Keywords
Summary

Keywords

1. Actions for failure to fulfil obligations - Examination of the merits by the Court - Situation to be taken into consideration - Situation at the end of the period laid down in the reasoned opinion

(EC Treaty, Art. 169 (now Art. 226 EC))

2. 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, Art. 55, first para., and Art. 66 (now Art. 45, first para., EC and Art. 55 EC))

3. Freedom to provide services - Restrictions - Obligation for security undertakings to have their place of business in national territory - Not permissible - Justification on grounds of public policy and public security - None

(EC Treaty, Arts 56 and 59 (now, after amendment, Arts 46 EC and 49 EC) and Art. 66 (now Art. 55 EC))

4. Freedom of movement for persons - Workers - Freedom of establishment - Restrictions - Directors and managers of security undertakings subject to a residence condition - Not permissible - Public security justification - None

(EC Treaty, Arts 48, 52 and 56(1) (now, after amendment, Arts 39 EC, 43 EC and 46(1) EC))

5. Freedom to provide services - Restrictions justified in the public interest - Whether permissible - Conditions

(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 EC))

Summary

1. In the context of proceedings under Article 169 of the Treaty (now Article 226 EC), the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and the Court cannot take account of any subsequent changes.

( see para. 22 )

2. As a derogation from the fundamental rule of freedom of establishment, the exception provided for in the first paragraph of Article 55 of the Treaty (now the first paragraph of Article 45 EC) combined, where appropriate, with Article 66 of the Treaty (now Article 55 EC), must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority. That does not apply to the business of security firms, internal security services and security systems.

( see paras 24-26 )

3. By requiring a security firm to have its place of business in national territory, thereby making it impossible for undertakings established in other Member States to provide services in that territory, a Member State fails to fulfil its obligations under Article 59 of the Treaty (now, after amendment, Article 49 EC). Such a requirement cannot be justified on grounds of public policy and public security. The right of Member States to restrict the free movement of persons and services on those grounds is not intended to exclude economic sectors such as the private security sector from the application of the principle of free 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.

( see paras 27-29, 41 and operative part )

4. A rule of national law requiring managers and staff of security firms and internal security services, save for administrative and logistical staff, to reside in the territory of the Member State in which they are established constitutes a restriction on both the freedom of establishment and the free movement of workers. That residence condition cannot be justified by the need to check the background and conduct of the persons in question. The need to obtain information in that respect may be satisfied by means less restrictive of freedom of movement, if necessary through cooperation between the authorities of Member States. Moreover, checks may be carried out and penalties may be imposed on any undertaking established in a Member State, whatever the place of residence of its managers.

( see paras 31-34, 41 and operative part )

5. The freedom to provide services, being one of the fundamental principles of the Treaty, may be restricted only by rules justified by the public interest and applicable to all persons and undertakings operating in the territory of the Member State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established.

( see para. 37 )

6. A rule of national law requiring every staff member of a security firm or internal security service to carry an identification card issued in accordance with national legislation constitutes a restriction on the freedom to provide services. The formalities involved in obtaining such a card are likely to make the provision of services across frontiers more difficult. Moreover, since the provider of a service who goes to another Member State must be in possession of an identity card or a passport, the requirement of an additional identity document is disproportionate in relation to the need to ensure the identification of the persons in question.

( see paras 39-41 and operative part )