Provisional text
OPINION OF ADVOCATE GENERAL
MEDINA
delivered on 11 April 2024 (1)
Case C‑109/23 [Jemerak] (i)
GM,
ON
v
PR
(Request for a preliminary ruling from the Landgericht Berlin (Regional Court, Berlin, Germany))
(Reference for a preliminary ruling – Common foreign and security policy – Restrictive measures – Russia’s actions destabilising the situation in Ukraine – Council Regulation (EU) No 833/2014 – Article 5n(2) and (6) – Prohibition on the provision of legal advisory services to legal persons established in Russia – Exemption – Services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings in a Member State – Authentication and execution by a notary of a contract of sale of immovable property – Interpreter assisting the notary – Article 17(1) of the Charter)
I. Introduction
1. This request for a preliminary ruling relates to the interpretation of Regulation (EU) No 833/2014, (2) as amended by Regulation (EU) 2022/1904, (3) which concerns restrictive measures adopted by the Council of the European Union in view of Russian’s actions destabilising the situation in Ukraine.
2. The request has been made in proceedings between GM and ON, the intended purchasers of an apartment located in Berlin (Germany), on the one hand, and PR, a notary who refused to authenticate and execute the contract of sale of that apartment on the ground that the seller was a legal person established in Russia, on the other.
3. The present case requires the term ‘legal advisory services’, as laid down in Article 5n(2) of Regulation No 833/2014, to be interpreted, in particular to ascertain whether the authentication and execution of a contract of sale by a notary, in the context of a transfer of immovable property owned by a legal person established in Russia, is prohibited under that provision.
4. Should that be the case, the question then arises as to whether that authentication and execution can nonetheless be exempted under Article 5n(6) of that regulation. In essence, that article allows for the provision of legal advisory services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings.
5. Similar questions arise under the two abovementioned provisions as regards the assistance provided by an interpreter to parties that lack sufficient knowledge of the language in which the authentication procedure before a notary is carried out.
II. Legal framework
6. Recitals 1, 2, 3, 19 and 22 of Regulation 2022/1904 state:
‘(1) On 31 July 2014, the Council adopted Regulation [No 833/2014].
(2) Regulation [No 833/2014] gives effect to certain measures provided for in Council Decision 2014/512/CFSP. …
(3) In response to the Russian Federation’s further aggression against Ukraine, the organisation of illegal sham ‘referenda’ in the parts of the Donetsk, Kherson, Luhansk and Zaporizhzhia regions that are currently illegally occupied by the Russian Federation, the illegal annexation of those Ukrainian regions by the Russian Federation, as well as the mobilisation in the Russian Federation and its repeated threat to use weapons of mass destruction, on 6 October 2022 the Council adopted Decision (CFSP) 2022/1909 amending Decision 2014/512/CFSP.
…
(19) … Decision (CFSP) 2022/1909 extends the existing prohibition on the provision of certain services to the Russian Federation by banning the provision of architectural and engineering services as well as of IT consultancy services and legal advisory services … ‘Legal advisory services’ covers: the provision of legal advice to customers in non-contentious matters, including commercial transactions, involving the application or interpretation of law; participation with or on behalf of clients in commercial transactions, negotiations and other dealings with third parties; and preparation, execution and verification of legal documents. ‘Legal advisory services’ does not include any representation, advice, preparation of documents or verification of documents in the context of legal representation services, namely in matters or proceedings before administrative agencies, courts or other duly constituted official tribunals, or in arbitral or mediation proceedings.
…
(22) Regulation [No 833/2014] should therefore be amended accordingly’.
7. Article 1(12) of Regulation 2022/1904 provides:
‘Article 5n is replaced by the following:
“Article 5n
…
2. It shall be prohibited to provide, directly or indirectly … legal advisory services … to:
…
(b) legal persons, entities or bodies established in Russia.
…
6. Paragraphs 1 and 2 shall not apply to the provision of services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings in a Member State, … provided that such provision of services is consistent with the objectives of this Regulation and of Council Regulation (EU) No 269/2014 …
…”’.
III. Facts, procedure and the questions referred
8. GM and ON are German nationals who intended to acquire an apartment in Berlin. That apartment is registered in the Schöneberg Land Register, maintained by the Amtsgericht Schöneberg (Local Court, Schöneberg, Germany). Visit-Moscow Ltd., a limited liability company based in Moscow (Russia), is the owner of the apartment according to that register.
9. For the purposes of that transaction, GM, ON and Visit-Moscow requested that PR, a notary practising in Berlin, authenticate their contract of sale so far as concerns the information it contained – namely, the object of purchase, the purchase price and other contractual provisions. They also requested that he execute the contract after its authentication, which comprised registering the transfer of title of the apartment in favour of the purchasers, obtaining cancellation of the existing encumbrances burdening the property and ensuring the safe custody of the purchase monies and the payment thereof.
10. However, PR informed the parties that he provisionally refused to authenticate the contract of sale and, hence, to execute it. In his view, he could not rule out the possibility that that authentication would infringe the prohibition laid down in Article 5n(2) of Regulation No 833/2014, concerning the provision, directly or indirectly, of legal advisory services to legal persons established in Russia. PR also rejected the subsequent complaint lodged by the parties and, in accordance with the applicable rules, referred that complaint to the Landgericht Berlin (Regional Court, Berlin, Germany).
