From the Brussels office

Nationality requirement for notaries

In an opinion published on 14 September, Advocate General Cruz Villalón stated that six member states have failed to fulfil their obligations under European law by limiting access to the profession of notary to those who are nationals of their country. The key question at issue is whether the profession of notary is connected with the exercise of official authority and therefore outside the scope of the treaty provisions relating to freedom of establishment. The Advocate General did not agree with the arguments of Belgium, France, Luxembourg, Austria, Germany and Greece that this connection to the exercise of official authority is a justification for direct discrimination on grounds of nationality.

Cross-border aspects of IHT

The consultation on possible approaches to tackling cross-border inheritance tax obstacles within the EU is open until 22 October. Noting that the current rules may be hindering free movement of EU citizens and creating difficulties for the transfer of small businesses on the death of owners, the European Commission is seeking to draw on the expertise and experience of all parties interested in commenting on cross-border inheritance tax issues, including practitioners. The related draft regulation on succession is making its way through the legislative process, with the draft report of Kurt Lechner MEP for the Legal Affairs Committee of the European Parliament the next milestone.

Criminal justice in the spotlight

Recent weeks have seen discussions continue on important developments in criminal justice, including a debate in the European Parliament on the European Protection Order, which aims to provide protection to persons who are in danger when moving between member states. Key concerns continue to be the legal basis and scope of the proposal; the protection order would have both criminal and civil law elements under some legal systems, but was proposed by member states who are only permitted to make proposals in criminal law matters. In addition, at the end of August, the Commission voiced its support for the proposed European Investigation Order, an initiative that would allow one member state to request another to carry out investigations and evidence gathering in order to address growing cross-border crime. Finally, the proposal on the right to information in criminal proceedings (the “letter of rights”) is being considered at a public hearing on 11 and 12 October at which the Law Societies will be represented.