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Document C2006/060/46

Case C-465/05: Action brought on 23 December 2005 by the Commission of the European Communities against the Italian Republic

JO C 60, 11.3.2006, pp. 24–25 (ES, CS, DA, DE, ET, EL, EN, FR, IT, LV, LT, HU, NL, PL, PT, SK, SL, FI, SV)

11.3.2006   

EN

Official Journal of the European Union

C 60/24

Action brought on 23 December 2005 by the Commission of the European Communities against the Italian Republic

(Case C-465/05)

(2006/C 60/46)

Language of the case: Italian

An action against the Italian Republic was brought before the Court of Justice of the European Communities on 23 December 2005 by the Commission of the European Communities, represented by E. Traversa and E. Montaguti, acting as Agents.

The applicant claims that the Court should:

1.

declare that the Italian Republic has failed to fulfil its obligations under Article 43 EC and Article 49 EC, by providing that:

—

the activity of private security guard can be exercised only after an oath of allegiance to the Italian Republic has been sworn;

—

private security activities can be exercised only after the granting of an authorisation by the Prefect;

—

the said authorisation has limited territorial validity and the granting thereof is subject to consideration of the number and size of security undertakings already in operation in the territory in question;

—

private security undertakings must have a place of business in each province in which they operate;

—

the personnel of the said undertakings must be individually authorised to perform security activities;

—

the security undertakings must have a minimum/maximum number of employees to be authorised;

—

private security undertakings must lodge security at the local Cassa depositi e prestiti (Deposit and Loan Bank);

—

the prices for private security services are established pursuant to authorisation by the Prefect within specified limits.

2.

order the Italian Republic to pay the costs.

Pleas in law and main arguments

The activity of private security guard does not constitute direct and specific participation in the exercise of official authority. The exception laid down in Articles 45 EC and 55 EC, to the right of establishment and freedom to provide services, cannot therefore be extended to such activity.

1)

The obligation to swear an oath constitutes an obstacle which is neither justified or proportionate having regard to the purpose, and the type of professional activity, of private security guards. The formal oath makes establishment in and, in general, access to the Italian market in private security services more difficult for Community undertakings, to the extent of completely dissuading occasional providers of such services from providing them.

2)

The requirement of a licence for anyone wishing to provide private security services in Italy, without taking into account analogous obligations to which the provider of such services is already subject in the Member State in which he is established, constitutes an unjustified obstacle to the freedom to provide services.

3)

A Community undertaking in the same sector which intends to establish itself in Italy and operate in a territory of a certain size must obtain as many licences as provinces in which it intends to carry out its activities (there are 104 provinces in Italy). The competent authority (Prefect) may decline to grant such licences having regard to the number and size of undertakings already operating on the said territory.

4)

An undertaking which intends to establish itself in Italy must arrange to have as many premises as licences obtained and provinces covered, even though this is not required for the carrying out of services. Moreover, to lay down an obligation of this kind concerning premises is equivalent to denying the freedom to provide services given that it requires a person providing such services on a transfrontier basis to have an establishment in Italy.

5)

In the case of occasional provision of security services, Italian law always requires each employee to be individually authorised to exercise his activity in Italy and does not take into account any control measures to which each sworn private security guard is already subject in his Member State of origin.

6)

The licences granted by the Prefect may contain a requirement relating to a minimum/maximum number of employees. Failure to respect such limits entails revocation of the licence. Such provisions constitute an obstacle to freedom of establishment and freedom to provide services, which is liable in particular to completely preclude access to the market for small undertakings.

7)

The obligation to lodge security at the Deposit and Loan Bank imposed on private security undertakings by the Italian law does not take account of obligations that are comparable, as regards their purpose, to which the service provider is already subject in the Member State in which it is established.

8)

Restrictions on the freedom to set charges constitute a further obstacle to freedom of establishment and freedom to provide services. In fact, a new service provider which tries to enter a given market must endeavour to stand out from its competitors and the price of the services is an important factor in procuring clients.
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