11. The Landgericht Berlin (Regional Court, Berlin), which is the referring court in the present case, considers that the proceedings before it require an answer as to whether the authentication of a contract of sale by a notary, as well as some other ancillary tasks carried out for the execution of that contract, fall within the scope of Article 5n(2) of Regulation No 833/2014, since the seller is a legal person established in Russia. Should that be the case, the referring court thinks that it would then be necessary to determine whether those tasks may be exempted from that prohibition pursuant to Article 5n(6) of that regulation.
12. In the order for reference, the referring court points out, in the first place, that several considerations militate against the application of the prohibition set out in Article 5n(2) of Regulation No 833/2014 to the tasks performed by a notary under German law. In particular, that court explains that notaries do not provide a service, but instead perform an official function. They are appointed as independent holders of a public office to authenticate legal acts and to perform other tasks in the field of the preventive administration of justice. In the exercise of their functions, notaries cannot represent any specific party, but rather must exercise an independent and impartial role as regards all parties involved.
13. In the second place, the referring court states that, even if notarial activities were to be regarded as legal advisory services under Article 5n(2) of Regulation No 833/2014, the prohibition laid down therein would not concern the authentication by a notary of a contract of sale of an immovable property. According to that court, for the purposes of transferring ownership of an apartment in Germany, the Bürgerliches Gesetzbuch (German Civil Code) requires not only the registration of the purchaser in the land register, but also the agreement of both parties to the transfer of title, which in turn has to be authenticated, as a rule, before a notary. Therefore, were the prohibition laid down in Article 5n(2) of Regulation No 833/2014 to apply to authentication by a notary of a contract of sale of immovable property, legal persons established in Russia would be legally and factually deprived of any possibility to dispose of their assets, since the involvement of a notary in the sale of immovable property cannot be dispensed with.
14. In the third place, the referring court considers that, in any event, Article 5n(6) of Regulation No 833/2014 – which excludes, from the abovementioned prohibition, the provision of services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings in a Member State – appears to be applicable to the activities performed by notaries. In that regard, the referring court notes that, under German law, registration in the land register is an essential condition for the establishment and acquisition of a right in immovable property. Maintenance of the land register constitutes a judicial procedure, in which notaries play a central role, since an application for an entry in that register is only valid if the legal transaction is proven by means of public legal instruments or publicly authenticated legal instruments. This means that, as a general rule, for an entry to be made in the land register, the involvement of a notary is necessary.
15. Lastly, the referring court points out, nevertheless, that the European Commission has published a guidance entitled ‘Frequently asked questions on provision of services concerning sanctions adopted following Russia’s military aggression against Ukraine’. (4) In that guidance, the Commission takes the view that the prohibition under Article 5n(2) of Regulation No 833/2014 covers notarial services provided to legal persons established in Russia. Even though the opinion expressed by the Commission is not binding, it creates a significant degree of uncertainty as to the correct interpretation of that provision. That uncertainty extends to the ancillary tasks normally performed by notaries for the execution of the contract of sale after its authentication and to the services to be provided by an interpreter who, according to the law, must assist a non-German-speaking party during the authentication of a contract of sale.
16. It is in those circumstances that the Landgericht Berlin (Regional Court, Berlin) stayed the proceedings and referred the following questions to the Court of Justice for a preliminary ruling:
‘(1) 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 title to an apartment (Wohnungseigentum) entered into between that person as the seller and a national of a Member State of the European Union?
(2) Does an interpreter act in contravention of the prohibition on providing, directly or indirectly, legal advisory services if, for the purposes of that authentication of the 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?
(3) Does the notary infringe the prohibition on providing, directly or indirectly, legal advisory services if he or she accepts and carries out instructions to perform notarial activities provided for by law for the purposes of execution of the contract of sale (for example, settlement of the purchase price payment via an escrow account held by the notary, requesting documents required for the cancellation of mortgages and other encumbrances burdening the object of sale, submission of the documents necessary to effect registration of the transfer of title to the body maintaining the Grundbuch (“the Land Register”))?’
17. The request for a preliminary ruling was lodged at the Court Registry on 23 February 2023. Written observations have been submitted by the German, Estonian, Netherlands, Polish and Finnish Governments, as well as by the European Commission and the parties in the main proceedings. A hearing was held on 25 January 2024, to which the Council was also invited to participate pursuant to Article 24(2) of the Statute of the Court of Justice of the European Union.
IV. Analysis
18. By its three questions, the referring court seeks clarification of the interpretation of Article 5n(2) and (6) of Regulation No 833/2014.
19. In essence, that court asks whether the scope of the prohibition laid down in Article 5n(2) of Regulation No 833/2014 covers the tasks carried out by a notary in a Member State when authenticating a contract of sale of immovable property owned by a legal person established in Russia. Should that be the case, that court next seeks to ascertain whether those tasks come under the exemption to that prohibition laid down in Article 5n(6) of that regulation (first question).
20. Moreover, the referring court asks the Court those same questions as regards the interpreter who, pursuant to national law, must assist a notary during the authentication procedure when one of the parties is not proficient in the language employed in that procedure (second question).
