Court of Justice of the European Communities (including Court of First Instance Decisions)

Provisional text

OPINION OF ADVOCATE GENERAL

PITRUZZELLA

delivered on 12 January 2023 (1)

Case C‑128/21

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,

interveners:

Lietuvos Respublikos teisingumo ministerija,

Lietuvos Respublikos finansų ministerija

(Request for a preliminary ruling from the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania))

(Reference for a preliminary ruling – Competition – Article 101 TFEU – Concepts of undertaking and decisions of associations – Decisions of the Chamber of Notaries laying down the method for calculating fees – Restriction by object – Justification – Fine – Association of undertakings and its members – Presidium – Infringer – Joint and several liability)

1.        Can members of a professional association be penalised individually for decisions, attributable to the professional association, which are likely to distort or restrict competition under EU law?

I.      Legal framework

A.      European Union law

2.        According to 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], (2) entitled ‘Powers of the competition authorities of the Member States’:

‘The competition authorities of the Member States shall have the power to apply Articles 81 and 82 of the Treaty in individual cases. For this purpose, acting on their own initiative or on a complaint, they may take the following decisions:

- requiring that an infringement be brought to an end,

- ordering interim measures,

- accepting commitments,

- imposing fines, periodic penalty payments or any other penalty provided for in their national law.

Where on the basis of the information in their possession the conditions for prohibition are not met they may likewise decide that there are no grounds for action on their part.’

3.        Article 23(2)(a) and (4) of the same regulation provides that:

‘2.      The Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently:

(a)      they infringe Article 81 or Article 82 of the Treaty [101 and 102 TFEU] …

…

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.’

B.      Lithuanian law

4.        Article 5(1)(1) of the Lietuvos Respublikos konkurencijos istatymas (Law of the Republic of Lithuania on competition) of 23 March 1999, as amended by Law No XIII 193 of 12 January 2017 (‘the Law on Competition’) provides that:

‘All agreements which have the purpose of restricting competition or which restrict or may restrict competition shall be prohibited and shall be void from the moment of conclusion thereof, including agreements to directly or indirectly set (fix) prices of certain goods or other conditions of purchase or sale’.

5.        Article 3(19) of the Law on Competition states that:

‘“Agreement” shall mean contracts concluded in any form (written or oral) between two or more economic operators or concerted practices between economic operators, including decisions made by any combination (association, amalgamation, consortium, etc.) of economic operators or by representatives of such a combination.’

6.        According to Article 3(22) of the Law on Competition:

‘“Economic operator” shall mean an enterprise, a combination of enterprises (associations, amalgamations, consortiums, etc.), an establishment or an organisation or other legal or natural persons which perform or may carry out economic activities in the Republic of Lithuania, whose actions affect or whose intentions, if realised, could affect economic activity in the Republic of Lithuania. Public administration entities of the Republic of Lithuania shall be considered to be economic operators if they perform economic activities.’

7.        Article 2 of the Lietuvos Respublikos notariato įstatymas (Law of the Republic of Lithuania on the notarial profession, as amended by Law No XIII 570 of 29 June 2017) (‘the Law on the notarial profession’) states that:

‘A notary shall be a person authorised by the State to perform the functions set out in this Law and to attest to the lawfulness of transactions and of documents in civil legal relationships. A notary may also act as a mediator in civil disputes in order to resolve them.’

8.        Pursuant to the first paragraph of Article 6 of the Law on the notarial profession:

‘The number of notaries, their principal office and their territorial jurisdiction shall be established by the Minister for Justice of the Republic of Lithuania according to his [or her] approved methodology for assessing the needs for legal services provided by notaries to residents.’

9.        Article 8 of the Law on the notarial profession provides that:

‘Notaries of the Republic of Lithuania shall meet within the Chamber of Notaries … Every notary shall be a member of the Chamber of Notaries. The Chamber of Notaries shall be a legal person. The Statute of the Chamber of Notaries shall be adopted by the meeting of the Chamber of Notaries and approved by the Minister for Justice of the Republic of Lithuania.’

10.      Pursuant to Article 10(7) of the Law on the notarial profession when fulfilling its tasks, the Chamber of Notaries shall take measures for ensuring the uniformity of notarial practice.

11.      Article 11, paragraphs 2 and 3, of the Law on the notarial profession provides that:

‘The Minister for Justice of the Republic of Lithuania shall approve the regulatory acts provided for in this law, taking into account 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 are not in conformity with the legislation of the Republic of Lithuania, he [or she] may lodge an appeal before the Vilnius Regional Court for the annulment of those resolutions or decisions. The appeal must be lodged within one month from the date of receipt of the resolution or decision appealed against.’

12.      Article 12 of the Law on the notarial profession provides that:

‘Notaries shall exercise their powers disregarding any influence of public authorities and of budgetary authorities and shall obey only laws.’

13.      Pursuant to Article 13 of the Law on the Notarial Profession, notaries shall carry out their activities in compliance with decisions of the Chamber of Notaries.

