CELEX: C2002/169/36
Language: en
Date: 2002-07-13 00:00:00
Title: Case C-171/02: Action brought on 8 May 2002 by the Commission of the European Communities against the Portuguese Republic

13.7.2002               EN                   Official Journal of the European Communities                                      C 169/19
The Commission of the European Communities claims that                  Action brought on 8 May 2002 by the Commission of the
the Court should:                                                        European Communities against the Portuguese Republic
—     declare that, by failing to communicate measures trans-
      posing into national law the provisions of Directive                                       (Case C-171/02)
      1999/94/EC of the European Parliament and of the
      Council of 13 December 1999 relating to the availability
      of consumer information on fuel economy and CO2                                           (2002/C 169/36)
      emissions in respect of the marketing of new passenger
      cars (1), or at any rate by not informing the Commission
      fully thereof, the French Republic has failed to fulfil its
      obligations under that directive;
                                                                        An action against the Portuguese Republic was brought before
                                                                        the Court of Justice of the European Communities on 8 May
—     order the French Republic to pay the costs.                       2002 by the Commission of the European Communities,
                                                                        represented by Maria Patakia and António Caeiros, acting as
                                                                        Agents.
Pleas in law and main arguments
                                                                        The applicant claims that the Court should:
The time-limit for transposition expired on 18 January 2001.
                                                                        I.   Declare that:
(1) OJ L 12 of 18 January 2000, p. 16.
                                                                             1.   inasmuch as the system for issuing authorisations
                                                                                  by the Ministro de Administração Interna requires
                                                                                  that foreign undertakings, in the private security
                                                                                  services sector, wishing to pursue in Portugal activi-
                                                                                  ties in the security sector in respect of persons and
                                                                                  property:
Reference for a preliminary ruling by the Oberster
Gerichtshof (Austria) by order of that Court of 9 April                           (a)   must have their main offices in or be estab-
2002 in the case of Rudolf Kronhofer against (1) Marianne                               lished in Portugal;
Maier, (2) Christian Möller, (3) Wirich Hofius and (4) Zeki
                               Karan
                                                                                  (b) cannot rely on the guarantees already submit-
                          (Case C-168/02)                                               ted in their Member State of origin;
                         (2002/C 169/35)                                          (c)   must have legal personality;
                                                                                  (d) must have a specific amount of capital;
Reference has been made to the Court of Justice of the
European Communities by order of the Oberster Gerichtshof
                                                                             2.   inasmuch as the employees of foreign security
(Supreme Court) of 9 April 2002, received at the Court
                                                                                  undertakings, in the private security services sector,
Registry on 6 May 2002, for a preliminary ruling in the case
                                                                                  wishing to pursue in Portugal security services
of Rudolf Kronhofer against (1) Marianne Maier, (2) Christian
                                                                                  activities in respect of persons and property must be
Möller, (3) Wirich Hofius and (4) Zeki Karan on the following
                                                                                  in possession of an employer’s identity card issued
question:
                                                                                  by the Portuguese authorities;
Is the expression ‘place where the harmful event occurred’
contained in Article 5(3) of the Convention on jurisdiction                  3.   inasmuch as work in the private security sector is not
and the enforcement of judgments in civil and commercial                          covered by the Community system of recognition of
matters of 27.9.1968 (‘the Convention’) to be construed in                        professional qualifications;
such a way that, in the case of purely financial damage arising
on the investment of part of the injured party’s assets, it also
encompasses in any event the place where the injured party is                the Portuguese Republic has failed to fulfil its obligations
domiciled if the investment was made in another Member                       under Articles 39, 43 and 49 of the EC Treaty and
State of the Community?                                                      Directive 92/51/EEC (1);
