C-283/99

COMMISSION V ITALY

OPINION OF ADVOCATE GENERAL JACOBS delivered on 15 February 2001 1

1. This is the third case in which the pubblica sicurezza (consolidated text of the Commission has sought a declaration that Laws on public security, hereinafter 'the a Member State has failed to comply with Public Security Law') adopted by Royal its Treaty obligations by regulating private Decree on 18 June 1931, and by its imple- security activities in such a way as to hinder menting regulations. The following provi- freedom of movement for workers, free- sions in particular are relevant. dom of establishment and freedom to provide services.2 The Italian provisions concerned here are those which require private security firms and private security guards to be of Italian nationality, and the only issue appears to be whether that requirement may be justified on the ground that their activities are connected with the exercise of public authority.

4. Under Article 250 of the regulation 6. A further Royal Decree-Law of implementing the Public Security Law, 3 as 12 November 1936 regulates private secur- amended, private security guards must ity firms. They too are placed under the swear to be loyal to the Italian Republic supervision of the Questore, who is given and its Head of State, to comply faithfully disciplinary powers, including suspension with its laws and to carry out the tasks and the withdrawal of any arms in their conferred on them diligently, conscien- possession, over private guards in their tiously and solely in the public interest. service. They are for this reason known as guardie particolari giurate (sworn private security guards). Under Article 254 of the same regulation, such sworn guards must wear a uniform or badge approved by the Prefect. Article 255 provides that they may draw up reports concerning the exercise of the duties assigned to them, which are to be consid- 7. Sworn private security guards have been ered probative in court proceedings unless recognised by Italian case-law as having disproved. Under Article 256, they may certain powers of arrest going beyond those carry arms but must obtain a specific of ordinary individuals. Article 380 of the licence for that purpose. Italian Code of Criminal Procedure requires any judicial police officer to arrest an offender found in flagrante delicto in the case of certain serious offences and Arti- cle 383 authorises any person to make an arrest in the same cases, with an obligation to hand the offender over immediately to the police. In such cases, sworn guards appear to have the same powers as any 5. A Royal Decree-Law of 26 September ordinary individual. However, Article 381 1935 places the activities of private security of the same Code also authorises, but does guards under the direct supervision of the not require, judicial police officers to make Questore (provincial chief of police), who arrests in flagrante delicto in the case of must approve and may modify the rules certain less serious offences. In those cases, and instructions governing the exercise of ordinary individuals have no power of their duties. Once approved, those rules arrest, but the Corte Suprema di Cassa- and instructions are binding, and the Ques- zione (Supreme Court of Cassation) has stated that sworn private security guards do have such a power in the exercise of their 3 — Approved by Royal Decree of 6 May 1940. duties of guarding private property.

9. Under Article 43 EC, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State are prohibited, as are restric- The judgment in Commission v Spain tions on the setting-up of agencies, branches or subsidiaries. Freedom of estab- lishment includes the right to take up and pursue activities as self-employed persons and to set up and manage undertakings under the same conditions as those applied 12. On 29 October 1998, the Court gave to nationals of the country of establish- judgment in Commission v Spain, 4 in ment. which it ruled that, by making the grant to security companies of authorisation to carry on private security activities subject to the requirements that they must be constituted in Spain, that their directors and managers must reside in Spain and that their security staff must possess Spanish 10. However, under Article 45 EC, that nationality, the Kingdom of Spain had prohibition does not apply to activities infringed what are now Articles 39, 43 which within a Member State are con- and 49 EC. nected, even occasionally, with the exercise of official authority. And under Arti- cle 46(1) EC the applicability of provisions 4 — Cited above in note 2.

