Case C-465/05: Judgment of the Court (Second Chamber) of 13 December 2007 — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil its obligations — Freedom to provide services — Right of establishment — Occupation of security guard — Private security services — Oath of allegiance to the Italian Republic — Authorisation from the Prefetto — Place of business — Minimum number of employees — Lodging of a guarantee — Administrative control of the pricing of services provided)
Date: 2007-12-13
Institutions: Court of Justice
Subjects: European Commission, Italy, action for failure to fulfil an obligation, freedom to provide services, right of establishment, security services

23.2.2008

EN

Official Journal of the European Union

C 51/11

Judgment of the Court (Grand Chamber) of 11 December
2007 (reference for a preliminary ruling from the Court of
Appeal (Civil Division) — United Kingdom) International
Transport Workers' Federation, Finnish Seamen's Union v
Viking Line ABP, OÜ Viking Line Eesti

(Case C-438/05) (1)

(Maritime transport — Right of establishment — Funda-
mental rights — Objectives of Community social policy —
Collective action taken by a trade union organisation against
a private undertaking — Collective agreement liable to deter
an undertaking from registering a vessel under the flag of
another Member State)

3. Article 43 EC is to be interpreted to the effect that collective action
such as that at issue in the main proceedings, which seeks to induce
a private undertaking whose registered office is in a given Member
State to enter into a collective work agreement with a trade union
established in that State and to apply the terms set out in that
agreement to the employees of a subsidiary of that undertaking
established in another Member State,
constitutes a restriction
within the meaning of that article.

That restriction may,
in principle, be justified by an overriding
reason of public interest, such as the protection of workers, provided
that it is established that the restriction is suitable for ensuring the
attainment of the legitimate objective pursued and does not go
beyond what is necessary to achieve that objective.

(2008/C 51/17)

Language of the case: English

(1) OJ C 60, 11.3.2006.

Referring court

Court of Appeal (Civil Division)

Parties to the main proceedings

Applicants: International Transport Workers' Federation, Finnish
Seamen's Union

Defendants: Viking Line ABP, OÜ Viking Line Eesti

Re:

Reference for a preliminary ruling — Court of Appeals Civil
Division — Interpretation of Article 43 EC and of Council
Regulation (EEC) No 4055/86 of 22 December 1986 applying
the principle of freedom to provide services to maritime trans-
port between Member States and between Member States and
third countries (OJ 1986 L 378, p. 1) — Industrial action by a
trade union to compel a private undertaking to adopt a collec-
tive bargaining agreement making it pointless for that underta-
king's vessels to reflag to another Member State — Applicability
of Article 43 EC and/or Regulation No 4055/86 under Title XI
of the EC Treaty and Case C-67/96 Albany — Whether an
undertaking can rely on the provisions of Article 43 EC and/or
Regulation No 4055/86 against
another private person,
including a trade union in respect of its industrial action.

Judgment of the Court (Second Chamber) of 13 December
the European Communities v
2007 — Commission of

Italian Republic

(Case C-465/05) (1)

(Failure of a Member State to fulfil its obligations — Freedom
to provide services — Right of establishment — Occupation
of security guard — Private security services — Oath of alle-
giance to the Italian Republic — Authorisation from the
Prefetto — Place of business — Minimum number of
employees — Lodging of a guarantee — Administrative
control of the pricing of services provided)

(2008/C 51/18)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (repre-
sented by: E. Traversa and E. Montaguti, Agents)

Operative part of the judgment

Italian Republic (represented by:
Defendant:
Agent, and D. Del Gaizo, avvocato dello Stato)

I.M. Braguglia,

1. Article 43 EC is to be interpreted as meaning that, in principle,
collective action initiated by a trade union or a group of trade
unions against a private undertaking in order to induce that under-
taking to enter into a collective agreement, the terms of which are
liable to deter it from exercising freedom of establishment, is not
excluded from the scope of that article.

2. Article 43 EC is capable of conferring rights on a private under-
taking which may be relied on against a trade union or an associa-
tion of trade unions.

