You work as a notary. They operate a commercial activity. In Spain, notaries are public officials, yet they engage in economic activity. The Court of Justice of the European Union has ruled that notary work is performed under market conditions and for fees. Therefore, notaries cannot be categorized as a traditional public administration authority.
In this framework, European justice explains that a change of notary ownership resembles a change of employer. Although Spanish notaries acquire ownership of a notary office after being appointed by the State, the directive protects workers when ownership changes. Because this is a business activity, employee rights and seniority are governed by the European directive on workers’ rights in the event of a company transfer.
This ruling followed a case brought by four workers at a Madrid notary office who challenged a termination as illegal by the new president. The Madrid court noted that the notary had repeatedly filled the position and employed workers continuously. The new owner justified dismissals on the grounds that the workers did not pass their probationary period.
ancient ages
The workers also asked the court to count their seniority from the date they began working at the notary. The owner argued that seniority should start only from the signing date of their employment contracts with the office.
In this dispute, the Madrid court referred to the Court of Justice of the European Union to determine whether the workers’ rights directive on transfers of undertakings applies to the unique features of the Spanish notary profession.
Importantly, changing the owner does not erase the notary’s identity. The decisive factor is whether the entity retains its identity after the transfer. The decision states that the preservation of identity is essential to determine a transmission under the directive.
According to the Court, the activity of a notary largely depends on the continuation of the same services. If the new owner retains a substantial portion of the staff, keeps the premises, and assumes the financial resources, the notary’s identity persists post-transfer and the activity continues under the directive framework.
The Court emphasizes that the Madrid judge must verify whether these conditions are met in each case. If they are, the transfer will fall under the workers’ rights directive, ensuring protection for personnel during the transition and maintaining their accrued rights and seniority.