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16. In 1994, the Commission asked the Italian authorities to provide further infor- mation on the rules in issue in the present case. Having received a reply in 1995, it considered that those rules were incompa- 14. The Court also dismissed the argument tible with Community law and requested that the nationality requirement in issue the authorities to submit their observations could be justified on grounds of public under the first paragraph of Article 169 of policy or public security. Such grounds, it the EC Treaty (now Article 226 EC). In the stated, could not justify a general exclusion absence of any timely response to that from access to certain occupations. They letter, the Commission sent the Italian were intended rather to allow Member Government a reasoned opinion, in accor- States to refuse entry or residence to dance with the same provision, to the effect that the nationality requirements in the relevant Italian legislation were contrary to 5 — According to established case-law: Case 2/74 Reyners [1974] ECR 631, paragraph 45 of the judgment, Case 147/86 Commission v Greece [1988] ECR 1637, paragraph 7, and Case C-42/92 Thijssen [1993] ECR 1-4047, para- graph 8. 7 — See paragraphs 40 to 43 of the judgment. 6 — See paragraphs 33 to 39 of the judgment. 8 — Cited in note 2.

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Incompatibility in principle with the Treaty provisions 21. The Italian rules in respect of which the Commission has brought this action also require security firms and guards to be in possession of a licence issued by the Italian

18. The Italian Republic has not challenged the contention that the nationality require- 9 — See, for example. Case 33/74 Van Binsbrgen [1974] ECR 1299, paragraph 25 of the judgment, and the 'co-insurance' ments in issue are in principle prohibited by cases: Case 220/83 Commission v france [1986] ECR 3663, paragraph 16, Case 252/83 Commission v Denmark (1986) each of the three Treaty articles on which ECR 3713, paragraph 16, Case 205/84 Commission v Germain [1986] ECR 3755, paragraph 25, and Case the Commission relies. Nor, I consider, is 206/84 Commission v Ireland |1986| ECR 3817, paragraph that contention challengeable. 16.

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authorities. Such a requirement has also — Article 39 EC been held by the Court to constitute in principle a restriction on freedom to pro- vide services. 10 The fact that guards are required to swear an oath is of a similar nature and furthermore, since the oath includes an undertaking of loyalty to the Italian State, may constitute an indirect 24. At the hearing, the Italian Government nationality requirement. stated, and in reply to a question con- firmed, that it was not possible for sworn private security guards to act in a self- employed capacity but that they must always be employed.

25. It thus seems that the 'official author- Exercise of official authority ity' defence is not available with regard to the nationality requirement for guards.

27. It is also true, as appears from Article 5 30. The Italian Government stresses, first, of the Royal Decree-Law of 12 November the degree of control by the public autho- 1936, that sworn private security guards rities to which private security guards are may be employed not only by security firms subject. A licence must be granted by the governed by that Decree-Law and other Prefect and may be refused or withdrawn private undertakings or associations but on grounds of public security or public also by public bodies. However, even if the order. Security firms which employ private powers or duties of such guards in public security guards are subject to the super- employment could be covered by Arti- vision of the Questore. The guards them- cle 39(4) EC, the nationality requirement selves must swear an oath of loyalty to the in issue is not limited to such cases. Italian Republic and are again subject to the authority of the Questore.

28. I therefore take the view that, regard- less of the nature of the powers and duties 31. Secondly, sworn private security guards of sworn private security guards, a nation- have been recognised by the Corte Suprema ality requirement which applies to such di Cassazione as being distinguished by guards in private employment is contrary to having judicial police functions in the Article 39 EC. prevention of crime and apprehension of criminals in connection with the protection of the property in their charge, including a power to arrest criminals in flagrante delicto, authority to draw up probative reports and a duty to cooperate with the police.

37. The power to draw up reports having 34. The Commission points out first that probative value is not comparable, the operators in various economic sectors are Commission submits, to that of State or often subject to strict control by the public other officials to draw up public or authen- authorities without thereby exercising offi- tic documents. Their probative value is, cial authority themselves; it cites in parti- moreover, relative since it is open to cular banking, insurance, 13 finance and the challenge in court proceedings. legal professions. 14 The same is true, it considers, of private security activities, as confirmed by the Court in Commission v Spain. 38. Finally, as regards the power of arrest, the Commission, citing the judgment in Reyners, 16 argues that the exceptions in Article 45 EC must not be given a scope which would exceed the objective for which they were inserted. The exclusion 35. As regards the powers and duties of of other Community nationals must be private security guards, the Commission limited to activities which have a direct and specific connection with the exercise of 12 — Cited in note 2, see paragraphs 36 to 38 of the judgment. 13 — Cf. Thïjssen, cited in note 5, where the Court did not accept that the need to swear an oath and to perform 15 — Commission v Greece, cited in note 5, paragraph 8 of the particular duties entailed any exercise of official authority. judgment. 14 — Cf. Reyners, cited in note 5. 16 — Cited in note 5, paragraphs 43 to 47 of the judgment.