21. Finally, the referring court questions whether the prohibition and exemption mentioned above apply as regards the tasks that a notary might be instructed to perform by the parties for executing the contract of sale after its authentication – for instance, ensuring the safe custody of the purchase monies and the payment thereof, obtaining cancellation of the existing encumbrances burdening the property, and registering the transfer of title in the immovable property in favour of the purchasers (third question).
22. Since the first and third questions refer to the tasks to be performed by a notary, and the second question refers to those undertaken by an interpreter, I shall begin by examining the first question, then the third, and finally the second.
A. First question
23. The first question raised by the referring court requires examining whether the authentication by a notary of a contract of sale of immovable property, owned by a legal person established in Russia, falls within the scope of the prohibition laid down in Article 5n(2) of Regulation No 833/2014 and, if so, whether it is covered by the exemption to that prohibition set out in Article 5n(6) of that regulation.
1. The prohibition laid down in Article 5n(2) of Regulation No 833/2014
24. Article 5n(2) of Regulation No 833/2014 states that it is prohibited to provide, directly or indirectly, legal advisory services to legal persons, entities or bodies established in Russia. Since it is apparent from the order for reference that one of the parties requiring notarial services in the main proceedings is a legal person established in Russia, that question mainly requires interpreting the term ‘legal advisory services’ for the purposes of that provision in order to ascertain whether the notarial authentication of a contract of sale of immovable property is covered by that term.
25. According to settled case-law, it follows from the need for uniform application of EU law and from the principle of equality that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union. (5)
26. In the present case, inasmuch as the concept of ‘legal advisory services’ stems only from Regulation No 833/2014 and no reference is made to the law of the Member States for the purpose of determining its meaning and scope, that concept must be regarded as an autonomous concept of EU law, which must thus be interpreted and applied equally in all the Member States. It is consequently for the Court to give it a uniform interpretation in the legal order of the European Union.
27. Furthermore, the Court has repeatedly recalled the hermeneutical canons that must be relied on when interpreting a provision of EU law. According to settled case-law, for the purposes of doing so, it is necessary to consider not only its wording but also the context in which it occurs and the objectives pursued by the rules of which it is part. (6)
(a) Textual interpretation
28. In the first place, with respect to textual interpretation, it is important to point out that neither Article 5n(2) of Regulation No 833/2014 nor any other provision of that regulation provides a definition of the term ‘legal advisory services’.
29. An explanation of that term can be found only in recital 19 of Regulation 2022/1904, which amended Regulation No 833/2014 by, inter alia, inserting Article 5n(2).
30. According to that recital 19, the term ‘legal advisory services’ is to be understood as covering (i) the provision of legal advice to customers in non-contentious matters, including commercial transactions, involving the application or interpretation of law; (ii) the participation with or on behalf of clients in commercial transactions, negotiations and other dealings with third parties; and (iii) the preparation, execution and verification of legal documents.
31. First, as regards whether the authentication carried out by a notary constitutes the provision of legal advice to customers in non-contentious matters, I observe that it is common ground that the authentication of a document – including a contract of sale of immovable property – essentially consists in confirming that all the conditions required by law for drawing up that document are satisfied, and that the parties have legal personality and capacity to enter into legal transactions.
32. That is the understanding of the authentication procedure as it stems from the case-law of the Court (7) and, more specifically, from the referring court’s description of that procedure in the German legal system. By its authentication, the document acquires significant legal effects, namely full probative force and enforceability. (8) In the case of a contract of sale, those effects generally cover the identity and legal capacity of the parties, the parties’ declarations, the identification and features of the object of purchase, the purchase price, the parties’ consent and the date and place of the authentication. (9)
33. It also results from the case-law of the Court that a document that is submitted for authentication must be understood as being freely entered into by the parties. (10)
34. The Court has indeed held, when examining the nature of the notarial activities carried out in some Member States – including in Germany – (11) that it is the parties that decide themselves, within the limits laid down by law, the extent of their rights and obligations. Moreover, they choose freely the conditions which they wish to be subject to when they produce a document or agreement before a notary for authentication. A notary’s intervention thus presupposes – the Court declares – the prior existence of an agreement or consensus of the parties, (12) in which that notary does not participate.
35. Since notaries do not intervene in the decision-making process of the parties, the authentication procedure carried out by a notary cannot as such be regarded as legal advice. In the light of the common definition given to that term, (13) in order to be considered legal advice, the authentication of a document by a notary would require that notary to provide an opinion, from a legal standpoint, concerning what the parties should, for instance, agree when defining the contractual terms of that document or concerning the benefits and drawbacks of the transaction for those parties. However, the authentication of a document, at the conclusion of which a notary only confirms the lawfulness of the transaction concerned and endorses it with the authority to enforce, (14) does not entail such advice.
36. That is the case even when the notary refuses to authenticate a document or agreement which does not satisfy the conditions laid down by law. In those cases, the Court has stressed in particular that the parties remain free, following such a refusal, to remedy the unlawfulness, amend the conditions in the document or agreement, or abandon the document or agreement. (15)
37. It follows that the task performed by a notary, when authenticating a contract of sale of immovable property, is not covered by the first part of the explanation contained in recital 19 of Regulation 2022/1904.
38. A similar conclusion applies, in my view, to the second part of that explanation, which refers, as already noted, to the participation with or on behalf of clients in commercial transactions, negotiations and other dealings with third parties. When authenticating a document, it is evident that a notary does not intervene, together with the parties requesting that authentication or as their representative, in any transaction, negotiation or dealing vis-à-vis third parties.
