C-171/02

OPINION OF MR ALBER — CASE C-171/02

OPINION OF ADVOCATE GENERAL ALBER delivered on 16 September 2003 1

I — Introduction I I— Legislative framework

A — Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/ EEC 2 (hereinafter 'Directive 92/51')

2. The first indent of Article 1(c) of Directive 92/51 defines the term 'attestation of competence' as 'any evidence of qualifi- cations attesting to education and training not forming part of a set constituting a diploma within the meaning of Directive 1. The proceedings for failure to fulfil 89/48/EEC or a diploma or certificate obligations which the Commission has within the meaning of this Directive [Direc- brought against the Portuguese Republic tive 92/51] [...]'. concern the rules governing the activities of private security services engaged in the surveillance of persons and property in Portugal. The Commission claims that the Portuguese legislation is incompatible with the provisions of the Treaty concerning the 3. In Article 1(f), 'regulated professional free movement of workers, the freedom of activity' is defined as 'a professional activity establishment and the freedom to provide the taking-up or pursuit of which, or one of services. its modes of pursuit in a Member State, is

1 — Original language: German. 2 — OJ 1992 L 209, p. 25.

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8. Article 21(1) makes the pursuit of (c) PTE 50 000 000, if they perform one activities in the private security services of the services provided for in Article sector subject to prior authorisation. 2(1)(e).'

10. Article 24(1) lists the evidence which 9. Article 22(1) and (2) provide: must accompany an application for author- isation to pursue an activity in the private security services sector. Pursuant to sub- paragraph d, this includes the provision of evidence to show that the conditions laid down in Article 22 have been fulfilled. '(1) Undertakings pursuing private security activity within the meaning of Article 1(3) (a) must be constituted in accordance with the legislation of a Member State of the European Union or the European Economic Area, have their head office or a secondary 2. Code of Commercial Companies establishment in Portugal and comply with the provisions of Article 4 of the Code of Commercial Companies.

11. Article 4(1) provides: 'A company which does not have an effective head office in Portugal but wishes to pursue its activity there for more than one year must (2) The capital of the undertakings referred set up a permanent representation and to in the foregoing paragraph must not be comply with the provisions of the Portu- less than: guese Law on the commercial register.'

(a) PTE 10 000 000, if they perform one of the services provided for in Article 2 (1)(a) and (b); III— Pre-litigation procedure

— must be constituted as legal persons; and

15. Having formed the view, after examin- ing that response, that the Portuguese legislation was incompatible with the pro- visions of the Treaty, the Commission brought this action on 8 May 2002. — must have a specific amount of capital.

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It also criticises the fact that: preclude the creation of some form of infrastructure. However, exercise of the freedom to provide services may not be made conditional on the existence of such infrastructure. — the employees of such foreign under- takings must be in possession of a professional certificate issued by the Portuguese authorities;

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20. Furthermore, the Commission's inter- 23. Furthermore, the Commission con- pretation is borne out by the conjunction tends, the Court has consistently held 6 that 'and' between the rule that providers of administrative considerations, such as the services must have an establishment in fact that undertakings and their employees Portugal and the rule that they must comply are easier to supervise if the undertakings with the provisions contained in Article 4 of are established in the Member State in the Code of Commercial Companies. Cer- question, are not in principle capable of tain security services, such as the operation justifying restrictions of a fundamental of an emergency call centre, for example, freedom guaranteed by the Treaty. As cannot be provided at all without an regards the contention concerning better establishment in the host State. enforceability in the event of default, the provision of a security offers an adequate and less restrictive means of achieving that. 7

6 — The Commission refers to Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 54. 5 — In this connection, the Commission cites Case 25 /86 7 — In support of its view, the Commission cites Case C-101/94 Commission v Italy [1988] ECR 3249, paragraph 12. Commission v Italy [1996] ECR I-2691, paragraph 23.

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25. With regard to the requirement that ted in the manner stipulated by national foreign undertakings must have legal per- law for principal establishments. Such a sonality, the Commission points out that condition prevents an economic operator that obligation places self-employed per- with capital which meets the legal require- sons or independent economic operators ments of the State where he is principally and individuals established in another established but falls below the minimum Member State at a disadvantage. The Court laid down in Portugal from pursuing his has recognised the right of an individual to activities throughout Community territory. work not only in the Member State where By reference to the judgment in Centros, 12 he is ordinarily resident but also, tempora- the Commission takes the view that the rily, in another Member State. 10 That case- requirement of compliance with the Portu- law is not called into question by the guese minimum capital provisions infringes division of powers set out in Title IV of the freedom to provide services more than is the EC Treaty. The Court has already held necessary to attain the objective sought.

