Commission of the European Communities v Kingdom of Belgium.
Date: 2000-03-09
22 Concerning the Belgian Government's letter of 23 August 1999, it should be recalled that, under consistent case-law, the question whether a Member State has failed to fulfil its obligations must be determined by reference to the situation prevailing in the Member State at the end of the period laid down in the reasoned opinion and that the Court cannot take account of any subsequent changes (see, in particular, Case C-316/96 Commission v Italy [1997] ECR I-7231, paragraph 14).
25 According to established case-law, that derogation must be restricted to activities which in themselves are directly and specifically connected with the exercise of official authority (Case 2/74 Reyners [1974] ECR 631, paragraph 45; Commission v Spain, cited above, paragraph 35).
26 The activities of security firms, security systems firms and internal security services are not normally directly and specifically connected with the exercise of official authority, and the Belgian Government has not adduced any evidence to permit the contrary to be established.
The obligation to have the place of business in Belgium
27 The condition that a security firm must have its place of business in Belgium directly negates the freedom to provide services in so far as it makes it impossible for undertakings established in other Member States to provide services in Belgium (see Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 52).
28 As regards the reasons of public policy and public security relied upon in order to justify that requirement, it should be noted, first, that the concept of public policy assumes a genuine and sufficiently serious threat affecting one of the fundamental interests of society. Like all derogations from a fundamental principle of the Treaty, the public policy exception must be interpreted restrictively (see Case C-348/96 Calfa [1999] ECR I-11, paragraphs 21 and 23).
29 Moreover, the right of Member States to restrict the free movement of persons and services on grounds of public policy, public security or public health is not intended to exclude economic sectors such as the private security sector from the application of that principle, from the point of view of access to employment, but to allow Member States to refuse access to their territory or residence there to persons whose access or residence would in itself constitute a danger for public policy, public security or public health (see Commission v Spain, cited above, paragraph 42).
30 Since the Belgian Government's argument that any security firm is capable of constituting a genuine and sufficiently serious threat to public policy and public security is obviously unfounded and, in any event, unproven, it cannot justify the restriction on the freedom to provide services resulting from the obligation for companies running such a business to have their place of business in Belgium.
The residence obligation
31 The residence obligation imposed on both managers and staff of security firms and internal security services, save for administrative and logistical staff, constitutes a restriction on both the freedom of establishment (see Commission v Spain, cited above, paragraph 44) and the free movement of workers (see Case C-350/96 Clean Car Autoservice v Landeshauptmann von Wien [1998] ECR I-2521, paragraphs 27 to 30).
34 Moreover, checks may be carried out and penalties may be imposed on any undertaking established in a Member State, whatever the place of residence of its managers (Commission v Spain, paragraph 47).
The requirement of prior authorisation or approval
35 According to consistent case-law, national legislation which makes the provision of certain 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 59 of the Treaty (see, inter alia, Case C-43/93 Vander Elst v Office des Migrations Internationales [1994] ECR I-3803, paragraph 15).
36 As regards the specific nature of the security and security systems businesses and the absence of legislation at Community level and in most Member States, which are matters relied upon by the Belgian Government in order to justify this requirement, it must be noted that, in any event, the Law goes beyond what is necessary to attain the objective sought, which is to ensure close supervision of those activities.
37 The freedom to provide services, being one of the fundamental principles of the Treaty, may be restricted only by rules justified by the public interest and applicable to all persons and undertakings operating in the territory of the Member State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established (Case 279/80 Webb [1981] ECR 3305, paragraph 17).
38 By requiring all undertakings to fulfil the same conditions for obtaining prior authorisation or approval, the Belgian legislation makes it impossible for account to be taken of obligations to which the person providing the service is already subject in the Member State in which he is established.
The requirement of an identification card
39 The condition that every staff member of a security firm or internal security service must carry an identification card issued by the Belgian Minister for the Interior must also be regarded as a restriction on the freedom to provide services. The formalities involved in obtaining such an identification card are likely to make the provision of services across frontiers more difficult.
40 Moreover, as the Commission has rightly emphasised, the provider of a service who goes to another Member State must be in possession of an identity card or a passport. It follows that the requirement of an additional identity document, issued by the Belgian Minister for the Interior, is disproportionate in relation to the need to ensure the identification of the persons in question.