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39. I find the Commission's arguments entirely convincing. 42. The oath which private security guards are required to take does not appear to confer in exchange any official authority; certainly no evidence has been put forward of any such effect. Again, this is a formality which appears to impose obligations rather than to confer powers. Even those obliga- tions do not appear to set sworn security 40. As regards the question of control by guards apart from other individuals. A duty the public authorities, it is clearly desirable to comply with the law and to act diligently that private security guards and firms and conscientiously in the public interest should be subject to proper official super- may I think be assumed for any security vision, particularly where the carrying of guard. The undertaking to act 'solely' in the arms is involved. That was recognised by public interest must be viewed in its the Court in Commission v Spain 17 and context; any security guard whose task is Commission v Belgium. 18 to protect private property must act at least partly in the interest of its owner and will almost certainly be infringing the law — 17 — Cited in note 2, paragraph 47 of the judgment. regardless of any oath taken — if in doing 18 — Ibid., paragraphs 32 to 34 and 36 of the judgment. so he acts contrary to the public interest.

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44. Finally, as regards the powers of arrest enjoyed by sworn security guards, I note that the general power of arrest in flagrante delicto in cases of serious offences is conferred by Italian law on 'any person' Public policy and public security ('ogni persona') and is thus not regarded as a power to be reserved only to nationals. It involves, moreover, an obligation to hand the offender over to the judicial police forthwith. The power to keep the offender in custody and to take such further steps as 46. The Italian Government has not placed are necessary to deal with the offence any express reliance on the public policy or according to criminal law, which may well public security exceptions which are avail- be regarded as an exercise of official authority, is thus confined to the police and judicial authorities. The power of 19 — Cited in note 2, paragraph 38 of the judgment. arrest, however, seems to fall clearly within 20 — The offences involved need not be listed but, although less serious than those for which any person may make an the category of 'auxiliary functions' re- arrest, are not in any way minor.

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able in the context of all three Treaty Council Directive 67/43/EEC articles of which a breach is alleged. To the extent that any of its arguments might be interpreted as doing so, however, it is clear that they must fail.

50. As the Commission has pointed out, the directive was concerned solely with the transitional period, and may not be relied 48. It may merely be noted that possession on now that the Treaty articles in question of Italian nationality is not necessary in have direct effect. Moreover, the directive order for security guards and firms operat- has now been repealed, 23 although only ing within Italy to be required to act in after the reasoned opinion was sent in the accordance with Italian law or to be subject present case. However, even if the directive to proper control by the relevant police or other authorities, that loyalty to the Italian 22 — Council Directive 67/43/EEC of 12 January 1967 concern- State is not necessary for security guards to ing the attainment of freedom of establishment and carry out their tasks and that for some freedom to provide services in respect of activities of self- employed persons concerned with: 1. matters of 'Real offences a power of arrest in flagrante Estate' (excluding 64011 (ISIC Group ex 640) 2. the provision of certain 'Business services not elsewhere delicto is conferred by Italian law on all classified' (ISIC Group 839), OJ, English Special Edition persons, regardless of nationality. 1967, p. 3. 23 — By Directive 1999/42/EC of the European Parliament and or the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberal- 21 — Sec Commission v Spam, paragraphs 41 and 42 of the isation and transitional measures and supplementing the judgment, and Commission v Belgium, paragraphs 28 and general systems for the recognition of qualifications, 29 (both cited in note 2). OJ 1999 L 201, p. 77.

— private security activities (including the surveillance or guarding of movable and immovable property) may be carried out in Italy, subject to licence, only by private security firms holding Italian nationality;

— only Italian citizens in possession of the requisite licence may be employed as sworn private security guards;

the Italian Republic has failed to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC; and

(2) order the Italian Republic to pay the costs.

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