39. Finally, as regards the third part of the explanation contained in recital 19 of Regulation 2022/1904, which refers to the preparation, execution and verification of legal documents, it is true that those are, at first reading, the tasks that a notary carries out when dealing with an authentication request. Nevertheless, I do not think that that suffices to consider that the authentication of a contract of sale by a notary is caught by the prohibition set out in Article 5n(2) of Regulation No 833/2014.
40. Indeed, it is important to note, as the Council submitted during the hearing, that, inasmuch as recital 19 of Regulation 2022/1904 provides an explanation for the term ‘legal advisory services’ within the meaning of Article 5n(2) of Regulation No 833/2014, the tasks referred to in that explanation must incorporate the essential elements of that term. Among those elements their ‘advisory’ character stands out.
41. Consequently, the tasks of preparing, executing and verifying legal documents, as they result from recital 19 of Regulation 2022/1904, must involve an element of legal advice if they are to be subsumed under the term ‘legal advisory services’ within the meaning of Article 5n(2) of Regulation No 833/2014.
42. In the present case, for reasons similar to those set out in point 35 above, I do not consider that the preparation and verification that a notary is called upon to carry out in authenticating a contract of sale of immovable property include that advisory element. That element is, in principle, also not present during the execution of an authenticated contract, which I shall examine in the context of the third question referred. (16)
43. In that regard, it is true, first, that, in the course of an authentication procedure, a notary must ascertain the intentions of the parties and, on some occasions, reproduce their statements in writing in a standardised form, which may involve the preparation and verification of a legal document. Nevertheless, as is apparent from the case-law of the Court, that is only to ensure that the authenticated document is drawn up in due and proper form, as required by law, (17) so that that document gains public trust and becomes fully reliable and enforceable. The preparation and verification of the legal document referred to in that context certainly does not entail providing advice to the parties in relation to how best to ensure that their wishes are met, in particular in contractual terms.
44. Second, even if a notary must inform the parties, during the authentication procedure, of their rights and obligations and of the effects flowing from the authentication of the document concerned – as it is required, according to the order for reference, under German law – that task does not include providing advice to promote the specific interests of one or both of the parties. It is a duty imposed by law and its aim is explanatory so that the parties have a proper understanding of the implications of that procedure. That way, notaries also guarantee that the parties to a contract make an informed decision in concluding the agreement that they have previously consented to.
45. Certainly, it cannot be excluded that a notary, in the course of an authentication procedure, provides legal advice in relation to matters that are not related to authentication, in which case that provision would become applicable. However, that is an element that, from a conceptual point of view, differs from the authentication itself and that can only be assessed by the court seised of the matter in the light of the specific circumstances of a given case.
46. In my view, therefore, the authentication by a notary of a contract of sale of immovable property does not come under the third part of the explanation contained in recital 19 of Regulation 2022/1904, so long as, in the course of an authentication procedure, that notary does not provide any legal advice in relation to matters that are unrelated to authentication.
47. It follows that, since none of the activities described in that recital correspond to the tasks performed by a notary when authenticating a contract of sale of immovable property, that authentication should not be considered to be the provision of legal advisory services within the meaning of Article 5n(2) of Regulation No 833/2014.
48. I would like to add that, in order to reach the latter conclusion, it is irrelevant whether the list of activities in recital 19 of Regulation 2022/1904 is exhaustive or not. As explained above, those activities must be advisory in nature, which is not the case of the authentication of a document according to the analysis I propose to the Court.
49. Moreover, it is also irrelevant, for that same reason, whether the authentication procedure can be considered a ‘service’, for the purposes of Article 5n(2) of Regulation No 833/2014. (18) Since that provision refers to ‘legal advisory services’ and not ‘legal services’, the prohibition set out therein is applicable only to services involving the provision of advice, which, again, is not, to my mind, the case of the authentication tasks performed by notaries.
50. In view of the foregoing considerations, a textual interpretation of Article 5n(2) of Regulation No 833/2014, read in the light of recital 19 of Regulation 2022/1904, leads me to conclude that the authentication procedure carried out by a notary is not caught by the prohibition set out in that article, unless supplementary legal advice, beyond that authentication, is provided by the notary.
(b) Contextual interpretation
51. The textual interpretation of an EU provision, which is based on its wording alone, may be reappraised after placing that provision in context and interpreting it in the light of EU law as a whole. (19)
52. In the present case, the Court must rule on whether the textual reading of Article 5n(2) of Regulation No 833/2014, as proposed in the preceding points of this Opinion, is further supported, as a matter of systematic coherence, when that provision is considered in the light of other relevant articles of regulation and other EU legislation imposing restrictive measures on legal persons established in Russia. The Court must also consider whether the proposed textual interpretation is the correct interpretation to adopt in the light of the Charter of Fundamental Rights of the European Union (‘the Charter’).
53. First of all, as regards the internal coherence of Regulation No 833/2014, I observe that Article 5aa(1) of Regulation No 833/2014 sets out, in essence, the prohibition to engage, directly or indirectly, in any transaction with legal persons which, in addition to being established in Russia, are owned or controlled by the Russian State, or present close links with that State or with the legal persons listed in Annex XIX to that regulation.