14.      Article 16 of the Law on the notarial profession provides that:

‘A notary shall be held liable, in accordance with the procedure laid down by the Civil Code of the Republic of Lithuania and this law, for damage caused to natural or legal persons by unlawful acts committed by him [or her], his [or her] representative or the staff of his [or her] notary office in the exercise of notarial professional activities. A notary shall be held liable as a public official for any infringements of laws or other regulatory acts committed in the course of exercising his [or her] functions and which give rise to his [or her] criminal or administrative liability’.

15.      Article 19, paragraphs 1 and 2, of the Law on the notarial profession provides that:

‘A notary shall charge fees for drawing up notarial acts, drawing up draft transactions, and providing advisory and technical services, the amounts (rates) of which shall be set by the Minister for Justice of the Republic of Lithuania, taking into account the criteria for determining the amounts (rates) of the fees of notaries mentioned in Article 19¹ of this law in detail and in agreement with the Minister for Finance of the Republic of Lithuania and the Chamber of Notaries. The amount of the fees must guarantee to the notary income that allows him to be economically independent, to guarantee clients good conditions of service, to employ staff with the necessary qualifications and to have a technically well-equipped office. … Depending on the financial situation of his client, the notary may exempt him in whole or in part from paying the fees.’

16.      Article 21 of the Law on the notarial profession provides as follows:

‘A notary shall practice independently and be economically independent. …’

17.      The first and seventh paragraphs of Article 6² of the Law on the notarial profession state that:

‘A notary is required to take out professional civil liability insurance for damage caused to natural or legal persons in the performance of his [or her] duties of an amount exceeding EUR 290. … If the indemnity paid by the insurance is insufficient to fully make good the damage, the difference between that indemnity and the actual damage shall be covered by the notary who caused the damage.’

18.      Article 28 , paragraph 1, of the Law on the notarial profession states that:

‘Notarial acts may be drawn up by any notary, except in matters of succession. The Minister for Justice of the Republic of Lithuania shall determine in such cases the territorial jurisdiction of notaries.’

19.      Article 8, paragraphs 6 and 7, of the Statute of the Chamber of Notaries of Lithuania (‘the Statute’), approved by Order No 1R-3 of 3 January 2008 of the Minister for Justice of Lithuania provides that:

‘the Chamber of Notaries, when performing its functions, shall:

…

(6) adopt measures to make notarial practice uniform;

(7) summarise notarial practice and provide opinions to notaries’.

20.      Article 18, paragraph 1, of the Statute provides that:

‘The Presidium shall be a collegiate management body of the Chamber of Notaries. The Presidium shall consist of eight members, appointed (elected) by the meeting of notaries for three years’.

21.      Article 25 of the Statute provides that:

‘Decisions of the Presidium relating to the practical application of legislation and other relevant matters shall be communicated within five working days to the Ministry of Justice of the Republic of Lithuania and published on the website of the Chamber of Notaries’.

22.      Article 10(4) of the Statute provides, in particular, that ‘each member of the Chamber of Notaries shall be bound by the decisions of the Presidium.

II.    Facts, main proceedings and questions referred for a preliminary ruling

23.      By Decision No 2S-2(2018) of 26 April 2018 the Lietuvos Republikos konkurencijos taryba (Competition Council of the Republic of Lithuania, ‘the Competition Council’) imposed penalties on Notarų rūmai, namely, the Lithuanian Chamber of Notaries (‘the Chamber of Notaries’) as well as the notaries belonging to the Presidium of the Chamber of Notaries, (‘the Presidium’), (together ‘the applicants’) for having infringed the Lietuvos Respublikos konkurencijos istatymas (Law of the Republic of Lithuania on Competition) of 23 March 1999 (Žin., 1999, No 30-856), as well as Article 101(1)(a) TFEU.

24.      According to the abovementioned decision, the Lithuanian Chamber of Notaries had adopted decisions (3) – namely, decisions of 30 August 2012, 23 April 2015, 26 May 2016, and 26 January 2017 – in which it specified the criteria for calculating notary fees for the following services (‘the clarifications’): (i) the approval of mortgage transactions and the affixing of enforcement clauses, in situations where the parties to the transaction do not indicate the value of the mortgaged property and in situations where multiple properties are mortgaged with a single mortgage transaction; (ii) the execution of notarial acts, the preparation of draft transactions, advice and technical services in situations where a servitude is established by a single contract for multiple properties; (iii) the validation of an exchange contract, in situations where parts of different assets are exchanged by contract.

25.      The clarifications were adopted unanimously and subsequently published on the website of the Lithuanian Chamber of Notaries.

26.      According to the Competition Council, the Lithuanian Chamber of Notaries in adopting the clarifications, while having a margin of discretion (4) within which to set the amount of the fees including a minimum limit and a maximum limit, determined the maximum value of the amount concerned.

27.      Consequently, the same Lithuanian authority found that the Chamber of Notaries, acting through the Presidium and its members, had put in place, with the adoption of the clarifications, an infringement of Article 101(1)(a) TFEU. The Chamber of Notaries was categorised as an association of undertakings and the clarifications as decisions, adopted by an association of undertakings and by the eight notaries of the Presidium, capable of restricting competition between notaries.