Re:

Failure of a Member State to fulfil obligations — Infringement
of Articles 43 EC and 49 EC — Requirements for the exercise
of the occupation of private security guard — Obligation to
swear an oath of allegiance to the Italian Republic — Obligation
to obtain an authorisation from the Prefetto

C 51/12

EN

Official Journal of the European Union

23.2.2008

Operative part of the judgment

The Court:

Judgment of the Court (First Chamber) of 18 December
2007 (Reference for
a preliminary ruling from the
Supremo Tribunal Administrativo — Portugal) — Fazenda
Pública — Director Geral das Alfândegas v ZF Zefeser —
Importação e Exportação de Produtos Alimentares Lda

1. Declares that, in relation to the Consolidated Law on public security
(Testo unico delle leggi di pubblica sicurezza), approved by Royal
Decree No 773 of 18 June 1931, as amended:

(Case C-62/06) (1)

— by providing that it is obligatory to swear an oath of allegiance
to the Italian Republic in order to work as a private security
guard, the Italian Republic has failed to fulfil its obligations
under Articles 43 EC and 49 EC;

— by providing that private security activities may be pursued by
service providers established in other Member States only after
authorisation of limited territorial validity has been granted by
the Prefetto, without requiring account to be taken of the obli-
gations to which those service providers are already subject in
the Member States of origin, the Italian Republic has failed to
fulfil its obligations under Article 49 EC;

— by providing that that authorisation is to have limited terri-
torial validity and that the granting of such authorisation is to
be subject to consideration of the number and size of security
undertakings already operating in the area in question, the
Italian Republic has
its obligations under
failed to fulfil
Articles 43 EC and 49 EC;

— by providing that private security undertakings must have a
place of business in each province in which they operate, the
Italian Republic has
its obligations under
failed to fulfil
Article 49 EC;

— by providing that the staff of those undertakings must be indi-
vidually authorised to undertake private security work, without
requiring account to be taken of the controls and verifications
already carried out in the Member State of origin, the Italian
Republic has failed to fulfil its obligations under Article 49 EC;

— by providing that private security undertakings must have a
minimum and/or a maximum number of employees in order to
obtain authorisation, the Italian Republic has failed to fulfil its
obligations under Articles 43 EC and 49 EC;

— by providing that those undertakings must lodge a guarantee
with the local Cassa depositi e prestiti, the Italian Republic has
failed to fulfil its obligations under Articles 43 EC and 49 EC;
and

— by providing that the prices for private security services are to
be fixed, with the approval of the Prefetto, within the limits of
a predetermined margin for variation, the Italian Republic has
failed to fulfil its obligations under Article 49 EC;

2. Orders the Italian Republic to pay the costs.

(Regulation (EEC) No 1697/79 — Article 3 — Post-clearance
recovery of import duties — Act that could give rise to crim-
inal court proceedings — Competent authority for classifying
the act)

(2008/C 51/19)

Language of the case: Portuguese

Referring court

Supremo Tribunal Administrativo

Parties to the main proceedings

Applicant: Fazenda Pública — Director Geral das Alfândegas

Defendant: ZF Zefeser — Importação e Exportação de Produtos
Alimentares Lda

Intervener in support of the defendant: Ministério Público

Re:

Reference for a preliminary ruling — Supremo Tribunal Admin-
istrativo — Interpretation of Article 3 of Council Regulation
(EEC) No 1697/79 of 24 July 1979 on the post-clearance
recovery of import duties or export duties which have not been
required of the person liable for payment on goods entered for
a customs procedure involving the obligation to pay such duties
(OJ 1979 L 197, p. 1) — ‘Act that could give rise to criminal
court proceedings’ — Concept and classification

Operative part of the judgment

Classification of an act as ‘an act that could give rise to criminal court
proceedings’ within the meaning of the first paragraph of Article 3 of
Council Regulation (EEC) No 1697/79 of 24 July 1979 on the post-
clearance recovery of import duties or export duties which have not
been required of the person liable for payment on goods entered for a
customs procedure involving the obligation to pay such duties, falls
within the competence of the customs authorities required to determine
the exact amount of the import duties or export duties in question.

(1) OJ C 60, 11.3.2006.

(1) OJ C 86, 8.4.2006.