Comisión de las Comunidades Europeas contra Reino de España.

• Jurisdiction: European Union
• Celex Number: 61997CJ0114
• ECLI: ECLI:EU:C:1998:519
• Date: 29 October 1998
• Docket Number: C-114/97
• Procedure Type: Recurso por incumplimiento – fundado
• Court: Court of Justice (European Union)

Judgment of the Court (Fifth Chamber) of 29 October 1998. - Commission of the European Communities v Kingdom of Spain. - Failure by a Member State to fulfil its obligations - Freedom of movement for workers - Freedom of establishment - Freedom to provide services - Private security activities - Nationality conditions. - Case C-114/97.

European Court reports 1998 Page I-06717

Summary Parties Grounds Decision on costs Operative part

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.

Parties

In Case C-114/97,

Commission of the European Communities, represented by Antonio Caeiro, Legal Adviser, and Fernando Castillo de la Torre, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of Spain, represented by Santiago Ortiz Vaamonde, Abogado del Estado, of the State Legal Service, acting as Agent, with an address for service in Luxembourg at the Spanish Embassy, 4-6 Boulevard Emmanuel Servais,

defendant,

APPLICATION for a declaration that, by maintaining in force Articles 7, 8 and 10 of Law No 23/1992 of 30 July 1992, in so far as those provisions make the grant of authorisation to carry on private security activities, in the case of `security companies', subject to the requirement of being constituted in Spain and the requirement that their directors and managers should reside in Spain and the requirement that `security staff' should possess Spanish nationality, the Kingdom of Spain has failed to fulfil its obligations under the EC Treaty, in particular Articles 48, 52 and 59,

THE COURT

(Fifth Chamber),

composed of: P. Jann (Rapporteur), President of the First Chamber, acting as President of the Fifth Chamber, J.C. Moitinho de Almeida, C. Gulmann, L. Sevón and M. Wathelet, Judges,

Advocate General: S. Alber,

Registrar: R. Grass,

having regard to the report of the Judge-Rapporteur,

after hearing the Opinion of the Advocate General at the sitting on 7 May 1998,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 19 March 1997, the...