CELEX: C1997/166/09
Language: en
Date: 1997-05-31 00:00:00
Title: Action brought on 19 March 1997 by Commission of the European Communities against Kingdom of Spain (Case C-114/97)

31 . 5 . 97               EN                 Official Journal of the European Communities                                   No C 166/5
      acceptance in more than 50% of the trade circles                  Such a specific prohibition is contrary to Article 4 of
      concerned is required and is to be demonstrated,                  Directive    90/396/EEC       inasmuch     as it constitutes an
      compatible with that provision ?                                  obstacle to the putting into service of appliances to which
                                                                        the directive applies and which conform to the essential
                                                                        requirements provided for therein.
      Do requirements follow from this provision as to the
      manner in which descriptive character acquired by use
      is to be ascertained ?                                            The argument that Article 5 ( 10 ) of DPR 412/93 is
                                                                        compatible with Directive 90/396/EEC on account of the
C ) First Council Directive of 21 December 1988 to approximate          safety requirements on which it is based is unfounded .
    the laws of the Member States relating to trade marks ( 89/         Indeed, the essential requirements laid down by the
     104/EEC ) ( OJ No L 40, 1989, p. 1 ).                              directive in respect of the installation and use of
                                                                        appliances burning gaseous fuels — including of the ' open'
                                                                        type — are exhaustive in that they conform to all the
                                                                        relevant safety requirements and are mandatory in nature .
                                                                        In the present case, the national authority is no longer
                                                                        able to maintain in force nor to adopt national provisions
                                                                        which require compliance with additional requirements,
Action brought on 18 March 1997 by the Commission of                    otherwise the achievement and the functioning of the
   the European Communities against the Italian Republic                internal market would be unlawfully hindered.
                            Case C-l 12/97
                             ( 97/C 166/08 )                            The argument that Article 5 ( 10 ) of DPR 412/93 should
                                                                        be regarded as a lawful derogation under Article 36 and
                                                                        100a (4 ), or Article 129a of the EC Treaty from the
An action against the Italian Republic was brought before               principle of the free movement of goods is also
the Court of Justice of the European Communities on                     unfounded .
18 March 1997 by the Commission of the European
Communities, represented by Paolo Stancanelli and Hans
                                                                        (') OJ No L 196 , 26 . 7. 1990 , p . 15 .
Stovlbaek, of its Legal Service, acting as Agents, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, Wagner Centre, Kirchberg.
The applicant claims that the Court should :
                                                                        Action brought on 19 March 1997 by Commission of the
— declare that, by establishing and maintaining a system                     European Communities against Kingdom of Spain
      which requires the installation in inhabited areas only                                    (Case C-l 14/97)
      of 'shielded' heaters, thus impliedly prohibiting the
      installation of heaters of any other type which comply                                       ( 97/C 166/09 )
      with Directive 90/396/EEC ( 1 ), the Italian Republic has
       failed to fulfil its obligations under Community law,
                                                                         An action against the Kingdom of Spain was brought
                                                                         before the Court of Justice of the European Communities
— order the Italian Republic to pay the costs.                           on 17 March 1997 by the Commission of the European
                                                                         Communities, represented by A. Caeiro and F. Castillo de
                                                                         la Torre, acting as Agents, with an address for service in
 Pleas in law and main arguments adduced in support:                     Luxembourg at the office of Carlos Gomez de la Cruz,
                                                                         Wagner Centre, Kirchberg.
Article 5 ( 10 ) of Decreto del Presidente della Repubblica
 ( Decree of the President of the Republic ) of 26 August                The applicant claims that the Court should:
 1993 (hereinafter DPR 412/93 ) provides that in cases of
 new installations or restructuring of heating systems which
 involve the installation of individual heaters, except in               — declare that, by maintaining in force Articles 7, 8 and
 cases of mere replacement, heaters insulated from the                       10 of Law No 23/1992 of 30 July 1992 0 ), in so far
 inhabited area may be used or, where installation is                        as those provisions make the grant of authorization to
 external or in suitable industrial premises, appliances of                  carry on private security activities in the case of
 any type may be fitted .                                                    ' security companies' subject to the requirement of
                                                                             being constituted in Spain and the requirement that
                                                                             their directors and managers should reside in Spain
 Although Article 5 ( 10 ) of DPR 412/93 does not contain a                  and the requirement that the 'security staff should
 prohibition on the marketing of non-insulated ('open')                      possess Spanish nationality, the Kingdom of Spain has
 heaters or a general prohibition on their installation, it is               failed to fulfil its obligations under the EC Treaty, in
 none the less true that that provision does prohibit                        particular Articles 48 , 52 and 59,
 specifically, albeit impliedly, the fitting of such heaters in
 inhabited areas when installing anew or restructuring
 heating systems.                                                        — order the defendant to pay the costs.
