Provisional text
JUDGMENT OF THE COURT (First Chamber)
18 January 2024 (*)
(Reference for a preliminary ruling – Competition – Article 101 TFEU – Concepts of ‘undertaking’ and ‘decisions of associations of undertakings’ – Decisions of the chamber of notaries of a Member State fixing the methods for calculating fees – Restriction ‘by object’ – Prohibition – Lack of justification – Fine – Imposition on the association of undertakings and its members – Perpetrator of the infringement)
In Case C‑128/21,
REQUEST for a preliminary ruling under Article 267 TFEU from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), made by decision of 17 February 2021, received at the Court on 26 February 2021, in the proceedings
Lietuvos notarų rūmai,
M.S.,
S.Š.,
D.V.,
V.P.,
J.P.,
D.L.-B.,
D.P.,
R.O.I.
v
Lietuvos Respublikos konkurencijos taryba,
in the presence of:
Lietuvos Respublikos teisingumo ministerija,
Lietuvos Respublikos finansų ministerija,
THE COURT (First Chamber),
composed of A. Arabadjiev (Rapporteur), President of the Chamber, L. Bay Larsen, Vice-President of the Court, acting as Judge of the First Chamber, Z. Csehi, President of the Tenth Chamber, P.G. Xuereb, and A. Kumin, Judges,
Advocate General: G. Pitruzzella,
Registrar: C. Strömholm, Administrator,
having regard to the written procedure and further to the hearing on 15 September 2022,
after considering the observations submitted on behalf of:
– the Lietuvos notarų rūmai, M.S., S.Š., D.V., V.P., J.P., D.L.-B., D.P. and R.O.I., by L. Butkevičius and V. Vadapalas, advokatai,
– the Lietuvos Respublikos konkurencijos taryba, by M. Dumbrytė-Ožiūnienė and Š. Keserauskas, acting as Agents,
– the Lithuanian Government, by K. Dieninis and R. Dzikovič, acting as Agents,
– the Italian Government, by G. Palmieri, acting as Agent, and F. Varrone, avvocato dello Stato,
– the European Commission, by F. Jimeno Fernández, I. Rogalski and A. Steiblytė, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 12 January 2023,
gives the following
Judgment
1 This request for a preliminary ruling concerns the interpretation of Article 101(1) TFEU.
2 The request has been made in proceedings between the Lietuvos notarų rūmai (Lithuanian Chamber of Notaries, ‘the Chamber of Notaries’) and M.S., S.Š., D.V., V.P., J.P., D.L.-B., D.P. and R.O.I., natural persons practising as notaries in Lithuania, to the Lietuvos Respublikos konkurencijos taryba (Competition Council of the Republic of Lithuania, ‘the Competition Council’) concerning the latter’s decision to impose fines on that chamber and those notaries for infringement of Lithuanian and EU competition law.
The legal framework
EU law
3 Article 5 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1) states:
‘The competition authorities of the Member States shall have the power to apply Articles [101 and 102 TFEU] in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:
…
– imposing fines, periodic penalty payments or any other penalty provided for in their national law.
…’
4 Article 23(2) and (4) of that regulation provides that:
‘2. The [European] Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:
(a) they infringe Article [101] or Article [102 TFEU]; or
…
For each undertaking and association of undertakings participating in the infringement, the fine shall not exceed 10% of its total turnover in the preceding business year.
Where the infringement of an association relates to the activities of its members, the fine shall not exceed 10% of the sum of the total turnover of each member active on the market affected by the infringement of the association.
…
4. When a fine is imposed on an association of undertakings taking account of the turnover of its members and the association is not solvent, the association is obliged to call for contributions from its members to cover the amount of the fine.
Where such contributions have not been made to the association within a time limit fixed by the Commission, the Commission may require payment of the fine directly by any of the undertakings whose representatives were members of the decision-making bodies concerned of the association.
After the Commission has required payment under the second subparagraph, where necessary to ensure full payment of the fine, the Commission may require payment of the balance by any of the members of the association which were active on the market on which the infringement occurred.
However, the Commission shall not require payment under the second or the third subparagraph from undertakings which show that they have not implemented the infringing decision of the association and either were not aware of its existence or have actively distanced themselves from it before the Commission started investigating the case.
The financial liability of each undertaking in respect of the payment of the fine shall not exceed 10% of its total turnover in the preceding business year.’
Lithuanian law
The Law on Competition
5 Article 5(1) of the Lietuvos Respublikos konkurencijos įstatymas (Law on Competition of the Republic of Lithuania) of 23 March 1999 (Žin., 1999, No 30‑856), in the version applicable to the main proceedings (‘the Law on Competition’), provides:
‘All agreements whose purpose is to restrict competition or which restrict or may restrict competition are prohibited and are void from the moment they are entered into, including:
(1) agreements which directly or indirectly establish (fix) the price of certain goods or other conditions of purchase or sale;
…’
The Law on the Notarial Profession
6 The first paragraph of Article 2 of the Lietuvos Respublikos notariato įstatymas (Law on the Notarial Profession of the Republic of Lithuania) of 15 September 1992 (Žin., 1992, No I-2882), in the version applicable to the facts in the main proceedings (‘the Law on the Notarial Profession’), provides:
‘A notary is a person authorised by the State to perform the functions provided for in this Law, certifying that transactions and documents are not unlawful in civil legal relationships. A notary may also act as an approved intermediary (mediator) in civil disputes with a view to resolving them.’
7 The first paragraph of Article 6 of that law provides:
‘The number of notaries, their registered office and territorial jurisdiction are established by the Minister for Justice of the Republic of Lithuania according to the methodology he or she has established for assessing the needs for legal services provided by notaries to residents.’
8 According to Article 8 of that law:
‘Notaries of the Republic of Lithuania are included in the Chamber of Notaries …
Every notary is a member of the Chamber of Notaries.
The Chamber of Notaries is a legal entity.
The Statute of the Chamber of Notaries is adopted by the Assembly of the Chamber of Notaries and approved by the Minister for Justice of the Republic of Lithuania.’
9 Article 9 of that law reads as follows:
‘The main tasks of the Chamber of Notaries are as follows:
(1) to coordinate the activities of notaries;
(2) to ensure the improvement of notaries’ qualifications;
(3) to protect and represent the interests of notaries before public and administrative authorities;
(4) to draft regulatory acts on issues related to the notarial profession and to submit them to the Minister for Justice of the Republic of Lithuania;
(5) to standardise notarial practice;
(6) to supervise the manner in which notaries carry out their duties and comply with the requirements of professional ethics;
(7) to ensure the conservation and use of documents drawn up in the course of notarial professional activities;
(8) to supervise the training of notaries;
(9) to carry out the other missions provided for by other laws and the Statute of the Chamber of Notaries.’
