U-I-125/95

Reference no.:
U-I-125/95
Objavljeno:
Official Gazette RS, No. 1/99 and OdlUS VII, 215 | 03.12.1998
ECLI:
ECLI:SI:USRS:1998:U.I.125.95
Act:
Office of a Notary Public Act (Official Gazette RS, Nos. 13/94, 48/94 and 82/94) (ZN), Art. 107, Para. 2
Operative provisions:
Art. 107, Para. 2 of the Office of a Notary Public Act is not unconstitutional.
Abstract:
Since the office of a notary public is a public service, the Chamber of Notaries Public does not alone prescribe the notary public tariff but, following the explicit statutory provision, it only prescribes it in accordance with the Ministry of Justice. The office of a notary public is not discharged by the State, which means that the incomes ensuing from notaries' public services cannot be part of the State budget. The challenged provision is not therefore contrary to Art. 148 of the Constitution, according to which all incomes of the State must be included in its budget. Moreover, it is not contrary to Art. 147 of the Constitution either, for the notary public tariff is not viewed as a tax, or any other mandatory duty, but it only concerns fixing a price (payment) for notary's public services rendered. The determination of the notary public tariff is not free or left only to the notaries public who perform this public service as their independent profession.

The fact that the tariff is adopted by the Chamber of Notaries Public provided that the Minister of Justice confirms it insures the equality of the tariff to all notaries public, as well as the accessibility of this public service under equal conditions to all citizens.
Password:
Partial acceptance of a petition.
Prescribing the notary public tariff.
Chamber of Notaries Public, the competence for adopting the notary public tariff in accordance with the Ministry of Justice. Office of a notary public, a public service.
Public service, office of a notary public.
Budget, State.
Concurring opinion of a Constitutional Court justice.
Legal basis:
Constitution, Arts. 137, 147, 148
Constitutional Court Act (ZUstS), Arts. 40
Document in PDF:
The full text:
U-I-125/95
3 December 1998


D E C I S I O N


At a session held on 3 December 1998 in proceedings to review constitutionality, instituted by the petition of Tinca Vidmar from Ljubljana, the Constitutional Court

d e c i d e d:

Art. 107, Para. 2 of the Office of a Notary Public Act (Official Gazette RS, Nos. 13/94, 48/94 and 82/94) is not unconstitutional.

R e a s o n i n g:

A.

1. The petitioner challenged Arts. 10, 11 and 125 of the Office of a Notary Public Act (hereinafter: ZN). She argued that by limiting the number of the notary public posts the legislature had prevented the independent profession of a notary public to be performed by all those who fulfilled the conditions for performing it. For the same reasons also the Direction on the Number and Offices of Notaries Public was allegedly unconstitutional. Contrary to the principle of a State governed by the rule of law was allegedly the provision prescribing that the person who performed their work as an independent profession was to be nominated to the post of a notary public (following a public official invitation), considering that the Act required that after a necessary procedure was carried out the person selected should have entered into an employment agreement. By determining the number of the notary public posts, and by the obligation imposed on the parties to proceedings that certain public documents on legal transactions were to be composed by notaries public, the legislature, in the petitioner's opinion, determined the monopolistic position of the office of a notary public, although this service was pursuant to financial and tax regulations allegedly to be regulated as a profit-making activity. Notary's public fees should allegedly have been embraced by the budget, since in a State governed by the rule of law the charges of public services should have been an income of the State. A public authorization which could be granted by statute to certain individuals to perform a certain public service, in the petitioner's opinion, did not give the right to collect fees on one's own behalf. Therefore, Art. 107, Para. 2 of ZN, which allowed the Chamber of Notaries Public to fix the notary public tariff, was allegedly also inconsistent with the constitutional principle of carrying into effect the system of public finances. Such a statutory provision allegedly had serious material consequences for the State due to the reduction of budget incomes.

2. In ruling No. U-I-125/95, dated 7 Mar. 1996, the Constitutional Court held that the petitioner's assertions concerning Arts. 10, 11 and 125 of ZN and the Direction on the Number and Offices of Notaries Public were not well founded.
The Court thus dismissed the petition in this part, however in the part where the petitioner had challenged Art. 107, Para. 2 of ZN the Court accepted it.

3. In its reply to the petition the National Assembly opined that also the provision of Art. 107, Para. 2 of ZN did not contradict the Constitution. The challenged provision only regulated the tariff for remunerating notaries public. It was determined by the Chamber of Notaries Public in accordance with the Minister of Justice. Such regulation of adopting the tariff took into account on the one hand the particularity of this public service, and, on the other hand, the competence of the State body to participate in deciding on the tariff. According to the National Assembly, such regulation was not contrary to the principles of the operation of public services. Besides, the Constitution left the regulation of the office of a notary public to the legislature without imposing any special conditions or restrictions on it (Art. 137, Para. 2 of the Constitution).

