lies at the core of the notarial competence regarding authentic instruments, just as the notion of dispute is the benchmark against which the ‘exercise of judicial function’ by the notary shall be assessed. While being apparently clear-cut, the distinction between consent and dispute could become remarkably blurred with respect to certain legal assessments entrusted to the notaries, where this professional is called to adjudicate on rights that are only ‘presumptively undisputed’, at the unilateral request of one of the parties. Reference is made, primarily but nor exclusively, to the delivery of orders for payment by the notary based on documentary evidence unilaterally supplied by the creditor, and without the prior hearing of the defendant. In such cases, the distinction between dispute and consent does not provide a definite answer to the question as to whether such order for payments, lacking a prompt challenge by the debtor, could eventually circulate intra-EU as authentic instruments.

The negative answer finds support in another element of the European definition thereof, that is the requirement whereby an authentic instrument shall be ‘formally drawn up’ as such in the Member State of origin. This open renvoi to domestic formalities renders the EU definition of authentic instrument only ‘semi-uniform’, insofar as EU law nowhere explains what it takes for an authentic instrument to be ‘formally drawn up’ as such in the issuing Member State. In one of the few academic works that approach this topic from a PIL perspective, late Professor Fitchen described the ‘basic steps required for the drawing-up of a notarial authentic instrument’ as follows (pp. 28-29):

The notary will first ensure that each party is fully aware of the nature and meaning of the proposed transaction; he will also impartially advise each party upon the available options by which the desired transaction could be accomplished. After this, the notary will draft an appropriate legal document. … Having prepared the document in draft, the notary will then read it aloud to the parties. Assuming each party then indicates that he understands the transaction and that he still wishes to proceed with it, the notary will then invite [the parties] to sign the document. At this stage the document is still a private document. The private document only becomes an authentic instrument/public document once the notary, having declared upon it that he has read it to the parties, that they have expressly approved all their declarations within it, and that they have then signed it ‘before’ him, finally draws it up as an authentic instrument by signing it himself then formally applying his notarial seal to the document as a notary of his civil law legal system.

Evidently, these formal or procedural requirements are strictly linked to, and reinforce, the idea of unanimous consent that underpins authentic instruments and should be seen as an integral part of the uniform definitions established by EU Regulations. It is highly doubtful that such requirements could be deemed satisfied with respect to notarial documents that are, at once, issued at the unilateral request of one of the parties and based on the sheer acquiescence of the party who would suffer the detrimental consequences stemming therefrom.