10 Article 10(7) of the Law on the Notarial Profession provides that, in carrying out its tasks, the Chamber of Notaries is to take measures to ensure uniformity of notarial practice.
11 The second and third paragraphs of Article 11 of that law provide as follows:
‘The Minister for Justice of the Republic of Lithuania shall approve the regulatory acts referred to in this Law, having regard to the opinion of the Presidium of the Chamber of Notaries.
If the Minister for Justice of the Republic of Lithuania considers that the resolutions or decisions of the Chamber of Notaries do not comply with the legislation of the Republic of Lithuania, he or she may lodge an appeal with the Vilniaus apygardos teismas [(Regional Court, Vilnius, Lithuania)] for the annulment of such resolutions or decisions. That action must be lodged within one month of the date of receipt of the resolution or decision that is the subject of the action.’
12 Under the terms of Article 12 of that law, notaries exercise their powers notwithstanding the influence of public authorities and budgetary authorities, and obey only the laws.
13 In accordance with Article 13 of that law, notaries shall respect the decisions of the Chamber of Notaries in the course of their activities.
14 Article 19 of the Law on the Notarial Profession states:
‘A notary shall charge a fee for the execution of notarial acts, the preparation of draft transactions, consultations and technical services, the amount of which (the rate) shall be set by the Minister for Justice of the Republic of Lithuania, taking into account the criteria for setting the amount (the rate) of notarial fees mentioned in Article 191 of this Law and in consultation with the Minister for Finance of the Republic of Lithuania and the Chamber of Notaries. The rate of fees must guarantee the notary an income enabling him to be economically independent, to provide good conditions of service to clients, to employ staff with the necessary qualifications and to have a technically well-equipped office. …
Depending on the client’s financial situation, a notary may waive all or part of the fees.
…’
15 The first paragraph of Article 21 of that law provides that notaries carry out their activities autonomously and are economically independent.
16 Under the first paragraph of Article 28 of that law:
‘Notarial deeds may be drawn up by any notary, except in matters of inheritance. In such cases, the Minister for Justice of the Republic of Lithuania shall determine the territorial jurisdiction of notaries.’
The Statute of the Chamber of Notaries
17 Article 8(1) of the Statute of the Chamber of Notaries of Lithuania, approved by Lietuvos Respublikos teisingumo ministro įsakymas Nr. 1R – 3 (Order No 1R‑3 of the Minister for Justice of the Republic of Lithuania) of 3 January 2008 (Žin., 2008, No 6-222) (‘the Statute of the Chamber of Notaries’), provides:
‘When carrying out its duties, the Chamber of Notaries performs the following functions:
…
(6) it takes measures to standardise notarial practice;
(7) it harmonises notarial practice and gives advice to notaries;
…’
18 Article 10(4) of the statute provides that the members of the Chamber of Notaries must carry out, in particular, the decisions of the Presidium of that Chamber.
19 Under Article 18(1) of that statute:
‘The Presidium is a collegiate management body of the Chamber of Notaries. The Presidium is composed of eight members, appointed (chosen) by the Assembly of the Chamber of Notaries for three years.’
20 Article 19 of that statute provides:
‘1. … the assemblies of notaries of the jurisdictions concerned elect a candidate to become a member of the Presidium. …
2. Elections of candidates for membership of the Presidium shall be held in the jurisdictions by public or secret ballot. …
…
4. Every member of the Presidium shall be accountable to the meeting of notaries of the territorial jurisdiction which was convened having proposed his or her candidature.
…
6. The Chairperson and Vice-Chairperson are members of the Presidium. The Chairperson shall direct the Presidium.’
21 Pursuant to Article 20(1) of the Statute of the Chamber of Notaries, the Presidium is to ensure the proper performance of the functions of the Chamber.
22 Article 23(1) of that statute provides that decisions of the Presidium shall be taken by a simple majority in a public vote.
23 In accordance with Articles 26(3) and 28(3) of the Statute of the Chamber of Notaries, the Chairperson and Vice-Chairperson of that chamber are elected by the assembly thereof.
The provisional scale
24 The Minister for Justice of the Republic of Lithuania approved, by įsakymas Nr. 57 (Order No 57) of 12 September 1996 (Žin., 1996, No 87-2075), the provisional scale of notaries’ fees for the performance of notarial acts, the preparation of draft contracts, consultations and technical services (‘the provisional scale’). That scale provides, in particular, for ranges within which notaries may set their fees for the authentication of a mortgage on a property, the authentication of other securities, the authentication of an easement, a usufruct, a right to build and a contract establishing the terms of use of certain property, and the authentication of a contract for the exchange of a property.
The dispute in the proceedings and the questions referred for a preliminary ruling
25 By Decision No 2S-2(2018) of 26 April 2018, the Competition Council found that the Chamber of Notaries and the notaries on the Presidium of that chamber had infringed Article 5(1)(1) of the Law on Competition and Article 101(1)(a) TFEU and imposed fines on them.
26 In that decision, the Competition Council noted that, by decisions of 30 August 2012, 23 April 2015, 26 May 2016 and 26 January 2017, the Presidium of the Chamber of Notaries had adopted rules aimed at clarifying the methods for calculating the fees payable by notaries under:
– approving mortgage transactions and affixing enforcement clauses in situations where the parties to the transaction do not indicate the value of the property subject to the mortgage and where several properties are subject to a mortgage in a single mortgage transaction;
– drafting notarial deeds, draft transactions, consultations and technical services, in situations where an easement is established by a single contract for several properties, and
– the validation of an exchange contract, in situations where parts of several goods are exchanged by contract.
27 Those decisions (‘the clarifications’) were adopted unanimously by the members of the Presidium who attended the meetings and were published on the Chamber of Notaries’ internal website.
28 The Competition Council considered that, by adopting the clarifications, the applicants in the main proceedings had in fact established a mechanism for calculating the amount of the fees charged by notaries in respect of the activities covered by those clarifications, which fixed, in all cases, the amount of those fees at the highest amount authorised by the provisional scale. According to the Competition Council, prior to the adoption of the clarifications, notaries had a margin of discretion when calculating those fees and could, in certain cases, set fees lower than those set by the clarifications.
29 The Competition Council concluded that the applicants in the main proceedings had indirectly fixed the amounts of those fees. It considered that, by adopting the clarifications, the Chamber of Notaries, acting through its management body, namely the Presidium, and its members had entered into an agreement restricting competition in breach of Article 5(1)(1) of the Law on Competition and Article 101(1)(a) TFEU. The Competition Council considered that the Chamber of Notaries constituted an association of economic operators, namely notaries, and that the clarifications should be classified as a decision of an association of undertakings, in the adoption of which the eight notaries who were members of the presidium of that chamber participated.
