Judgment of the Court (Fifth Chamber) of 29 April 2004 in 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 services — Provisions of a Member State requiring private security firms, in order that they may operate in Portugal, 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 references and guarantees already submitted in the Member State of origin — Failure to provide for recognition of professional qualifications in the private security services sector)
Date: 2004-04-30
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, recognition of vocational training qualifications, right of establishment, security services, service occupation

C 118/22

EN

Official Journal of the European Union

30.4.2004

The Convention of 27 September 1968 on Jurisdiction and the Enfor-
cement of Judgments in Civil and Commercial Matters, as amended
by the Convention of 9 October 1978 on the accession of
the
Kingdom of Denmark, Ireland and the United Kingdom of Great
Britain and Northern Ireland, by the Convention of 25 October
1982 on the accession of the Hellenic Republic and by the Conven-
tion of 26 May 1989 on the accession of the Kingdom of Spain and
the Portuguese Republic, is to be interpreted as precluding the grant of
an injunction whereby a court of a Contracting State prohibits a party
to proceedings pending before it from commencing or continuing legal
proceedings before a court of another Contracting State, even where
that party is acting in bad faith with a view to frustrating the existing
proceedings.

(1) OJ C 169, 13.7.2002.

The provisions of Article 10a of Council Regulation (EEC) No
1408/71 of 14 June 1971 on the application of social security
schemes to employed persons, self-employed persons and to members
of their families moving within the Community, as amended and
updated by Council Regulation (EC) No 118/97 of 2 December
1996, and those of Annex IIa thereto must be interpreted as
meaning that the compensatory supplement, within the meaning of
the Gewerbliche Sozialversicherungsgesetz (Austrian Federal Law of
Insurance for self-employed persons
11 October 1978 on Social
engaged in trade and commerce), falls within the scope of that regu-
lation and therefore constitutes a special non-contributory benefit
within the meaning of Article 4(2a) of that regulation, so that the
situation of a person who, after 1 June 1992, fulfils the conditions
for the grant of that benefit is governed with effect from 1 January
1995, the date of the Republic of Austria's accession to the European
Union, solely by the coordinating provisions laid down by Article
10a.

JUDGMENT OF THE COURT

(1) OJ C 169, 13.7.2002.

(Fourth Chamber)

of 29 April 2004

in Case C-160/02 (reference for a preliminary ruling from
the Oberster Gerichtshof): Friedrich Skalka v Sozialversi-
cherungsanstalt der gewerblichen Wirtschaft (1)

(Social security for migrant workers — Austrian rules on
compensatory supplements to retirement pensions — Classifi-
cation of benefits and lawfulness of the residence requirement
under Regulation (EEC) No 1408/71)

(2004/C 118/38)

(Language of the case: German)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

(Austria)

In Case C-160/02: reference to the Court under Article 234 EC
from the Oberster Gerichtshof
for a preliminary
ruling in the proceedings pending before that court between
Friedrich Skalka and Sozialversicherungsanstalt der gewerbli-
chen Wirtschaft — on the interpretation of Articles 4(2a) and
10a of, and Annex IIa to, Council Regulation (EEC) No
1408/71 of 14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons and to
members of their families moving within the Community, as
amended and updated by Council Regulation (EC) No 118/97
of 2 December 1996 (OJ 1997 L 28, p. 1) — the Court (Fourth
Chamber), composed of: J.N. Cunha Rodrigues, President of the
Chamber, J.-P. Puissochet (Rapporteur) and F. Macken, Judges;
J. Kokott, Advocate General; M.-F. Contet, Principal Adminis-
trator, for the Registrar, has given a judgment on 29 April
2004, in which it has ruled that:

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

in Case C-171/02: Commission of the European Commu-
nities v Portuguese Republic (1)

(Articles 39 EC, 43 EC and 49 EC — Directive 92/51/EEC
— General system for the recognition of professional educa-
tion and training — Private security services — Provisions of
in order
a Member State requiring private security firms,
that they may operate in Portugal, 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 refer-
ences and guarantees already submitted in the Member State
of origin — Failure to provide for recognition of professional
qualifications in the private security services sector)

