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FTAA - COMMITTEE OF
GOVERNMENT REPRESENTATIVES ON THE PARTICIPATION OF
CONTRIBUTION IN RESPONSE TO THE OPEN AND ONGOING INVITATION
The Distinguished Chair of the
Committee of Government
Representatives on the Participation of Civil
Rome, 18 February 2003
The Unión Internacional del Notariado Latino (UINL) [International Union of Latin Notaries], founded on 2 October 1948, is an international non-governmental association that serves as the umbrella group for national organizations of notaries within the different countries in which the UINL is present.
The UINL was created to promote, coordinate, and develop notarial services in the international system, with the goal of ensuring the dignity and autonomy of the profession, thus enabling its practitioners to better serve individuals and the community.
The organization represents notaries before the international organizations with which they work, providing their knowledge and experience as experts in private business, family, property, and estate law.
The UINL engages in the following activities:
The study of notarial law and
collaborative undertakings for the purpose of achieving the
However, it remains to be determined whether the services provided by notaries in the countries participating in the Agreement are subject to this principle.
Article II of the Montevideo Protocol on Trade in Services of MERCOSUR, of 13 December 1997, which took into account the World Trade Organization’s General Agreement on Trade in Services (GATS), states, “the term ‘services’ includes any service in any sector, except services provided in the exercise of governmental authority.”
Consequently, it would be of interest to determine whether notarial services are included within the exception for services provided in the exercise of governmental authority.
While in our geographical area there are no legal interpretations or jurisprudence in this regard, such interpretations do exist in other geographical areas, such as the European Union. Consequently, certain bodies of the European Union have issued statements that are of great interest, since in the European Union, as in our area, two notarial systems exist alongside one another without any major conflicts so far, because both inspire trust in the people. The imposition of any other system would constitute and would be perceived as an act of cultural aggression that would be difficult for people to understand.
1) The Treaty Establishing the European Community of 25 March 1957, known as the Rome Treaty, includes “the free movement of persons, services, and capital” among its guiding principles.
The freedom to provide services, including the activities of liberal professions (Article 60(d)), is regulated in Chapter 3 (Article 59). Article 55 establishes the exception to the right associated with this freedom, stating: “The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities in which that State are connected, even occasionally, with the exercise of official authority.”
And Article 66, by referring to Article 55, recognizes activities that are related to the exercise of government authority as exempt from the principle of the freedom to provide services.
Therefore, according to these provisions of the Treaty, activities related to even the occasional exercise of official authority are understood to be exempt from the freedom to provide services.
II) The European Parliament, having regard to the Report of the Committee on Legal Affairs and Citizens’ Rights (published in the Session Documents of 9 December 1993, A 30422/93), issued a resolution, dated 18 January 1994, on the situation and organization of notaries in the member States of the European Community, in which it stated, “… Aware that the activities of notaries are characterized by a partial delegation of State sovereignty, which guarantees the public service of the preparation of contracts and the legality, authenticity, and the executory and probative force thereof, as well as the advance provision of impartial advice to the interested parties, with a view to relieving congestion in the courts…We wish to recall that the notarial profession-although organized differently in each of the 12 member States of the Community and also within some States-is fundamentally characterized by a series of elements that are practically identical, which can be summarized as follows: partial delegation of State sovereignty to ensure the public service of authenticity of contracts and evidence; independent activity exercised in the framework of a public responsibility, under the form of a profession (with the exception of Portugal and one of the German Federated States, and a special system in the United Kingdom), but subject to the oversight of the State-or the statutory body assigned to this task by the public authority-as regards the observance of clients’ rules, access to the profession, and the organization thereof; function of hearing cases prior to a judge, in order to eliminate or reduce the number of cases of litigation; function of impartial adviser…”
“[We] consider that the existence of a partial delegation of State authority as an element intrinsic to the exercise of the notarial profession is sufficient to justify applying the exception set out in Article 55 of the Treaty Establishing the European Community to the profession…”
Notarial duties, within the professional scope of the Latin Notary (adopted by 70 countries in the Americas, Europe, Asia, and Africa), as defined by the Permanent Conference of Notariats of the European Community, signed on 23 March 1990 in Madrid, are exercised by a notary, who is: “an officer who has been granted the authority of the State by delegation for certifying the documents whose author is the same Notary, assuring their conservation and their probative and executive force.”
The authenticity of notarial documents is derived from the “public faith” the notary imparts thereto by virtue of the vested authority of the State.
“Public faith” is a component of State sovereignty, and States vest this faith in notaries for extrajudicial matters.
For this reason and for legal purposes, the public duty exercised by notaries must be discharged within a territorially defined area, which is the territory of the authorizing State, making the free movement of notaries unviable.
Thus, we reaffirm our position that notaries should remain exempt from the principle of free movement of services, and we request that, by virtue of the provisions of the Agreement, the services provided by notaries be expressly excluded from the principle.
The UINL would be happy to provide any further information that you may require.
FRANCISCO S. ARIAS
FRANCISCO S. ARIAS
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