28.      The Competition Council defined the market of Lithuanian notarial acts as the relevant market. The abovementioned infringement was alleged to have taken place from 30 August 2012 to 16 November 2017. The amount of the penalty was reduced considering the tacit consent of the Minister for Justice who failed to adopt the national measures necessary to remove the infringement.

29.      The decision was consequently challenged by the Lithuanian Chamber of Notaries and by the notaries who were members of the Presidium, who were personally alleged to have infringed Article 101 TFEU, before the Vilniaus apygardos administracinis teismas (Vilnius Regional Administrative Court, Lithuania; ‘the Regional Administrative Court’).

30.      In the proceedings before the Regional Administrative Court, the Chamber of Notaries, together with the notaries of the Presidium subject to penalties, submitted that a notary could not be categorised as an undertaking for the purposes of Article 101(1) TFEU. According to them, the services provided by notaries, indeed, are not subject to the competition regime with regard to prices. The purpose of the clarifications is to implement the responsibilities of the Chamber of Notaries, such as the standardisation of notarial practice, advice to notaries, as well as the protection of notaries from unjustified civil liability, in accordance with the relevant national laws. The decisions taken also aim to protect consumers by implementing the principles of equality and proportionality.

31.      Nor could the conduct alleged be attributed personally to the notaries who were members of the Presidium, since the Minister for Justice failed to challenge the decisions of the Chamber of Notaries, even though he was aware of their adoption. The applicants in the main proceedings also challenged the applicability of Article 101(1)(a) TFEU on the ground that there was no single market for notarial services in the European Union.

32.      The Competition Council argued that notarial services were subject to the competition regime including on prices and that, consequently, notaries did not have the power to infringe the competition rules laid down by EU law.

33.      With regard to the applicability of EU law to the present case, the Competition Council observed that it was not a purely internal case, since citizens of other Member States could also benefit from the services provided by Lithuanian notaries, albeit limited to Lithuanian territory.

34.      In this context, the Regional Administrative Court partially annulled the decision by a judgment that was then appealed by the Competition Council before the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania).

35.       Apart from a number of questions at issue, which will not be the subject of this Opinion, the referring court expressed doubts regarding the absence of a prior ruling by the Court of Justice on the applicability of Article 101 TFEU to notaries and questioned, consequently, whether the services concerned could constitute an economic activity for the purposes of Article 101 TFEU.

36.      Similarly, at issue according to the referring court was the applicability of the criterion from the Wouters case according to which a Member State must ensure that it ‘retains its power to adopt decisions’ (5) or that from the CHEZ Elektro Bulgaria case according to which ‘there must be actual review and the State must have the power to adopt decisions in the last resort’ (6) set out by the Court in order to categorise a State body as a professional body, for the purposes of Article 101 TFEU.

37.      The referring court then observed that indeed the Minister for Justice had the power to challenge the clarifications before the national court and the power to supplement the table containing the criteria for calculating remuneration.

38.      In addition, the following circumstances appeared questionable: (i) the possibility to categorise the clarifications as a decision to enter into an association of undertakings and their possible detrimental effect on competition between undertakings; (ii) the appropriateness of the objectives of the clarifications and their proportionality; (iii) the possibility to categorise notaries who were members of the Presidium as parties to the association of undertakings, the attributability of the alleged infringement to them personally and the consequent application of the corresponding penalty to them.

39.      In that context, the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court of Lithuania) stayed the proceedings and referred a series of questions to the Court of Justice for a preliminary ruling and, in particular, for the purposes of this Opinion:

‘(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 described in the present case while working as notaries?’

III. Legal analysis

A.      Preliminary observations

40.      As the Court has requested, this Opinion will focus on the seventh question referred for a preliminary ruling.

41.      At the hearing on the case, however, a number of observations relating to a legal question preliminary to those at issue in the questions referred for a preliminary ruling were reiterated and further argued by the parties.

42.      That concerns the question of the applicability of Article 101 TFEU to situations in which the undertakings to which the anticompetitive infringement is attributed are not in competition with other similar undertakings in other Member States of the European Union, but competition is limited, due to the specific nature of the functions performed (7) and national regulations, to only the national market. The Chamber of Notaries and the Lithuanian Government, in particular, questioned whether the possible anticompetitive infringement was capable of affecting trade between Member States.

43.      In essence, it is a matter of interpreting the concept of ‘effect on trade between Member States’, which is precisely one of the conditions for the applicability of Article 101 TFEU to anticompetitive infringements.