30 The Competition Council also characterised the clarifications as an agreement with the object of restricting competition between notaries, defined the relevant market as the market for notarial acts in Lithuania and considered that the infringement had lasted from at least 30 August 2012 until 16 November 2017. It further considered that the fact that the Minister for Justice of the Republic of Lithuania had tolerated the actions of the applicants in the main proceedings constituted a mitigating circumstance and, accordingly, reduced the fines by 5%.
31 The applicants in the main proceedings brought an action for annulment of the decision of the Competition Council referred to in paragraph 25 of the present judgment before the Vilniaus apygardos administracinis teismas (Regional Administrative Court, Vilnius, Lithuania). By judgment of 19 February 2019, that court upheld that action and partially annulled that decision.
32 The Competition Council appealed against that judgment to the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania), which is the referring court.
33 In support of its appeal, the Competition Council submits that notaries are economic operators and may compete on price, that is to say, on the amount of their fees, within the limits set in the provisional scale. The applicants in the main proceedings do not have the right to standardise notarial practice in a manner contrary to competition law and there is no gap in the national rules. According to the Competition Council, Article 101 TFEU is applicable in the main proceedings, since the decisions of the Chamber of Notaries apply throughout the territory of Lithuania, the notaries’ fees apply both to Lithuanian users and to nationals of other Member States who use the services of notaries in Lithuania, and documents may be drawn up by a notary established in Lithuania in the context of cross-border relations between economic operators.
34 The applicants in the main proceedings claim that a notary is essentially a public service operator, a public agent or representative. Notaries compete on the basis of the quality of their services and not on the basis of price. The clarifications are intended to give effect to the powers of the Chamber of Notaries to standardise notarial practice and to give advice to notaries, as provided for in Article 9(5) of the Law on the Notarial Profession and in Article 8(1)(6) and (7) of the Statute of the Chamber of Notaries. They are also intended to fill a gap in national legislation, to safeguard the interests of consumers, to guarantee the principles of equal treatment and proportionality and to protect notaries from unjustified civil liability. The Minister for Justice of the Republic of Lithuania was aware of the clarifications but did not bring an action before the courts seeking their annulment, nor did he take the initiative of amending the provisional scale. The applicants in the main proceedings also submit that the FEU Treaty is not applicable in the present case, on the ground that there is no common market in notarial services in the European Union.
35 The referring court observes that the Court has not yet ruled on whether notarial functions such as those assigned to Lithuanian notaries constitute an economic activity within the meaning of Article 101(1) TFEU and whether those notaries constitute undertakings within the meaning of that provision.
36 That court questions whether the power conferred on the Chamber of Notaries to standardise notarial practice satisfies the criterion, set out in paragraph 68 of the judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98), that ‘a Member State … is careful to [retain] its power to adopt decisions in the last resort’, or the criterion, referred to in paragraph 46 of the judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International (C‑427/16 and C‑428/16, EU:C:2017:890), according to which ‘there must be actual review and the State must have the power to adopt decisions in the last resort’.
37 The referring court points out in that regard that the Minister for Justice of the Republic of Lithuania is entitled to apply to the courts for the annulment of a possibly unlawful decision of the Chamber of Notaries and may also supplement the provisional scale in order to indicate how the remuneration of notaries for the activities covered by the clarifications is to be calculated.
38 The referring court also questions whether the clarifications are to be regarded as decisions of an association of undertakings within the meaning of Article 101(1) TFEU and whether that provision is to be interpreted as meaning that those clarifications have as their object or effect the prevention, restriction or distortion of competition within the internal market.
39 In so far as the applicants in the main proceedings submit that the clarifications pursue a number of objectives which, in their view, justify their adoption, the referring court seeks to ascertain whether, in the light of the criteria set out in paragraph 97 of the judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98), those objectives can be regarded as legitimate and, if so, whether the restrictions laid down in the clarifications go beyond what is necessary to achieve those objectives.
40 The question also arises whether Article 101 TFEU is to be interpreted as meaning that notaries who are members of the Presidium may be regarded as members of the association which has infringed Article 101 TFEU and whether fines may be imposed on them in respect of their participation in that infringement.
41 In those circumstances the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1) Is Article 101(1) TFEU to be interpreted as meaning that notaries in the Republic of Lithuania, when carrying out activity related to the [clarifications] that are described in the present case, are undertakings within the meaning of [that provision]?
(2) Is Article 101(1) TFEU to be interpreted as meaning that the [clarifications] constitute a decision of an association within the meaning of Article 101(1) TFEU?
(3) If the answer to the second question is in the affirmative, do those clarifications have as their object or effect the prevention, restriction or distortion of competition in the internal market for the purposes of Article 101(1) TFEU?
(4) When ruling on a possible infringement of Article 101(1) TFEU, are those [clarifications] to be assessed in accordance with the criteria set out in paragraph 97 of the judgment [of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98)]?
(5) If the answer to the fourth question is in the affirmative, do the objectives referred to by the [applicants in the main proceedings], that is to say, making notarial practice uniform, filling a regulatory gap, protecting the interests of consumers, safeguarding the principles of equal treatment of consumers and proportionality, and protecting notaries against unjustified civil liability, constitute legitimate objectives when assessing those clarifications in accordance with the criteria set out in paragraph 97 of the judgment [of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98)]?
(6) If the answer to the fifth question is in the affirmative, are the restrictions imposed in those clarifications to be regarded as not going beyond what is necessary in order to ensure that legitimate objectives are attained?
(7) Is Article 101 TFEU to be interpreted as meaning that notaries who were members of the presidium may be regarded as having infringed that article and may be fined on the ground that they participated in the adoption of the [clarifications] while working as notaries?’
The admissibility of the reference for a preliminary ruling
42 The applicants in the main proceedings submit that the reference for a preliminary ruling is inadmissible on the ground that Article 101 TFEU, the interpretation of which is sought by that reference, is not applicable to the main proceedings and that, consequently, the questions referred concern only the application of Lithuanian law to a purely internal situation.
43 In that regard, it must be noted that the issue of the applicability of Article 101 TFEU to the main proceedings relates to the substance of the questions referred for a preliminary ruling and not to the admissibility of those questions, with the result that the arguments of the applicants in the main proceedings referred to in the preceding paragraph should be examined in the context of the examination of the substance of those questions (see, to that effect, judgment of 13 July 2006, Manfredi and Others, C‑295/04 to C‑298/04, EU:C:2006:461, paragraph 30).