54. By contrast, neither Article 5aa(1) of Regulation No 833/2014, nor any other provision thereof, prohibits entering into a transaction with a legal person established in Russia which does not have connections with the Russian State or which does not operate in the economic sectors specifically covered by that regulation. No provision of that regulation expressly prohibits legal persons established in Russia from disposing of their immovable property assets located in the territory of the European Union.
55. As the majority of the parties argued during the hearing, it is therefore difficult to interpret, for reasons of coherence, Article 5n(2) of Regulation No 833/2014 as prohibiting the authentication procedure conducted by notaries – in the context of a transfer of property by legal persons established in Russia – while, at the same time, establishing no restriction at all on the disposal by those persons of their immovable assets.
56. In that regard, it should be borne in mind that the notarial authentication of the contract of sale constitutes, especially in the Member States that operate a system of civil-law notaries, an essential requirement for the disposal of immovable property. (20)
57. That is, in particular, the case of the German legal system, which, as is apparent from the judgment in Commission v Germany, (21) requires, so far as concerns the acquisition and transfer of ownership of immovable property, the authentication by a notary of the document confirming the transfer of property rights in order for that transfer to be entered in the land register.
58. Indeed, notarial authentication is required in those Member States in order to make an entry in the land register so as to ensure the accuracy of that entry and thereby guarantee the legal certainty of property transactions and, more generally, safeguard the sound administration of justice. (22) At the same time, the land register and its proper functioning is of crucial importance, as the enforceability of the rights of the new acquirer is dependent on entry in that register. (23)
59. From a systematic standpoint, it follows therefore that, in so far as (i) the authentication carried out by a notary is, in certain Member States, an essential requirement for transferring immovable property and (ii) that transfer is not expressly prohibited by Regulation No 833/2014 for legal persons established in Russia which are not controlled or owned by the Russian State or do not present close links with that State, that authentication should not be considered to be prohibited under Article 5n(2) of that regulation. Otherwise, an incoherent outcome would arise when applying that regulation, consisting in allowing certain types of transactions while prohibiting the only means to carry them out. (24)
60. A similar conclusion can be reached, in my view, from a broader contextual perspective, in particular if account is taken of the other EU legal instrument imposing restrictive measures on legal persons established in Russia and relevant in the current context, namely Regulation (EU) No 269/2014. (25) That regulation sets out measures for the freezing of funds in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine.
61. More specifically, Article 2(1) of that regulation states that all funds and economic resources belonging to, owned, held or controlled by any natural persons, or natural or legal persons, entities or bodies associated with them, as listed in Annex I thereto, must be frozen.
62. In the present case, as observed by the German Government, the legal person concerned by the proceedings before the referring court does not appear in the list in that annex, which means that it was not subject to any of the measures of freezing of funds provided by that regulation. Had the Council intended to prohibit that person from disposing of its funds and assets, it could have had recourse to the same type of measures put in place in respect of the legal persons or entities concerned by that list.
63. For that reason, if Article 5n(2) of Regulation No 833/2014 is interpreted as prohibiting the authentication of a contract of sale of immovable property by a notary, where that authentication constitutes an essential requirement for entry in the land register of a Member State, such an interpretation would deprive the legal person concerned of any possibility to dispose of its assets and would place it in a position similar to those listed in Annex I to Regulation No 269/2014. In my view, that interpretation does not appear to be the expression of the Council’s intention.
64. It follows that the sole interpretation which would avoid any inconsistencies between the two regulations would be that according to which the authentication of a contract of sale of immovable property concerning a legal person established in Russia is not prohibited under Article 5n(2) of Regulation No 833/2014.
65. Finally, it is important to point out that, inasmuch as an interpretation, according to which the authentication procedure amounts to a legal advisory service, would result in the impossibility for legal persons established in Russia to dispose of their immovable assets, such an interpretation would give rise, by definition, (26) to a limitation on their fundamental right to property, enshrined in Article 17(1) of the Charter. That article lays down, in its first sentence, that everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions.
66. However, Article 52(1) of the Charter provides that any limitation on the exercise of the rights and freedoms recognised by it must, first and foremost, be provided for by law. In the present case, as the Finnish Government argues, that is a requirement that would not be satisfied, as none of the provisions of Regulation No 833/2014 sets out an express prohibition on all legal persons established in Russia from disposing of their immovable property assets.
67. Consequently, an interpretation resulting in the prohibition of the notarial authentication of a contract of sale of immovable property on the basis of Article 5n(2) of Regulation No 833/2014 – and thus in the limitation of the property rights of legal persons established in Russia – is also inconsistent with Article 17(1) of the Charter, read in conjunction with Article 52(1) thereof.
68. Having regard to the foregoing considerations, the contextual interpretation of Regulation No 833/2014 does not lead to a different conclusion than that reached following the textual reading of Article 5n(2) of that regulation, as set out in point 50 of the present Opinion. It in fact supports the view that the authentication procedure carried out by a notary, in particular in relation to a contract of sale of immovable property, does not come under the prohibition laid down in that provision.