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14 — By way of support for its legal analysis, the Commission again refers to Commission v Germany (cited in footnote 13 —Case C-384/93 Alpine investments [1995] ECR I-1141, 6, paragraph 47) and Commission v Belgium (cited in and Case C-379/92 Peralta [1994] ECR I-3453. footnote 8, paragraph 40).

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down by law. It also allows its holder to the Minister for the Interior, for- pursue activities in the private security eign undertakings wishing to pur- services sector. In substance, therefore, the sue surveillance activities in respect professional certificate constitutes an attes- of persons and property in the tation of competence within the meaning of private security services sector in the first indent of Article 1(c) of Directive Portugal 92/51. The Commission accordingly takes the view that activities in the private security services sector in Portugal consti- tute a regulated profession within the meaning of Article 1(e) in conjunction with the first indent of Article 1(c) and Article (a) must have their head office or an 1(f) of the directive. However, the Portu- establishment in Portugal, guese legislation introduced to transpose Directive 92/51 does not cover occupations in the private security sector. They are not therefore subject in Portugal to the provi- sions on the recognition of professional qualifications laid down by the aforemen- — may not rely on evidence and tioned directive. In Vlassopoulou, the Court guarantees already presented in held that, when examining whether an their Member State of establish- individual satisfies the conditions governing ment, the grant of authorisation to pursue certain professions, national authorities must recognise evidence which is comparable to that required to exercise the same profes- sion in the country of origin of the person concerned. 15 Under the Portuguese legisla- •— must be constituted as a legal tion at issue, such consideration is not person, possible.

(c) in view of the fact that professions provide security services in Portugal for in the private security services longer than a year. Because of the one-year sector are not subject to the Com- threshold laid down by law, those rules do munity system for the recognition not affect the freedom to provide services of professional qualifications, but the freedom of establishment. Only services provided on a temporary basis fall within the scope of the freedom to provide services guaranteed by the Treaty, that is to say sporadic events which are limited in the Portuguese Republic has failed to time. On the other hand, services provided fulfil its obligations under Articles 39 for a certain period of time and charac- EC, 43 EC and 49 EC and under terised by a degree of frequency, regularity Council Directive 92/51; and duration fall within the scope of the freedom of establishment. To that extent, the contested rules cannot restrict the free- dom to provide services.

(2) the Portuguese Republic be ordered to pay the costs of the proceedings.

35. The Portuguese legislation also satisfies the requirements of legal certainty. Neither 33. The Portuguese Republic claims that economic operators nor the Portuguese the Court should: Government are in any doubt that Article 22 of the Decree-Law is not applicable to temporary providers of services. Indeed, there are undertakings which are princi- pally established in other Member States and provide security services in Portugal (1) dismiss the application; without having a secondary establishment there. The fact that, during the pre-litiga- tion procedure, the Portuguese Government gave what the Commission considers to be contradictory interpretations of the provi- (2) order the Commission to pay the costs sion in question does not, according to the of the proceedings. Portuguese Government, prove that the principle of legal certainty has been infringed.

39. The Portuguese Government considers this restriction on the freedom to set up a secondary establishment to be justified. The security services sector, it submits, has not been harmonised in Community law. The measure is proportionate, since any other 37. The same is true of the condition that interpretation would lead to discrimination undertakings should have legal personality. against domestic undertakings. It is true Only if they wish to provide security that discrimination at national level is not services for longer than a year are they in principle prohibited by Community law, required to have their principal establish- as it is usually a purely domestic matter. If, ment or a permanent establishment in however, the requirement of strict compli- Portugal. The right to provide security ance with the provisions on minimum services on a temporary basis in Portugal capital were dispensed with, undertakings is not affected by that condition. There is would be able to set up their principal therefore no restriction on the freedom to establishment in a Member State with a provide services in this respect either. lower minimum capital requirement and, Moreover, the Commission itself recognises through the contrivance of setting up a that the pursuit of activities in sensitive secondary establishment in Portugal, cir- areas can quite legitimately be made subject cumvent the Portuguese provisions on to prior authorisation. minimum capital. This would lead to de facto harmonisation at the lowest level. By reference to the Opinion of Advocate General Vilaça in Case 63/86, 16 the Portu- guese Government points out that the freedom of establishment means only that a person may become established under the 38. In the view of the Portuguese Govern- same conditions as apply to nationals of the ment, the requirement on undertakings to Member State concerned. In so far as the comply with the provisions on minimum field in question has not been harmonised capital likewise affects not the freedom to under Community law, the Member State is provide services but the freedom of estab- lishment and, more specifically, the freedom to set up a secondary establishment. In so 16 — Opinion of Advocate General Vilaça in Case 63/86 far as an undertaking exercises only the Commission v Italy [1988] ECR 29.