4. An opinion of the petition was also sent by the Chamber of Notaries Public. It asserted that: all over the world the office of a notary public was not considered to be a State office. ZN introduced the Latin type of the office of a notary public, which is known by the majority of countries in the world. The main characteristic of such an office was its being performed as an independent profession, the basis of which was autonomy and independence. This was particularly shown in its independence from the State, making it able to autonomously earn its incomes, which contributed to its economic independence. It did not earn these incomes solely by carrying out its public authorizations, but also by its independent activity similarly performed as if performed by an attorney at law (for example pursuant to Art. 5 of ZN). Completely independent and direct was also its liability for damages. All this required that a notary public independently earned their incomes from performing their activity and were not remunerated for their work by the State, for this would have established a relationship similar as the employment relationship to the State. It was determined neither in the Constitution nor in the legislation that incomes originated from operating a public service should have been part of public finances. This also followed from the example of licensed public services. Incomes earned from the notary public fees were also not a net income of the notary public. According to the Income Tax Act, every notary public was subject to pay, first, service occupation tax and, second, also income tax. The notary public fee was neither a tax, or a mandatory duty, nor an income of the State property, but the income earned in an independent profession by operating a public service, however through independent work employing the means of one's own, not State, property.

B.

5. In the reasoning dismissing the petition in the part that referred to Arts. 10, 11 and 125 of ZN the Constitutional Court stated that the Constitution had introduced in Art. 137, Para. 2 (Attorneys at Law and Notaries Public) the office of a notary public as a public service regulated by statute. The function of this public office and the manner of its operation are determined by statute. The office of a notary public is according to statute discharged by notaries public, however their freedom in doing this is restricted by statute particularly because it concerns the discharge of a public service. A notary public authenticates the documents and agreements submitted to them pursuant to statute, this being their primary function. A notary public does not only act in the interest of one party, but particularly in the public interest ensuring the security of legal transactions. Due to this fact the framers of the Constitution have considered this activity so important thus ascribing to it the significance of a public service.

6. For a notary public discharges their office as an independent profession, it is also not possible that the notaries public fees would be a constitutive part of the budget. This would be true only if the State alone discharges the office of a notary public. Since the State has authorized notaries public to discharge this office, their operation is thus on the one hand restricted because it concerns a public service, but on the other hand it is independent, which means that the tariffs charged for their work performed are their incomes for them to make a living. Particularly because this matter concerns a public service the notary public tariffs are not prescribed by the Chamber of Notaries Public alone, but, pursuant to the explicit provision of Art. 107, Para. 2 of ZN, they are also prescribed in accordance with the Minister of Justice. The office of a notary public is not discharged by the State, which means that incomes from its services rendered also cannot represent a constitutive part of the budget. The challenged provision is therefore not inconsistent with Art. 148 of the Constitution, which provides that all incomes of the State must be embraced by its budget. It is also not inconsistent with Art. 147 of the Constitution, for the notary public tariff is not a tax, nor other mandatory duty, but is only meant to fix a price (payment) for a notary's public service rendered. This measure, i.e. the fixing of the notary public tariff, is not taken freely or simply left to the notaries public alone, who discharge this public service as their independent profession.

The adoption of the tariff by the Chamber of Notaries Public in accordance with the Minister of Justice insures the protection of the equality of the tariff to all notaries public, as well as the accessibility of this public service under equal conditions to all citizens.

C.

7. The Constitutional Court reached this decision on the basis of Art. 40 of ZUstS (Official Gazette RS, No. 15/94), composed of: Franc Testen, President, and Justices: Dr. Janez Čebulj, Dr. Miroslava Geč Korošec, Lojze Janko, Milojka Modrijan, Dr. Mirjam Škrk, Dr. Lojze Ude and Dr. Dragica Wedam Lukić. The decision was reached unanimously. Justice Ude concurred in the opinion of the Court.


P r e s i d e n t:
Franc Testen
Type of procedure:
review of constitutionality and legality of regulations and other general acts
Type of act:
statute
Applicant:
Tinca Vidmar, Ljubljana
Date of application:
07.07.1995
Date of decision:
03.12.1998
Type of decision adopted:
decision
Outcome of proceedings:
establishment – it is not inconsistent with the Constitution/statute
Document:
AN01669