May 1, 2023

Berlin court petitions CJEU for preliminary ruling on the impact of Russian Sanctions Regulations on notarial functions

The Landgericht Berlin, the Berlin Regional Court, recently petitioned the Court of Justice of the European Union (“CJEU”) to provide a preliminary ruling on the interpretation of Article 5n(2) of Council Regulation (EU) No. 833/214, the Russia Sanctions Regulations.  The case involves a German notary who refused to notarize documents for two German nationals who were in the process of purchasing an apartment in Germany from a limited liability company, (OOO) WISIT-MOSKWA, which has been listed in the Russian Unified State Register of Legal Entities since 2002.  According to the court filing, the notary provisionally refused, in writing, to notarize the contract of sale between the parties on the grounds that providing the service might constitute the provision of a legal advisory service that is prohibited by Article 5n(2) of Regulation (EU) No. 833/2014.

According to the application, which was filed with the CJEU on February 23, 2023, Paragraph 15 of the Bundesnotarordnung (Federal Code for Notaries or “the BNotO”) provides that a German notary can only refuse to perform notarial acts with sufficient reason.  The application further provides that, under German law, notaries do not provide services but perform official functions.  Furthermore, Paragraph 14(I) of the BNotO provides that notarial functions are not provided to any party, in particular, but are considered to be impartial and independently provided to all parties in a transaction.

The Berlin Regional Court has requested that the CJEU issue a preliminary ruling on the following questions:

1) Does a German notary violate the prohibition on legal advisory services if they provide notarial services for a contract of sale of title of an apartment between German nationals and a Russian entity?

2) Would an operator violate the prohibition on legal advisory services if  he or she accepted an assignment from a notary to translate the content of authentication proceedings for a Russian individual/entity who is not proficient in the German?

3) Would a notary violate the prohibition on legal advisory services if he or she accepts an assignment to and carries out specific notarial activities related to the execution of the contract of sale, such as the settlement of purchase price payments held by the notary in an escrow account; requesting documents necessary to cancel mortgages and other property encumbrances, and submitting documents necessary to register the transfer of title to the Grundbuch (the Land Register)?

Request for Preliminary Ruling – Working Document