40. With regard to the alleged failure to 42. With regard to the complaint that recognise evidence which has already had Directive 92/51 has been infringed, the to be furnished in other Member States, the Portuguese Government submits that that Portuguese Government takes the view that directive is not applicable to security what matters here is not so much that a services. Neither the right to take up that professional certificate must be issued as the occupation nor the right to pursue it is lawfulness of the conditions governing its subject to the existence of evidence of issue, as laid down in Article 7 of the education and training. Indeed, evidence Decree-Law, and the evidence to show that of qualifications attesting to education and they have been fulfilled. As the Commission training within the meaning of Article 1(c) itself concedes, there is nothing to preclude of Directive 92/51 does not exist for these the requirement of prior authorisation. The activities. question of the extent to which the condi- tions laid down give rise to indirect discrimination was not raised in the rea- soned opinion and cannot therefore form part of the subject-matter of these proceed- ings. Moreover, it submits, there is no 43. The compulsory professional certificate discrimination anyway, since the conditions is valid for only two years. It cannot applicable to Portuguese nationals are, if therefore constitute evidence of education anything, more stringent than those applic- and training. As regards the education and able to nationals of other Member States. training laid down by Portuguese law, it must be borne in mind that this does not take place until after the taking-up of employment with an employer in the relevant sector. Because of that time inter- val, even this cannot be regarded as education and training, and the evidence of its completion cannot be regarded as 41. In the absence of harmonisation, the evidence of qualifications attesting to edu- Commission cannot require Portugal sim- cation and training, within the meaning of ply to accept another Member State's the directive. recognition of the lawfulness of an under- taking's situation. Many of the require- ments referred to in Article 7 are not even verified by other States. In the absence of harmonisation, the Portuguese Republic cannot be prevented from imposing those 44. Moreover, the time-limit is not a requirements. Moreover, many conditions disproportionate measure. After all, condi-

49. The Portuguese Government refers to the Court's decisions in what it considers to be less serious cases in which the Court recognised restrictions on the freedom to 47. The Portuguese Government submits provide services as lawful. 17 All the more that the restrictions laid down in Decree- reason, it submits, why the requirements at Law No 231/98 must be assessed against issue here must be regarded as justified. that background. The legal assessment of that legislation must take into consideration the objectives which it pursues. These are, 17 — It refers to Case C-3/95 Reisebüro Broede [1996] ECR I- on the one hand, the interests and rights of 6511, Case C-384/95 Landboden-Agrardienste [1997] ECR I-7387, and Case C-275/92 Schindler [1994] ECR I- citizens, for whom the Decree-Law repre- 1039.

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50. The Portuguese Government considers respective fields of application of the free- the decisions concerning security services dom of establishment and the freedom to cited by the Commission to be immater- provide services. The Portuguese Govern- ial. 18 The restrictions which were at issue in ment takes the view that a worker who those cases are not imposed by the Portu- provides services for longer than a year guese legislation in question here. ceases to exercise the freedom to provide services and proceeds to exercise the free- dom of establishment. The Commission, on the other hand, assumes that such a worker continues to exercise the freedom to pro- vide services even after a year has elapsed. In the event that the measures in question constitute restrictions on the freedom of V — Assessment establishment, the Portuguese Government considers these to be justified.

