OPINION OF ADVOCATE GENERAL KOKOTT

delivered on 22 June 2004 ( )

Case C-189/03

Commission of the European Communities

v

Kingdom of the Netherlands

(Freedom to provide services – Private security firms and detective agencies – Requirement of prior authorisation – Compulsory proof of identity – Taking requirements and qualifications from other Member States into account)

I – Introduction

1. The present case concerns an action for failure to fulfil Treaty obligations in which the Commission alleges that the Kingdom of the Netherlands has legislation and administrative provisions concerning private security firms and detective agencies which infringe the principle of the freedom to provide services and also fail to comply with the requirements of Community law with regard to the mutual recognition of professional qualifications.

2. Essentially the case raises the questions whether the activities of security firms and detective agencies from other Member States operating in the Netherlands can be made conditional on the prior authorisation of the Netherlands authorities, whether the managers of private security firms can also be made subject to a requirement of prior approval, whether the firm’s other staff must be in possession of a diploma awarded by a Netherlands institution and whether they can be required to carry with them a Netherlands proof of identity. In that context the parties disagree in particular as to whether Netherlands law sufficiently permits obligations satisfied and qualifications achieved in the Member State of origin to be taken into account.

3. In terms of content this case is connected to a series of actions for failure to fulfil Treaty obligations concerning the activities of private security firms in which judgments relating to the Kingdom of Spain, ( ) the Kingdom of Belgium, ( ) the Italian Republic ( ) and, most recently, the Portuguese Republic have already been delivered. ( )

II – Legal framework

A – Community law

4. Article 49(1) EC constitutes the Community law framework for this case. It provides as follows:

‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.’

B – National law

5. The relevant provisions of Netherlands law are the Wet particuliere beveiligingsorganisaties en recherchebureaus of 24 October 1997 ( ) (Law on private security firms and detective agencies, hereinafter: ‘the Law’) and the Regeling particuliere beveiligingsorganisaties en recherchebureaus of 3 March 1999 ( ) (Implementing Regulation on private security firms and detective agencies, hereinafter: ‘the Regulation’). Those two legal instruments are supplemented by an administrative circular of 16 March 1999, the Circulaire particuliere beveiligingsorganisaties en recherchebureaus. ( )

6. Article 2(1) of the Law prohibits the operation of private security firms and detective agencies unless they have been authorised; authorisation must come from the responsible minister. Moreover Article 2(2) of the Law provides:

‘The Minister may grant an exemption from that prohibition ... if the nature of their activities does not require the application of the rules by or under Articles 6 to 10. Such exemption may be subject to conditions.’

7. Under Article 7(1) of the Law the hiring of managers by private security firms also requires authorisation by the responsible minister.

8. Article 9(8) of the Law requires private security firms and detective agencies to ensure that their staff when performing relevant duties carry a legitimatiebewijs (proof of identity) which conforms to a format prescribed by the responsible minister. That proof of identity certifies, as follows from Article 7(2) of the Law read together with Article 13(2) of the Regulation, that the undertaking concerned has obtained the necessary official authorisation to employ the holder of the proof of identity.

9. Finally, under Article 8 of the Law the responsible minister must in respect of particular types of activity also prescribe the necessary qualifications for staff of a private security firm or detective agency. Private security firms or detective agencies may only employ such persons in performance of their tasks who possess the relevant qualifications. The second sentence of Article 8(2) of the Law provides once again:

‘The Minister may grant an exemption from this provision.’

10. Article 8 of the Law is given effect by, inter alia, Articles 5 and 11 of the Regulation. Article 5(1) of the Regulation provides that private security firms may entrust guard duties only to persons in possession of a particular diploma awarded by two Netherlands institutions, the Algemeen BeveiligingsmedewerkerDiploma awarded by the Stichting Vakexamens voor de Particuliere Beveiligingsorganisaties and by the Stichting Ecabo. Article 5(5) of the Regulation contains a list of other diplomas which are deemed to be equivalent, all of which are awarded also by Netherlands institutions.