                                                                        II.  Order the Portuguese Republic to pay the costs.
 ---pagebreak--- C 169/20               EN                       Official Journal of the European Communities                                        13.7.2002
Pleas in law and main arguments                                            —     obligation on staff of foreign undertakings to be in
                                                                                 possession of an employer’s identity card issued by the
                                                                                 Portuguese authorities: in so far as Portuguese law
                                                                                 requires that all employees of private security firms
                                                                                 should obtain an authorisation from the Ministério da
—     requirement that foreign undertakings have their main                      Administração Interna in the form of an ‘employer’s
      offices in or be established in Portugal: although the                     identity card’ before pursuing an activity in Portugal and
      Portuguese authorities have interpreted their legislation                  that the legislation makes no provision for the Portuguese
      otherwise, the Commission remains convinced that                           authorities to take account of whether equivalent statu-
      Article 22(1) of Decree Law No 231/98 requires entities                    tory conditions have been fulfilled in the Member State
      established in other Member States to have their main                      of establishment, as well as of checks and verifications
      offices or a branch in Portugal if they wish to pursue, in                 already carried out there, the Commission takes the view
      Portugal, temporarily (under Article 49 EC), in the private                that the requirement of an ‘employer’s identity card’ is
      security sector, security activities in respect of persons and             both a barrier to the free movement of workers with
      property. Administrative considerations cannot justify a                   regard to the employees (Article 39 EC) and an obstacle
      derogation, on the part of a Member State, from the rules                  to the freedom to provide services with regard to their
      of Community law, particularly where such a derogation                     employer whose right to post members of his staff from
      has the effect of fettering exercise of one of the freedoms                the Member State of establishment is restricted (Article 49
      guaranteed by the Treaty.                                                  EC).
                                                                           —     the fact that pursuit of an activity in the private security
                                                                                 sector is not covered by the Community system of
—     account taken by the Portuguese authorities of the                         recognition of professional qualifications: an activity in
      qualifications and guarantees already submitted by for-                    the private security sector may only be pursued in
      eign undertakings in their Member State of establishment:                  Portugal by staff employed on surveillance and escort,
      it is impossible to conclude from Article 24 of Decree                     personal defence and protection duties who have success-
      Law No 231/98 that the Portuguese authorities, when                        fully followed an approved compulsory training course
      assessing applications for authorisations, take account of                 according to the Portuguese provision. Furthermore,
      qualifications and guarantees submitted by the service                     access by such employees to those professional activities
      provider in respect of the pursuit of its activities in the                and their pursuit is only permitted to those holding an
      Member State of establishment.                                             employer’s identity card. That card essentially constitutes
                                                                                 an attestation of competence within the meaning of the
                                                                                 first indent of Article 1(1)(c) of Directive 92/51/EEC in
                                                                                 that it certifies, according to Portuguese law, that its
                                                                                 holder fulfilled all the statutory requirements, including
—     requirement that foreign undertakings have legal person-                   successful completion of tests of knowledge and physical
      ality: the requirement to become incorporated places at a                  skills, whose content and duration are fixed by statute,
      disadvantage any self-employed worker or any business                      and enables the holder to pursue an activity in the private
      person or individual established in another Member State                   security sector. Accordingly, private security services
      wishing to pursue an activity in the private security sector               constitute, in Portugal, a regulated profession within the
      in Portugal.                                                               meaning of Article 1(1)(e) in conjunction with the
                                                                                 first indent of Article 1(1)(c) and Article 1(1)(f) of the
                                                                                 abovementioned directive. Therefore, Portuguese legis-
                                                                                 lation implementing Directive 92/51/EEC does not cover
                                                                                 the professions falling within the scope of the private
                                                                                 security sector which are thus not subject in Portugal to
—     requirement that foreign undertakings have a certain                       the provisions relating to the recognition of professional
      amount of capital: the Portuguese provision makes the                      qualifications provided for in the aforementioned direc-
      setting-up of a subsidiary or a branch in Portugal subject                 tive.
      to the condition that the foreign parent company should
      have capital in an amount that must not be less than that
      prescribed by the Portuguese measure. That condition is
      thus tantamount to indirect application of the treatment
      reserved by domestic law for primary businesses to a
      measure whereby an individual exercises the right of                 (1) Council Directive 92/51/EC of 18 June 1992 on a second general
      establishing a secondary presence. Such a condition                      system for the recognition of professional education and training
      prevents an economic operator from pursuing his activity                 to supplement Directive 89/48/EEC — OJ 1992 L 209, p. 25.
      throughout the Community with an amount of capital
      which complies with the legal requirements of the
      Member State in which the company was incorporated
      but which is less than that required in the Member State
      where that economic operator intends to set up a
      secondary establishment.