 ---pagebreak--- No C 166/6           EN                 Official Journal of the European Communities                                    31 . 5 . 97
Pleas in law and main arguments adduced in support:                fact of playing an ancillary and preparatory part in the
                                                                   exercise of public authority does not amount to direct and
Freedom of establishment                                           specific involvement in the exercise of that authority
                                                                   within the meaning of Article 55 of the Treaty.
A condition requiring the directors of a company to reside
in the Member State in which the company is established            Authority to bear arms, although exceptional, is not a
(Article 8 of Law No 23/1992 ) amounts to discrimination           right exclusive to the security forces or other agency of
on grounds of nationality.                                         public authority and therefore it cannot be argued that
                                                                   because security personnel are so authorized this
                                                                   necessarily means that they are connected with the
The requirement that undertakings should be constituted
                                                                   exercise of public authority. Thus, the Weapons
in Spain (Article 7 of Law No 23/1992 ) is explicitly
                                                                   Regulation, approved by Royal Decree No 137/1993 of
discriminatory and entails a restriction on the right of
                                                                   29 January 1993 provides that where the circumstances
undertakings to carry on their activities through a branch
                                                                   warrant it gun licences may be issued to individuals,
or agency as expressly provided for by Article 52 of the
                                                                   including nationals of another Member State . Clearly,
EC Treaty.
                                                                   security personnel have to hold a gun licence in order to
                                                                   be able to provide their services, like any other citizen.
Where security staff are self-employed, the nationality
requirement imposed by Article 10 ( 3 ) of Law No 23/
1992 infringes Article 52 of the Treaty as well .                  Article 56 of the EC Treaty
Freedom to provide services                                        The Commission considers that it is not obvious why the
                                                                   fact that a detective or a watchman guarding premises
The effect of the condition laid down in Article 7 of Law          (pursuing that activity in a self-employed capacity) is not
No 23/1992 that the undertaking should be constituted in           Spanish but is a national of another Member State should
Spain and the condition of residence for directors laid            pose a genuine and existing threat serious enough to affect
                                                                   a fundamental social interest .
down in Article 8 is to preclude all private security
activity carried out by security firms or personnel not
established in Spain. Such requirements constitute a               The exclusion of all undertakings whose directors and
discriminatory barrier to the freedom to provide services .        managers do not reside in Spain and of all nationals of
                                                                   other Member States would seem to be based essentially
Article 55 of the EC Treaty                                        on considerations of an administrative character.
The Commission considers that the mere fact that private           Freedom of movement for workers
undertakings have been entrusted with some security
services, which services have thus for the most part been
removed from the sphere of the State, excludes the                 Since security personnel are not public officials, it does
conclusion that 'private security (...) forms a functional         not appear that Article 48 (4 ) can be applicable .
part of the security monopoly which is the State's
concern'. Furthermore, the actual wording of Law No 23/            The grounds of public policy, public security and public
1992 states that the activities of security companies and          health referred to in Article 48 ( 3 ) do not permit an entire
staff are additional and ancillary to public security              sector of activity to evade freedom of movement for
activities, without going so far as to say that they form          workers and the right to take up employment.
part of public security.
                                                                   i 1 ) Boletín Oficial del Estado ( 4 . 8 . 1992 ).
Whether various activities are connected with the exercise
of official authority does not depend on their effects or
objective but rather on the powers and courses of action
made available to the undertakings or persons carrying on
those activities. Crime prevention does not necessarily
entail a prerogative of official authority, since in certain
circumstances individuals may take action to prevent               Reference for a preliminary ruling from the
crime. Moreover, crime prevention in general has not been          Maaseutuelinkeinojen Valituslautakunta by order of that
arrogated to security firms and staff, only the aspects            tribunal of 12 March 1997 in the proceedings brought by
concerned with protection .                                        Laura Pitkaranta, represented by her legal guardian Anne
                                                                                                  Pitkaranta
                                                                                              ( Case C-118/97)
Nor can the special duty to assist the Fuerzas y Cuerpos
de Seguridad ( security forces ) imposed on security firms                                       97/C 166/ 10 )
and personnel in the exercise of their duties, to collaborate
with those forces and follow their orders in relation to the
objective of protection support the conclusion that they           Reference has been made to the Court of Justice
act in the exercise of public authority. Every citizen has         of the European Communities by an order of the
that duty in particular circumstances . Furthermore, the           Maaseutuelinkeinojen Valituslautakunta ( Rural Industries