(2004/C 118/39)

(Language of the case: Portuguese)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-171/02: Commission of the European Communities
(Agents: M. Patakia and A. Caeiros), with an address for service
in
(Agent:
L. Fernandes, assisted by J.M. Calheiros), with an address for
service in Luxembourg – application for a declaration that:

Luxembourg,

Portuguese

Republic

against

30.4.2004

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Official Journal of the European Union

C 118/23

1.

in view of the fact that, under the regime for type approval
to be given by the Minister for Internal Administration,
foreign undertakings wishing to provide person and goods
surveillance services in the private security services sector in
Portugal

(a) must have their head office or an establishment

in

Portugal,

(b) may not rely on references and guarantees already

submitted in their Member State of establishment,

JUDGMENT OF THE COURT

(Fifth Chamber)

of 29 April 2004

(c) must be constituted as a legal person,

(d) must have a specific share capital;

in view of the fact that the staff members of foreign under-
takings wishing to provide person and goods surveillance
services in the private security services sector in Portugal
must hold a professional licence issued by the Portuguese
authorities;

in Case C-181/02 P: Commission of the European Commu-
nities v Kvaerner Warnow Werft GmbH (1)

(Appeal — State aid — Shipbuilding — Commission deci-
sions authorising payment of aid — Condition — Compli-
ance with a ‘capacity restriction’ — Definition)

2.

3.

the fact

in view of
the professions in the private
security services sector are not subject to the Community
system for the recognition of professional qualifications,

that

the Portuguese Republic has failed to fulfil its obligations
under Articles 39 EC, 43 EC and 49 EC and under 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/EEC (OJ 1992 L
209, p. 25) – the Court (Fifth Chamber), composed of: P.
the Fifth
Jann (Rapporteur) acting for the President of
Chamber, A. Rosas and S. von Bahr, Judges; S. Alber, Advo-
cate General; R. Grass, Registrar, has given a judgment on
29 April 2004, the operative part of which is as follows:

1. By requiring that, in order that they may be able to operate in
Portugal,
foreign undertakings wishing to provide person and
goods surveillance services in the private security services sector in
Portugal must:

— have

their head office or a permanent

establishment

in

Portugal;

— be constituted as a legal person;

— have a minimum share capital;

— obtain a licence granted by the Portuguese authorities without
their being able to rely on references and guarantees already
submitted in their Member State on origin;

— ensure that their staff members hold a professional

licence
issued by the Portuguese authorities, without their being able
to rely on checks or inspections already carried out in the
Member State of origin, the Portuguese Republic has failed to
fulfil its obligations under Articles 39 EC 43 EC and 49 EC.

(2004/C 118/40)

(Language of the case: German)

(Provisional translation; the definitive translation will be published in
the European Court Reports)

In Case C-181/02 P: Commission of the European Commu-
nities (Agents: K.-D. Borchardt and V. Kreuschitz), with an
address for service in Luxembourg – appeal against the judg-
ment of the Court of First Instance of the European Commu-
nities (Fourth Chamber, Extended Composition) of 28 February
2002 in Joined Cases T-227/99 and T-134/00 Kvaerner
Warnow Werft v Commission [2002] ECR II-1205, seeking to
have that judgment set aside, the other party to the proceedings
being: Kvaerner Warnow Werft GmbH, established in Rostock-
Warnemünde (Germany), (avocat: M. Schütte ) with an address
for service in Luxembourg, – the Court
(Fifth Chamber),
composed of C.W.A. Timmermans, acting as President of the
Fifth Chamber, A. La Pergola (Rapporteur) and S. von Bahr,
Judges; P. Léger, Advocate General; M. Arzamendi, Principal
Administrator, for the Registrar, has given a judgment on 29
April 2004, in which it:

1. Dismisses the appeal;

2. The remainder of the action is dismissed.

3. The Portuguese Republic is ordered to pay the costs.

costs.

2. Orders the Commission of the European Communities to pay the

(1) OJ C 169, 13.7.2002.

(1) OJ C 169, 13.7.2002.