Case C-465/05: Action brought on  23 December 2005  by the Commission of the European Communities against the Italian Republic
Date: 2006-03-11
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, freedom to provide services, right of establishment, security services

C 60/24

EN

Official Journal of the European Union

11.3.2006

Action brought on 23 December 2005 by the Commission
of the European Communities against the Italian Republic

(Case C-465/05)

(2006/C 60/46)

(Language of the case: Italian)

An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 23 December
2005 by the Commission of the European Communities, repre-
sented by E. Traversa and E. Montaguti, acting as Agents.

The applicant claims that the Court should:

1. declare that the Italian Republic has failed to fulfil its obliga-
tions under Article 43 EC and Article 49 EC, by providing
that:

— the activity of private security guard can be exercised
only after an oath of allegiance to the Italian Republic
has been sworn;

— private security activities can be exercised only after the

granting of an authorisation by the Prefect;

— the said authorisation has limited territorial validity and
the granting thereof is subject to consideration of the
number and size of security undertakings already in
operation in the territory in question;

— private security undertakings must have a place of busi-

ness in each province in which they operate;

— the personnel of the said undertakings must be individu-

ally authorised to perform security activities;

— the security undertakings must have a minimum/

maximum number of employees to be authorised;

— private security undertakings must lodge security at the
local Cassa depositi e prestiti (Deposit and Loan Bank);

— the prices for private security services are established
pursuant to authorisation by the Prefect within specified
limits.

2. order the Italian Republic to pay the costs.

Pleas in law and main arguments

The activity of private security guard does not constitute direct
and specific participation in the exercise of official authority.
The exception laid down in Articles 45 EC and 55 EC, to the
right of establishment and freedom to provide services, cannot
therefore be extended to such activity.

1) The obligation to swear an oath constitutes an obstacle
which is neither justified or proportionate having regard to

in general, access to the Italian market

the purpose, and the type of professional activity, of private
security guards. The formal oath makes establishment in
and,
in private
security services more difficult for Community undertakings,
to the extent of completely dissuading occasional providers
of such services from providing them.

2) The requirement of a licence for anyone wishing to provide
private security services in Italy, without taking into account
analogous obligations to which the provider of such services
is already subject in the Member State in which he is estab-
lished, constitutes an unjustified obstacle to the freedom to
provide services.

3) A Community undertaking in the same sector which
intends to establish itself in Italy and operate in a territory
of a certain size must obtain as many licences as provinces
in which it intends to carry out its activities (there are 104
provinces in Italy). The competent authority (Prefect) may
decline to grant such licences having regard to the number
and size of undertakings already operating on the said terri-
tory.

4) An undertaking which intends to establish itself in Italy
must arrange to have as many premises as licences obtained
and provinces covered, even though this is not required for
the carrying out of services. Moreover, to lay down an obli-
gation of this kind concerning premises is equivalent to
it
denying the freedom to provide services given that
requires a person providing such services on a transfrontier
basis to have an establishment in Italy.

5) In the case of occasional provision of security services,
Italian law always requires each employee to be individually
authorised to exercise his activity in Italy and does not take
into account any control measures to which each sworn
private security guard is already subject in his Member State
of origin.

relating

6) The licences granted by the Prefect may contain a require-
ment
to a minimum/maximum number of
employees. Failure to respect such limits entails revocation
of the licence. Such provisions constitute an obstacle to
freedom of establishment and freedom to provide services,
which is liable in particular to completely preclude access to
the market for small undertakings.

7) The obligation to lodge security at the Deposit and Loan
Bank imposed on private security undertakings by the
Italian law does not take account of obligations that are
comparable, as regards their purpose, to which the service
provider is already subject in the Member State in which it
is established.

11.3.2006

EN

Official Journal of the European Union

C 60/25

8) Restrictions on the freedom to set charges constitute a
further obstacle to freedom of establishment and freedom to
provide services. In fact, a new service provider which tries
to enter a given market must endeavour to stand out from
its competitors and the price of the services is an important
factor in procuring clients.

Appeal brought on 9 January 2006 by Cofradía de pesca-
dores ‘San Pedro’ de Bermeo and Others against the judg-
ment of the Court of First Instance (Third Chamber) of 19
October 2005 in Case T-415/03 Cofradía de pescadores
‘San Pedro’ de Bermeo and Others v Council of the Euro-
pean Union, supported by the Commission of the Euro-
pean Communities and the French Republic

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 21 November 2005 in
Willy Kempter KG v Hauptzollamt Hamburg-Jonas —
Ausfuhrerstattung

(Case C-6/06 P)

(2006/C 60/48)

(Language of the case: Spanish)

(Case C-2/06)

(2006/C 60/47)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg of
21 November 2005, received at the Court Registry on 4 January
2006, for a preliminary ruling in the proceedings between
Willy Kempter KG and Hauptzollamt Hamburg-Jonas —
Ausfuhrerstattung
(Main Customs Office Hamburg-Jonas,
Export Refunds Section) on the following questions:

1. Is the review and amendment of a final administrative deci-
sion in order to take account of the interpretation of the
relevant Community law carried out by the Court of Justice
of the European Communities in the meantime subject to
the requirement that the party concerned relied on Com-
munity law when contesting the administrative decision
before the national courts?

2. Is an application for the review and amendment of a final
administrative decision which is contrary to Community
law subject to a restriction in time for overriding reasons of
Community law, apart from the conditions set out in Case
C-453/00 Kühne & Heitz [2004] ECR I-837?

An appeal against the judgment of the Court of First Instance
(Third Chamber) of 19 October 2005 in Case T-415/03
Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council
of the European Union, supported by the Commission of the
European Communities and the French Republic, was brought
before the Court of Justice of the European Communities on 9
January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo
and Others, represented by E. Garayar Gutiérrez, G. Martínez-
Villaseñor, A. García Castillo and M. Troncoso Ferrer,
abogados.

The appellants claim that the Court should:

(1) Declare the present appeal admissible;

(2) Therefore, set aside in its entirety the judgment of the
Court of First Instance of 19 October 2005 in Case T-415/
03;

(3) Consider the forms of order sought by the appellants at

first instance, namely that it should:

— Declare that the Community incurred non-contractual
liability for removing part of the share of the Total
Allowable Catch for anchovy allocated to Spain and the
fleet authorised to fish for anchovy in ICES area VIII
during the years 1996 to 2001, by the transfer,
authorised by the Council of the European Union in
Regulations Nos 3074/95 (1), 390/97 (2), 45/98 (3),
48/1999 (4) and 2848/2000 (5), of Portugal's quota in
ICES area IX to be fished by France in ICES area VIII, in
breach of: Article 161(1)(f) of the Act concerning the
conditions of accession of the Kingdom of Spain and
the Portuguese Republic to the European Communities
and of the principle of relative stability; and of the prin-
ciples of legal certainty and legitimate expectations.