CELEX: C1997/166/10
Language: en
Date: 1997-05-31 00:00:00
Title: Reference for a preliminary ruling from the Maaseutuelinkeinojen Valituslautakunta by order of that tribunal of 12 March 1997 in the proceedings brought by Laura Pitkäranta, represented by her legal guardian Anne Pitkäranta (Case C-118/97)

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
 ---pagebreak--- 31 . 5 . 97          I EN                  Official Journal of the European Communities                                No C 166/7
Appeals Board ) of 12 March 1997, which was received at               of Justice, the latter must nevertheless begin
the Court Registry on 20 March 1997, for a preliminary                implementation of the judgment without delay and
ruling in the proceedings brought by Laura Pitkaranta,                conclude it as soon as possible .
represented by her legal guardian Anne Pitkaranta , on the
following questions :                                                 The application for determination of a penalty payment is
                                                                      based on Article 171 ( 2 ) of the EC Treaty. The
1 . ( Question 1 is the same as Question 1 in Case C- 9/              Commission justifies the amount of the penalty by
     97 H )                                                           reference to its calculation method set out in Official
                                                                      Journal No C 242 of 21 . 8 . 1996, p. 6 . In evaluating the
2 . Is it contrary, with respect in particular to a minor             severity of the infringement, it proceeds on the basis that
     who regularly lives with her guardian in the Helsinki            only a single provision in a single Bundesland does not yet
     region about 70 kilometres by road from the                      comply with Council Directive 79/409/EEC ( 2 ), and that
     operational centre of the farm and who cannot herself            the infringement is essentially procedural , since there are
     carry on agriculture on the farm and whose guardian              no known cases of environmental damage arising from
     does not do so either on her own account, to the                 application of the rules currently in force in the Saarland
     prohibition of discrimination, the principle of                  ( Coefficient 1 /20 ). The Commission regards the period of
     proportionality or other principles to be observed in            treaty infringement as very considerable ( Coefficient 2/3 ).
     Community law to exclude her from the compensation               Concerning the deterrent effect of the penalty applied for,
     in question ?                                                    the Commission uses a calculation formula notified to the
                                                                      Member States, whereby reference is made to the relative
o OJ No C 74 , 8 . 3 . 1997, p . 15 .                                 position of each Member State in relation to its gross
                                                                      domestic product and its weighted voting strength in the
                                                                      Council under Article 148 ( 2 ) of the EC Treaty.
                                                                      o [ 1990] ECR 1-2721 .
                                                                      ( 2 ) OJ No L 103 , 1979 , p . 1 .
Action brought on 24 March 1997 by the Commission of
the European Communities against the Federal Republic
                            of Germany
                        ( Case C-121 /97 )
                          ( 97/C 166/ 11 )
                                                                      Action brought on 24 March 1997 by the Commission of
                                                                      the European Communities against the Federal Republic
An action against the Federal Republic of Germany was
                                                                                                    of Germany
brought before the Court of Justice of the European
Communities on 24 March 1997 by the Commission of                                               ( Case C-122/97 )
the European Communities, represented by Gotz zur                                                 ( 97/C 166/ 12 )
Hausen, Legal Adviser to the Commission, with an
address for service in Luxembourg at the offices of Carlos
Gomez de la Cruz, a member of the Commission's Legal                  An action against the Federal Republic of Germany was
Service, Wagner Centre, Kirchberg.                                    brought before the Court of Justice of the European
                                                                      Communities on 24 March 1997 by the Commission of
The applicant claims that the Court should :                          the European Communities, represented by Gotz zur
                                                                      Hausen, Legal Adviser to the Commission, with an
— declare the Federal Republic of Germany in breach of                address for service in Luxembourg at the offices of Carlos
     its obligations under Article 171 of the EC Treaty for           Gomez de la Cruz, a member of the Commission's Legal
     failing to bring the Hunting Law of the Saarland into            Service, Wagner Centre, Kirchberg.
     line with the judgment of the Court of Justice in Case
     C-288/88 Commission v. Germany ('),                              The applicant claims that the Court should :
— order the Federal Republic of Germany to pay the
                                                                      — declare the Federal Republic of Germany in breach of
     Commission a penalty of ECU 26 400 (to Account
     H 1 KEG 'EC Own Resources', Bundeskasse Bonn ) for
                                                                             its obligations under Article 171 of the EC Treaty for
                                                                             failing to comply with the judgment of the Court of
     each day of non-compliance with the obligations in
                                                                             Justice in Case C-58/89 Commission v. Germany ( 1 ),
     the first indent above, as from the date judgment is
     delivered,
                                                                      — order the Federal Republic of Germany to pay the
— order the Federal Republic of Germany to pay the                           Commission a penalty of ECU 158 400 ( to Account
     costs .                                                                 H 1 KEG ' EC Own Resources ', Bundeskasse Bonn ) for
                                                                             each day of non-compliance with the obligations in
Pleas in law and main arguments adduced in support:                          the first indent above , as from the date judgment is
                                                                             delivered,
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down
a specific time-limit for the Member State concerned to               — order the Federal Republic of Germany to pay the
fulfil its obligations arising under a judgment of the Court                 costs .