44 The reference for a preliminary ruling is therefore admissible.
The questions referred for a preliminary ruling
The first question
45 By its first question, the referring court asks, in essence, whether Article 101 TFEU is to be interpreted as meaning that notaries established in a Member State are to be regarded as ‘undertakings’, within the meaning of that provision, where they carry out, in certain situations, the activities of approving mortgage transactions, the affixing of enforcement clauses, the execution of notarial acts, the preparation of draft transactions, advice, the provision of technical services and the validation of exchange contracts.
46 Under Article 101(1) TFEU, all agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market are incompatible with the internal market and prohibited.
47 As a preliminary point, it should be observed that the applicants in the main proceedings and the Lithuanian Government submit that that provision is not applicable to the main proceedings, since the clarifications are not capable of affecting trade between Member States within the meaning of that provision. Because of the nature of notarial acts and the national rules of each Member State, notaries could not draw up notarial acts on the territory of Member States other than that in which they are established. There would therefore be no common market in notarial services that could be affected by the clarifications.
48 In that regard, it is settled case-law that, in order to be capable of affecting trade between Member States, a decision, agreement or practice must, on the basis of a set of objective factors of law or of fact, make it possible to envisage with a sufficient degree of probability that it has an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as to give rise to a risk that it might impede the completion of a single market between Member States. Moreover, that influence must not be insignificant (judgments of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 65 and the case-law cited, and of 29 June 2023, Super Bock Bebidas, C‑211/22, EU:C:2023:529, paragraph 62 and the case-law cited).
49 Thus, an effect on trade between Member States generally results from a combination of several factors which, taken on their own, would not necessarily be decisive. In order to ascertain whether a cartel appreciably affects trade between Member States, it must be examined in its economic and legal context (judgment of 24 September 2009, Erste Group Bank and Others v Commission, C‑125/07 P, C‑133/07 P, C‑135/07 P and C‑137/07 P, EU:C:2009:576, paragraph 37 and the case-law cited).
50 According to settled case-law, a cartel which extends to the entire territory of a Member State has, by its very nature, the effect of consolidating national divisions, thereby hindering the economic interpenetration sought by the FEU Treaty (judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 95 and the case-law cited, and of 16 July 2015, ING Pensii, C‑172/14, EU:C:2015:484, paragraph 49 and the case-law cited).
51 Moreover, the concept of ‘trade between Member States’, within the meaning of Article 101(1) TFEU, is not limited to cross-border trade in goods and services, but has a broader scope which covers any cross-border economic activity, including establishment (see, to that effect, judgment of 25 October 2001, Ambulanz Glöckner, C‑475/99, EU:C:2001:577, paragraph 49).
52 In the present case, it is common ground that the scope of the clarifications extends to the entire territory of the Republic of Lithuania, in so far as they are, as decisions of the Chamber of Notaries, binding on all notaries established in that Member State, by virtue of Article 13 of the Law on the Notarial Profession and Article 10(4) of the Statute of the Chamber of Notaries.
53 Even if a notary could not, in principle, provide services in a Member State other than that in which he or she is established, the fact remains that, first, the profession of notary is, in principle, subject to freedom of establishment (see, to that effect, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraph 48). Rules such as the clarifications, which relate to a fundamental aspect of the pursuit of that profession in the Member State concerned are, in principle, likely to have an appreciable influence on the choice of nationals of other Member States to establish themselves in that first Member State in order to pursue that profession. Second, as the Advocate General pointed out in point 52 of his Opinion, nationals of Member States other than the Republic of Lithuania may avail themselves of the services of notaries established in the latter Member State.
54 In those circumstances, the clarifications, in so far as they would have to be classified as agreements between undertakings or decisions by associations of undertakings within the meaning of Article 101(1) TFEU, would be capable of affecting trade between Member States within the meaning of that provision.
55 That being so, it should be recalled that, according to settled case-law, in the context of competition law, the concept of ‘undertaking’ referred to in that provision includes any entity engaged in an economic activity, regardless of the legal status of that entity and the way in which it is financed (judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 46 and the case-law cited, and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 35).
56 It is also settled case-law that any activity consisting in offering goods or services on a given market constitutes an economic activity (judgments of 19 February 2002, Wouters and Others, C‑309/99 EU:C:2002:98, paragraph 47 and the case-law cited, and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, 28 February 2013, paragraph 36).
57 With regard to notaries, the Court has already held that, in so far as they pursue a liberal profession which involves, as their principal activity, the provision of several separate services for remuneration, they are, in principle, pursuing an economic activity (see, to that effect, judgments of 26 March 1987, Commission v Netherlands, 235/85, EU:C:1987:161, paragraph 9, and of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraphs 98 to 101).
58 Moreover, the complex and technical nature of the services provided and the fact that the exercise of the profession is regulated are not capable of calling into question that assessment (see, by analogy, judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 49 and the case-law cited, and of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraph 38).
59 In the main proceedings, it is apparent from the information provided by the referring court that notaries established in Lithuania carry out their activities in the context of a liberal profession and not as public officials. Article 19 of the Law on the Notarial Profession provides that notaries charge fees for the performance of notarial acts, the preparation of draft transactions, consultations and technical services. For its part, Article 12 of that law states that notaries exercise their powers notwithstanding the influence of public and budgetary authorities, and obey only the laws. Finally, under the terms of Article 21 of that law, the notary exercises his or her functions autonomously and is economically independent.
60 However, the applicants in the main proceedings and the Lithuanian Government maintain, in essence, that Lithuanian notaries do not carry out an economic activity, since they participate in the performance of public functions.
61 In that regard, it is settled case-law that activities which are connected with the exercise of prerogatives of a public authority do not have an economic character justifying the application of the competition rules laid down in the FEU Treaty (judgments of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraph 36 and the case-law cited, and of 6 May 2021, Analisi G. Caracciolo, C‑142/20, EU:C:2021:368, paragraph 56).
62 That being so, the fact that an entity has, for the pursuit of part of its activities, prerogatives of a public authority does not, of itself, prevent it from being classified as an undertaking, within the meaning of competition law, in respect of its activities which are economic in nature, provided that those activities can be dissociated from the exercise of prerogatives of a public authority (see, to that effect, judgments of 12 July 2012, Compass-Datenbank, C‑138/11, EU:C:2012:449, paragraphs 37 and 38 and the case-law cited, and of 24 March 2022, GVN v Commission, C‑666/20 P, EU:C:2022:225, paragraph 71).
63 In the present case, subject to verification by the referring court, the notarial activities referred to in the clarifications, which consist in the approval of mortgage transactions, the affixing of enforceable clauses, the execution of notarial deeds, the preparation of draft transactions, consultations, the provision of technical services and the validation of exchange contracts, in certain situations, do not appear to be connected with the exercise of prerogatives of a public authority.
