FOST JUDECĂTOR LA ÎNALTA CURTE DE CASAŢIE ŞI JUSTIŢIE. CERERE DE NUMIRE ÎN FUNCŢIA DE NOTAR PUBLIC FĂRĂ EXAMEN
FORMER JUDGE AT THE HIGH COURT OF CASSATION AND JUSTICE. APPLICATION FOR APPOINTMENT AS A NOTARY PUBLIC WITHOUT EXAMINATION

Summary/Abstract: Considering it necessary that the resolution of the legal issue regarding the determination of the margin of the right of option of a former judge of the High Court of Cassation and Justice with regard to the place of performance of his professional activity as a notary public should be made – as established in the case law of the Constitutional Court – with due regard not only to the letter but also to the spirit of the law, the court of appeal ruled that, by the provisions of Article 33(1) and (2) of Law No. 36/1995 on notaries public and notarial activity, the legislator has conferred on its beneficiaries a right of option not only with regard to the chamber of notaries public in the district in which they wish to carry out their activity, but also with regard to the locality in which they wish to practice, even if such a provision is not found as such in the content of the analyzed norm. Thus, considering that the legislator has provided for the granting of the benefit of the option for a position as a notary public to former judges of the supreme court in consideration of their high level of legal training, which would no longer require them to go through the procedure for entering such a profession, a vocation with positive implications not only for the beneficiary of the provision, but also in the interest and for the prestige of the liberal profession itself, it can be concluded that the recognition of this benefit cannot be conceived without respecting the choice of the former magistrate, including with regard to the location where they wish to exercise it. Otherwise, when the performance of the activity would be incompatible with personal life – in terms of the distance between localities or other particular aspects – the very purpose pursued by the legislator in adopting the rule could be lost, affecting not only the vocation of the beneficiary, but also the profession in question, through the loss of the services provided by a legal professional. Therefore, in the procedure preceding the issuance by the Ministry of Justice of orders to update the number of notary public positions, under the conditions regulated by Article 21(3) of Law No. 36/1995, the Chambers of Notaries Public, in the proposals they submit to the Council of the Union, must also take into account the locality in which the former judge wishes to practice as a notary public. The mechanism for selecting between several applicants who have opted for the same notary position intended for judges of the High Court of Cassation and Justice, regulated by the provisions of Article 29(3) of the Regulations for the application of Law No. 36/2005, approved by Order of the Minister of Justice No. 2. 333/C of July 24, 2013, as subsequently amended and supplemented, applies exclusively in situations where there is a shortage of positions in the requested locality, and not in situations where, at the time when several former judges of the High Court of Cassation and Justice submitted applications to become notaries public, in the locality for which they opted - even though there were enough notary public positions for each of them - the Ministry of Justice, based on the proposal of the competent territorial chamber, allocated only one position.

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