The Court of Justice of the European Union held in case C-61/08 that, by imposing a nationality requirement for access to the profession of notary, the Hellenic Republic failed to fulfil its obligations under Article 49 TFEU, which ensures the freedom of establishment. On the other hand, the Court rejected the Commission’s claim for a declaration that the Hellenic Republic has not transposed directive 89/48 with regard to the profession of notary.

In particular, although the Court held that notaries do not exercise official authority within the meaning of Article 49 TFEU, it accepted that restrictions of Article 49 TFEU, such as the procedures by which notaries are appointed, their limited number, the restriction of their territorial jurisdiction, the rules governing their remuneration, their independence, their disqualification from holding other office and their protection against removal, may be justified, provided that those restrictions enable the objective to guarantee the lawfulness and legal certainty to be attained and are necessary for that purpose. Thus, Member States may impose terms and conditions for the access to the profession of notary, in conformity with the principle of proportionality. It must consequently be considered that the significance of the negation of participation in the exercise of official authority on behalf of notaries is considerably diminished.

Therefore, the judgment of the Court does not affect the status and organisation of notaries in the Greek legal system, or the conditions of access to the profession of notary, with the exception of the condition of nationality. Furthermore, the judgment only concerns the freedom of establishment and does not affect the provisions of the TFEU on the freedom to provide services, or the Treaty provisions on freedom of movement for workers. Thus, these questions are not covered by res judicata.