COURT: THE COMPETITION COUNCIL RIGHTLY DETERMINED THAT NOTARIES’ AGREEMENT RESTRICTED COMPETITION

The Supreme Administrative Court of Lithuania (Court) confirmed the findings of the Competition Council’s investigation, establishing that the Lithuanian Chamber of Notaries restricted competition among notaries and violated both the Competition Law and the Treaty on the Functioning of the European Union (TFEU). An expanded panel of judges, drawing on explanations by the Court of Justice of the European Union (CJEU), upheld the fine imposed on the Lithuanian Chamber of Notaries but annulled the financial sanctions on individual members of the Presidium.

Partially upholding the Competition Council’s appeal, the Court noted that this case introduces a unique perspective on the assessment of notarial activities in relation to competition law within the Lithuanian legal system. Although this perspective is still developing in Lithuania, the European Commission held as early as 2005 that notaries were not exempt from EU competition rules insofar as their activities involve economic functions.

The Competition Council adopted a similar stance in April 2018, when it concluded that the Lithuanian Chamber of Notaries and members of its Presidium concluded an anti-competitive agreement by setting the amount of notary fees and agreeing upon their calculation procedure. This agreement established that the notaries had to use the highest fee allowed by the Ministry for certain notarial activities. The Council imposed €88,400 fine on the Lithuanian Chamber of Notaries, and fines ranging from €100 to €20,800 on eight members of the Presidium for the infringements of the Law on Competition and TFEU.

In reviewing the dispute between the Competition Council and the notaries, the Court relied on a CJEU interpretation from earlier this year, which clarified that under Article 101 of the TFEU, notaries must be considered "undertakings" (economic entities) when they engage in activities like certifying mortgage transactions, performing executive entries, drafting transaction documents, providing consultations, offering technical services, and certifying exchange contracts – provided that these activities are not tied to the exercise of public authority. Additionally, the TFEU prohibits standardising how notaries calculate their fees as this represents a restriction on competition.

The Court further determined that “there is no basis to claim that notaries cannot compete on the fees they charge for notarial services insofar as current legislation permits them some discretion in this area.” The Court emphasised that the Lithuanian Chamber of Notaries, acting through its presidium, was not entitled to directly or indirectly regulate pricing for notarial services through its resolutions. The expanded panel of judges decided that the Chamber’s decisions that resulted in the uniform fee calculations for certain notarial services across the country constitute a restriction on competition, as the Competition Council had determined in its reasoned decision.

Based on the CJEU’s explanations that the Presidium, as the governing body of the Lithuanian Chamber of Notaries, operates on behalf of the entire Chamber rather than individual members, the Court upheld the first-instance court’s decision to annul the fines on the Presidium members.

Jolanta Ivanauskienė, the Chairwoman of the Competition Council, welcomed the Court’s confirmation of the institution’s findings and emphasised that this ruling established a clear position on the need for competition in the notarial services market.

“It is clear that future decisions regarding notarial services must take into consideration competition law requirements. Ensuring competition among notaries will address consumer needs to access these services under the most favourable conditions,” Ivanauskienė stated.

The Court decision is final and not subject to appeal.