1.      The concept of effect on trade between Member States

44.      The effect on trade between Member States consists in an alteration of the conditions of competition on the market in trade between Member States, resulting from a restrictive agreement or an abuse of a dominant position. That effect delineates the scope of application of the rules of EU law, separating it from that of national competition laws. (8)

45.      The case-law of the Court has clarified the constituent elements of the requirement. As it has consistently held, ‘in order that an agreement between undertakings may affect trade between Member States it must be possible to foresee with a sufficient degree of probability on the basis of a set of objective factors of law or fact that it may have an influence, direct or indirect, actual or potential, on the pattern of trade between Member States, such as might prejudice the realization of the aim of a single market in all the Member States’. (9)

46.      For an agreement to fall within the scope of application of EU law, the effect therefore must be sufficiently significant. In this regard, the Court has observed that ‘an agreement falls outside the prohibition in Article [101 TFEU] when it has only an insignificant effect on the markets, taking into account the weak position which the persons concerned have on the market of the product in question’. (10) The Commission has adopted a similar position in its Guidelines (11) where it rules out the existence of an appreciable effect on trade between Member States where two cumulative conditions are met that lead to the conclusion that the impact of the unlawful agreement is insignificant. (12)

47.      The Court’s case-law has also identified a so-called de minimis threshold, below which the anticompetitive infringement is considered not to have a harmful effect. This de minimis threshold of 10% with reference to market shares is not, however, considered necessary if the agreements pursue an anticompetitive object. (13)

48.      With regard to the geographic scope of the agreement, in order for there to be an effect, on the one hand there is the fact that an agreement between operators established in a single Member State is not sufficient to exclude the cross-border scope of the effect, (14) and on the other hand, the fact that the agreement extends over the whole national territory conflicts by its very nature with the economic integration which the Treaty is intended to bring about, since it leads to the partitioning of markets at the national level. (15) It is, therefore, not necessary that professionals from several Member States in competition with each other are involved. Instead it is sufficient that the geographical area concerned includes the entire territory of a Member State.

49.      In the present case, to the extent that it can be determined from the file before the Court, there are certain decisions of an association of undertakings that concern all professionals in a given Member State.

50.      Since it is an agreement intended to fix prices, to the extent that it can be determined from the file before the Court, it can be categorised as an infringement by object, the capability of which to restrict, prevent or distort competition appreciably in the internal market is to be presumed. An agreement ‘that has an anticompetitive object constitutes, by its nature and independently of any concrete effect that it may have, an appreciable restriction on competition’. (16)

51.      It can therefore be considered that an agreement that extends to the entire territory of a Member State and that has as its object the fixing of prices valid for all professionals present in the territory of a Member State may, by its very nature, reinforce the partitioning of markets at the national level, thereby hindering the economic integration which the Treaty is intended to bring about.

52.      Even if it were the case that there is no effective competition between notaries in different Member States because of the specific regulation of that type of profession by the individual Member States, both as regards the conditions of access and those for practising the profession, the fact remains that citizens of the European Union who wish to use notarial services in a Member State in which the above-described partitioning of the national market is permitted, would see economic conditions applied to them which are not the effect of the normal exercise of free competition.

B.      The seventh question referred for a preliminary ruling

53.      By its seventh question referred for a preliminary ruling, the referring court asks, in essence, whether Article 101 TFEU allows the national competition authority to impose individual fines on notaries who participated in the adoption of the clarifications, as members of the Presidium, which is a body of the Lithuanian Chamber of Notaries, at the same time as the penalty imposed on the Chamber of Notaries.

54.      It is therefore a question of identifying the persons responsible for the alleged anticompetitive infringement.

55.      The national competition authority identifies, indeed, as responsible at the same time the Lithuanian Chamber of Notaries and the individual notaries who were members of the Presidium.

56.      The Chamber of Notaries is the association of undertakings composed of all Lithuanian notaries and is responsible for regulating the notarial profession within the framework laid down by the legislature and in agreement with the Ministry of Justice.

57.      The Presidium, a body of the Chamber of Notaries, to the extent that it is apparent from the file before the Court, is the collective body that takes decisions for the Chamber of Notaries.

58.      The wording of Article 101 TFEU identifies the addressee of the prohibition as the ‘undertaking’. (17)

59.      The imposition of antitrust penalties must respect the principle of personal responsibility, (18) whereby the penalty must be attributed to the author of the infringement, usually corresponding to the natural or legal person who was managing the undertaking concerned at the time when the infringement was committed, (19) or to all natural or legal persons it comprises in the absence of a natural or legal person to whom, as head of it, the infringement could have been attributed. (20)

60.      It follows that, in order to be able to attribute concurrent liability to certain individual undertakings (the individual notaries of the Presidium), who are members of the association of undertakings (the Chamber of Notaries), it is necessary, in my view, to identify a specific contribution offered by them to the anticompetitive infringement. In order to do so, it is necessary to identify the relationship between the Presidium and the Chamber of Notaries, possible active conduct aimed at the actual preparation of the decision, and a legal basis on which such concurrent liability can be founded.

61.      On all these aspects I will suggest to the Court some proposals for the correct interpretation of EU law, it being understood that it will be for the national court to apply those principles to the case at hand and to verify the facts and circumstances set out in the case file in relation to their connection with the principles expressed.

62.      As regards the relationship between the Presidium and the Chamber of Notaries, it is apparent from the file before the Court in the present case, as has also been inferred by the Lithuanian Government, (21) that the author of the clarifications cannot be said to be the Presidium in the persons of the notaries who comprise it, since it is a body of the Chamber.

63.      That circumstance is reflected in the statements of the Lithuanian Chamber of Notaries in its written observations and confirmed at the hearing, according to which the decisions of the Presidium are attributable to the Chamber of Notaries. The Presidium, therefore, takes decisions as a decision-making body that acts, collectively considered, as a representative of the Chamber of Notaries.

