The contested jurisdictional Nature of the notarial Function in European Union Law
La discussa natura giurisdizionale della funzione notarile nel diritto dell’Unione europea
La nature juridictionnelle controversée de la fonction notariale en droit de l’Union européenne
This article examines whether notaries may be assimilated to judicial authorities under European Union law. In many Member States, legislators have progressively delegated to notaries functions traditionally reserved for the judiciary – such as consensual divorces, succession procedures, and the issuance of European Certificates of Succession – with the aim of reducing the burden on courts. This raises questions about whether notaries may qualify as “courts or tribunals” within the meaning of Article 267 TFEU, thereby entitling them to submit preliminary references to the Court of Justice. The article reviews the evolution of the Vaassen-Göbbels criteria in case law and analyses recent judgments concerning civil judicial cooperation regulations, particularly the Brussels I bis Regulation, the European Enforcement Order Regulation, and the Succession Regulation (650/2012). The analysis demonstrates that the Court has maintained a restrictive approach, denying jurisdictional status to notaries absent adversarial proceedings and autonomous decision-making powers. Nevertheless, the author highlights the risks this approach poses to legal certainty and advocates for a broader interpretation that would enable notaries – increasingly involved in applying EU private international law – to engage in direct dialogue with the Court of Justice.