11. In addition, Article 11(1) of the Regulation provides that private security firms may entrust the installation and maintenance of alarms only to persons who are in possession of a diploma recognised by the responsible minister. Article 11(2) of the Regulation lists in total four diplomas which are recognised by the minister, all of which are awarded by Netherlands institutions.

III – Facts and pre-litigation procedure

12. By letter of 8 November 2000 the Commission drew the attention of the Netherlands authorities to the fact that it considered Netherlands law and administrative provisions concerning private security firms and detective agencies to be incompatible with Article 49 EC and with Directives 89/48 ( ) and 92/51. ( ) It relied in particular on the following four points:

– the requirement that private security firms and detective agencies obtain authorisation on payment of a fee in order to perform their activities in the Netherlands without taking into account the requirements with which foreign service providers must comply in their State of origin (Articles 2 and 3 of the Law),

– the requirement that the managers of private security firms be in possession of authorisation, for which a fee is charged (Article 7(1) and (2) of the Law),

– the requirement that in the event of their being seconded to work in the Netherlands staff of that undertaking be in possession of a legitimatiebewijs, a proof of identity issued by the Netherlands authorities (Article 6(e) of the Law and Article 13 of the Regulation), and

– the requirement that the staff of that undertaking be in possession of a diploma awarded by the Netherlands authorities and that installers of alarms have certain qualifications without taking into account qualifications acquired in another Member State (Articles 5 and 11 of the Regulation).

13. The Netherlands authorities replied by letter of 22 December 2000, in which they conceded that the requirements to obtain authorisation, the other provisions being contested and the absence of an automatic system recognising qualifications achieved in other Member States constituted a restriction on the freedom to provide services. At the same time, however, the Netherlands Government took the view that such restrictions are justified by public interest considerations.

14. In spite of that reply the Commission remained of the view that the Netherlands provisions were not compatible with Community law and on 11 October 2001 delivered a reasoned opinion to the Kingdom of the Netherlands.

15. Having received a letter in reply from the Netherlands dated 10 December 2001, the Commission brought the present action under Article 226(2) EC on 30 April 2003.

IV – Forms of order sought

16. The Commission originally claimed that the Court should:

(1) Declare that, by laying down, in the framework of the Law on private security firms and detective agencies, provisions which require that:

– an undertaking that wishes to provide services in the Netherlands must obtain authorisation, without taking into account the obligations which the foreign service provider must already satisfy in the Member State where it is established, and by charging fees for this authorisation;

– managers of these security firms have authorisation for which a charge is also made;

– staff of these firms seconded from the State of establishment to work in the Netherlands have a proof of identity issued by the Netherlands authorities; and

– staff have a diploma issued by a Netherlands organisation, and that installers of alarms have professional qualifications without taking into account qualifications obtained in another Member State,

the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 EC and Directives 89/49/EEC and 92/51/EEC on the general system for the recognition of professional qualifications;

(2) order the Kingdom of the Netherlands to pay the costs.

17. At the hearing before the Court on 5 May 2004 the Commission withdrew that part of its action based on its fourth complaint. Consequently, it must be assumed that the Commission only continues to allege a breach of Article 49 EC, and no longer infringement of Directives 89/48 and 92/51.

18. The Commission thus now claims that the Court should,

(1) declare that, by laying down, in the framework of the Law on private security firms and detective agencies, provisions which require that:

– an undertaking that wishes to provide services in the Netherlands must obtain authorisation, without taking into account the obligations which the foreign service provider must already satisfy in the Member State where it is established, and by charging fees for this authorisation;

– managers of these security firms have authorisation, for which a charge is also made, and

– staff of these firms seconded from the State of establishment to work in the Netherlands have a proof of identity issued by the Netherlands authorities,

the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 EC;

(2) order the Kingdom of the Netherlands to pay the costs.

19. The Kingdom of the Netherlands claims that the Court should:

(1) dismiss the claim;

(2) order the Commission to pay the costs.

20. In connection with the Commission’s partial withdrawal of its action the Kingdom of the Netherlands has not, however, applied for any order as to costs.