64.      The need for the Presidium’s decisions to be attributable to the Lithuanian Chamber of Notaries is further confirmed by the status of the members of the Presidium. According to Article 19 of the Statute of the Chamber of Notaries, the Presidium is a collegiate management body of the Chamber of Notaries and consists of 8 members appointed by the Assembly of the Chamber for 3 years. The subordination of the individual members of the Presidium to the assembly of notaries is then confirmed by the provision in Article 19(4) of the Statute of the Chamber of Notaries according to which each member of the Presidium is answerable to the assembly of Notaries of the territorial jurisdiction. Further confirmation of the merely executive role of the Presidium can be found in Article 20(1) of the abovementioned Statute, according to which the Presidium ensures the performance of the functions of the Chamber.

65.      It is apparent from the sources of national law described by the referring court and analysed in the written observations and at the hearing by the parties, which need to be verified by the national court, that the notaries who are members of the Presidium are bodies of the Chamber and do not carry out, as individual undertakings, any particular activity.

66.      With regard to the actual contribution offered by the individual notaries who are members of the Presidium to the alleged anticompetitive  infringement, it appears from the documents in the file before the Court that the activity actually carried out by the notaries who are members of the Presidium is attributable to participation in the meetings, as well as to the expression of the vote in the meetings that led to the adoption of the clarifications.

67.      There is therefore no specific activity carried out by the individual notary- undertakings with a view to facilitating the taking of the decision of the association of Chamber of Notaries-association of undertakings, other than the participation in the decision-making body in the terms set out in the preceding paragraph.

68.      It appears instead from a reading of the documents, which was confirmed at the hearing, that the attribution to the individual notaries who are members of the Presidium of the penalty, together with the Chamber of Notaries, arises from considerations related to the necessary deterrent effect of the penalty.

69.      The Competition Council has, on several occasions, observed that the possible imposition of the penalty solely on the Chamber of Notaries-association of undertakings, on the basis of the laws in force in Lithuania at the time of the facts, would not have made it possible to impose a penalty of sufficient economic magnitude to achieve an appropriate level of deterrent effect.

70.      It would therefore have been necessary to impose the penalty also on the individual notaries who are members of the Presidium in order to be able to use a basis of calculation for determining the penalty (the turnover of the individual notaries who are members of the Presidium) higher than that of the association composed solely of the contributions periodically requested from individual notaries.

71.      The general preventive purpose relied on by the Lithuanian Competition Council (22) in support of the need to attribute the anticompetitive infringement to the natural persons who acted within the body, in order to prevent the risk of not achieving the deterrent effect, cannot, however, in my opinion, justify the imposition of penalties by the means used.

72.      It seems to be understood that, in the absence of a rule authorising the calculation of the penalty by taking as a basis not only the turnover of the association of undertakings (the Chamber of Notaries) but also that of the individual undertakings of which it is composed (the individual notaries), the Competition Council decided to impose individual penalties on the individual notaries who are members of the Chamber of Notaries’ decision-making body (the Presidium) in order to achieve a sufficiently deterrent effect of the penalty.

73.      The underlying reasoning, however, is in my opinion the result of a misinterpretation.

74.      This leads us to the third point concerning the legal basis necessary for the concurrent imposition of a penalty on the association of undertakings and on the individual notaries who are  members of the Presidium.

75.      In the present case, if I have understood correctly, the Competition Council penalised the antitrust infringement ascertained (the decision of undertakings with the object of fixing prices) with a double penalty, one imposed on the Chamber of Notaries as an association of undertakings, calculated on the basis of the turnover of the association and another, imposed individually on the eight notaries who are members of the Presidium, calculated on the basis of the turnover of the notaries as individual undertakings.

76.      In my opinion, a distinction must be made between the possibility of imposing at the same time the penalty for an antitrust infringement on the association of undertakings that put in place the decisions underlying the infringement and the individual undertakings that actively cooperated in the commission of the same infringement, and the possibility of calculating the total penalty to be imposed on the association of undertakings on the basis of the turnover of the latter, together with the turnover of all or some of the individual undertakings of which it is composed.

77.      In the first case, it is necessary, as mentioned, to prove an actual contribution of the individual undertakings that could make them co-authors of the infringement.

78.      The second scenario, namely, to allow the basis for calculating the penalty to be extended to the association of undertakings by including the turnover of all or some of the undertakings involved in the infringement, was the subject of the judgment in Coop de France, (23) case-law which was later codified in the third paragraph of Article 23(2) of Regulation 1/2003, (24) concerning the powers of the Commission acting as antitrust enforcer.

79.      The specific scenario of joint and several liability provided for in the first and second paragraphs of Article 23(4) of Regulation 1/2003 (25) is again different. It provides for the possibility for the Commission, in the event of insolvency of  the association of undertakings, and of the failure of its members to contribute to the payment of the penalty, to require payment of the fine directly by each of the undertakings whose representatives were members of the decision-making bodies concerned of the association.

