Commission of the European Communities v Kingdom of the Netherlands.
Date: 2004-10-07
17. It follows from the Court’s settled case-law that national legislation which makes the provision of services on national territory by an undertaking established in another Member State subject to the issue of an administrative authorisation constitutes a restriction on the freedom to provide services within the meaning of Article 49 EC (see, for example, Vander Elst , paragraph 15, and Commission v Belgium , paragraph 35, both cited above).
18. In connection with rules similar to those covered by the Commission’s first complaint, and faced with defence arguments similar to those relied on by the Netherlands Government, the Court has ruled that such a restriction cannot be justified since, by excluding consideration of the obligations to which the trans-frontier service provider is already subject in the Member State in which it is established, it goes in any event beyond what is necessary to attain the objectives sought, namely to ensure close supervision of those activities ( Commission  v Belgium , cited above, paragraphs 36 to 38, and Case C-171/02 Commission  v Portugal  [2004] ECR I‑0000, paragraph 60). The same conclusion must apply as regards the rules covered by the Commission’s second complaint, namely the condition requiring that the managers of the undertakings in question obtain an authorisation.
19. As for the Netherlands Government’s argument based on the existence of an administrative practice which takes into account, for the purposes of Article 2(2) of the Law of 1997, the obligations laid down by the Member State of origin, it must be observed that the Netherlands Government was not able to provide sufficient evidence of the existence of that practice. In any event, the Court has consistently held that mere administrative practices, which by their nature are alterable at will by the authorities and are not given the appropriate publicity, cannot be regarded as constituting the proper fulfilment of obligations under the EC Treaty (see, in particular, Case C-358/98 Commission v Italy  [2000] ECR I-1255, paragraph 17).
27. In that regard, it follows from the Court’s case-law that the obligation imposed on the members of staff of a private security firm or detective agency to be in possession of an identity card issued by the authorities of the Member State in which the services are rendered must be regarded as a restriction on the freedom to provide services since the formalities involved in obtaining such a card are likely to make the provision of services across frontiers more difficult (see Commission v Belgium , paragraph 39).
28. As regards the possible justification for that measure by grounds such as those relied upon by the Netherlands Government, based on the need to protect the general public, the Commission has rightly pointed out that members of staff of the undertakings concerned who go to another Member State must in any event be in possession of an identity card or passport, which is sufficient to enable them to prove their identity (see Commission  v Belgium , paragraph 40).
30. In that regard, while the proof of identity card is, admittedly, intended to certify the competence and professional integrity of the members of staff of private security firms and detective agencies coming from other Member States and offering services in the Netherlands, such a requirement is a restriction which goes beyond what is necessary to attain the stated purpose, in so far as it does not take account of the controls or verifications already carried out in the Member State of origin which certify that competence and professional integrity (see, to that effect, Commission  v Portugal , cited above, paragraph 66).