V – Legal appraisal

21. The action of the Commission, which is admissible, is wellfounded if the Kingdom of the Netherlands has infringed a Treaty obligation (Article 228(1) EC). The complaint now relates exclusively to breach of Article 49 EC.

22. This action for failure to fulfil Treaty obligations arises out of the independent activities of private security firms and detective agencies which are performed for remuneration in the Netherlands by firms established in other Member States, and this always on a temporary basis, that is to say without stable and continuous integration into the economic life of the Netherlands. ( ) The freedom to provide services (Articles 49 EC and 50 EC read together with Articles 48 EC and 55 EC) is applicable to those activities.

A – The first complaint: incompatibility with the freedom to provide services of the requirement for private security firms and detective agencies to obtain authorisation

23. The subject-matter of the Commission’s first complaint is the requirement for private security firms and detective agencies to obtain authorisation from the Netherlands authorities on payment of a fee before taking up their activities in that State.

1. Restriction on the freedom to provide services

24. The freedom to provide services constitutes one of the fundamental freedoms provided for by the Treaty. According to settled case-law, Article 49 EC prohibits not only any discrimination, on grounds of nationality, against a provider of services established in another Member State, but also any restrictions on or obstacles to freedom to provide services, even if they apply to national providers of services and to those established in other Member States alike. ( )

25. National legislation such as the Netherlands law which makes the provision of cross-border services by private security firms and detective agencies established in another Member State subject to the prior issue of official authorisation is to be regarded as a restriction on the freedom to provide services. ( ) The reason is that the administrative burden involved in obtaining authorisations and the costs thereby arising can make cross-border services more expensive and discourage firms from undertaking in particular the initial provision, possibly at short notice, of such services.

26. The Commission and the Netherlands Government also agree that the provision in question constitutes a restriction on the freedom to provide services. The parties disagree however as to whether such restrictions may be justified.

2. Justification

a) Arguments of the parties

27. The Netherlands Government takes the view that the acknowledged restriction can be justified by public interest considerations. Recipients of services are especially ‘vulnerable’ vis-à-vis private security firms and detective agencies. The reliability of the service provider is decisive in preventing the financial interests of their customers from being put at risk. Members of the general public, however, also need protecting since, for example, they trust security firms’ staff because of their uniforms, as they do with the police.

28. In its view, in order to protect customers and individuals it is therefore necessary to have particularly strict rules and a prior system of control to prevent possible abuses and to ensure an appropriate quality of services offered. That is all the more so as there are currently no Community minimum standards for the activities of private security firms and detective agencies and the requirements imposed on such firms vary considerably from one Member State to another. ( )

29. The Commission also recognises in principle that consumer protection can be advanced as a legitimate public interest concern justifying restrictions on the freedom to provide services. Whilst in the written procedure it continued to contest the necessity of prior control, ( ) at the hearing it indicated that a prior authorisation procedure may be justified. Closer cooperation between Member State authorities could, however, render such a procedure redundant. ( )

30. In that context the parties still disagree in particular as to whether Netherlands law takes sufficient account of the requirements to which service providers established in another Member State may already be subjected in that State. The Netherlands Government argues that the provisions at issue permit such matters to be taken into account directly; at the same time, however, it concedes that nowhere in the relevant national rules is there explicit provision as to how the requirements applying in the State of establishment are to be taken into account.

b) Appraisal

31. As a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by overriding reasons relating to the public interest, the objective of which is, for example, to ensure the quality of services and to protect their recipients from harm. Nevertheless, national rules must apply to all persons or undertakings pursuing an activity in the State of destination, must be appropriate in order to achieve that objective and must not exceed what is necessary to attain it. ( )

32. Protecting the public from the ‘black sheep’ amongst private security firms and detective agencies can as a matter of principle be advanced as an overriding reason relating to the public interest, as if, in fact, such firms or their staff abuse their position, not only are the financial interests of the customers concerned at risk, but also the confidentiality of personal data and – for example in the event of exceeding the use of reasonable force in self-defence – bodily integrity and human life. Ensuring the reliability of the firms concerned and the quality of their services therefore serves to protect particularly important legal interests and thus without a doubt pursues a legitimate objective.