80.      As is clear from the wording of Article 23(4) of Regulation 1/2003, in the case of a penalty imposed on an association of undertakings, the possibility of requiring payment of the fine directly by the undertakings whose representatives were members of the decision-making bodies concerned of the association is subject to the twofold condition (i) that the association is not solvent and (ii) that the association called for contributions from its members for the payment of the fine, and that those members did not comply within the time limit set by the Commission.

81.      It follows that it cannot be inferred from EU law and, in particular, from Regulation 1/2003, that there is general joint and several liability of members of decision-making bodies of an association of undertakings, on the basis of which penalties could be imposed jointly on the association of undertakings and the members of those decision-making bodies.

82.      The general rule remains that of the first paragraph of Article 23(2) of Regulation 1/2003, according to which ‘the Commission may by decision impose fines on undertakings and associations of undertakings where, either intentionally or negligently: (a) they infringe Article 81 or Article 82 of the Treaty …’ Undertakings and associations of undertakings that infringe the provisions of (now) Articles 101 and 102 TFEU, either intentionally  or negligently.

83.      That is a clear application of the principle of personal liability referred to above, which also applies to undertakings to which an antitrust infringement is attributed.

84.      Thus, neither the judgment in Coop de France which, where the members of an association of undertakings have actively participated in the implementation of an anticompetitive agreement, established the possibility of determining the penalty by taking into consideration the individual turnover of the respective members, nor the third paragraph of Article 23(2) of Regulation 1/2003, which codifies that approach, can provide a legal basis for the sanctioning method chosen by the Lithuanian Competition Council.

85.      The judgment in Coop de France then explicitly referred to the additional condition, also recalled several times in the written observations and at the hearing, that the infringement committed by an association concerned the activities of its members and that the anticompetitive practices were implemented by the association directly for the benefit of its members and in cooperation with them. (26)

86.      While there is no doubt that, in a case such as the present one, the decisions of the association of undertakings concerned the activities of its members and that the (anticompetitive) object of those decisions was implemented by the association for the benefit of its members (price fixing), it is equally clear how that potential benefit cannot be appreciated differently between the individual notaries who are members of the Presidium and all the other notaries who are members of the Chamber.

87.      It is not disputed, indeed, that the decisions of the Chamber of Notaries must be complied with by all Lithuanian notaries, who are members by right of the Chamber of Notaries, and, therefore, the possible advantages arising from the decisions taken by the Chamber and adopted by the Presidium benefit all Lithuanian notaries.

88.      To conclude on that point, Regulation 1/2003, in the part concerning the rules on fines, expressly refers to the Commission as enforcer  and is not directly applicable to the powers of the national competition authorities. That is also confirmed by the fact that, precisely in order to confer more powers on those national authorities and to make the rules in force between the Commission and the national authorities more uniform, Directive (EU) 2019/1, (27) the so-called ‘ECN+ Directive’, was adopted, which in Article 14 provides for a mechanism for determining penalties similar to that provided for in Article 23 of Regulation 1/2003.

89.      Directive 2019/1, at the time of the relevant facts in the present case, had not yet been transposed into Lithuanian law.

90.      It follows that, subject to the foregoing observations, mechanisms for determining the penalty such as those contained in the abovementioned Article 23, could not at the time of the facts of the case be used by the Lithuanian Competition Council, unless the national court finds that national provisions allowing it to do so were in force at that time.

91.      Finally, I will make some observations on the possibility of categorising notaries who are members of the Presidium as undertakings in the exercise of the activities of expressing the will of the decision-making body, which arises from reading the seventh question referred for a preliminary ruling.

92.       The question is important in so far as the possibility of finding an agreement between undertakings together with a decision by an association of undertakings in the present case depends on it.

93.      According to the Commission’s observations, (28) indeed, Article 101 TFEU does not preclude a finding, by the Competition Council, of a twofold infringement of Article 101 TFEU, through the conclusion of an agreement between undertakings and a decision of an association of undertakings.

94.      On that point it should be noted at the outset that the notaries who are members of the Presidium cannot be regarded as undertakings at the time when they adopt the clarifications. As emphasised by the Chamber of Notaries in point 2.8 of its Observations, the categorisation of notaries as undertakings requires an assessment of each individual activity carried out by the entity. (29)

95.      To this end, it must also be considered that the concept of economic activity coincides with any activity of offering goods or services on the market, regardless of whether it is remunerated or whether there is a profit-making aim. (30) The Court has also specified that, for the economic activity to be attributed to the person or an entity, it must be carried out directly. In the judgment in Cassa di Risparmio di Firenze, (31) the Court emphasised that, in order for the economic activity to be attributed to the person that holds the shares, that person must actually exercise control of the management of it. Applying that principle to the present case, there is no doubt that the notaries did not carry out any economic activity, and therefore did not act as undertakings, at the time when they adopted the decisions concerning the rates applicable to the negotiation transactions.

96.      If it were then to be understood that the notaries who are members of the Presidium observed and therefore applied the rates adopted in their capacity of exercising the profession of notary, it is not clear on what basis they could be subject to penalties since, as stated above, it is an undisputed fact that all Lithuanian notaries must apply the rates adopted by the Chamber of Notaries.