64 In that regard, the Court has already held, in essence, that the notarial activity of authenticating documents which express unilateral commitments or agreements freely entered into by the parties does not directly and specifically form part of the exercise of official authority (see, to that effect, judgment of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraphs 119 and 120 and the case-law cited); the creation of mortgages (judgment of 24 May 2011, Commission v France, C‑50/08, EU:C:2011:335, paragraph 97); the mere affixing of the executory formula (see, to that effect, judgment of 1 February 2017, Commission v Hungary, C‑392/15, EU:C:2017:73, paragraphs 125 to 127); as well as the preparation of draft transactions, consultations and the provision by notaries of technical services (see, to that effect, judgment of 1 December 2011, Commission v Netherlands, C‑157/09, EU:C:2011:794, paragraph 72 and the case-law cited).
65 Furthermore, it does not appear from the information provided to the Court that the notarial activities covered by the clarifications are inextricably linked to other activities which involve the exercise of prerogatives of a public authority.
66 Moreover, as is apparent from the documents before the Court, notaries established in Lithuania carry out, within the limits of their respective territorial jurisdictions, a large part of their activities in conditions of competition, since the first paragraph of Article 28 of the Law on the Notarial Profession provides in that regard that notarial acts may be drawn up with any notary, except in matters of succession. That circumstance cannot characterise the exercise of official authority (see, to that effect, judgment of 10 September 2015, Commission v Latvia, C‑151/14, EU:C:2015:577, paragraph 74).
67 It follows that notaries established in the territory of a Member State must be regarded as ‘undertakings’, within the meaning of Article 101 TFEU, where they carry out activities such as those referred to in the clarifications.
68 In the light of the foregoing considerations, the answer to the first question is that Article 101 TFEU must be interpreted as meaning that notaries established in a Member State are to be regarded as ‘undertakings’, within the meaning of that provision, where they carry out, in certain situations, the activities of approving mortgage transactions, the affixing of enforcement clauses, the execution of notarial acts, the preparation of draft transactions, advice, the provision of technical services and the validation of exchange contracts, in so far as those activities are not connected with the exercise of public authority prerogatives.
The second question
69 By its second question, the referring court asks, in essence, whether Article 101(1) TFEU is to be interpreted as meaning that rules standardising the way in which notaries in a Member State calculate the fees charged for carrying out certain of their activities, adopted by a professional organisation such as the Chamber of Notaries, are to be regarded as decisions of an association of undertakings within the meaning of that provision.
70 In that regard, it must be ascertained, first, whether, when it adopts rules such as those at issue in the main proceedings, a professional organisation is to be regarded as an association of undertakings or, on the contrary, as a public authority by virtue of the fact that its activity is connected with the exercise of prerogatives of a public authority (see, to that effect, judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraphs 56 and 57, and of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 42).
71 The Court has held that a professional organisation which, while having regulatory powers, does not exercise typical prerogatives of public authority but acts as the regulatory body of a profession the exercise of which otherwise constitutes an economic activity cannot escape the application of the competition rules (see, to that effect, judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraphs 58 and 59, and of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 44).
72 In addition, it is clear from the Court’s case-law that other factors, relating in particular to the composition of the governing bodies of the professional organisation in question, its method of operation, its relations with the public authorities and the framework of its regulatory or decision-making powers, are relevant for the purposes of determining whether such an organisation must be regarded as an association of undertakings within the meaning of Article 101 TFEU or as a public authority.
73 Thus, the Court has classified professional organisations as ‘associations of undertakings’ in the light, in particular, of the fact that the governing bodies of those organisations were composed exclusively of members of the profession elected by their peers, without the national authorities being able to intervene in that appointment (see, to that effect, judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 61, and of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 43).
74 The Court also took account of the fact that the State did not intervene decisively in the decision-making of those bodies (see, to that effect, judgment of 4 September 2014, API and Others, C‑184/13 to C‑187/13, C‑194/13, C‑195/13 and C‑208/13, EU:C:2014:2147, paragraphs 33 and 41).
75 Similarly, the Court has taken into consideration the fact that the regulatory or decision-making power vested in the organisation or entity concerned was not accompanied by conditions or criteria of general public interest which that organisation or entity was required to observe when adopting its acts and that that organisation or entity was not acting under the effective control and ultimate decision-making power of the State (see, to that effect, judgments of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraphs 62 and 68; of 28 February 2013, Ordem dos Técnicos Oficiais de Contas, C‑1/12, EU:C:2013:127, paragraphs 49, 54 and 55; and of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International, C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 49).
76 In the main proceedings, it is apparent from the information provided by the referring court that, in accordance with Article 8 of the Law on the Notarial Profession, all notaries in Lithuania are members of the Chamber of Notaries. The main tasks of that chamber, provided for in Article 9 of that law, include, in particular, the coordination of notaries’ activities, the improvement of their qualifications, the protection and representation of their interests before the public and administrative authorities, the standardisation of notarial practice and the supervision of the manner in which notaries perform their duties and comply with the requirements of professional ethics.
77 Furthermore, in accordance with Articles 18 and 19 of the Statute of the Chamber of Notaries, the Presidium, which is the collegiate management body of that chamber – is made up of eight members, appointed by the assembly of that chamber from among the candidates elected by the Assemblies of Notaries, and the decisions of that body are taken, in accordance with Article 23 of that statute, by a simple majority in a public vote.
78 Finally, if the Minister for Justice of the Republic of Lithuania considers that the decisions of the Chamber of Notaries do not comply with the legislation of the Republic of Lithuania, he or she may, on the basis of Article 11 of the Law on the Notarial Profession, apply to the Vilniaus apygardos teismas (Regional Court, Vilnius) for their annulment.
79 It thus follows from the information provided by the referring court that the Chamber of Notaries has the characteristics of an organisation for regulating the profession of notary in Lithuania and that its governing body, namely, the Presidium, is composed exclusively of members of that profession who are elected only by their peers, the Lithuanian State not appearing to intervene in the appointment of those members or in the adoption of the Presidium’s decisions.
80 Furthermore, the referring court did not refer to any provision defining with sufficient precision conditions or criteria which would ensure that the Chamber of Notaries and its Presidium actually operate with due regard to the general public interest when exercising their decision-making powers.
81 Moreover, the mere fact that the Lithuanian courts may review the legality of decisions of the Chamber of Notaries does not mean that the latter operates under the effective control of the State (see, by analogy, judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International, C‑427/16 and C‑428/16, EU:C:2017:890, paragraphs 48 and 49).
82 In those circumstances, a professional organisation such as the Chamber of Notaries must be regarded as an association of undertakings within the meaning of Article 101(1) TFEU and not as a public authority.