33. A system such as that operated in the Netherlands which prohibits the operation of private security firms unless they have been authorised and thus subjects the firms concerned to prior control is also appropriate to protect the population from rogue service providers. In this manner the qualifications and the reliability of each provider can be individually assessed, for example with regard to the existence of previous convictions and irregularities. Even if subsequent abuse cannot be thereby completely excluded, such assessment nevertheless allows an objectively based prediction to be made concerning the quality of the services offered.

34. Moreover, in the present case there can as a matter of principle be no doubt as to the necessity of a system of prior control of private security firms and detective agencies. It is true that a prior authorisation procedure will only ever be necessary if subsequent control is to be regarded as being too late to be genuinely effective and thus to enable it to achieve the aim pursued. ( ) That can only be the case, however, where a realistic and equally effective alternative exists. In the present proceedings a substantiated argument to that effect has not been made by the Commission. Nor is the closer cooperation between the authorities of the Member States called for by the Commission at the hearing comparable, at least at present, in terms of its effectiveness with a prior authorisation procedure.

35. Doubts may arise however as to the necessity of the Netherlands system inits actual form. According to settled case-law the public interest objective may not be pursued in so far as this is already taken into account by the rules to which the provider of such a service is subject in the Member State where he is established. ( ) That case-law is in fact an expression of the principle of the State of origin, according to which the principle of mutual recognition applies between the Member States. ( )

36. Mutual recognition does not require the Community legislator to have created common standards for a particular economic sector. Rather, the principle applies also and in particular to sectors in which no harmonisation has taken place and in which therefore there are not even common minimum standards. ( )

37. If common standards are lacking then it is true that as a matter of principle Member States retain the power to lay down the conditions for and the procedural rules governing the exercise of an activity such as that of private security firms and detective agencies. They may also adopt different levels of protection. ( ) When exercising their powers they must, however, always observe the freedom to provide services. ( ) That includes the requirement to take into account obligations which a provider of services already has to fulfil in his State of origin. ( )

38. For example, if a provider of services is already subject to a similar authorisation procedure in his State of origin, where his reliability has already been assessed, it would be disproportionate to subject him once again in the Netherlands to an assessment of his reliability. In such a case the Netherlands authorities would be permitted neither to delay nor to hinder (nor even to render more expensive) the exercise of the freedom to provide services since compliance with the requirements imposed on the pursuit of the activities concerned has already been confirmed in the State of origin. ( ) It must therefore suffice for the provider of services established in another Member State to demonstrate that an assessment of his reliability took place in his State of origin.

39. The Netherlands Government asserts in that context that in practice it is easily possible to take into account obligations fulfilled in other Member States. However, as it concedes itself, none of the relevant provisions of Netherlands law explicitly provides for such practice. On the contrary, the wording of Article 2(2) of the Law is apt to create the opposite impression for the firms concerned: although that provision opens up the possibility of exemptions from the requirement to obtain authorisation, that only applies in respect of certain activities not further specified which, in the view of the Netherlands legislator, by their very nature do not have to be subjected to the provisions of that Law.

40. For normal situations, however, the Netherlands provisions contain no indication as to whether and to what extent account must be taken of the fact that a provider of services has already fulfilled certain requirements in another Member State, for example that he has obtained relevant qualifications or has had his reliability assessed. That impression is further reinforced by Article 5(1) and Article 5(5) of the Regulation, which set out a list of the diplomas recognised in the Netherlands for the staff of private security firms, including only such diplomas as are awarded by Netherlands institutions.

41. In summary, it must therefore be observed that there are in fact no objections as a matter of principle to the necessity of prior control of private security firms and detective agencies by the Netherlands authorities. Nevertheless, the Netherlands provisions in their actual form do not satisfy the requirements of the freedom to provide services, as they go beyond what is necessary to ensure consumer protection since they do not sufficiently take into account any requirements which a provider of services established in another Member State must already fulfil in his State of origin.

