CELEX: C2003/158/20
Language: en
Date: 2003-07-05 00:00:00
Title: Case C-189/03: Action brought on 5 May 2003 by the Commission of the European Communities against the Kingdom of the Netherlands

5.7.2003                EN                       Official Journal of the European Union                                          C 158/11
Appeal brought on 25 April 2003 by A. Nardone against                    First Instance did not take account of the fact that the applicant
the judgment delivered on 26 February 2003 by the First                  is already entitled to a pension for permanent partial invalidity
Chamber of the Court of First Instance of the European                   which has a clear effect on the calculation of his retirement
Communities in Case T-59/01 between A. Nardone and                       pension.
       the Commission of the European Communities
                         (Case C-181/03 P)
                          (2003/C 158/19)
An appeal against the judgment delivered on 26 February
2003 by the First Chamber of the Court of First Instance                 Action brought on 5 May 2003 by the Commission of
of the European Communities in Case T-59/01 between                      the European Communities against the Kingdom of the
A. Nardone and the Commission of the European Communi-                                               Netherlands
ties was brought before the Court of Justice of the European
Communities on 25 April 2003 by A. Nardone, represented
by J.R. Iturriagagoitia and K. Delvolvé, lawyers. The appellant                                    (Case C-189/03)
claims that the Court should:
principally:                                                                                       (2003/C 158/20)
—     declare that the appeal is admissible and founded,
—     set aside in its entirety the judgment delivered by the
      Court of First Instance on 26 February 2003 in Case                An action against the Kingdom of the Netherlands was brought
      T-59/01;                                                           before the Court of Justice of the European Communities on
                                                                         5 May 2003 by the Commission of the European Communi-
                                                                         ties, represented by W. Wils, acting as Agent.
in the alternative:
—     annul the express decision of the Appointing Authority
      of 15 December 2000 in so far as it rejected the                   The applicant claims that the Court should:
      appellant’s complaint of 23 May 2000 regarding the
      award of an invalidity pension under the second para-              —      Declare that, by laying down, in the framework of the
      graph of Article 78 of the Staff Regulations;                             Law on private security firms and detective agencies,
                                                                                provisions which require that:
—     in so far as is necessary, annul the express decision of the
      Appointing Authority of 20 March 2000 in so far as it
      rejected the appellant’s request of 18 November 1999                      —    an undertaking that wishes to provide services in
      regarding the award of an invalidity pension under the                         the Netherlands must have a permit, without taking
      second paragraph of Article 78 of the Staff Regulations;                       into account the obligations which the foreign
                                                                                     service provider must already satisfy in the Member
                                                                                     State where it is established, and by charging fees
in any event:                                                                        for this permit;
—     make an order as to costs in accordance with the
      applicable provisions of the Rules of Procedure.                          —    managers of these security firms have a permit for
                                                                                     which a charge is also made;
                                                                                —    staff have a diploma issued by a Netherlands organis-
Pleas in law and main arguments                                                      ation, and that installers of alarms have professional
                                                                                     qualifications without taking into account qualifi-
                                                                                     cations obtained in another Member State; the
The appellant disputes the finding of the Court of First Instance                    Kingdom of the Netherlands has failed to fulfil its
that he did not meet the cumulative conditions required under                        obligations under Article 49 EC and Directives 89/
Article 13 of Annex VIII to the Staff Regulations in order to be                     49/EEC ( 1) and 92/51/EEC (2) on the general system
entitled to an invalidity pension. First, he could not claim his                     for the recognition of professional qualifications.
entitlement in 1981, when he resigned, because he was
unaware of his state of health owing to the progressive and
degenerative nature of his condition. Secondly, the Court of             —      Order the Kingdom of the Netherlands to pay the costs.
 ---pagebreak--- C 158/12                EN                          Official Journal of the European Union                                          5.7.2003
Pleas in law and main arguments                                                   The requirement for a fee for the issue of this proof is,
                                                                                  moreover, an extra financial burden that is incompatible
                                                                                  with Article 49 of the EC Treaty.
