Notary activities not prohibited by EU Russian sanction on legal services

In EU Case C-109/23 Jemerak, it is Advocate General Medina's (the Maltese Advocate General) opinion that the following notary and translation services are not prohibited by the prohibition on legal advisory services in Article 5n(2) of Regulation No 833/2014 even if the seller is a Russian entity.

• The authentication and execution of a contract of sale by a notary and
• The translation of communications between the notary and the seller and purchaser

Background:

1. 2 German nationals wanted to buy an apartment in Berlin owned by Visit-Moscow Ltd, a company registered in Russia. 
2. They asked a notary to authenticate their contract of sale and execute the contract after authentication. 
3. The notary refused on the basis that such activities could infringe Article 5n(2) of Regulation No 833/2014. 
4. The purchasers complained, and the notary referred to matter to the Berlin regional court, which referred questions to the EU court for a preliminary ruling.

AG Medina’s opinion

AG Medina’s opinion (which is not binding on the Court of Justice) on the questions referred is that:

• The preparation, verification, and execution of a contract of sale are not “advisory in nature” and, therefore do not constitute “legal advisory services” within the meaning of Article 5n(2);

• Given that authentication by a notary is an essential element for transferring immovable property in Germany and such transfer between non-designated Russian parties is not prohibited, the authentication itself should also not be considered prohibited;

• Given that Regulation No 833/2014 DOES NOT expressly prohibit the transfer of property rights of Russian parties, an interpretation of Article 5n(2) that prohibits notarial authentication (which would have the effect of preventing Russian parties from transferring property) would breach the Charter of Fundamental Rights;

• It does not matter that the EU Commission FAQs say that notarial services, including the authentication of contracts and other declarations directed at the performance of legal transactions, are covered by Article 5n(2) prohibition – “only the Court is competent to interpret the regulations… which means that guidance [eg EU Commission FAQs] cannot determine… the proper interpretation to be given to Article 5n(2)”;
• FAQs = https://finance.ec.europa.eu/document/download/4617456e-7d33-4732-96ef-b01bd10e948e_en?filename=faqs-sanctions-russia-services-provision_en.pdf

• Even if the Article 5n(2) prohibition did apply, the authentication (although not the execution) of a contract of sale by a notary involving Russian parties would come under the exception in Article 5n(6), which permits services necessary to ensure access to judicial, administrative, or arbitral proceedings in a Member State; and

• The assistance of an interpreter is not legal, and therefore, the translation of communications between a notary and parties is not prohibited by Article 5n(2).

SOURCES

• https://globalsanctions.co.uk/2024/04/eu-advocate-generals-opinion-notary-activities-not-prohibited-by-eu-sanctions-legal-services-prohibitions-contrary-to-commission-faqs/
• https://curia.europa.eu/juris/document/document.jsf?text=&docid=284663&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=2448909
• https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A02014R0833-20240224
• FAQs = https://finance.ec.europa.eu/document/download/4617456e-7d33-4732-96ef-b01bd10e948e_en?filename=faqs-sanctions-russia-services-provision_en.pdf