42. The first complaint of the Commission must therefore be upheld.

B – Second complaint: incompatibility of the authorisation requirement for management staff of private security firms with the freedom to provide services

43. The subject-matter of the Commission’s second complaint is the special authorisation requirement applicable in the Netherlands in respect of the management staff of private security firms. In the Commission’s view such an obligation goes beyond what is necessary since it applies in addition to the authorisation requirement for the firms themselves, already considered, thus placing a double burden on those firms.

44. As the Netherlands Government correctly observes, however, an authorisation procedure which was limited to the firms themselves would hardly be appropriate for achieving the desired quality control concerning the services offered by private security firms. Since in each case management staff can decisively influence the practices and the market image of such firms, the quality of the services offered depends considerably on the reliability of such staff. In principle, therefore, there cannot be any objection if the Netherlands provisions require an assessment of both the firm concerned and its management staff.

45. Nevertheless, the same applies in respect of the management staff as was already observed in relation to the firms: ( ) the Netherlands provisions go beyond what is necessary for the purposes of consumer protection since they do not take into account any obligations which already apply to the management staff of private security firms established in another Member State in their State of origin. To that extent the Netherlands provisions infringe the freedom to provide services.

46. Thus the second complaint of the Commission is to be upheld in so faras the management staff of private security firms must possess an authorisation without the obligations being taken into account which have to be complied with in the State of establishment and in so far as for that authorisation a fee is charged. For the rest, that is to say, inasmuch as the Commission contests in general the requirement for management staff of private security firms to be authorised, the second complaint is, however, unfounded.

C – Third complaint: incompatibility of the proof of identity requirement for the staff of private security firms and detective agencies with the freedom to provide services

47. The subject-matter of the Commission’s third complaint is the requirement that the staff of private security firms and detective agencies must possess a proof of professional identification issued in the Netherlands. It is not contested that this also constitutes a restriction on the freedom to provide services, ( ) since costs and a considerable administrative burden thereby arise for the firms concerned, rendering the provision of cross-border services more expensive and in particular rendering the initial, possibly short-term, provision of services more difficult.

1. Arguments of the parties

48. In the Commission’s view, such a proof of identity requirement is already disproportionate since the persons concerned must in any event be in possession of a valid identity card or passport. ( ) Moreover, the identification requirement is an outward expression of the system of prior control over the activities of private security firms and detective agencies criticised – in the written proceedings at least – by the Commission.

49. The Netherlands Government replies that the proof of identity requirement constitutes an important guarantee for the quality and reliability of the services of private security firms and detective agencies. The proof of identity at issue (legitimatiebewijs) contains considerably more information than a standard identity card or passport and in particular apart from the usual function of identification also serves as legitimation: it certifies that the bearer of such a card has been authorised by the Netherlands authorities to work for a private security firm or a detective agency. Public confidence is thereby strengthened.

2. Appraisal

50. A proof of professional identity issued by the Netherlands authorities which serves as legitimation can indeed function as a State-awarded seal of approval, thus increasing the confidence of the members of the public concerned in the staff of private security firms and detective agencies. The proof of identity requirement is therefore an appropriate measure for achieving the legitimate objective of protecting the consumer and ensuring the quality of the services offered. ( )

51. Doubts may however arise with respect to the necessity of the Netherlands proof of identity requirement. In that context not only must the proof of identity requirement as such (Article 9(8) of the Law) be evaluated but in particular also the underlying requirement for staff of private security firms and detective agencies to be authorised. The proof of professional identity required in the Netherlands is above all an outward expression of official authorisation for the activities of its bearer and documents this (Article 7(2) of the Law read together with Article 13(2) of the Regulation).

52. As explained above, there are in principle no objections as to the necessity of the system of prior control of private security firms and detective agencies operated in the Netherlands. ( )

53. Nevertheless the principle of the freedom to provide services at any rate requires such a prior authorisation procedure to take into account also those obligations which a provider of services already has to comply with in his State of origin. ( ) Thus if in an essentially comparable procedure carried out in the State of origin it has been concluded that the staff of a private security firm or detective agency satisfy those requirements applicable to the activities in question then the firm concerned must be allowed to rely on this in the Netherlands. ( ) In addition professional experience obtained in another Member State must also be duly taken into account.

