Case C-189/03: Action brought on 5 May 2003 by the Commission of the European Communities against the Kingdom of the Netherlands
Date: 2003-07-05
Institutions: Court of Justice
Subjects: European Commission, Netherlands, action for failure to fulfil an obligation, freedom to provide services, provision of services, recognition of vocational training qualifications, security services, trade licence

5.7.2003

EN

Official Journal of the European Union

C 158/11

Appeal brought on 25 April 2003 by A. Nardone against
the judgment delivered on 26 February 2003 by the First
Chamber of the Court of First Instance of the European
Communities in Case T-59/01 between A. Nardone and
the Commission of the European Communities

First Instance did not take account of the fact that the applicant
is already entitled to a pension for permanent partial invalidity
which has a clear effect on the calculation of his retirement
pension.

(Case C-181/03 P)

(2003/C 158/19)

An appeal against the judgment delivered on 26 February
2003 by the First Chamber of the Court of First Instance
of
the European Communities in Case T-59/01 between
A. Nardone and the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 25 April 2003 by A. Nardone, represented
by J.R. Iturriagagoitia and K. Delvolvé, lawyers. The appellant
claims that the Court should:

principally:

— declare that the appeal is admissible and founded,

— set aside in its entirety the judgment delivered by the
Court of First Instance on 26 February 2003 in Case
T-59/01;

in the alternative:

— annul the express decision of the Appointing Authority
of 15 December 2000 in so far as it rejected the
appellant’s complaint of 23 May 2000 regarding the
award of an invalidity pension under the second para-
graph of Article 78 of the Staff Regulations;

— in so far as is necessary, annul the express decision of the
Appointing Authority of 20 March 2000 in so far as it
rejected the appellant’s request of 18 November 1999
regarding the award of an invalidity pension under the
second paragraph of Article 78 of the Staff Regulations;

in any event:

— make an order as to costs in accordance with the

applicable provisions of the Rules of Procedure.

Pleas in law and main arguments

The appellant disputes the finding of the Court of First Instance
that he did not meet the cumulative conditions required under
Article 13 of Annex VIII to the Staff Regulations in order to be
entitled to an invalidity pension. First, he could not claim his
in 1981, when he resigned, because he was
entitlement
unaware of his state of health owing to the progressive and
degenerative nature of his condition. Secondly, the Court of

Action brought on 5 May 2003 by the Commission of
the European Communities against the Kingdom of the
Netherlands

(Case C-189/03)

(2003/C 158/20)

An action against the Kingdom of the Netherlands was brought
before the Court of Justice of the European Communities on
5 May 2003 by the Commission of the European Communi-
ties, represented by W. Wils, acting as Agent.

The applicant claims that the Court should:

— 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 have a permit, 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 permit;

— managers of these security firms have a permit for

which a charge is also made;

— staff have a diploma issued by a Netherlands organis-
ation, and that installers of alarms have professional
qualifications without taking into account qualifi-
the
cations obtained in another Member State;
Kingdom of the Netherlands has failed to fulfil its
obligations under Article 49 EC and Directives 89/
49/EEC (1) and 92/51/EEC (2) on the general system
for the recognition of professional qualifications.

— Order the Kingdom of the Netherlands to pay the costs.

C 158/12

EN

Official Journal of the European Union

5.7.2003

Pleas in law and main arguments

— First and second objection: compulsory permits for firms

and their staff

The requirement that a private security firm wishing to
provide services in the Netherlands must have a permit is
equivalent to a restriction on the freedom to provide
services by the undertakings concerned. Such a restriction
is justified solely where there are overriding reasons of
public interest, that interest cannot be guaranteed in the
Member State in which the undertaking is established and
the national measure does not exceed what is necessary
to achieve the objective sought.

However, as regards, first, the appropriateness of the
measure to achieve the general interest objective, said to
be the protection of customers for the services, there is
no evidence from which to conclude that the obligation
for a permit as required in the Netherlands constitutes an
appropriate measure.

Moreover, the Netherlands legislation does not take into
account the requirements which the foreign provider of
services must already satisfy in his Member State of
establishment, in particular where he already has a permit
to carry out his activities in that State.

Furthermore, the requirement for a permit is combined
with costs for the foreign undertaking. This is an extra
financial burden for foreign undertakings which are
already required in their country of origin to apply for a
permit and to pay such costs. Those charges in such
circumstances also appear to be incompatible with
Article 49 of the EC Treaty.

Just like the obligation that an undertaking have a permit,
the requirement that managers must also obtain specific
approval is not an appropriate measure which can be
justified by one of the reasons on which the Netherlands
authorities rely. In any case, as the firm itself must already
satisfy an obligation to have a permit in the Netherlands,
the requirement for approval of managers is a dual
measure which is thus certainly not necessary. The
separate approval of managers therefore infringes the
principle of proportionality and, thus, Article 49 of the
EC Treaty.

The requirement for a fee for the issue of this proof is,
moreover, an extra financial burden that is incompatible
with Article 49 of the EC Treaty.

— Fourth objection: recognition of professional qualifi-

cations

installers of

Under Netherlands legislation, it is a requirement that staff
members of a security firm have a diploma (Algemeen
Beveiligingsmedewerker — diploma) from a Netherlands
organisation. Furthermore,
alarms are
required to have certain qualifications, but no account is
taken of diplomas acquired in another Member State.
Nowhere is there express reference to a procedure for the
recognition of diplomas and qualifications acquired in
another Member State for the exercise of the professions
in question. The legislation in question does not appear
to have a provision referring to the machinery for the
recognition of professional qualifications, such as those
included in the relevant national
legislation. Such a
situation is incompatible with existing Community legis-
lation, namely Directive 89/48/EEC and Directive 92/51/
EEC which together form a general framework for the
recognition of professional qualifications obtained in
other Member States.

(1) OJ 1989 L 19, p. 16.
(2) OJ 1992 L 209, p. 25.

Reference for a preliminary ruling by the Labour Court,
Dublin, by decision of that court dated 14 April 2003, in
the case of North Western Health Board against Margaret
McKenna

(Case C-191/03)

(2003/C 158/21)

— Third objection: proof of identity

Foreign undertakings are obliged to ensure that staff
seconded to the Netherlands from outside their country
of establishment are in possession of a proof of identity
issued by the Netherlands authorities. That applies also
for the temporary provision of services. As the seconded
staff must already, in accordance with Community law,
possess an identity card or passport, it is disproportionate
to require a proof of identity.

Reference has been made to the Court of
Justice of the
European Communities by a decision of the Labour Court,
Dublin, dated 14 April 2003, which was received at the Court
Registry on 12 May 2003, for a preliminary ruling in the case
of North Western Health Board and Margaret McKenna on the
following questions:

1. Does the operation of a sick leave scheme which treats
employees suffering from pregnancy related illnesses and
pathological illness in an identical fashion come within
the scope of Directive 76/207 (1)?