CELEX: C1998/358/17
Language: en
Date: 1998-11-21 00:00:00
Title: Action brought on 29 September 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-355/98)

C 358/8              EN                    Official Journal of the European Communities                                     21.11.98
The appellants claim that the Court should:                                    the Court of First Instance maintains, in the
                                                                               absence of any opinion Ð pursuant to Article 10
                                                                               of the Cosmetics Directive';
Ð set aside the judgment of the Court of First Instance of
    16 July 1998 (1);
                                                                           Ð the Commission should have given Mr Goupil and
                                                                               the numerous international scientists who have
Ð uphold in their entirety the appellants' claims that the                     continually demonstrated that Bergasol is both
    Court should:                                                              harmless and efficacious an opportunity to make
                                                                               an extensive and genuine contribution to its
    Ð rule that the action is admissible and well founded;                     research.
    Ð order the Commission to pay Laboratories
        Pharmaceutiques Bergaderm SA and Jean-Jacques                      Exclusion from the market is disproportionate to the
        Goupil, personally, FF 152 867 090 and FF                          risks normally inherent in the economic activity at
        161 309 995.33, respectively, by way of damages                    issue, especially as it is by no means justified in terms
        together with interest;                                            of public health.
                                                                      (1) OJ C 299, 26.9.1998, p. 32.
Ð order the Commission to pay the whole of the costs.                 (2) OJ L 167, 18.7.1995, p. 19.
                                                                      (3) Council Directive 76/768/EEC (OJ L 262, 27.9.1976, p. 169).
Pleas in law and main arguments adduced in support:
Ð Breach of Community law in that the Court of First
    Instance held the relevant provision of 18th
    Commission Directive 95/34/EC of 10 July 1995
    adapting to technical progress Annexes II, III, VI and            Action brought on 29 September 1998 by the Commission
    VII to Council Directive 76/768/EEC (2) (hereinafter              of the European Communities against the Kingdom of
    the Adapting Directive') to be a normative measure:                                           Belgium
    since Mr Goupil is the sole holder of a patent for the
                                                                                              (Case C-355/98)
    use in sun lotion of natural essence of citrus fruits
    containing 5-MOP, Bergaderm SA is individually and                                         (98/C 358/17)
    directly concerned by the measure at issue because it is
    the only person to be affected by it.
                                                                      An action against the Kingdom of Belgium was brought
Ð Manifest error of assessment made by the Court of                   before the Court of Justice of the European Communities
    First Instance with regard to the fault committed by              on 29 September 1998 by the Commission of the
    the Commission: contrary to the statement made in                 European Communities, represented by Maria Patakia, of
    the relevant provision of the Adapting Directive, it              its Legal Service, acting as Agent, with an address for
    was perfectly possible Ð on the basis of all the                  service in Luxembourg at the office of Carlos Gómez de la
    scientific studies available on Bergasol as a finished            Cruz, Wagner Centre, Kirchberg.
    product Ð logically to conclude that Bergasol is both
    harmless and efficacious. The approach adopted by
    the Commission, which deliberately disregarded the                The Commission claims that the Court should:
    principle of audi alteram partem, played into the
    hands of Bergaderm's commercial competitors.
                                                                      1. Declare that, by adopting, within the framework of
                                                                           the Law of 10 April 1990 on security firms, security
(By way of subsidiary pleas)                                               systems firms and internal security services, provisions
                                                                           which:
Ð Breach of Community law in that the Court of First
    Instance did not find any breach of a higher-ranking                   (a) make it necessary to obtain prior authorisation in
    rule of law for the protection of individuals. In the                       order to operate an undertaking of any of the
    context of the Cosmetics Directive' (3), the                               kinds referred to in the said Law, that
    Commission has no discretion, because it must follow                        authorisation being subject to a certain number of
    a strict procedure involving consultation and approval,                     conditions, namely that:
    and if it in any way fails to have proper regard for
    that procedure or commits any error in connection                           Ð a security firm must have a place of business
    therewith, it incurs liability. Specifically, in the present                    in Belgium;
    case:
                                                                                Ð persons who
    Ð the Commission should have approached the                                     Ð have charge of the actual management of
        Council after the Adaptation Committee delivered                                 a security firm or internal security service,
        an unfavourable opinion on 1 June 1992 Ð or, as                                  or who
 ---pagebreak--- 21.11.98              EN                  Official Journal of the European Communities                                     C 358/9
              Ð work in or on behalf of such an                         distance, the cost and the delay are grounds for
                   undertaking or are employed for the                  considering that such a card constitutes an impediment
                   purposes of its activities, with the                 when it must also be obtained by the staff of an
                   exception of internal staff working in               undertaking established in another country in order to
                   administration or logistics,                         provide services in Belgium.