54. As the Netherlands Government points out, Article 8(2) of the Law permits the relevant Minister to exempt private security firms from the requirement that they entrust the fulfilment of their tasks only to those persons who satisfy the relevant Netherlands criteria as to qualifications. It is, however, not evident from the Law itself that this possibility of exemption can also be applied for the purpose of recognising qualifications awarded in other Member States. If one, in fact, considers the wording of Article 8(2) of the Law it appears that that provision more readily applies to situations in which an individual lacks the necessary qualifications and thus needs an exemption, than to situations in which an individual has obtained the necessary qualifications, albeit not in the Netherlands.

55. The firms concerned cannot be expected to engage in additional research into the background parliamentary material put forward by the Netherlands Government in order to acquire a comprehensive understanding of the prevailing legal situation and in particular of any possibility of having the qualifications obtained by their staff in another Member State recognised.

56. In addition, the possibility of exemption in Article 8(2) of the Law is a purely discretionary provision which permits the relevant Minister considerable freedom of action. There is an absence of specific criteria detailing how that discretion is to be exercised and how the equivalence of qualifications is to be assessed.

57. The broader the discretion, however, which is granted to national authorities in a system of prior administrative authorisation the greater the chance that fundamental freedoms are deprived of their effectiveness. Such a discretion must therefore, in any event, be accompanied by objective, non-discriminatory criteria which are known in advance to the undertakings concerned, in such a way as to circumscribe the exercise of the national authorities’ discretion, so that it cannot be used arbitrarily. ( )

58. As I have shown, therefore, the Netherlands provisions do not sufficiently permit the qualifications acquired by staff of the firms affected in another Member State to be taken into account. The proof of identity requirement as an external manifestation of that duty to obtain authorisation exceeds what is necessary for the purposes of consumer protection and does not satisfy the requirements of the freedom to provide services. ( )

59. The Commission’s third complaint is therefore to be upheld in so faras the staff of private security firms and detective agencies, seconded from the State of establishment to the Netherlands, are required to possess a proof of identity issued by the Netherlands authorities without account being taken, on issuing that proof, of the obligations which must be satisfied in the State of establishment. For the rest, that is to say, in so far as the Commission contests in general the requirement of a proof of professional identity as the outward expression of a system of prior control the third complaint is, however, unfounded.

VI – Costs

60. As regards the withdrawal of the Commission’s fourth complaint the Netherlands Government in its response thereto made no application as to costs. In those circumstances it therefore follows from the first sentence of the first subparagraph taken together with the third subparagraph of Article 69(5) of the Rules of Procedure that in this regard each party is to pay its own costs.

61. Since as regards the rest of the Commission’s action only one of its three remaining complaints is to be upheld in its entirety whilst it is only partially successful in two of its complaints, the Court should in accordance with the first subparagraph of Article 69(3) of the Rules of Procedure apportion the costs.

62. In these circumstances the Kingdom of the Netherlands should be ordered to pay its own costs and two thirds of the Commission’s costs. The Commission should pay its own remaining costs.

VII – Conclusion

63. On the basis of the foregoing I propose that the Court rule as follows:

(1) By laying down, in the framework of the Law on private security firms and detective agencies, provisions which require that:

– an undertaking that wishes to provide services on Netherlands territory must be authorised, without taking into account the obligations which the foreign service provider must satisfy in the Member State where it is established, and by charging fees for this authorisation;

– management staff of these security firms have a permit for which a charge is also made, without taking into account the obligations which must already be satisfied in the State of establishment; and

– staff of private security firms and detective agencies seconded from the State of establishment to work in the Netherlands have a proof of identity issued by the Netherlands authorities, without account being taken, on issuing that proof, of the obligations which must be satisfied in the State of establishment;

the Kingdom of the Netherlands has failed to fulfil its obligations under Article 49 EC.

(2) The remainder of the application is dismissed.

(3) The Kingdom of the Netherlands shall pay its own costs and two thirds of the Commission’s costs. The Commission shall pay its own remaining costs.