A notary exercises preventive administration of justice
The introduction of the notary, who is an officer of preventive administration of justice, in Cyprus, as it exists in Germany and other countries, will solve several problems that constantly concern justice. As a public officer, a notary check
The introduction of the notary, who is an officer of preventive administration of justice, in Cyprus, as it exists in Germany and other countries, will solve several problems that constantly concern justice.
As a public officer, a notary checks and keeps written agreements concluded between two or more parties who, by signing them, undertake to observe the legal relationship created between them, as well as the law.
With their participation, they accept the declaration of the parties that is made before them for the agreement, such as a contract for sale of immovable property, which they accept and draw up the notarial deed which has the validity of a public document.
They also carry out legally prescribed actions for the execution of the sales contract, for example, maintaining an escrow account, presenting the documents for the cancellation of any mortgages and transferring property ownership before the land registry and proceeding with the payment of the price to the seller.
The notary does not represent any of the contracting parties, they act as an independent and impartial advisor to all parties of the legal transaction and informs them of the legal validity of the notarial deed.
They can refuse to draw up a notarial deed when it is not in line with their duties or when asked to co-operate in an act that is manifestly illegal or unfair. Their refusal should be justified, since it is subject to recourse.
Decision of the Court of Justice of the European Union
Related to the above is the decision of the European Court of Justice, dated September 9, in case C-109/23 regarding Union law providing restrictive measures imposed as a result of Russia’s invasion of Ukraine. Pursuant to Regulation (EU) 833/2014 as amended, in particular Article 5n(2), it is prohibited, among other things, to directly or indirectly provide legal advice and consultancy services to a legal person, entity or organisation based in Russia.
Specifically, a legal dispute arose between buyers of an apartment in Berlin owned by a Russian-based company and a notary from Germany, who refused to draw up the notarial deed of sale of the apartment and execute the relevant contract. His reasoning was that it could not be ruled out that the preparation of this notarial deed would constitute a violation of Article 5n(2) which prohibits the provision of legal advice to legal entities based in Russia.
Questions referred to for a preliminary ruling
The buyers of the apartment therefore filed a recourse to the court of first instance in Berlin, which decided to suspend the proceedings before it and submit the following preliminary questions to the Court of Justice of the European Union:
● Does a German notary infringe the prohibition on providing, directly or indirectly, legal advisory services to a legal person established in Russia if he or she authenticates a contract for the sale of an apartment entered into between said person as the seller and a national of a Member State of the European Union?
● Does an interpreter act in contravention of the prohibition if, for the purpose of authentication of a contract of sale, he or she accepts an assignment from that notary to translate the content of the authentication proceedings for the representative of the legal person established in Russia, who lacks sufficient proficiency in the German language?
● Does a notary infringe the prohibition if he or she accepts and carries out instructions to perform notarial activities provided by law for the purposes of execution of the contract of sale?
Ruling of the ECJ
The European Court of Justice ruled that a notary does not act with the aim of promoting the specific interests of any of the parties concerned but acts impartially, maintaining an equal distance from those parties and their respective interests, solely in the interests of the law and legal certainty.
Therefore, the sale of immovable property owned by a legal person established in Russia, is not covered by the concept of ‘legal advisory services’ referred to in Article 5n(2) of Regulation No 833/2014 and, consequently, does not fall within the scope of the prohibition on the provision of such services to such a legal person, laid down in subparagraph 2 of that provision.
No provision of the regulation lays down a general prohibition on involvement in a transaction with a legal person merely because that person is established in Russia or a prohibition on the transfer of immovable property situated in the territory of the European Union and owned by such a person.
The authentication for the sale of immovable property, the actions carried out for its execution or translation services by a notary do not fall under the prohibition of providing legal advice services to such a legal person according to Article 5n(2) of Regulation 833/2014.
George Coucounis is a lawyer specialising in Immovable Property Law, based in Larnaca. E-mail: coucounis.law@cytanet.com.cy, tel: 24 818288
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