Luxembourg Administrative Court Decides That Requests For Information To Notaries Public Conflict With Their Professional Secrecy

1. Facts

   On 22 July 2010, the Luxembourg Competition Inspectorate ("Inspection de la concurrence")1 addressed to two Luxembourg notaries public a decision with a request for information within the meaning of Article 13(3) of the 2004 Competition Act ("loi du 17 mai 2004 relative à la concurrence "). Addressees of such request must provide the requested information. If not, fines can be imposed.

   The Competition Inspectorate's request was made on a cooperation request of the Hungarian competition authority2. The latter needed information from the two Luxembourg notaries public in the framework of a cartel investigation on bid rigging practices in the Hungarian public transport sector.

   The two notaries public challenged the request decision of the Luxembourg Competition Inspection before the Luxembourg Administrative Court of First Instance ("Tribunal administratif"). They argued that they were not to be considered as "undertakings" within the meaning of competition law so that such a request could not be addressed to them. Furthermore, they argued that the request of the Luxembourg Competition Inspection was in violation with the professional secrecy of notaries public in Luxembourg.

2. Judgment

   The Luxembourg Administrative Court of First Instance considered in its two judgments of 5 October 2011 in the cases n° 27379 and n° 27389 that a decision with a request for information within the meaning of Article 13(3) of the 2004 Competition Act3 can only be addressed to undertakings or associations of undertakings.

   The court further held that a notary public qualifies as an "undertaking" within the meaning of the 2004 Competition Act, i.e., "any entity engaged in an economic activity"4. It did so under reference to the preparatory works preceding the adoption of the 2004 Competition Act according to which a liberal profession also constitutes in principle an "undertaking". Turning more particularly to notaries public, the administrative court of first instance followed the reasoning of the European Court of Justice ("ECJ") in its judgment of 24 May 2011 in case C-51/08 Commission v. Luxembourg. In this case the ECJ did not accept that notarial activities in Luxembourg are related to the exercise of official authority: "[Luxembourg] notaries practise their profession, [...], in conditions of competition, which is not characteristic of the exercise of official authority". Therefore, the qualification of the notaries public as "undertakings" could not...