ECJ: New Ownership in Notary’s Office – Business Transfer?

Jan 12, 2024 Benn-Ibler Rechtsanwälte

Can changing the ownership of a notary’s office be considered as transferring a business? The European Court of Justice (ECJ) says yes – even if notaries are appointed as business owners by the State.

In the first national case to be decided, four employees of a Spanish notary’s office challenged their dismissal. The new owner of the notary’s office considered that they had not successfully passed their probationary period. However, according to the national court, the employees had been continuously employed by successive notaries working in the notary’s office. The Spanish national court has now asked the ECJ whether the Directive on the safeguarding of employees’ rights in the event of a business transfer is applicable to this situation, given the specific nature of the professional activities of Spanish notaries.

The ECJ found that, although Spanish notaries are civil servants, they carry out an economic activity within the meaning of the Directive. As they provide services on the market in return for payment under competitive conditions, they cannot be considered purely administrative authorities.

On the question of whether there was a transfer of a business, the ECJ found that a change of notary was tantamount to a change of ownership. In such a situation, the Directive protects workers by safeguarding their rights despite the fact that Spanish notaries are appointed by the State as holders of the notarial office in question.

Moreover, a change of ownership does not necessarily entail a change in the identity of the notary’s office. It is precisely the preservation of that identity which is decisive for a transfer within the meaning of the directive. The Court pointed out that a notary’s office depends above all on human resources so that it can retain its identity after the transfer if a substantial part of the staff is taken on by the new notary, enabling the notary to continue the activities of the notary’s office.

ECJ C-583/21 (16 November 2023)