97.      The penalty imposed only on the notaries who are members of the Presidium would also in this respect appear to be vitiated by an infringement of the principle of equal treatment.

98.      In conclusion, there cannot be found in EU law a legal basis on which to base a sanctioning mechanism such as that used by the Lithuanian Competition Council, namely, imposing penalties at the same time on the association of undertakings responsible for anticompetitive decisions and the individual members of a decision-making body of it (the Presidium).

99.      That is also demonstrated by the Commission’s sanctioning practice, which, as noted by the Lithuanian Chamber of Notaries, (32) in generally similar cases, has failed to impose penalties individually on the members of the governing body of professional associations. In its decision on the Belgian Architects’ Association, the Commission did not impose penalties individually on the members of the Architects’ Association who had adopted a recommendation in order to suggest fees to their members, thereby restricting competition within the architects’ market. (33) Likewise, no individual penalty was imposed on the members of the decision-making bodies of the National Association of Pharmacists which had restricted competition on the market for clinical laboratory studies.

100. That does not mean, however, that, where certain conditions arising from the general principles governing the attribution of penalties are met, EU law precludes the possibility of using such a sanctioning mechanism: namely, in the case where specific liability of certain undertakings belonging to the association of undertakings is established (which cannot consist merely of membership of the association’s decision-making bodies), and in the case where, as the Commission observed, (34) specific liability for the decision-making bodies is provided for by the national law of the Member State.

IV.    Conclusion

101. On the basis of all the foregoing considerations, I propose that the Court answer the seventh question referred for a preliminary ruling as follows:

Article 101 TFEU

must be interpreted as meaning that it does not preclude that individual notaries belonging to the Presidium can be fined individually, at the same time as fining the Chamber of Notaries, provided that the national court finds, on the basis of the provisions in force in Lithuania, that they make a specific and actual contribution as undertakings, different and additional to that of the other notaries who are members of the Chamber of Notaries, or that there is a provision of national law in force that allows it.’

1      Original language: Italian.

2      Council Regulation of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).

3      Article 9 of the Lithuanian Law on the notarial profession provides that: ‘The key tasks of the Chamber of Notaries shall be as follows: (1) coordinating the activities of notaries; (2) providing for the improvement of qualifications of notaries; (3) protecting and representing the interests of notaries before public and administrative authorities; (4) drawing up drafts of legislative acts on issues relating to the notarial profession and submitting them to the Minister for Justice of the Republic of Lithuania; (5) making notarial practice uniform; (6) supervising the manner in which notaries perform their functions and comply with the requirements of professional ethics; (7) ensuring the retention and use of documents drawn up by notaries in the exercise of their functions; (8) providing for the carrying out of professional traineeships of notaries; (9) carrying out other tasks provided for by other laws and by the Statute of the Chamber of Notaries.’

4      Article 19¹ of the Law on the Notarial Profession provides that ‘the amounts (the rates) of the fees of the notary for the drafting of notarial acts, drafting of draft transactions, consultations and technical services shall be set taking into account the following criteria: (1) the value of the authenticated transaction or of another notarial act; (2) the notarial act prepared or the nature of the service rendered; (3) guaranteeing the economic independence of the notary; (4) the risks connected to the notary’s professional activity and to his [or her] civil liability; (5) cross-subsidies; (6) costs.’

5      See judgment of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98, paragraph 68).

6      See judgment of 23 November 2017, CHEZ Elektro Bulgaria and FrontEx International (C‑427/16 and C‑428/16, EU:C:2017:890, paragraph 46).

7      Article 26 of the Law on the notarial profession provides that: ‘Notaries shall perform the following notarial activities: (1) authenticate contracts; (2) issue certificates of succession; (3) issue certificates of ownership in respect of part of the spouses’ common assets; (4) certify copies of documents and related extracts; (5) attest the authenticity of a signature on documents; (6) certify the translation of documents from one language into another; (7) attest that a natural person is living and the place of his domicile; (8) agree to keep wills in the same way as official wills and personal wills; (9) certify the date of notification of documents; (10) transmit declarations of certain natural and legal persons to other natural and legal persons; (11) enter sums of money on a deposit account; (12) receive sea reports; (13) object to promissory notes and cheques; (14) affix enforcement formulas on notarial acts involving financial obligations, as well as with regard to promissory notes or cheques that are or are not subject to opposition; (15) affix enforcement formulas for the compulsory recovery of a debt under a mortgage (pledge) on application by the creditor; (16) draw up or certify documents relating to the authenticity of data provided for the registration of legal persons and attest the possibility of registering a legal person, to the extent the obligations under the legislation or the constitutive act are fulfilled and the circumstances provided for in the legislation or the constitutive documents are met; (17) certify the conformity of the constitutive acts of legal persons with the requirements of the legislation; (18) certify, in accordance with the rules laid down by the Lithuanian government, the lawfulness of the documents (by means of an apostille); (19) draw up other notarial acts provided for by the legislation. It shall be recognised that facts established in documents certified before a notary are established and need not be proved so long as such documents (or a part thereof) are not declared invalid in accordance with the rules laid down by law’. Furthermore, Article 45 of the Lithuanian law on the notarial profession provides that: ‘a notary shall certify transactions for which the civil code or other laws, in cases specified by the civil code, require a notarial act. A notary may also certify transactions which, in accordance with the legislation, may be concluded orally or in a simplified written form’.

