PRAVNI ZAPISI • Year VII • No. 2 • pp. 230-270
EUROPEAN NOTARY PUBLIC AT WINDFLOW
Prof. dr Dragana Knežić Popović
Redovni profesor, Pravni fakultet Univerziteta Union u Beogradu
Pravni zapisi, No. 2/2016, pp. 230-270
Original Scientific Article
Notary Public of the Latin type, public authorities, attack on the profession, liberalization of the services, narrowing the jurisdiction, defence of notary public profession
The author of the paper analyses the reasons and consequences of vulnerability of notary profession in European countries with a Latin-type notarial system, which in recent years lurk serious threat, which could in- fluence in the nature of this profession. The European Commission has had several persistent attempts to attack the notary: through commencing six proceedings before the European Court of Justice and six Judgments in 2011 against member States that have not abolished the requirement of citizenship for admission to the profession, and the novel the proposal for revision of Directive 2005/36 / EU in which it included the expanding of the field of application of professional qualifications recognition to the notaries public, all to the Green Book on treatment in this process, with explanation that with the new means should be supported the functioning of the internal market and stimulates economic growth in the EU.
The Commission has always been guided by the findings that the reforms aimed at simplifying the environment of business entities and the removal of re- strictions in certain sectors and in regulated professions were not allowed to remove barriers and restrictive behaviour in a number of sectors, among which are expressly mentioned notaries, and that therefore the EU suffers economic decline. This was followed by strong reactions, which were not only the expression of a desire of notary public profession and science, but came from the highest authorities in France, Germany, and other countries. The complete jurist’s population in these member States recognized the insincerity of the Commission in demanding liberalization of notary public services, under the expression of reviving economic activity in the EU. All actors of the protest considered the Commission’ sex planation was only a reflection of the ideological prejudices and a concession to satisfy the hegemonic aims of supporters of the Anglo-Saxon model of deregulation. The doctrine also points to a restrictive conception of the notion of participation in the exercise of public authority by persistently promoting the European Court of Justice in relation to the notary service, although the authoritative modern science of administrative law as well as practice of developed countries today clearly show that the concept of the social function of the state and administration in exercise of power makes the totality of authoritative and non-authoritative activities by which the government achieves its social goals.
Contrary to the idea of liberalization of notary public services represented by the Commission, the legal doctrine today currently more raises the question of the right of magnification of public authorizations of European notaries, because the phenomenon of the spreading of the principle of separation of powers, and especially the analysis of the status and powers of the independent regulatory bodies, opened new horizons in relation to the expansion of the scope of notary public authority. Strong offensive to European Latin notary’s contribution was made by Serbia, where the introduction of the notary public services, Jurists experienced as competition to the lawyers profession and after the strong protest of lawyers, which jeopardized the functioning of the judiciary, to notary public was denied making the biggest forms of notary public documents – public notary record – for the most risky and most important legal affairs, contracts on real estate transactions. In conclusion the author indicates how devastating consequences of the liberalization of the traditional tasks of notaries and drastically narrowing their responsibilities would be both for judicial construction and the economic activities of the Roman-Germanic law.