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their security services for longer than a year 57. However, the duration of the provision does not follow from the wording of that of services has been taken into account by provision, at least not directly. It may at the Court in its decisions to date as only one most follow from the reference to Article 4 of several factors to be considered when of the Code of Commercial Companies. classifying a particular activity. In its consideration of the activity in question, the Court has always undertaken a general assessment of all the circumstances in which the service was provided. As well as duration, the Court has had regard in this 55. The parties are in dispute as to whether connection to the regularity, periodicity or Article 22 does in fact contain such a continuity of the provision. 23 It has also reference. For the purposes of examining held that even the establishment of some the lawfulness of the requirement to open a form of infrastructure, such as the opening permanent establishment, we shall assume of an office or chambers, does not in itself that such a reference does exist and that it preclude exercise of the freedom to provide meets the requirements of legal certainty services. 24 In his Opinion in Gebhard, and legal clarity. For even if the reference Advocate General Léger suggested that, in satisfies those requirements, the question addition to duration, account should also arises whether it is lawful for national be taken of where the provider of services legislation to limit exercise of the freedom has the centre of his activity. If it is situated to provide services to a year. in a Member State other than that where the service is performed, he exercises the freedom to provide services. 25

dence to show that some services are not held that such a requirement is an absolute permanent and continuous even though negation of the freedom to provide services provided for longer than that period, that and that it is therefore contrary to Article article restricts the freedom to provide 49 EC. 27 It must therefore be concluded services of all those who wish to provide that, in circumstances where a provider of security services in Portugal for longer than services wishes to provide security services a year without intending to participate on a in Portugal for longer than a year, the stable and continuous basis in the economic requirement to open a permanent establish- life of that State and without wishing to ment there is incompatible with Article 49 make it the centre of their activities. EC.

59. Like the Italian legislation at issue in Gebhard, Article 22(1) of the Decree-Law in conjunction with Article 4 of the Code of 61. An examination of the objection that Commercial Companies is based on an the legislation infringes the principle of irrebuttable presumption that undertakings legal certainty is therefore unnecessary. providing security services for longer than a For even if it is assumed, as it is here, that year exercise the freedom of establish- the reference to Article 4 of the Code of ment. 26 There is no reason for such Commercial Companies is sufficiently clear compulsion to exercise the freedom of and unambiguous, the fact none the less establishment. remains that the legislation at issue is a negation of the freedom to provide services, as has been established, and is therefore contrary to Community law.

64. By way of justification for the restric- tions arising from the Decree-Law, the 66. Reliance on imperative requirements in Portuguese Government refers first and the public interest, in particular the guar- foremost to the particular importance of antee for citizens that security services will ensuring that private security services are be provided to them only by suitably provided in a proper manner. In its qualified entities subject to close scrutiny submission, they support the public security and stringent quality standards, the possi- forces and enable the State to formulate an bility for the State to have a means of effective security policy. formulating a more effective security policy, and the introduction of legislation for undertakings and their employees concern- ing the right to take up and pursue the occupation in question, is likewise incap- able of justifying the restriction established as resulting from the requirement to open a permanent establishment. It is settled case- law that national measures which are liable to hinder or make less attractive the exercise of fundamental freedoms guaran- 65. In the infringement proceedings against teed by the Treaty must fulfil four condi- Spain, Belgium and Italy, in each of which tions: they must be applied in a non- judgment has already been given, the Court discriminatory manner; they must be justi- clearly stated that the grounds of justifica- fied by imperative requirements in the tion provided for in Articles 55 EC and 46 public interest; they must be suitable for EC are not applicable to restrictions on securing the attainment of the objective private security services,28as these do not which they pursue; and they must not go involve the exercise of official authority. beyond what is necessary in order to attain Moreover, reliance on Article 46 EC is i t . 30 precluded by the fact that the right of Member States to restrict the free move-

67. As I have already said, the requirement view taken by the Portuguese Government to open an establishment entirely negates must be rejected. In principle, Article 24 of the freedom to provide services. In any Decree-Law No 231/98 also affects the event, therefore, that restriction goes freedom to provide services. beyond what is necessary in order to attain the aforementioned objectives. These can be achieved by more moderate means, such as, for example, the provision of securities, the taking-out of special insurance or the requirement of evidence of a specific 70. As the Commission rightly points out, professional qualification. The restriction the Court has already held, in its judgment cannot therefore be justified on grounds of in Commission v Belgium, that the freedom imperative requirements in the public inter- to provide services, being one of the est either. 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 68. It must therefore be stated by way of safeguarded by the rules to which the conclusion to the examination of the provider of such a service is subject in the requirement of a permanent establishment Member State where he is established. that that rule is incompatible with the National provisions which require all freedom to provide services guaranteed by undertakings to fulfil the same conditions Article 49 EC. for obtaining prior authorisation or approval make it impossible for account to be taken of obligations to which the person providing the service is already subject in the Member State in which he is established. 31