69. I should briefly add that the fact that the Commission has stated that notarial activities are covered by the concept of ‘legal advisory services’ in its Guidance on the implementation of Regulation No 833/2014 (27) is of no consequence. The Commission correctly recognises in that guidance that only the Court is competent to interpret the regulations applicable in the domain of EU restrictive measures, which means that that guidance cannot determine, in any manner, the outcome of my analysis as to the proper interpretation to be given to Article 5n(2) of Regulation No 833/2014.
(c) Teleological interpretation
70. Lastly, as regards whether the textual reading of Regulation No 833/2014 that I propose is in line with the aims of that regulation, it is important to recall that Regulation 2022/1904 – which amended Regulation No 833/2014 in order to, inter alia, insert Article 5n(2) therein – was adopted in view of the gravity of the situation in Ukraine, following the adoption of Decision (CFSP) 2022/1909. (28) That decision describes the sequence of events that motivated the Council to introduce further restrictive measures, (29) giving rise to the ‘eighth package of sanctions’. (30) As recital 8 of Decision 2022/1909 states, those new measures were essentially introduced to counter Russia’s illegal actions and further increase pressure on that country to end its war of aggression.
71. I observe, nonetheless, that, as regards the prohibition to provide legal advisory services, no concrete explanation is given in Decision 2022/1909 – nor therefore in Regulation 2022/1904 – to justify the restriction on the provision of those services to legal persons established in Russia. No explanation can be found either, by way of illustration, as regards the prohibition to provide other services covered by Article 5n(2) of Regulation No 833/2014 – that is, architectural and engineering services and IT consultancy services – and Article 5n(1) of that regulation – (31) namely, among others, accounting, auditing, bookkeeping or tax consulting services.
72. The parties agree that the prohibition concerning those business-relevant services forms part of the general objective of weakening strategically the Russian economic and industrial base, in particular the military-industrial infrastructure, in order to undermine the ability of the Russian Federation to continue financing and waging the war. By contrast, they disagree on whether that general objective also implied the aim of eliminating all forms of transactions with legal persons merely established in Russia or, alternatively, the aim of rendering economic activities in the European Union more difficult for those persons.
73. Contrary to the position taken by the Netherlands and Estonian Governments, I find it clear, for the reasons already set out above in the contextual analysis of Article 5n(2) of Regulation No 833/2014, that an absolute ban on commercial transactions with legal persons established in Russia was not intended when adopting Decision 2022/1909 and Regulation 2022/1904. That absolute ban was only envisaged as regards specific economic sectors and as regards specific legal persons presenting a close connection to the Russian State. Recital 10 of Decision 2022/1909 is explicit in that regard, as it refers to the prohibition of all transactions only in relation to ‘certain’ Russian State-owned or State-controlled legal persons, entities or bodies. (32)
74. Next, working on the assumption that the prohibition to provide business-relevant services under Article 5n(1) and (2) of Regulation No 833/2014 was introduced as a means of harming Russia’s economy, it can be inferred, first, that the Council perceived that economy as being highly dependent on the import of those services by European undertakings and firms. (33) Admittedly, notarial activities are not capable of being subject to import, which means that the authentication by a notary of a contract of sale of immovable property located in the EU territory does not affect that aim.
75. Second, it is important to point out that one of the main concerns expressed by the Council in Decision 2022/1909, in particular in recital 5 thereof, was the need to further prevent the circumvention of the sanctions adopted as regards Russian entities. (34) When read in the light of that recital, the prohibition to provide legal advisory services, which is one of the main normative novelties introduced by Decision 2022/1909, should also be understood as a way to prevent providers of legal services from helping Russian entities by giving advice to avoid the effects of EU sanctions. Yet, in the case of the notarial authentication of a contract of sale, I find it clear that, in so far as commercial transactions with legal persons merely established in Russia are not banned by Regulation No 833/2014, that prohibition does not impair – or help to circumvent – the effects of the restrictive measures adopted by the Council in the current context.
76. Finally, assuming that the Council adopted the prohibition to provide legal advisory services in order to impact Russia’s economy, that is because, in the absence of those services, it would be more difficult for the Russian entities operating in the territory of the European Union to maintain their commercial activities in that territory. In that regard, the decision of a legal person established in Russia to disinvest immovable property in the European Union, having recourse to a notary for the authentication of the contract of sale, is in fact the best indication that that legal person is putting an end to its activities in the EU territory and renouncing the economic benefits that those activities may generate. From that perspective, the intervention of the notary in that transaction is not contrary to the aim of weakening the Russian economic base sought by the Council.
77. Consequently, the interpretation according to which the authentication of a contract of sale carried out by a notary does not constitute ‘legal advisory services’, within the meaning of Article 5n(2) of Regulation No 833/2014, is not in contradiction with the aims pursued by Decision 2022/1909, as subsequently implemented by Regulation 2022/1904. That interpretation corroborates instead the textual understanding of that article that I propose to the Court.
78. It follows from the foregoing considerations that none of the canons of interpretation of EU law examined in the preceding points leads to the conclusion that the authentication by a notary of a contract of sale of immovable property constitutes legal advisory services within the meaning of Article 5n(2) of Regulation No 833/2014.
79. In my view, that authentication therefore ought not to be considered prohibited under that provision.
2. The exemption laid down in Article 5n(6) of Regulation No 833/2014
80. Having regard to my previous conclusion, it is only for the sake of completeness that I shall briefly present my view on whether the authentication of a contract of sale of immovable property may, in any event, be exempted on the basis of Article 5n(6) of Regulation No 833/2014.