8      See judgments of 13 July 1966, Consten and Grundig v Commission (56/64 and 58/64, EU:C:1966:41); of 6 March 1974, Istituto Chemioterapico Italiano and Commercial Solvents v Commission (6/73 and 7/73, EU:C:1974:18); of 1 February 1978, Miller International Schallplatten v Commission (19/77, EU:C:1978:19); and of 23 April 2009, AEPI v Commission (C‑425/07 P, EU:C:2009:253).

9      See judgments of 11 July 1985, Remia and Others v Commission (42/84, EU:C:1985:327, paragraph 22), and of 21 January 1999, Bagnasco and Others (C‑215/96 and C‑216/96, EU:C:1999:12, paragraph 47).

10      See judgments of 9 July 1969, Völk (5/69, EU:C:1969:35, paragraph 7); of 25 November 1971, Béguelin Import (22/71, EU:C:1971:113, p. 954); and of 28 April 1998, Javico (C‑306/96, EU:C:1998:173, paragraph 17); and Opinion of Advocate General Mengozzi in AEPI v Commission (C‑425/07 P, EU:C:2008:660).

11      Commission Notice, Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty (OJ 2004 C 101, p. 81).

12      Guidelines, paragraph 52: ‘(a) the aggregate market share of the parties on any relevant market within the Community affected by the agreement does not exceed 5%, and (b) …the… turnover of the undertakings concerned … does not exceed 40 million euro [to be applied in relation to the types of agreement]’. (Square brackets added.)

13      See judgments of 29 March 1979, Nippon Seiko and Others v Council and Commission (119/77, EU:C:1979:93); of 7 June 1983, Musique diffusion française and Others v Commission (100/80 – 103/80, EU:C:1983:158); and of 25 October 1983, AEG-Telefunken v Commission (107/82, EU:C:1983:293).

14      See judgment of 11 July 1989, Belasco and Others v Commission (246/86, EU:C:1989:301).

15      See judgments of 19 February 2002, Wouters and Others (C‑309/99, EU:C:2002:98), and of 16 July 2015, ING Pensii (C‑172/14, EU:C:2015:484), and Opinion of Advocate General Geelhoed in Asnef-Equifax and Administración del Estado (C‑238/05, EU:C:2006:440).

16      See judgment of 13 December 2012, Expedia (C‑226/11, EU:C:2012:795, paragraph 37).

17      See judgments of 14 March 2019, Skanska Industrial Solutions and Others (C‑724/17, EU:C:2019:204, paragraph 29), and of 27 April 2017, Akzo Nobel and Others v Commission (C‑516/15 P, EU:C:2017:314, paragraph 46).

18      See judgments of 11 December 2007, ETI and Others (C‑280/06, EU:C:2007:775, paragraph 39); of 8 July 1999 Commission v Anic Partecipazioni (C‑49/92 P, EU:C:1999:356, paragraph 145); of 29 March 2011, ThyssenKrupp Nirosta v Commission (C‑352/09 P, EU:C:2011:191, paragraph 143); of 16 November 2000, KNP BT v Commission (C‑248/98 P, EU:C:2000:625, paragraph 71); of 16 November 2000, Stora Kopparbergs Bergslags v Commission (C‑286/98 P, EU:C:2000:630, paragraph 37); and of 16 November 2000, SCA Holding v Commission (C‑297/98 P, EU:C:2000:633, paragraph 27).

19      See judgment of 16 November 2000, Cascades v Commission (C‑279/98 P, EU:C:2000:626, paragraph 78).

20      See judgment of 20 March 2002, HFB and Others v Commission (T‑9/99, EU:T:2002:70, paragraph 66).

21      Observations of Lithuania, paragraph 53.

22      Observations of the Competition Council, point 87.

23      See 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), according to which ‘when, as in this case, the members of an association of undertakings have participated actively in implementing an anticompetitive agreement, those members’ turnover could be taken into account for the purposes of determining the sanction …’. Such taking into account is also justified in ‘cases where an infringement on the part of an association involves its members’ activities and where the anticompetitive practices at issue are engaged in by the association directly for the benefit of its members and in cooperation with them, the association having no objective interests independent of those of its members’.

24      ‘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.’

25      ‘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.’

26      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).

27      Directive of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market (OJ 2019 L 11, p. 3).

28      Observations of the Commission, paragraph 107.

29      See judgment of 1 July 2008, MOTOE (C‑49/07, EU:C:2008:376, paragraph 25).

30      See judgments of 16 November 1995, Fédération française des sociétés d’assurance and Others (C‑244/94, EU:C:1995:392, paragraph 21).

31      See judgment of 10 January 2006, Cassa di Risparmio di Firenze and Others (C‑222/04, EU:C:2006:8).

32      Observations of the Lithuanian Chamber of Notaries, points 2.13 and 2.14.

33      European Commission Decision COMP/A.38549 of 24 June 2004.

34      Observations of the Commission, paragraph 110.

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