Opinion of the Advocate General — ECLI:EU:C:1999:428
Date: 1999-09-16
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Freedom to provide services;Free movement of workers
Procedure: Action for failure to fulfil obligations - successful
Origin: Belgium

Summary of the Judgment 
1. Actions for failure to fulfil obligations — Examination of the merits by the Court — 
Situation to be taken into consideration — Situation at the end of the period laid down 
in the reasoned opinion 
(EC Treaty, Art. 169 (now Art. 226 EC)) 
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SUMMARY — CASE C-355/98 
2. Freedom of movement for persons — Freedom of establishment — Freedom to provide 
services — Derogations — Activities connected with the exercise of official author­
ity — Activities of private security undertakings and staff— Excluded 
(EC Treaty, Art. 55, first para., and Art. 66 (now Art. 45, first para., EC and Art. 55 
EC)) 
3. Freedom to provide services — Restrictions — Obligation for security undertakings to 
have their place of business in national territory — Not permissible —Justification on 
grounds of public policy and public security — None 
(EC Treaty, Arts 56 and 59 (now, after amendment, Arts 46 EC and 49 EC) and 
Art. 66 (now Art. 55 EC)) 
4. Freedom of movement for persons — Workers — Freedom of establishment — 
. Restrictions — Directors and managers of security undertakings subject to a residence 
condition — Not permissible — Public security justification — None 
(EC Treaty, Arts 48, 52 and 56(1) (now, after amendment, Arts 39 EC, 43 EC and 
46(1) EC)) 
5. Freedom to provide services — Restrictions justified in the public interest — Whether 
permissible — Conditions 
(EC Treaty, Art. 59 (now, after amendment, Art. 49 EC) and Art. 60 (now Art. 50 
EC)) 
6. Freedom to provide services — Staff of security undertakings — Requirement of an 
identification card issued in accordance with national legislation — Not permissible 
1. In the context of proceedings under 
Article 169 of the Treaty (now Arti­
cle 226 EC), the question whether a 
Member State has failed to fulfil its 
obligations must be determined by 
reference to the situation prevailing in 
the Member State at the end of the 
period laid down in the reasoned 
opinion and the Court cannot take 
account of any subsequent changes. 
(see para. 22) 
2. As a derogation from the fundamental 
rule of freedom of establishment, the 
exception provided for in the first 
paragraph of Article 55 of the Treaty 
(now the first paragraph of Article 45 
EC) combined, where appropriate, 
with Article 66 of the Treaty (now 
Article 55 EC), must be restricted to 
activities which in themselves are 
directly and specifically connected with 
the exercise of official authority. That 
does not apply to the business of 
security firms, internal security services 
and security systems. 
(see paras 24-26) 
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COMMISSION V BELGIUM 
3. By requiring a security firm to have its 
place of business in national territory, 
thereby making it impossible for under­
takings established in other Member 
States to provide services in that terri­
tory, a Member State fails to fulfil its 
obligations under Article 59 of the 
Treaty (now, after amendment, Arti­
cle 49 EC). Such a requirement cannot 
be justified on grounds of public policy 
and public security. The right of Mem­
ber States to restrict the free movement 
of persons and services on those 
grounds is not intended to exclude 
economic sectors such as the private 
security sector from the application of 
the principle of free movement, from 
the point of view of access to employ­
ment, but to allow Member States to 
refuse access to their territory or resi­
dence there to persons whose access or 
residence would in itself constitute a 
danger for public policy, public security 
or public health. 
(see paras 27-29, 41 and operative part) 
4. A rule of national law requiring man­
agers and staff of security firms and 
internal security services, save for 
administrative and logistical staff, to 
reside in the territory of the Member 
State in which they are established 
constitutes a restriction on both the 
freedom of establishment and the free 
movement of workers. That residence 
condition cannot be justified by the 
need to check the background and 
conduct of the persons in question. 
The need to obtain information in that 
respect may be satisfied by means less 
restrictive of freedom of movement, if 
necessary through coopera t ion 
between the authorities of Member 
States. Moreover, checks may be car­
ried out and penalties may be imposed 
on any undertaking established in a 
Member State, whatever the place of 
residence of its managers. 
(see paras 31-34, 41 and operative part) 
5. The freedom to provide services, being 
one of the fundamental principles of 
the Treaty, may be restricted only by 
rules justified by the public interest and 
applicable to all persons and under­
takings operating in the territory of the 
Member State where the service is 
provided, in so far as that interest is 
not safeguarded by the rules to which 
the provider of such a service is subject 
in the Member State where he is 
established. 
(see para. 37) 
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SUMMARY — CASE C-355/98 
6. A rule of national law requiring every 
staff member of a security firm or 
internal security service to carry an 
identification card issued in accordance 
with national legislation constitutes a 
restriction on the freedom to provide 
services. The formalities involved in 
obtaining such a card are likely to 
make the provision of services across 
frontiers more difficult. Moreover, 
since the provider of a service who 
goes to another Member State must be 
in possession of an identity card or a 
passport, the requirement of an addi­
tional identity document is dispropor­
tionate in relation to the need to ensure 
the identification of the persons in 
question. 
(see paras 3 9 - 4 1 and operative part) 
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