Case C-514/03: Action brought on 8 December 2003 by the Commission of the European Communities against the Kingdom of Spain
Date: 2004-02-21
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, professional qualifications, recognition of diplomas, right of establishment, security services, trade licence

C 47/18

EN

Official Journal of the European Union

21.2.2004

— Is the Schumacker test

for residents and non-
residents applicable only in the case of subjective or
person-related tax aspects, such as the right to a
personal or family-related tax-free allowance, or
does it also apply to non-person-related tax aspects,
such as the tax rate?

— When deciding whether to treat a non-resident as a
resident, are Member States allowed to apply a
quantitative rule (such as the 90 % rule), despite the
fact that this does not guarantee that all discrimi-
nation will be removed?

3.

Is the right of option as referred to in Article 2.5 of the
Wet IB 2001 an adequate procedural remedy which
ensures that the party concerned may make use of his
rights as guaranteed under the EC Treaty and rules out all
forms of discrimination?

If so, is this also an adequate remedy in the present case
where the party concerned only receives income from
savings and investments, given that the party concerned
is unable to benefit from the right of option, as has been
considered under 4.3?

— by requiring, in connection with the rules applicable
to foreign registrations, that private security firms
should:

(a)

be a legal person in every particular case,

(b) possess a particular amount of share capital,
regardless of the fact that those firms are not
subject to the same obligations in the State of
their establishment;

(c)

lodge security at the Caja General de Depósitos,
regardless of the fact that security may have
been paid in the Member State of origin,

(d) have a minimum number of employees;

— by requiring the employees of a foreign private
security firm to obtain a new specific permit in
Spain when they have already obtained a compar-
able permit in the State of that firm’s establishment;
and by not making occupations in the field of
private security subject to the Community rules on
the recognition of professional qualifications,

the Kingdom of Spain has failed to fulfil its obligations
under Articles 43 and 49 of the EC Treaty and under
Directives 89/48/EEC (1) and 92/51/EEC (2) and

2. Order the Kingdom of Spain to pay the costs.

Action brought on 8 December 2003 by the Commission
of the European Communities against the Kingdom of
Spain

Pleas in law and main arguments

(Case C-514/03)

(2004/C 47/29)

An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 8 Decem-
ber 2003 by the Commission of the European Communities,
represented by Maria Patakia and Luis Escobar, acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. Declare that:

— by requiring, in the implementing legislation, that
private security firms and the members of their staff
should possess Spanish nationality;

The Spanish legislation concerning private security services
particularly
contravenes Community
Articles 43 and 49 of the EC Treaty, and also, in connection
with recognition of professional qualifications, Directives 89/
48/EEC and 92/51/EEC.

legislation, more

Undertakings that wish to carry out private security activities
on Spanish soil must be authorised to do so by registering
with the Ministry of the Interior, which authorisation is granted
only if certain requirements relating to the form of the
undertaking, share capital, the lodging of security in the Caja
General de Depósitos and the number of the undertaking’s
employees and of its armoured vehicles are satisfied. Moreover,
the Spanish legislation requires each and every member of the
staff of an undertaking intending to provide private security
services in Spain to obtain a specific permit granted if the
person satisfies a series of requirements, and produce more
than the evidence provided for in order to ensure that he or
she possesses the knowledge and abilities needed for the
performance of his or her duties. Those requirements do not
serve to guarantee the attainment of the objectives pursued,
which are public safety or the protection of the persons for
whom the private security services are provided.

21.2.2004

EN

Official Journal of the European Union

C 47/19

Furthermore, there exists no provision of Spanish law which
demands that account should be taken of compliance by a
foreign private security firm, or by its staff, with the guarantees
and requirements imposed in another Member State. As a
result, those are measures which have the effect of discouraging
foreign undertakings that wish to carry on activities in Spain.

(1) Council Directive 89/48/EEC of 21 December 1988 on a general
system for the recognition of higher-education diplomas awarded
on completion of professional education and training of at least
three years’ duration (OJ 1989 L 19, p. 16).

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

Pleas in law and main arguments

Under Article 23.3 of the contracts, the applicant before the
Court of First Instance, Società IAMA Consulting, is required
to reimburse the Commission for any sums overpaid.

the Community contribution is attributable to
Part of
the expenses incurred by IAMA Consulting before 1 Novem-
in
ber 1997 (and not re-invoiced to IAMA International)
of which
a
LIT
and
LIT 576 432 631 related to the REGIS Project
LIT 337 441 578 to the REFIAG Project.

913 874 209,

amount

total

of

during

The remainder derives from the amendments to expenditure,
made
total of
LIT 185 531 657, of which LIT 60 603 671 related to the
REGIS Project and LIT 124 927 986 to the REFIAG Project.

amounting

to a

audit,

the

Counterclaim submitted in the defence lodged on 17 July
2001 by the Commission in Case T-85/01 Società IAMA
Consulting v Commission of the European Communities,
pending before the Court of First Instance and referred to
the Court of Justice on 2 December 2003 by order of
25 November 2003, as a matter of jurisdiction

(Case C-517/03)

(2004/C 47/30)

Action brought on 9 December 2003 by the Commission
of the European Communities against the Kingdom of
Sweden

(Case C-518/03)

(2004/C 47/31)

On 2 December 2003 the Court of First Instance, by order of
25 November 2003, referred to the Court of
Justice a
counterclaim submitted by the Commission of the European
Communities, represented by Eugenio de March and Alberto
Dal Ferro, acting as Agents, in its defence in Case T-85/01
Società IAMA Consulting v Commission of the European
Communities.

The Commission claims that the Court should:

— Uphold its counterclaim and order Società IAMA Con-
sulting to repay the sum of LIT 1 099 405 866
in accordance with
interest,
(EUR 567 796) plus
Article 94 of Regulation No 341/93;

An action against
the Kingdom of Sweden was brought
before the Court of Justice of the European Communities on
9 December 2003 by the Commission of
the European
Communities, represented by K. Banks and K. Simonsson,
Agents, with an address for service in Luxembourg.

The Commission claims that the Court should:

1.

declare that, by failing to adopt, or to communicate to
the Commission, the laws, regulations and administrative
provisions necessary to implement Directive 98/44/EC (1)
of the European Parliament and the Council of 6 July
1998 on the legal protection of biotechnological inven-
tions, Sweden has failed to fulfil its obligations under that
directive; and

— In any event order Società IAMA Consulting to pay the

costs

2.

order Sweden to pay the costs of the case.