is established. Moreover, the Portuguese 74. It must be borne in mind, however, that Government has not said anything to Article 22(1) requires that the entities in indicate that other precautions have been question be constituted ('devem ser consti- taken to ensure that consideration is given tuidas') in accordance with Portuguese law to evidence submitted in other Member or with the law of one of the Member States States, as recognised by Community law. It of the European Union or the European must therefore be concluded that Article 24 Economic Area, and the only entities which of the Decree-Law is also incompatible with are constituted or formed are legal persons, Article 49 EC. not natural persons. It is therefore reason- able to assume that Article 22(1) of the Decree-Law does make the pursuit of activities in the security services sector subject to the condition that the provider of services should be formed as a legal person. The pursuit of activities by a self- employed person is thus in principle pre- cluded.

C — Requirement of formation as a legal person

75. Support for this interpretation can be found in Article 22(2) of the Decree-Law, which requires the raising of a specific minimum amount of capital. This provision 72. Again in the context of its explanation will be looked at in greater detail in the next of the requirement of formation as a legal section. In this connection, it is sufficient to person, the Portuguese Government takes say that the raising of capital is required refuge behind the view that the freedom to only in relation to legal persons. This too provide services is not affected, since the lends weight to the assumption that the requirement is directed only at activities pursuit of activities in the security services pursued for more than a year. For the sector in Portugal is reserved for legal reasons given above, this argument must be persons. rejected.

77. Moreover, that interpretation of the 79. As the Portuguese Government does provisions of the Decree-Law was con- not put forward any grounds of justifica- firmed by the Portuguese Government in tion for that restriction, it must be con- the pre-litigation procedure. In its answer to cluded that Article 22(1) of the Decree-Law the letter of formal notice, the Portuguese infringes Article 49 EC in so far as it Government stated that the legislature's requires those who wish to pursue activities choice of a legal person as the required in the security services sector to be formed form of organisation was based on the as legal persons. assumption that that structure offered the greatest security and credibility. Past experience, it said, had shown that the security and creditworthiness of companies were considerably greater than those of sole traders with personal liability. 32 It is true that the Portuguese Government did not refer to that clarification either in the defence or in the rejoinder. On the other hand, those pleadings do not contain any D — Compliance with the Portuguese other plausible explanation for the wording provisions on minimum capital of Article 22(1) in conjunction with Article 3 of the Decree-Law. Instead, the Portu- guese Government confines itself to the argument that Article 22 is not applicable to services. As I have already said, however, that view is untenable. 80. The Commission also criticises the condition, laid down in Article 22(2) of Decree-Law No 231/98, concerning the maintenance of a specific minimum amount of capital. That provision requires under- takings which wish to provide the security 78. In conclusion, it must therefore be services governed by Article 2 of the assumed that providers of services who Decree-Law not to allow their capital to wish to provide security services in Portugal fall below certain minimum amounts. must be formed as a legal person. Natural persons, that is to say self-employed per- sons, are thus precluded from providing such services. To that extent, there is a restriction on the freedom to provide services.