81. According to that article, the prohibition to provide legal advisory services to legal persons established in Russia, as set out in Article 5n(2) of Regulation No 833/2014, is not to apply to the provision of services which are strictly necessary to ensure access to judicial, administrative or arbitral proceedings, provided the provision of such services is consistent with the objectives of that regulation and of Regulation No 269/2014. (35)
82. Article 5n(6) of Regulation No 833/2014 thus requires, in order to apply the exemption therein contained, three conditions to be satisfied: first, the access concerned must relate to judicial, administrative or arbitral proceedings, second, the legal advisory services under examination must be strictly necessary to ensure that access and, third, those services must not impair the aims pursued by Regulation No 833/2014 and Regulation No 269/2014.
83. Regarding the first of those three conditions, I have already pointed out that, according to the Court, the land register is of crucial importance for the transfer of immovable property, especially in the Member States that operate a system of civil-law notaries.(36) In essence, only an entry in the land register is capable of establishing the rights of the new owner and rendering them enforceable.
84. Moreover, where the maintenance of the land register in a Member State is entrusted to local courts and is regulated by judicial rules of procedure, that registration must be considered to be covered by the term ‘judicial … proceedings’ for the purposes of Article 5n(6) of Regulation No 833/2014. Even if, notwithstanding the competence of those courts, proceedings relating to the land register were not to be regarded as judicial in nature, they would, in any event, be qualified as administrative. That would also be the case in those legal systems where the land register is part of the public administration of the Member State itself. (37)
85. In the circumstances of a case similar to that in the main proceedings, the first condition would therefore be satisfied, since all those elements appear to be present based on the order of reference.
86. Regarding the second condition set out in Article 5n(6) of Regulation No 833/2014, which concerns the strict necessity of the services under examination for ensuring access to judicial or administrative proceedings, the key feature of that condition is based on the fact that those services are essential for the purpose of those proceedings. In the case of the authentication procedure carried out by a notary, that condition must be considered satisfied if, first, such authentication can only be carried out by those professionals and, second, it is a mandatory requirement for introducing an entry in the land register. (38)
87. Again, that would be applicable, for instance, in a case similar to that in the main proceedings, in which, according to the explanations provided by the referring court in the order for reference, notaries have exclusive competence both to create public instruments concerning private transactions and to publicly certify private legal instruments. (39) At the same time, the land register is only accessible if a private transaction is authenticated, (40) which entails that the strict necessity criterion is fully satisfied.
88. Finally, regarding the third condition set out in Article 5n(6) of Regulation No 833/2014, I would briefly note, in line with the teleological analysis carried out in the preceding points of this Opinion, that the exemption of the authentication procedure of a contract of sale concerning a legal person established in Russia does not impair the objectives pursued by that regulation or by Regulation No 269/2014, assuming, of course, that the legal person engaged in the transaction is not listed in that latter regulation or presents any of the links set out in Article 5aa(1) of Regulation No 833/2014.
89. It follows that the authentication of a contract of sale by a notary in a transaction involving a legal person established in Russia satisfies the three conditions set out for the application of Article 5n(6) of Regulation No 833/2014. Consequently, should the Court consider that that authentication comes under the prohibition set out in paragraph 2 of that article, that authentication should still be exempted under paragraph 6 thereof.
B. Third question
90. By its third question, the referring court seeks to ascertain whether Article 5n(2) and (6) of Regulation No 833/2014 prohibits a notary from executing a contract of sale of immovable property owned by a legal person established in Russia after its authentication. In particular, the referring court poses that question with regard to three tasks that the parties might instruct the notary to perform, namely ensuring the safe custody of the purchase monies and the payment thereof, the cancellation of the existing encumbrances burdening the property, and the registration in the land register of the transfer of title in favour of the new owners.
91. As is apparent from points 30 and 39 of the present Opinion, recital 19 of Regulation 2022/1904 states that the term ‘legal advisory services’ covers the execution of legal documents. However, that task cannot be subsumed under Article 5n(2) of Regulation No 833/2014 unless it includes an element of advice, which accordingly becomes the standard under which the present question of the referring court must be analysed.
92. I would like to recall as well that, according to the case-law of the Court, Member States are free, by virtue of the principle of procedural autonomy, to establish rules concerning the enforcement of legal acts and to assign a role to notaries within that procedure. (41) Therefore, national legislation may entrust notaries with the responsibility of undertaking certain enforcement tasks for the execution of a contract once it has been authenticated.
93. Moreover, it is important to note that the fact that the execution tasks covered by the present question may be performed, for instance, by the parties themselves or even by third parties is not relevant in order to determine whether those tasks are prohibited under Article 5n(2) of Regulation No 833/2014. Indeed, whereas the criterion of strict necessity is at the core of the application of the exemption set out in Article 5n(6) of that regulation, that is not the case as regards the prohibition laid down in Article 5n(2) thereof, where the analysis must concentrate on whether a particular task constitutes legal advice or not.
94. As for the present case, even if the information provided by the referring court is not particularly exhaustive, I find it difficult to identify, from a strict point of view, an element of legal advice in the concrete tasks referred to by that court for the execution of the contract of sale of immovable property. Those tasks are in fact the steps that automatically follow the authentication of that contract.