—     First and second objection: compulsory permits for firms
      and their staff                                                       —     Fourth objection: recognition of professional qualifi-
                                                                                  cations
      The requirement that a private security firm wishing to
                                                                                  Under Netherlands legislation, it is a requirement that staff
      provide services in the Netherlands must have a permit is
                                                                                  members of a security firm have a diploma (Algemeen
      equivalent to a restriction on the freedom to provide
                                                                                  Beveiligingsmedewerker — diploma) from a Netherlands
      services by the undertakings concerned. Such a restriction
                                                                                  organisation. Furthermore, installers of alarms are
      is justified solely where there are overriding reasons of
                                                                                  required to have certain qualifications, but no account is
      public interest, that interest cannot be guaranteed in the
                                                                                  taken of diplomas acquired in another Member State.
      Member State in which the undertaking is established and
                                                                                  Nowhere is there express reference to a procedure for the
      the national measure does not exceed what is necessary
                                                                                  recognition of diplomas and qualifications acquired in
      to achieve the objective sought.
                                                                                  another Member State for the exercise of the professions
                                                                                  in question. The legislation in question does not appear
      However, as regards, first, the appropriateness of the                      to have a provision referring to the machinery for the
      measure to achieve the general interest objective, said to                  recognition of professional qualifications, such as those
      be the protection of customers for the services, there is                   included in the relevant national legislation. Such a
      no evidence from which to conclude that the obligation                      situation is incompatible with existing Community legis-
      for a permit as required in the Netherlands constitutes an                  lation, namely Directive 89/48/EEC and Directive 92/51/
      appropriate measure.                                                        EEC which together form a general framework for the
                                                                                  recognition of professional qualifications obtained in
                                                                                  other Member States.
      Moreover, the Netherlands legislation does not take into
      account the requirements which the foreign provider of
      services must already satisfy in his Member State of
                                                                            (1 ) OJ 1989 L 19, p. 16.
      establishment, in particular where he already has a permit
                                                                            (2 ) OJ 1992 L 209, p. 25.
      to carry out his activities in that State.
      Furthermore, the requirement for a permit is combined
      with costs for the foreign undertaking. This is an extra
      financial burden for foreign undertakings which are
      already required in their country of origin to apply for a
      permit and to pay such costs. Those charges in such
      circumstances also appear to be incompatible with
      Article 49 of the EC Treaty.
                                                                            Reference for a preliminary ruling by the Labour Court,
                                                                            Dublin, by decision of that court dated 14 April 2003, in
      Just like the obligation that an undertaking have a permit,           the case of North Western Health Board against Margaret
      the requirement that managers must also obtain specific
                                                                                                         McKenna
      approval is not an appropriate measure which can be
      justified by one of the reasons on which the Netherlands
      authorities rely. In any case, as the firm itself must already
                                                                                                      (Case C-191/03)
      satisfy an obligation to have a permit in the Netherlands,
      the requirement for approval of managers is a dual
      measure which is thus certainly not necessary. The
                                                                                                      (2003/C 158/21)
      separate approval of managers therefore infringes the
      principle of proportionality and, thus, Article 49 of the
      EC Treaty.
                                                                            Reference has been made to the Court of Justice of the
—     Third objection: proof of identity                                    European Communities by a decision of the Labour Court,
                                                                            Dublin, dated 14 April 2003, which was received at the Court
                                                                            Registry on 12 May 2003, for a preliminary ruling in the case
      Foreign undertakings are obliged to ensure that staff                 of North Western Health Board and Margaret McKenna on the
      seconded to the Netherlands from outside their country
                                                                            following questions:
      of establishment are in possession of a proof of identity
      issued by the Netherlands authorities. That applies also
      for the temporary provision of services. As the seconded              1.    Does the operation of a sick leave scheme which treats
      staff must already, in accordance with Community law,                       employees suffering from pregnancy related illnesses and
      possess an identity card or passport, it is disproportionate                pathological illness in an identical fashion come within
      to require a proof of identity.                                             the scope of Directive 76/207 ( 1)?