Case C-171/02: Action brought on 8 May 2002 by the Commission of the European Communities against the Portuguese Republic
Date: 2002-07-13
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, organisation, recognition of vocational training qualifications, right of establishment, security services, service occupation

13.7.2002

EN

Official Journal of the European Communities

C 169/19

The Commission of the European Communities claims that
the Court should:

Action brought on 8 May 2002 by the Commission of the
European Communities against the Portuguese Republic

— declare that, by failing to communicate measures trans-
posing into national
law the provisions of Directive
1999/94/EC of the European Parliament and of the
Council of 13 December 1999 relating to the availability
of consumer information on fuel economy and CO2
emissions in respect of the marketing of new passenger
cars (1), or at any rate by not informing the Commission
fully thereof, the French Republic has failed to fulfil its
obligations under that directive;

— order the French Republic to pay the costs.

(Case C-171/02)

(2002/C 169/36)

An action against the Portuguese Republic was brought before
the Court of Justice of the European Communities on 8 May
2002 by the Commission of the European Communities,
represented by Maria Patakia and Anto´ nio Caeiros, acting as
Agents.

Pleas in law and main arguments

The time-limit for transposition expired on 18 January 2001.

(1) OJ L 12 of 18 January 2000, p. 16.

The applicant claims that the Court should:

I.

Declare that:

Reference for a preliminary ruling by the Oberster
Gerichtshof (Austria) by order of that Court of 9 April
2002 in the case of Rudolf Kronhofer against (1) Marianne
Maier, (2) Christian Möller, (3) Wirich Hofius and (4) Zeki
Karan

(Case C-168/02)

(2002/C 169/35)

Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
(Supreme Court) of 9 April 2002, received at the Court
Registry on 6 May 2002, for a preliminary ruling in the case
of Rudolf Kronhofer against (1) Marianne Maier, (2) Christian
Möller, (3) Wirich Hofius and (4) Zeki Karan on the following
question:

Is the expression ‘place where the harmful event occurred’
contained in Article 5(3) of the Convention on jurisdiction
and the enforcement of judgments in civil and commercial
matters of 27.9.1968 (‘the Convention’) to be construed in
such a way that, in the case of purely financial damage arising
on the investment of part of the injured party’s assets, it also
encompasses in any event the place where the injured party is
domiciled if the investment was made in another Member
State of the Community?

1.

inasmuch as the system for issuing authorisations
by the Ministro de Administraça˜o Interna requires
that foreign undertakings,
in the private security
services sector, wishing to pursue in Portugal activi-
ties in the security sector in respect of persons and
property:

(a) must have their main offices in or be estab-

lished in Portugal;

(b)

cannot rely on the guarantees already submit-
ted in their Member State of origin;

(c) must have legal personality;

(d) must have a specific amount of capital;

2.

inasmuch as the employees of
foreign security
undertakings, in the private security services sector,
wishing to pursue in Portugal security services
activities in respect of persons and property must be
in possession of an employer’s identity card issued
by the Portuguese authorities;

3.

inasmuch as work in the private security sector is not
covered by the Community system of recognition of
professional qualifications;

the Portuguese Republic has failed to fulfil its obligations
under Articles 39, 43 and 49 of the EC Treaty and
Directive 92/51/EEC (1);

II. Order the Portuguese Republic to pay the costs.

C 169/20

EN

Official Journal of the European Communities

13.7.2002

Pleas in law and main arguments

— requirement that foreign undertakings have their main
offices in or be established in Portugal: although the
Portuguese authorities have interpreted their legislation
otherwise,
the Commission remains convinced that
Article 22(1) of Decree Law No 231/98 requires entities
established in other Member States to have their main
offices or a branch in Portugal if they wish to pursue, in
Portugal, temporarily (under Article 49 EC), in the private
security sector, security activities in respect of persons and
property. Administrative considerations cannot justify a
derogation, on the part of a Member State, from the rules
of Community law, particularly where such a derogation
has the effect of fettering exercise of one of the freedoms
guaranteed by the Treaty.

— account

taken by the Portuguese authorities of

the
qualifications and guarantees already submitted by for-
eign undertakings in their Member State of establishment:
it is impossible to conclude from Article 24 of Decree
Law No 231/98 that the Portuguese authorities, when
assessing applications for authorisations, take account of
qualifications and guarantees submitted by the service
provider in respect of the pursuit of its activities in the
Member State of establishment.

— requirement that foreign undertakings have legal person-
ality: the requirement to become incorporated places at a
disadvantage any self-employed worker or any business
person or individual established in another Member State
wishing to pursue an activity in the private security sector
in Portugal.

— requirement that foreign undertakings have a certain
amount of capital: the Portuguese provision makes the
setting-up of a subsidiary or a branch in Portugal subject
to the condition that the foreign parent company should
have capital in an amount that must not be less than that
prescribed by the Portuguese measure. That condition is
thus tantamount to indirect application of the treatment
reserved by domestic law for primary businesses to a
measure whereby an individual exercises the right of
establishing a secondary presence. Such a condition
prevents an economic operator from pursuing his activity
throughout the Community with an amount of capital
which complies with the legal requirements of
the
Member State in which the company was incorporated
but which is less than that required in the Member State
where that economic operator intends to set up a
secondary establishment.

— obligation on staff of foreign undertakings to be in
possession of an employer’s identity card issued by the
in so far as Portuguese law
Portuguese authorities:
requires that all employees of private security firms
should obtain an authorisation from the Ministério da
Administraça˜o Interna in the form of an ‘employer’s
identity card’ before pursuing an activity in Portugal and
that the legislation makes no provision for the Portuguese
authorities to take account of whether equivalent statu-
tory conditions have been fulfilled in the Member State
of establishment, as well as of checks and verifications
already carried out there, the Commission takes the view
that the requirement of an ‘employer’s identity card’ is
both a barrier to the free movement of workers with
regard to the employees (Article 39 EC) and an obstacle
to the freedom to provide services with regard to their
employer whose right to post members of his staff from
the Member State of establishment is restricted (Article 49
EC).

— the fact that pursuit of an activity in the private security
sector is not covered by the Community system of
recognition of professional qualifications: an activity in
the private security sector may only be pursued in
Portugal by staff employed on surveillance and escort,
personal defence and protection duties who have success-
fully followed an approved compulsory training course
according to the Portuguese provision. Furthermore,
access by such employees to those professional activities
and their pursuit is only permitted to those holding an
employer’s identity card. That card essentially constitutes
an attestation of competence within the meaning of the
first indent of Article 1(1)(c) of Directive 92/51/EEC in
that it certifies, according to Portuguese law, that its
holder fulfilled all the statutory requirements, including
successful completion of tests of knowledge and physical
skills, whose content and duration are fixed by statute,
and enables the holder to pursue an activity in the private
security sector. Accordingly, private security services
constitute, in Portugal, a regulated profession within the
meaning of Article 1(1)(e)
in conjunction with the
first indent of Article 1(1)(c) and Article 1(1)(f) of the
abovementioned directive. Therefore, Portuguese legis-
lation implementing Directive 92/51/EEC does not cover
the professions falling within the scope of the private
security sector which are thus not subject in Portugal to
the provisions relating to the recognition of professional
qualifications provided for in the aforementioned direc-
tive.

(1) Council Directive 92/51/EC of 18 June 1992 on a second general
system for the recognition of professional education and training
to supplement Directive 89/48/EEC — OJ 1992 L 209, p. 25.