95. In particular, as regards the safe custody and payment of the purchase monies, that task cannot be considered a legal advisory service since the notary’s role is limited to protecting the purchase monies held on behalf of the purchaser and to paying out those monies to the seller. The Court has in fact declared, in that regard, that the depositing of monies with a notary is limited to verifying compliance with legal requirements. (42)
96. That reasoning is also applicable to the registration of the transfer of title in favour of the new owners in the land register, which only requires the presentation of the authenticated document in that register or, at most, as in the German system, the introduction of an application as a mere formal requirement. (43)
97. Finally, as regards the cancellation of the existing encumbrances burdening the property, that task also does not appear to come under the category of legal advisory services. Such cancellation only entails, as a rule, a request before the land register, which must include the declaration of the consent of the beneficiary of that encumbrance before a notary. (44)
98. It follows that the tasks undertaken by a notary in order to execute a contract of sale of immovable property owned by a legal person established in Russia, once that contract has been authenticated, do not come under the prohibition laid down in Article 5n(2) of Regulation No 833/2014.
99. Nonetheless, in the light of the lack of specific information concerning those tasks and the manner in which they are carried out in the German system, it is for the referring court to determine, taking account of the particularities of the case in the main proceedings, whether they can be performed without providing any legal advice to the parties.
100. In so far as Article 5n(6) of Regulation No 833/2014 is concerned, it suffices to observe that, since those tasks can be undertaken, not only by notaries, but also by other actors, including the parties concerned by the contract of sale, the necessity criterion, as mentioned above, would not be met. In those circumstances, should the Court consider that the tasks carried out by a notary for the execution of a contract of sale of immovable property come under the prohibition set out in Article 5n(2) of Regulation No 833/2014, I do not think that those tasks could be exempted under Article 5n(6) thereof.
C. Second question
101. By its second question the referring court asks, in essence, whether the prohibition laid down in Article 5n(2) of Regulation No 833/2014 applies to the services provided by an interpreter assisting the representative of a legal person established in Russia in the course of the authentication procedure.
102. I note that the intervention of an interpreter in the context of the authentication of a contract of sale of immovable property serves two main purposes.
103. First, the interpreter assists by interpreting conversations between a person and a notary and by conveying into the language requested the essential information of the documents to be authenticated. That task ensures respect for the right to be informed during the authentication procedure, in particular for the person requiring the assistance of an interpreter.
104. Second, an interpreter guarantees the effectiveness of oral communications between the notary and the parties. As discussed, (45) the authentic instrument constitutes complete proof of the facts and declarations authenticated by the notary. Those facts are based on his or her personal knowledge acquired from the oral exchanges with the parties. The notary must be certain of the parties’ intentions and, in some occasions, write down their statements clearly and unambiguously. Those tasks are part of the control of legality performed by a notary, since they aim at ascertaining whether the agreement has an unlawful or dishonest purpose, in which case the notary must refuse the authentication.
105. It is clear that interpretation enables the verification of the legal requirements for the authentication of the contract, which means that the lack of interpretation would impede the authentication itself. Hence, despite constituting an ancillary service of mere assistance in the authentication procedure, interpretation is essential to carry out the procedure effectively.
106. However, I am persuaded that the assistance of an interpreter does not fall within the scope of Article 5n(2) of Regulation No 833/2014. In fact, despite its connection with the authentication itself, I have serious doubts as to the classification of interpretation as a legal service, since the interpretation profession is by definition not legal in nature, even when assisting in the preparation of legal documents. An interpreter’s role is to convey verbally and accurately the words of one person in the language of another, which entails a communication service, regardless of the content that is being transmitted.
107. In summary, I consider that the activity of interpretation in the context of an authentication procedure cannot be regarded as a ‘legal advisory service’ within the meaning of Article 5n(2) of Regulation No 833/2014, and therefore does not fall within the scope of that provision.
V. Conclusion
108. On the basis of the analysis set out above, I propose that the Court answer the questions referred by the Landgericht Berlin (Regional Court, Berlin, Germany) as follows:
(1) Article 5n(2) of Council Regulation (EU) No 833/2014 of 31 July 2014 concerning restrictive measures in view of Russia’s actions destabilising the situation in Ukraine
must be interpreted as meaning that the authentication by a notary of a contract of sale of immovable property owned by a legal person established in Russia is not covered by the prohibition laid down in that provision, as long as the engagement in transactions is allowed for that person under that regulation and the authentication is not supplemented by legal advice, which it is for the referring court to ascertain.
(2) Article 5n(2) of Regulation No 833/2014
must be interpreted as meaning that the services provided by an interpreter in the course of the authentication by a notary of a contract of sale of immovable property owned by a legal person established in Russia are not covered by the prohibition laid down in that provision.
(3) Article 5n(2) of Regulation No 833/2014
must be interpreted as meaning that the execution by a notary of an authenticated contract of sale of immovable property owned by a legal person established in Russia, consisting, in particular, in ensuring the safe custody of the purchase monies and the payment thereof, the cancellation of the existing encumbrances burdening the property, and the registration in the land register of the transfer of title in favour of the new owners, does not fall within the scope of application of the prohibition laid down in that provision, as long as the engagement in transactions is allowed for that person under that regulation and those tasks do not entail any legal advice, which it is for the referring court to ascertain.