CELEX: C2004/047/29
Language: en
Date: 2004-02-21 00:00:00
Title: Case C-514/03: Action brought on 8 December 2003 by the Commission of the European Communities against the Kingdom of Spain

C 47/18                EN                       Official Journal of the European Union                                          21.2.2004
     —     Is the Schumacker test for residents and non-                      —     by requiring, in connection with the rules applicable
           residents applicable only in the case of subjective or                   to foreign registrations, that private security firms
           person-related tax aspects, such as the right to a                       should:
           personal or family-related tax-free allowance, or
           does it also apply to non-person-related tax aspects,                    (a)  be a legal person in every particular case,
           such as the tax rate?
                                                                                    (b) possess a particular amount of share capital,
     —     When deciding whether to treat a non-resident as a                            regardless of the fact that those firms are not
           resident, are Member States allowed to apply a                                subject to the same obligations in the State of
           quantitative rule (such as the 90 % rule), despite the                        their establishment;
           fact that this does not guarantee that all discrimi-
           nation will be removed?
                                                                                    (c)  lodge security at the Caja General de Depósitos,
                                                                                         regardless of the fact that security may have
3.   Is the right of option as referred to in Article 2.5 of the                         been paid in the Member State of origin,
     Wet IB 2001 an adequate procedural remedy which
     ensures that the party concerned may make use of his
                                                                                    (d) have a minimum number of employees;
     rights as guaranteed under the EC Treaty and rules out all
     forms of discrimination?
                                                                              —     by requiring the employees of a foreign private
     If so, is this also an adequate remedy in the present case                     security firm to obtain a new specific permit in
     where the party concerned only receives income from                            Spain when they have already obtained a compar-
     savings and investments, given that the party concerned                        able permit in the State of that firm’s establishment;
     is unable to benefit from the right of option, as has been                     and by not making occupations in the field of
     considered under 4.3?                                                          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)                                The Spanish legislation concerning private security services
                                                                        contravenes Community legislation, more particularly
                                                                        Articles 43 and 49 of the EC Treaty, and also, in connection
                          (2004/C 47/29)                                with recognition of professional qualifications, Directives 89/
                                                                        48/EEC and 92/51/EEC.
                                                                        Undertakings that wish to carry out private security activities
An action against the Kingdom of Spain was brought before               on Spanish soil must be authorised to do so by registering
the Court of Justice of the European Communities on 8 Decem-            with the Ministry of the Interior, which authorisation is granted
ber 2003 by the Commission of the European Communities,                 only if certain requirements relating to the form of the
represented by Maria Patakia and Luis Escobar, acting as                undertaking, share capital, the lodging of security in the Caja
Agents, with an address for service in Luxembourg.                      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
The applicant claims that the Court should:                             services in Spain to obtain a specific permit granted if the
                                                                        person satisfies a series of requirements, and produce more
1.   Declare that:                                                      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
     —     by requiring, in the implementing legislation, that          serve to guarantee the attainment of the objectives pursued,
           private security firms and the members of their staff        which are public safety or the protection of the persons for
           should possess Spanish nationality;                          whom the private security services are provided.
 ---pagebreak--- 21.2.2004               EN                         Official Journal of the European Union                                             C 47/19
Furthermore, there exists no provision of Spanish law which                Pleas in law and main arguments
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           Under Article 23.3 of the contracts, the applicant before the
foreign undertakings that wish to carry on activities in Spain.            Court of First Instance, Società IAMA Consulting, is required
                                                                           to reimburse the Commission for any sums overpaid.
(1) Council Directive 89/48/EEC of 21 December 1988 on a general
    system for the recognition of higher-education diplomas awarded
                                                                           Part of the Community contribution is attributable to
    on completion of professional education and training of at least       the expenses incurred by IAMA Consulting before 1 Novem-
    three years’ duration (OJ 1989 L 19, p. 16).                           ber 1997 (and not re-invoiced to IAMA International) in
(2) Council Directive 92/51/EEC of 18 June 1992 on a second general        a total amount of LIT 913 874 209, of which
    system for the recognition of professional education and training      LIT 576 432 631 related to the REGIS Project and
    to supplement Directive 89/48/EC (OJ 1992 L 209, p. 25).               LIT 337 441 578 to the REFIAG Project.
                                                                           The remainder derives from the amendments to expenditure,
                                                                           made during the audit, amounting to a 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.
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                      Action brought on 9 December 2003 by the Commission
                                                                           of the European Communities against the Kingdom of
                                                                                                        Sweden
                           (Case C-517/03)
                                                                                                   (Case C-518/03)
                            (2004/C 47/30)
                                                                                                    (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                       An action against the Kingdom of Sweden was brought
counterclaim submitted by the Commission of the European                   before the Court of Justice of the European Communities on
Communities, represented by Eugenio de March and Alberto                   9 December 2003 by the Commission of the European
Dal Ferro, acting as Agents, in its defence in Case T-85/01                Communities, represented by K. Banks and K. Simonsson,
Società IAMA Consulting v Commission of the European                       Agents, with an address for service in Luxembourg.
Communities.
                                                                           The Commission claims that the Court should:
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
—     Uphold its counterclaim and order Società IAMA Con-                        provisions necessary to implement Directive 98/44/EC (1)
      sulting to repay the sum of LIT 1 099 405 866                              of the European Parliament and the Council of 6 July
      (EUR 567 796) plus interest, in accordance with                            1998 on the legal protection of biotechnological inven-
      Article 94 of Regulation No 341/93;                                        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.