              must have their permanent residence or,
              failing that, their habitual residence in                 Whilst the possibility of carrying arms forms one
              Belgium,                                                  aspect of the exercise of activities in the private
                                                                        security sector which certainly necessitates checks by
         Ð an undertaking established in another                        the public authorities, the carrying of arms is not a
              Member State must obtain authorisation, for               matter within the exclusive competence of the public
              the purpose of which no account is taken of               police services and that argument may thus not serve
              the evidence and guarantees already presented             to show a connection with the exercise of official
              by it for the pursuit of its activity in the              authority for the purposes of Articles 55 and 66 of the
              Member State of establishment, and                        EC Treaty.
    (b) require every person wishing to exercise a
         security activity or provide an internal security              The concepts of public policy and public security, for
         service in Belgium to be issued with an                        the purposes of Articles 56 and 66 of the EC Treaty,
         identification card in accordance with that Law,               do not imply either the existence of an excluded
                                                                        sector', or the possibility of relying on a certain
                                                                        danger'. The Commission considers that the existence
         the Kingdom of Belgium has failed to fulfil its                of a present, genuine and sufficiently serious threat is
         obligations under Articles 48, 52 and 59 of the                not apparent in this case. The strict control of
         Treaty; and                                                    infrastructure, in particular of premises and registers
                                                                        of arms, can also be carried out abroad. It is enough
                                                                        for the undertaking concerned to give its agreement to
2. Order the Kingdom of Belgium to pay the costs.                       checks on the spot. In the absence of such agreement,
                                                                        the refusal or withdrawal of any authorisation to
                                                                        provide security services on Belgian territory would be
Pleas in law and main arguments adduced in support:                     justifiable.
Ð Restrictions on freedom to provide services (Article 59               Finally, the Commission refers to its interpretative
    of the EC Treaty):                                                  communication concerning the free movement of
                                                                        services across frontiers (1). The Commission is not
                                                                        opposed to the requirement of authorisation or
    The requirement that a firm must have its place of                  approval where the State of establishment does not
    business in Belgium, whilst that may not refer to its               provide any system of authorisation for private
    primary establishment Ð although the Belgian reply                  security firms. However, the position of the Belgian
    rather suggests that it does Ð amounts at least to a                Government would both negate the direct effect of
    requirement that it have a secondary establishment.                 Article 59 of the Treaty and lead to total dependence
    The need to obtain authorisation to carry on the                    on the existence of administrative cooperation or even
    activities of a security firm, and approval in the case             the adoption of a Community act determining the
    of a security systems firm, as provided for in the                  obligations of national authorities in that regard.
    Belgian rules, constitutes in itself a restriction on the
    free movement of services, in particular as regards the
    activities of a security systems firm, for which the                Similarly, the requirement of an identification card
    condition of having a place of business in Belgium                  issued by the Belgian Ministry of the Interior is
    does not apply. Even if the Court of Justice were to                disproportionate. If the police wish to identify persons
    judge that the requirement of authorisation or                      responsible for irregularities in security activities, or if
    approval remained indispensable, Article 59 of the                  a person wishes to report such irregularities, the police
    Treaty still requires, even for professions not regulated           have all the necessary means of identification in the
    at Community level, that the State in which a service               passport or the identity card.