83 With regard, in the second place, to the question whether the clarifications constitute a decision of an association of undertakings within the meaning of Article 101 TFEU, it is apparent from the documents before the Court that those clarifications, which are intended to standardise the way in which notaries calculate the fees charged for the performance of certain of their activities, are, as pointed out in paragraph 52 of this judgment, mandatory for notaries by virtue of Article 13 of the Law on the Notarial Profession and Article 10(4) of the Statute of the Chamber of Notaries.
84 It is clear from the Court’s case-law that decisions of associations of undertakings, within the meaning of Article 101 TFEU, are decisions which reflect the intention of representatives of the members of a trade or profession that they should adopt a particular course of conduct in the course of their economic activity (see, to that effect, judgment of 19 February 2002, Wouters and Others, C‑309/99, EU:C:2002:98, paragraph 64).
85 Moreover, since it has been held that a price recommendation, whatever its exact legal status, may be regarded as constituting a decision for the purposes of Article 101 TFEU (judgment of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 46 and the case-law cited), the fixing of the price by means of a binding act must be regarded a fortiori as constituting such a decision (see, to that effect, judgment of 18 July 2013, Consiglio Nazionale dei Geologi, C‑136/12, EU:C:2013:489, paragraph 47).
86 It follows that rules such as the clarifications must be regarded as decisions of an association of undertakings within the meaning of Article 101(1) TFEU.
87 In the light of the foregoing considerations, the answer to the second question is that Article 101(1) TFEU must be interpreted as meaning that rules standardising the way in which notaries in a Member State calculate the fees charged for carrying out certain of their activities, adopted by a professional organisation such as the Chamber of Notaries of that Member State, constitute decisions of an association of undertakings within the meaning of that provision.
The third to sixth questions
88 By its third to sixth questions, which should be considered together, the referring court seeks to ascertain, in essence, whether Article 101(1) TFEU must be interpreted as meaning that decisions of an association of undertakings standardising the way in which notaries calculate the fees charged for carrying out certain of their activities constitute restrictions of competition prohibited by that article.
89 As a preliminary point, it is important to emphasise that, in the context of the procedure under Article 267 TFEU, which is based on a clear separation of functions between the national courts and the Court, the Court’s role is limited to interpreting the provisions of EU law on which it is asked, in this case Article 101(1) TFEU. Accordingly, it is for the referring court, rather than the Court, to make the final assessment as to whether, having regard to all the relevant factors characterising the situation in the main proceedings and the economic and legal context in which it arises, the agreement at issue has as its object and/or effect the restriction of competition (see, to that effect, judgment of 18 November 2021, Visma Enterprise, C‑306/20, EU:C:2021:935, paragraph 51 and the case-law cited).
90 However, the Court, ruling on a reference for a preliminary ruling, may, on the basis of the material in the case file before it, provide clarifications intended to guide the referring court in its interpretation so that the latter may decide the dispute (judgment of 18 November 2021, Visma Enterprise, C‑306/20, EU:C:2021:935, paragraph 52).
91 It should be borne in mind at the outset that, in order to fall within the prohibition laid down in Article 101(1) TFEU, a decision by an association of undertakings must have ‘the object or effect’ of preventing, restricting or appreciably distorting competition within the internal market (see, to that effect, judgment of 18 November 2021, Visma Enterprise, C‑306/20, EU:C:2021:935, paragraph 54 and the case-law cited).
92 According to the Court’s settled case-law, since the judgment of 30 June 1966, LTM (56/65, EU:C:1966:38), the alternative nature of that condition, marked by the conjunction ‘or’, leads first of all to the need to consider the very subject matter of the decision of an association of undertakings (see, to that effect, judgment of 18 November 2021, Visma Enterprise, C‑306/20, EU:C:2021:935, paragraph 55 and the case-law cited).
93 It is clear from the Court’s case-law that certain types of coordination between undertakings are sufficiently harmful to competition to be classified as a ‘restriction by object’, so that it is not necessary to examine their effects. That case-law is based on the fact that certain forms of coordination between undertakings may be regarded, by their very nature, as harmful to the proper functioning of competition (judgment of 18 November 2021, Visma Enterprise, C‑306/20, EU:C:2021:935, paragraph 57 and the case-law cited).
94 Thus, it is settled that certain collusive conduct, such as that leading to horizontal price-fixing, may be regarded as so likely to have adverse effects on, in particular, the price, quantity or quality of products and services that it may be regarded as unnecessary, for the purposes of applying Article 101(1) TFEU, to demonstrate that it has concrete effects on the market. Experience shows that such conduct leads to reductions in output and increases in prices, resulting in a misallocation of resources to the detriment, in particular, of consumers (judgment of 2 April 2020, Budapest Bank and Others, C‑228/18, EU:C:2020:265, paragraph 36 and the case-law cited).
95 In the present case, it is apparent from the information available to the Court that the clarifications establish a mechanism for calculating the amount of notaries’ fees which requires notaries, in respect of the activities covered by those clarifications, to use the highest price in the price range provided for in the provisional scale drawn up by the Minister for Justice of the Republic of Lithuania. Subject to verification by the referring court, it must therefore be held that those clarifications lead precisely to the horizontal fixing of the prices of the services concerned.
96 In those circumstances, decisions such as the clarifications must be regarded as constituting a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU.
97 Admittedly, it is apparent from the Court’s settled case-law that any agreement between undertakings or any decision by an association of undertakings which limits the freedom of action of the undertakings party to that agreement or subject to compliance with that decision does not necessarily fall within the prohibition laid down in Article 101(1) TFEU. An examination of the economic and legal context in which some of those agreements and decisions are made may lead to the conclusion, first, that they are justified by the pursuit of one or more legitimate objectives in the general interest which are not, in themselves, anticompetitive in nature and, second, that the specific means used to achieve those objectives are not, in themselves, anticompetitive, that the specific means used to pursue those objectives are genuinely necessary for that purpose and, third, that even if those means are found to have the inherent effect of restricting or distorting, at least potentially, competition, that inherent effect does not go beyond what is necessary, in particular by eliminating all competition. That case-law may apply, in particular, to agreements or decisions taking the form of rules adopted by an association such as a professional association or a sports association, with a view to pursuing certain ethical or deontological objectives and, more generally, to regulating the exercise of a professional activity, if the association concerned demonstrates that the conditions for the exercise of the activity in question are fulfilled (judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 113 and the case-law cited).
98 That case-law cannot, however, be applied in the case of conduct which, far from being limited to having the inherent ‘effect’ of restricting, or at least potentially restricting, competition by limiting the freedom of action of certain undertakings, is so harmful to that competition as to justify the view that its very ‘object’ is to prevent, restrict or distort it. Accordingly, it is only if it transpires, following an examination of the conduct at issue in a given case, that that conduct does not have as its object to prevent, restrict or distort competition, that it must then be determined whether that conduct may fall within the scope of that case-law (judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 115 and the case-law cited).
