Keywords
Summary

Keywords

1 Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Derogations - Activities connected with the exercise of official authority - Activities of private security undertakings and staff - Excluded

(EC Treaty, Arts 55, first para., and 66)

2 Freedom of movement for persons - Derogations - Protection of public policy, public security and public health - Private security activities generally excluded - Not permissible

(EC Treaty, Arts 48(3), 52 and 56)

3 Freedom of movement for persons - Freedom of establishment - Freedom to provide services - Restrictions - Directors and managers of security undertakings subject to a residence condition - Not permissible - Public security justification - None

(EC Treaty, Arts 56(1) and 66)

Summary

1 As a derogation from the fundamental rule of freedom of establishment, the exception provided for in the first paragraph of Article 55 combined, where appropriate, with Article 66 of the Treaty, must be interpreted in a manner which limits its scope to what is strictly necessary for safeguarding the interests which that provision allows the Member States to protect. Thus the derogation for which it provides must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority.

That does not cover the case of the activity of security undertakings and security staff, the purpose of which is to carry out surveillance and protection tasks on the basis of relations governed by private law: exercise of their activity does not mean that they are vested with powers of constraint. Merely making a contribution to the maintenance of public security, which any individual may be called upon to do, does not constitute exercise of official authority.

2 In excluding the exercise, by a person or undertaking possessing the nationality of another Member State, of private security activities, a Member State fails to fulfils its obligations under Articles 48 and 52 of the Treaty. Such a general exclusion from access to certain occupations cannot be justified on the grounds of public policy, public security or public health referred to in Articles 48(3) and 56 of the Treaty. The right of Member States to restrict freedom of movement for persons on such grounds is not intended to exclude economic sectors such as the private security sector from the application of the principle of freedom of movement, from the point of view of access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health.

3 A rule of national law according to which directors and managers of all security undertakings must reside on the territory of the Member State in which they are established constitutes an obstacle to freedom of establishment and to the freedom to provide services. That residence condition is not necessary in order to ensure public security in the Member State and is not therefore covered by the derogation provided for by Article 56(1) combined, where appropriate, with Article 66 of the Treaty. Recourse to that justification presupposes the existence of a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Effective monitoring of the activities of private security undertakings may be carried out and penalties imposed on any undertaking established in a Member State, whatever the place of residence of its directors. Moreover, the payment of any penalty may be secured by means of a guarantee to be provided in advance.