C-355/98

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OPINION OF MR JACOBS — CASE C-355/98

6. Under Article 5(3) and (7), all persons 9. In its observations of 14 June 1996, the engaged in the management of a security Belgian Government expressed its view that firm or an internal security service and the restrictions contained in its legislation members of the board of a security firm if were justified by the relevant Treaty excep- they are effectively involved in the manage- tions for measures justified on grounds of ment must be permanently or habitually public policy and public security. resident in Belgium. The same residence requirement applies under Article 6(3) and (7) to what I shall refer to as 'security staff' — that is to say, all employees other than administrative or logistic staff. There are no such residence requirements as 10. The Commission did not agree and sent regards security systems firms (Articles 5(7) the Belgian Government a reasoned opi- and 6(7)). nion on 10 June 1997, calling upon it to comply within two months.

7. Finally, Article 8 requires security staff 11. In its reply dated 6 May 1998, the working for security firms and internal Belgian Government stressed the specific security services to carry an identification nature of private security operations, their card issued by the Ministry of the Interior. close relationship with the maintenance of public order for which the State is respon- sible and the need to maintain adequate control over them, as illustrated by a number of recent incidents in Belgium. It further pointed out that the rules governing security firms varied widely from one Member State to another.

— persons who

the Kingdom of Belgium has failed to fulfil its obligations under Articles 48, 52 and 59 of the Treaty' (now, after amendment, — have charge of the actual man- Articles 39, 43 and 49 EC). agement of a security firm or internal security service, or who

13. On 29 October 1998, the Court gave judgment in Case C-114/97 Commission v — work in or on behalf of such an Spain, 1 in which it declared that 'by undertaking or are employed maintaining in force ... provisions [which] for the purposes of its activ- make the grant of authorisation to carry on ities, with the exception of private security activities, in the case of internal staff working in security companies, subject to the require- administration or logistics, ment of being constituted in Spain and the requirement that their directors and man- agers should reside in Spain and the requirement that security staff should pos- sess Spanish nationality, the Kingdom of must have their permanent residence or, failing that, their habitual residence in Belgium, 1 — [1998] ECR I-6717.

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Spain has failed to fulfil its obligations' Assessment under those same articles.

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COMMISSION V BELGIUM

cult or even impossible for undertakings 20. As regards, thirdly, the requirement of not established in Belgium to provide any prior authorisation, rules subjecting the security service there, and for persons not provision of certain services by an under- resident in Belgium to set up a security firm taking established in another Member State there. They thus constitute restrictions of to the issue of an administrative licence both freedom to provide services and free- constitute — in particular where the occa- dom of establishment. 2 sional provision of services is concerned and even when they apply without distinc- tion to national providers and to those of other Member States — a restriction on the freedom to provide cross-border services. 4

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only issue appears to be whether the 26. First of all, there are no grounds for restrictions thus imposed are justified. considering that private security firms in any way exercise official authority. The Court held, in Commission v Spain, 5that private security undertakings and their staff were not directly and specifically involved in the exercise of official authority under the Spanish legislation. No evidence has been put forward at any stage by the Belgian Government to suggest that the 23. In accordance with Articles 48(3) and situation is any different in Belgium. As 56(1) of the EC Treaty (now Articles 39(3) Advocate General Alber pointed out in his and 46(1) EC), the prohibition of restric- Opinion in Commission v Spain, 6 the fact tions on freedom of movement and free- that security firms may provide assistance dom of establishment does not apply where to the police does not mean that they measures are justified on grounds of public thereby exercise official authority. policy, public security or public health, and Article 66 of the EC Treaty (now Article 55 EC) extends that exclusion to restrictions on freedom to provide services. Under Article 55 of the EC Treaty (now Article 45 EC), in conjunction with Article 66, the prohibition of restrictions of freedom of 27. With regard to the second set of establishment and freedom to provide ser- exceptions invoked by the Belgian Govern- vices does not apply to activities connected ment the Court has held that the concept of with the exercise of official authority. public policy may be relied upon only in the event of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society. The public policy exception, like all derogations from a fundamental princi- ple of the Treaty, must be interpreted restrictively. 7

ments of public policy. In its reply to the requirement imposed on staff. No such reasoned opinion it argued that the require- requirement is imposed in Belgium but the ments of public policy were threatened by rules in issue constitute indirect, or covert, the danger of conflicts arising out of discrimination in so far as they impose encroachment by private security service particular restrictions on persons or under- providers into areas of police competence takings resident or established in other and by the risk that the public might not be Member States. I therefore find no diffi- able to distinguish between private security culty in extending that ruling to all forms of staff and police personnel. discrimination. Nor is there any reason to limit it to the field of employment, in the light of the parallel nature of the exceptions for restrictions on freedom of movement for workers, freedom of establishment and freedom to provide services. 29. I cannot conclude, from those argu- ments alone — if, indeed, the Belgian Government is still maintaining them — that each and every security firm represents a serious threat to the requirements of public policy. 32. However, even if one were to assume that with regard to security service provi- ders some national measures restricting the fundamental freedoms guaranteed by the Treaty may be justified on grounds of public policy, any such measures must 30. Nor can the sectors in question be comply with the principle of proportional- excluded as a category from the general ity. National measures liable to hinder or rules laid down in the Treaty. In Commis- make less attractive the exercise of funda- sion v Spain, 8 the Court held: 'The right of mental freedoms guaranteed by the Treaty Member States to restrict freedom of move- must be suitable for securing the attainment ment for persons on grounds of public of the objective which they pursue and policy, public security or public health is must not go beyond what is necessary in not intended to exclude economic sectors order to attain it. 9 such as the private security sector from the application of that principle, from the point of view of access to employment ...'

36. On 23 August 1999, the Belgian Gov- ernment sent the Court copies of a Law of 9 June 1999, published in the Moniteur 34. The Commission has stressed that it Belge on 29 July 1999, amending the does not challenge the justification for Belgian Law of 10 April 1990, and of a measures of government control over secur- letter in which it requested the Commission ity firms — it does not object, for example, to discontinue the present proceedings. to rules regarding the wearing of uniforms, the carrying of firearms, the obligation to inform civil and police authorities of activ- ities carried out or the subjection of private security undertakings to police control — but merely the imposition of that control in a way which discriminates against firms and individuals established or resident in 37. It is not for the Court to assess the other Member States. It also states that the tenor of that amending Law in the context Belgian authorities should make use of the of this case; it has consistently been held evidence and guarantees presented by any that the question whether a Member State security firm for the pursuit of its activity in has failed to fulfil its obligations must be its Member State of establishment. determined by reference to the situation prevailing at the end of the period laid down in the reasoned opinion. 10 I note, however, that the Law of 9 June 1999 appears to relax the establishment and residence requirements by providing that firms must have their place of business, and the relevant categories of persons must be resident, in a Member State of the Eur- opean Union rather than in Belgium. The rules relating to ministerial authorisation 35. In its defence the Belgian Government and the carrying of identification cards did not contest the Commission's argu- issued by the Belgian authorities, though, ments on that point. On the contrary, it do not appear to have been modified. stated that it was considering in the light of the Court's judgment in Commission v Spain what measures it should adopt to 10 — See, for example, Case C-316/96 Commission v Italy amend the Belgian Law in order to set up [1997] ECR I-7231, paragraph 14 of the judgment.

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