ities of self-employed persons means that it 83. In my Opinion in the Inspire Art case, I infringes the freedom to provide services. expressed the view that the requirement to comply with the host State's provisions on minimum capital also constitutes a restric- tion on the freedom of establishment because it precludes the recognition of companies duly formed in accordance with the law of another Member State, as required by Community law. 34That case- law is applicable to the freedom to provide services. Where a self-employed person or an undertaking is lawfully established in a Member State and provides security ser- vices there, the requirement to comply with the provisions on minimum capital has the 82. It must also be pointed out, with regard effect of precluding recognition of lawful to services performed by companies limited formation in the State of origin. This again by shares, that provisions making it com- leads ultimately to a denial of the right to pulsory to raise a minimum amount of provide services enjoyed by undertakings capital constitute an unjustified restriction lawfully established in another Member of the freedom to provide services. As far as State. concerns exercise of the freedom of estab- lishment, the Court held in Centros that the provisions of the Treaty on freedom of establishment are intended specifically to enable companies formed in accordance with the law of a Member State and having their registered office, central administra- tion or principal place of business within the Community to pursue activities in other Member States through an agency, branch 84. The justification on grounds of poten- or subsidiary. That being so, the fact that a tial discrimination at national level, as put national of a Member State who wishes to forward by the Portuguese Government, is set up a company chooses to form it in the therefore invalid. After all, the only argu- Member State whose rules of company law ment advanced under the heading of seem to him the least restrictive and to set discrimination at national level, which, as up branches in other Member States can- both parties agree, is in principle irrelevant not, in itself, constitute an abuse of the right from the point of view of Community law, of establishment. The right to form a concerns the need to combat circumvention company in accordance with the law of a of the Portuguese provisions on minimum Member State and to set up branches in capital. The Portuguese Government refers other Member States is inherent in the expressly to the danger that an undertaking exercise, in a single market, of the freedom may become established in a Member State of establishment guaranteed by the EC with a lower minimum capital requirement Treaty. 33 and, through the contrivance of setting up a

85. It must therefore be concluded that the rule in Article 22(2) of the Decree Law 87. In its judgment in Commission v laying down the requirement to maintain a Belgium, the Court held that the require- minimum amount of capital is likewise ment of the issue of an identity card incompatible with Article 49 EC. represented a restriction of the freedom to provide services because the formalities involved in issuing such an identity card might make the provision of services across frontiers more expensive. Moreover, such a restriction was considered to be dispropor- tionate in so far as the identity card was intended to establish the identity of the E — Requirement of a professional certifi- provider of services when that could be cate established in the same way by an identity card or passport which the provider of services brought with him. 36 Pursuant to that judgment, it is appropriate to proceed on the assumption that Article 9 of the 86. The Commission regards the require- Decree-Law restricts the freedom to provide ment to be in possession of a professional services and the free movement of workers.

35 — See, in this respect, the fundamental findings contained in my Opinion in Inspire Art (cited in footnote 34, points 141 36 — Commission v Belgium (cited in footnote 8, paragraph 39 to 146). et seq.).

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88. Unlike in Commission v Belgium, the involved, that principle, which has been justification for the Portuguese legislation is developed in relation to the freedom of not the possibility of establishing the establishment, is applicable to the free identity of the provider of services but movement of workers and the freedom to verification of compliance with the condi- provide services. To that extent, it must be tions for pursuit of an activity laid down in concluded that Article 9 of the Decree-Law Article 7 of the Decree-Law. It is therefore restricts the free movement of workers and concerned with the personal characteristics the freedom to provide services more than is and abilities of the provider of services. To necessary. that extent, such verification should prob- ably be regarded as a suitable means of ensuring the quality of the security service provided.

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38 — Case C-164/94 Aranitis [1996] ECR I-135, paragraph 18 96. That being the case, no infringement et seq., and Case C-234/97 Fernandez de Bobadilla [1999] ECR I-4773, paragraph 16 et seq. can be established against Directive 92/51.

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VI— Costs the Court may order that the costs be shared or that the parties bear their own costs. Only one infringement against Direc- tive 92/51 could not be established. How- ever, that fact is not so significant in relation to the other Treaty infringements 97. Pursuant to Article 69(2) of the Rules which have been established as to make it of Procedure, the unsuccessful party is to be appropriate for the costs to be shared. Since ordered to pay the costs if they have been the Commission made an application to applied for in the successful party's plead- that effect in its submissions, Portugal, ings. In accordance with the first paragraph which has been unsuccessful on all other of Article 69(3), however, where each party heads of its claim that the application be succeeds on some and fails on other heads, dismissed, must be ordered to pay the costs or where the circumstances are exceptional, of the proceedings.

V I I— Conclusion

98. In the light of the foregoing considerations, I propose that the Court should rule as follows:

— must be constituted as legal persons, and

— must have a specific amount of capital;

(b) that employees of foreign undertakings which wish to pursue, in the private security services in Portugal, surveillance activities in respect of persons and property must be in possession of a professional certificate issued by the Portuguese authorities.

(2) The application is otherwise dismissed.

(3) The Portuguese Republic is to bear the costs of the proceedings.

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