99 As regards conduct which has the object of preventing, restricting or distorting competition, it is therefore only pursuant to Article 101(3) TFEU and provided that all the conditions laid down by that provision are satisfied that it may be granted the benefit of an exemption from the prohibition laid down in Article 101(1) TFEU (judgment of 21 December 2023, Royal Antwerp Football Club, C‑680/21, EU:C:2023:1010, paragraph 116 and the case-law cited).
100 In that regard, the Court has already held that the applicability of the exemption provided for in Article 101(3) TFEU is subject to the fulfilment of four cumulative conditions set out in that provision. Those conditions are, first, that the agreement concerned contributes to improving the production or distribution of the products or services in question, or to promoting technical or economic progress; second, that a fair share of the resulting benefit is reserved for users; third, that it does not impose any unnecessary restrictions on the participating undertakings; and, fourth, that it does not afford them the possibility of eliminating competition in respect of a substantial part of the products or services in question (judgment of 23 January 2018, F. Hoffmann-La Roche and Others, C‑179/16, EU:C:2018:25, paragraph 97).
101 In the present case, the applicants in the main proceedings and the Lithuanian Government submit, in essence, that the clarifications pursue legitimate objectives within the meaning of the case-law cited in paragraph 97 of this judgment. They seek to safeguard the principles of equal treatment and proportionality and to protect notaries from unjustified civil liability by standardising notarial practice and filling a regulatory vacuum. In addition, the clarifications would aim to protect the interests of users of notarial services, since charging fees at the highest amount allowed under the provisional scale for establishing security interests in property of unknown value would help to dissuade people from pledging property whose value has not been established.
102 However, since decisions such as the clarifications must, as is clear from paragraph 96 of this judgment, be regarded as constituting a restriction of competition ‘by object’ within the meaning of Article 101(1) TFEU, they cannot, in any event, be justified by the objectives referred to in the preceding paragraph of this judgment.
103 Furthermore, it is not apparent from the documents before the Court that the applicants in the main proceedings relied on the benefit of the exemption provided for in Article 101(3) TFEU.
104 In those circumstances, decisions such as the clarifications must be regarded as constituting a restriction of competition ‘by object’ prohibited by Article 101(1) TFEU.
105 In the light of the foregoing considerations, the answer to the third to sixth questions is that Article 101(1) TFEU must be interpreted as meaning that decisions of an association of undertakings standardising the way in which notaries calculate the fees charged for carrying out certain of their activities constitute restrictions of competition ‘by object’ prohibited by that provision.
The seventh question
106 By its seventh question, the referring court asks, in essence, whether Article 101 TFEU must be interpreted as precluding a national competition authority from imposing a fine for an infringement of that provision on the association of undertakings to which the infringing decision is attributable, and individual fines, for the same infringement, on the undertakings which are members of the governing body of that association which adopted that decision.
107 As a preliminary point, it should be noted that Article 5 of Regulation No 1/2003 provides that the national competition authority competent to apply Articles 101 and 102 TFEU may impose fines, periodic penalty payments or any other sanction provided for by its national law.
108 According to the Court’s case-law, where the existence of an infringement of Article 101 TFEU is established, the national competition authorities must, in principle, impose a fine on the infringer. With a view to ensuring the effective application of that provision in the general interest, it is important that those authorities should only exceptionally refrain from imposing a fine where an undertaking has infringed that provision intentionally or negligently (see, to that effect, judgments of 18 June 2018, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraph 46 and the case-law cited, and of 22 March 2022, Nordzucker and Others, C‑151/20, EU:C:2022:203, paragraph 64).
109 In that regard, it should be noted, in the first place, that the effectiveness of the EU competition rules, in particular Article 101(1) TFEU, implies, inter alia, the need to ensure the deterrent effect of penalties imposed for infringements of those rules (see, to that effect, the judgments of 18 December 2008, Coop de France bétail et viande and Others v Commission, C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraph 98, and of 19 March 2009, Archer Daniels Midland v Commission, C‑510/06 P, EU:C:2009:166, paragraph 149).
110 The purpose of fines imposed for infringements of Article 101 TFEU is to punish the unlawful acts of the undertakings concerned and to deter both the undertakings in question and other economic operators from infringing the rules of EU competition law in the future (see, to that effect, judgments of 17 June 2010, Lafarge v Commission, C‑413/08 P, EU:C:2010:346, paragraph 102; of 26 September 2013, Alliance One International v Commission, C‑668/11 P, EU:C:2013:614, paragraph 62; and of 4 September 2014, YKK and Others v Commission, C‑408/12 P, EU:C:2014:2153, paragraph 84). Thus, the search for deterrent effect does not concern only the undertakings specifically targeted by the decision imposing fines, since it is also important to encourage undertakings of a similar size and with similar resources to refrain from participating in similar infringements of the competition rules (judgment of 5 December 2013, Caffaro v Commission, C‑447/11 P, EU:C:2013:797, paragraph 37).
111 It should be noted, in the second place, that national competition authorities must also ensure that the fines they impose for infringement of the EU competition rules are proportionate to the nature of the infringement (see, to that effect, judgment of 3 April 2019, Powszechny Zakład Ubezpieczeń na Życie, C‑617/17, EU:C:2019:283, paragraph 38).
112 It follows from the foregoing considerations that, where the existence of an infringement of Article 101 TFEU is established, the national competition authorities must, in principle, impose on the offender a fine which is sufficiently dissuasive and proportionate.
113 As regards the determination of the entity which is to be regarded as the perpetrator of an infringement of the prohibition laid down in Article 101 TFEU, it is apparent from the wording of paragraph 1 thereof that the authors of the Treaties chose to use the concept of ‘undertaking’ and that of ‘association of undertakings’ to designate the perpetrator of an infringement of the prohibition laid down in that provision (see, to that effect, judgment of 14 March 2019, Skanska Industrial Solutions and Others, C‑724/17, EU:C:2019:204, paragraph 29 and the case-law cited).
114 Where an entity infringes the competition rules, it must, in accordance with the principle of personal liability, answer for that infringement (see, to that effect, judgments of 11 December 2007, ETI and Others, C‑280/06, EU:C:2007:775, paragraph 39 and the case-law cited, and of 12 May 2022, Servizio Elettrico Nazionale and Others, C‑377/20, EU:C:2022:379, paragraph 106).
115 Since Article 101(1) TFEU prohibits, inter alia, ‘decisions by associations of undertakings’ which may affect trade between Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market, it must be held that an association of undertakings, such as the Chamber of Notaries, may constitute, as such, the perpetrator of an infringement of that provision.
