Case C-171/02

Commission of the European Communities

v

Portuguese Republic

(Articles 39 EC, 43 EC and 49 EC – Directive 92/51/EEC – General system for the recognition of professional education and training – Private security activities – Measures taken by a Member State requiring operators, in order for them to be able to pursue private security activities, to have their head office or an establishment in Portugal, to be constituted as a legal person, to have a specific share capital and to provide evidence and guarantees already presented in the Member State of origin – Failure to provide for recognition of professional qualifications in the private security services sector)

Summary of the Judgment

1. Freedom of movement for persons – Freedom of establishment – Freedom to provide services – Treaty provisions – Respective scopes – Criteria – Provision of services over an extended period without having an establishment in the Member State of destination – Included in freedom to provide services

(Arts 43 EC and 49 EC)

2. Freedom of movement for persons – Workers – Freedom of establishment – Freedom to provide services – Restrictions – Requirement for private security activities to have their head office or an establishment on national territory, to be constituted as a legal person, to have a minimum share capital, to obtain an authorisation issued by the national authorities and to obtain, for their employees, a professional certificate issued by those authorities – Inadmissible

(Arts 39 EC, 43 EC and 49 EC)

1. The key element, as regards the definition of the respective scopes of the principles of freedom to provide services and freedom of establishment, is whether or not the economic operator is established in the Member State in which it offers the services in question. Where it is established (in a principal or secondary establishment) in the Member State in which it offers the service (Member State of destination or host Member State), it falls within the scope of the principle of freedom of establishment, as defined in Article 43 EC. On the other hand, where the economic operator is not established in that Member State of destination, it is a transfrontier service provider covered by the principle of freedom to provide services laid down in Article 49 EC. In this context, the concept of establishment within the meaning of Article 43 EC means that the operator offers its services on a stable and continuous basis from an established professional base in the Member State of destination. On the other hand, all services that are not offered on a stable and continuous basis from an established professional base in the Member State of destination constitute provision of services within the meaning of Article 49 EC.

Services within the meaning of Article 49 EC may thus be constituted by services which a business established in a Member State supplies with a greater or lesser degree of frequency or regularity, even over an extended period, to persons established in one or more other Member States.

Therefore, even national measures that apply only to economic operators offering their services in the Member State concerned for a period of more than one year are, in principle, capable of restricting freedom to provide services.

(see paras 24-28)

2. A Member State fails to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC by requiring, in order for foreign operators to be able to pursue surveillance activities in respect of persons and property in the private security services sector on its national territory, that

- those operators have their head office or a permanent establishment on its national territory;

- those operators be constituted as a legal person;

- those operators have a minimum share capital;

- those operators obtain an authorisation issued by the national authorities, without account being taken of evidence or guarantees already presented in the Member State of origin; and

- their employees hold a professional certificate issued by those authorities, without account being taken of controls or verifications already carried out in the Member State of origin.

(see para. 74, operative part)