    is to be provided must at least take account of the
    evidence and guarantees already presented by the
    provider for the pursuit of his activity in the Member
    State of establishment.                                          Ð Restriction on freedom of establishment (Article 52 of
                                                                        the EC Treaty):
    As regards the requirement of an identification card,
    the formalities to be completed, the need to apply to               It is clear from the explanations of the Belgian
    the Belgian authorities, often at a considerable                    authorities that a security firm can, in the great
 ---pagebreak--- C 358/10              EN                Official Journal of the European Communities                                   21.11.98
    majority of cases, select only a Belgian national                   considered (see paragraph 255 of the United Kingdom
    residing for a certain length of time in Belgium, thus              Immigration Rules, House of Commons Paper 395), as
    allowing those authorities to carry out the screening'             compared to a requirement of 12 months residence
    which they deem necessary, but not a person who has                 before such application can be made, as is applied to
    acted as a manager of a comparable undertaking in                   spouses of the United Kingdom nationals and spouses
    another Member State of the European Union. In                      of those present and settled in the United Kingdom
    those circumstances, the requirement of residence                   (paragraph 287 of the United Kingdom Immigration
    constitutes indirect discrimination which could only be             Rules, House of Commons Paper 395) constitute
    justified under Article 56 of the EC Treaty. The                    unlawful discrimination contrary to Article 7(2)
    Commission considers, however, that the restriction                 Regulation (EEC) No 1612/68?
    derives from administrative considerations which are
    not such as to justify it.
                                                                   (1) Regulation (EEC) No 1612/68 of the Council of 15 October
                                                                       1968 on freedom of movement for workers within the
                                                                       Community (OJ L 257, 19.10.1968, p. 2 [SE SER1 68(II)
Ð Restriction on freedom of movement for workers                       p. 475]).
    (Article 48 of the EC Treaty):
    The requirement of residence in Belgium prevents
    workers residing in other countries from being
    engaged by a security firm or a security systems firm,
    or being employed for the purposes of an internal
    security service in an undertaking in Belgium. In              Reference for a preliminary ruling by the Court of Appeal,
    response to the argument alleging the need for control,        London, by order of that Court of 13 May 1998, in the
    the Commission reiterates the arguments which it put           case of The Queen against Secretary of State for the
    forward in connection with Article 52 of the EC                  Home Department, ex parte: Nana Yaa Konadu Yiadom
    Treaty.
                                                                                          (Case C-357/98)
(1) OJ C 334, 9.12.1993, p. 3.                                                             (98/C 358/19)
                                                                   Reference has been made to the Court of Justice of the
                                                                   European Communities by an order of the Court of
                                                                   Appeal, London, of 13 May 1998, which was received at
Reference for a preliminary ruling by the Immigration              the Court Registry on 1 October 1998, for a preliminary
Adjudicator, by order of the Adjudicator of 25 September           ruling in the case of The Queen against Secretary of State
1998, in the case of Arben Kaba against Secretary of State         for the Home Department, ex parte: Nana Yaa Konadu
                  for the Home Department                          Yiadom, in the following questions:
                       (Case C-356/98)
                        (98/C 358/18)                              1. Do both Article 8 and Article 9 of Council Directive
                                                                        64/221/EEC of 25 February 1964 on the coordination
                                                                        of special measures concerning the movement and
Reference has been made to the Court of Justice of the                  residence of foreign nationals which are justified on
European Communities by an order of the Immigration                     grounds of public policy, public security or public
Adjudicator of 25 September 1998, which was received at                 health (OJ English Special Edition 1963Ð4, p. 117
the Court Registry on 1 October 1998, for a preliminary                 and OJ 56, 4.4.1964, p. 850.) apply to decisions
ruling in the case of Arben Kaba against Secretary of State             concerning entry into the territory of a Member State,
for the Home Department, on the following questions:                    or are decisions concerning entry covered solely by the
                                                                        provisions of Article 8?
1. Does the right to apply for indefinite leave to remain
    in the United Kingdom and the right to have that               2. If the answer to the first question is that Article 8, but
    application considered constitute a social advantage'              not Article 9, of Directive 64/221/EEC applies to
    within the meaning of Article 7(2), Regulation (EEC)                decisions concerning entry into the territory of a
    No 1612/68 (1)?                                                     Member State, are the requirements of Article 8
                                                                        satisfied by provisions of national law which grant to
                                                                        the national of a Member State who is refused entry to
2. Does the requirement imposed on the spouses of EC                    another Member State on grounds of public policy a
    nationals to have been resident in the United Kingdom               right of appeal to a court of law which may only be
    for four years before an application for indefinite leave           exercised once that person is no longer physically
    to remain in the United Kingdom may be made and                     present in the Member State concerned?