LA NORMATIVA DE LIBERALIZACIÓN DE SERVICIOS Y LA ACTIVIDAD DE NOTARIO Y DE PROFESIONES JURÍDICAS.

Abstract

The Treaty on the Functioning of the European Union prohibits restrictions on the free rendering of services within the EU for Member State nationals established in a Member State that is not the service recipient's state. Even so, the treaty goes on to establish that provisions referring to the right of establishment will not be applied absolutely or categorically, as regards the Member State concerned, to activities that are related, even if only occasionally, with the exercise of official authority in that Member State. Directive 2006/123/EC, in its turn, establishes the general provisions necessary to facilitate the exercise of freedom of establishment by service renderers and free circulation of services, although the directive does not apply to services rendered by notaries or activities linked with the exercise of public authority. This exclusion is endorsed by domestic legislation in Spanish Act 17/2009 of 23 November, which does not apply to activities involving the exercise of public authority (particularly the activities of notaries, land registrars and business registrars). The exclusion of notaries is general and absolute, because their capacity and nature as public functionaries who hold the power to attest documents vests them with special significance, binding them to a given territory, since notaries do not have the power to attest documents outside their home notarial district. Registrars and their activity are also classified as public functionaries to all legal effects, whereas their public function as scrutineers of document validity is an activity linked with the exercise of public authority and consequently is also excluded generally and absolutely from laws on the liberalization of services. Lastly, attention ought to be devoted to the particular facts involved in professional qualifications and Spanish professional associations, whose mandatory membership requirement must differentiate between cases concerning the free rendering of services and cases concerning freedom of establishment.