116 In the main proceedings, it is apparent from the order for reference that the infringement of Article 101(1) TFEU found by the Competition Council consisted in the adoption of the clarifications, which constitute decisions of the Presidium of the Chamber of Notaries. It is apparent from the information available to the Court, in particular from the clarifications provided by the applicants in the main proceedings and by the Lithuanian Government in response to questions put by the Court at the hearing, that the decisions of the Presidium, which, in accordance with Article 18(1) of the Statute of the Chamber of Notaries, constitutes that chamber’s governing body, are binding on that chamber, with the result that those decisions must be regarded as decisions of the Chamber of Notaries itself.
117 In addition, the applicants in the main proceedings and the Lithuanian Government made it clear at the hearing that neither the Presidium nor its individual members could be held responsible for those decisions, which were attributable to the Chamber of Notaries alone.
118 It follows that, subject to verification by the referring court, the Chamber of Notaries must be regarded as the perpetrator of the infringement found by the Competition Council in the main proceedings.
119 As regards the notaries who make up the Presidium of the Chamber of Notaries, in adopting the clarifications they appear to have acted solely in their capacity as members of that Presidium. In particular, it does not appear from the file before the Court that those notaries participated in any other way in the infringement thus established.
120 Moreover, at the hearing, the Competition Council stated, in essence, that it had imposed individual fines on the notaries who were members of the Presidium of the Chamber of Notaries, not because they were joint perpetrators of the infringement but precisely because of their status as members of that Presidium at the dates on which the clarifications were adopted. The Competition Council explained in that regard that those fines had been imposed in order to ensure the dissuasive effect of the penalties imposed for the said infringement, given that the Lithuanian law applicable at the time of the facts in the main proceedings did not allow the imposition on the Chamber of Notaries alone of a fine of a sufficiently high amount to produce that dissuasive effect, since it did not provide for the possibility of taking account of the turnover of the members of that chamber for the purposes of calculating the fine.
121 However, the principle of personal liability, which requires that only the entity which is the perpetrator of an infringement of the competition rules should be penalised, precludes such an approach, since the notaries who were members of the Presidium of the Chamber of Notaries at the time when the clarifications were adopted cannot be regarded as co-perpetrators of the infringement found by the Competition Council in the main proceedings.
122 That notwithstanding, it does not follow that the Competition Council was deprived of the possibility of imposing a dissuasive penalty on the Chamber of Notaries in respect of that infringement, or that those notaries should necessarily be exonerated from all liability in relation to the same infringement.
123 According to settled case-law, where the internal rules of an association of undertakings allow it to bind its members, the fine to be imposed on that association must, in order to determine a penalty which is dissuasive, be calculated by reference to the turnover achieved by all the undertakings which are members of that association, even if those undertakings did not actually participate in the infringement (see, to that effect, judgment of 16 November 2000, Finnboard v Commission, C‑298/98 P, EU:C:2000:634, paragraph 66; order of the President of the Court of 23 March 2001, FEG v Commission, C‑7/01 P(R), EU:C:2001:183, paragraph 11; and judgment of 18 December 2008, Coop de France bétail et viande and Others v Commission, C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraph 93).
124 Furthermore, it is also possible to take into account the turnover achieved by the undertakings which are members of the association, in particular, in cases where the infringement committed by that association relates to the activities of its members and where the anticompetitive practices at issue are carried out by the association directly for the benefit of those members and in cooperation with them, the association not having any objective interest independent of the objective interests of its members (see, to that effect, judgment of 18 December 2008, Coop de France bétail et viande and Others v Commission, C‑101/07 P and C‑110/07 P, EU:C:2008:741, paragraph 97).
125 That case-law is codified, in essence, in the third subparagraph of Article 23(2) of Regulation No 1/2003, which provides that, where an association’s infringement relates to the activities of its members, the fine may not exceed 10% of the sum of the total turnover achieved by each member active on the market affected by the association’s infringement.
126 Moreover, Article 23(4) of that regulation provides that, where a fine is imposed on an association of undertakings on the basis of the turnover of its members and the association is not solvent, the association is required to make a call for contributions from its members to cover the amount of the fine and that the Commission may, under certain conditions, demand payment of the fine directly from any undertaking whose representatives were members of the relevant decision-making bodies of the association, and subsequently from any member of the association which was active on the market on which the infringement was committed.
127 Admittedly, Article 23 of Regulation No 1/2003 refers expressly only to the powers of the Commission. However, it is clear from the Court’s case-law that that article is relevant to the determination of the powers of national competition authorities to impose fines (see, to that effect, judgment of 18 June 2013, Schenker & Co. and Others, C‑681/11, EU:C:2013:404, paragraphs 48 to 50).
128 Accordingly, the fact that the Lithuanian law applicable at the time of the facts in the main proceedings did not provide for the possibility of taking into account the turnover of the members of the Chamber of Notaries for the purposes of calculating the fine which the Competition Council was to impose on that chamber for the infringement of Article 101 TFEU which it found did not prevent that national competition authority from taking that turnover into account, provided that the conditions set out in paragraphs 123 to 125 of the present judgment were satisfied.
129 In the light of the foregoing considerations, the answer to the seventh question is that Article 101 TFEU must be interpreted as precluding a national competition authority from imposing, in respect of an infringement of that provision committed by an association of undertakings, individual fines on undertakings which are members of the governing body of that association where those undertakings are not joint perpetrators of that infringement.
Costs
130 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (First Chamber) hereby rules:
1. Article 101 TFEU
must be interpreted as meaning that notaries established in a Member State are to be regarded as ‘undertakings’, within the meaning of that provision, where they carry out, in certain situations, the activities of approving mortgage transactions, the affixing of enforcement clauses, the execution of notarial acts, the preparation of draft transactions, advice, the provision of technical services and the validation of exchange contracts, in so far as those activities are not connected with the exercise of public authority prerogatives.
2. Article 101(1) TFEU
must be interpreted as meaning that rules standardising the way in which notaries in a Member State calculate the fees charged for carrying out certain of their activities, adopted by a professional organisation such as the Chamber of Notaries of that Member State, constitute decisions of an association of undertakings within the meaning of that provision.
3. Article 101(1) TFEU
must be interpreted as meaning that decisions of an association of undertakings standardising the way in which notaries calculate the fees charged for carrying out certain of their activities constitute restrictions of competition ‘by object’ prohibited by that provision.
4. Article 101 TFEU
must be interpreted as precluding a national competition authority from imposing, in respect of an infringement of that provision committed by an association of undertakings, individual fines on undertakings which are members of the governing body of that association where those undertakings are not joint perpetrators of that infringement.
[Signatures]