61989J0198

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1. Freedom to provide services - Treaty provisions - Scope - Criterion for determination - Foreign element - Provider of services established in a Member State other than that where the services are provided

(EEC Treaty, Arts 59 and 60)

2. Freedom to provide services - Restrictions - Prohibition

(EEC Treaty, Arts 59 and 60)

3. Freedom to provide services - Restrictions justified in the general interest - Permissibility - Conditions

(EEC Treaty, Arts 59 and 60)

4. Freedom to provide services - Tourist guides accompanying groups of tourists from another Member State - Requirement of a licence issued to holders of a diploma - Not permissible

(EEC Treaty, Arts 59 and 60)

1. Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided. It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply. Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established.

2. Articles 59 and 60 of the Treaty require not only the abolition of any discrimination against a person providing services on account of his nationality but also the abolition of any restriction on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than the one in which the service is provided. In particular, a Member State cannot make the performance of the services in its territory subject to observance of all the conditions required for establishment; were it to do so the provisions securing freedom to provide services would be deprived of all practical effect.

3. In view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interests is not safeguarded by the rules to which the provider of such services is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected.

4. The general interest in the proper appreciation of places and things of historical interest and the widest possible dissemination of knowledge of the artistic and cultural heritage of a country can constitute an overriding reason justifying a restriction on the freedom to provide services. However, a Member State which makes the provision of services by tourist guides travelling with a group of tourists from another Member State, where those services consist in guiding such tourists in places other than museums and historical monuments which may be visited only with a specialized professional guide, subject to possession of a licence which requires the acquisition of a specific training evidenced by a diploma imposes restrictions going beyond what is necessary to protect that interest.

In Case C-198/89,

Commission of the European Communities, represented by Georgios Kremlis and Étienne Lasnet, members of its Legal Department, assisted by Spyridon Karalis, an assessor at the Greek Council of State, on secondment to the Legal Department, acting as Agents, and subsequently by Xenofon Giataganas, a member of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Guido Berardis, Wagner Centre, Kirchberg,

applicant,

v

Hellenic Republic, represented initially by Evi Skandalou, a member of the Legal Department of the Ministry of Foreign Affairs, and then by Fotis Spathopoulos, Head of the Legal Department of the Ministry of Economic Affairs, acting as Agent, with an address for service in Luxembourg at the Greek Embassy, 117, Val Sainte-Croix,

defendant,

APPLICATION for a declaration that by making the provision of services by tourist guides accompanying groups of tourists from another Member State, where those services consist in the activities mentioned in Article 1(1) of Law No 710 of 27 September 1977 on tourist guides (Official Journal of the Hellenic Republic No A 283), who guide tourists in places other than museums or historic monuments which may be visited only with a professional guide, subject to possession of a licence which requires specific training evidenced by a diploma, the Hellenic Republic has failed to fulfil its obligations under Article 59 of the EEC Treaty,

THE COURT,

composed of: O. Due, President, G. F. Mancini, J. C. Moitinho de Almeida and Díez de Velasco (Presidents of Chambers), C. N. Kakouris, F. A. Schockweiler, F. Grévisse, M. Zuleeg and P. J. G. Kapteyn, Judges,

Advocate General: C. O. Lenz,

Registrar: H. A. Ruehl, Principal Administrator,

having regard to the Report for the Hearing,

after hearing oral argument on behalf of the parties at the hearing on 8 November 1990, at which the Commission was represented by X. Giataganas, a member of its Legal Department, and the Hellenic Republic by F. Spathopoulos, Head of the Legal Department of the Ministry of Economic Affairs, acting as Agents,

after hearing the Opinion of the Advocate General delivered at the sitting on 5 December 1990,

gives the following

Judgment

1 By an application lodged at the Court Registry on 20 June 1989, the Commission brought an application under Article 169 of the EEC Treaty for a declaration that by making the provision of services by tourist guides accompanying groups of tourists from another Member State subject to possession of a licence which requires specific training evidenced by a diploma where those services consist in guiding tourists in places other than museums or historical monuments which may be visited only with a specialized professional guide, the Hellenic Republic has failed to fulfil its obligations under Article 59 of the Treaty.

2 The provisions in issue in this application are contained in Articles 1(1) of Law No 710 of 27 September 1977 on tourist guides (Official Journal of the Hellenic Republic, No A 283). Under those provisions, tourist guides are persons who accompany foreign or national tourists or visitors to the country, guide them and show them local points of interest, historic or ancient monuments, works of art of each period, and explain their significance, their purpose and their history, and give general information on classical and present-day Greece.

3 On 23 February 1987, the Commission, pursuant to Article 169 of the EEC Treaty, addressed to the Greek Government a letter of formal notice. According to that letter Greece had not complied with the requirements of Community law, in particular Article 59 of the EEC Treaty, as regards the provision of services by tourist guides travelling with a group of tourists from another Member State. By a letter dated 14 May 1987 the Greek authorities challenged the Commission' s point of view. On 20 April 1988 the Commission issued a reasoned opinion in which it reiterated its point of view and requested the Greek government to adopt the measures necessary to comply with it within a period of two months. On finding that the Greek Government did not agree with its point of view, the Commission brought these proceedings.

4 Reference is made to the Report for the Hearing for a more detailed account of the facts of the case, the course of the procedure and the pleas in law and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

5 As a preliminary matter it should be pointed out that the activities of a tourist guide from a Member State other than Greece who accompanies tourists on an organized tour from that other Member State to Greece may be subject to two distinct sets of legal rules. A tour company established in another Member State may itself employ guides. In that case it is the tour company that provides the service to tourists through its own guides. A tour company may also engage self-employed tourist guides established in that other Member State. In that case, the service is provided by the guide to the tour company.

6 The two cases described above thus relate to the provision of services by the tour company to tourists and by the self-employed tourist guide to the tour company respectively. Such services, which are of limited duration and are not governed by the provisions on the free movement of goods, capitals and persons, constitute activities carried on for remuneration within the meaning of Article 60 of the EEC Treaty.

7 It must be determined whether such activities fall within the scope of Article 59 of the Treaty.

8 In that connection the Greek Government argued that Article 59 of the Treaty applies only where a person providing services and their recipients are established in different Member States.

9 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

10 Consequently, the provisions of Article 59 must apply in all cases where a person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established.

11 Since the present case and the two situations described in paragraph 5 of this judgment concern the provision of services in a Member State other than that in which the person providing them is established, Article 59 of the Treaty must apply.

12 It must next be determined whether the service in question is already covered by Community legislation.

13 The Greek Government stresses in that connection that the occupation of tourist guide must be distinguished from that of courier. It is clear from the fourteenth recital in the preamble and Article 2(5) of Council Directive 75/368/EEC of 16 June 1975 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of various activities (ex ISIC Division 01 to 85) and, in particular, transitional measures in respect of those activities (Official Journal 1975 L 167, p. 22) that only the occupation of courier has been the subject of Community harmonization. Accordingly, authorization to carry on the occupation of a courier in no way entails the right to act as a tourist guide.

14 That argument cannot be upheld. It need merely be pointed out that the Commission in no way maintained that the two occupations were identical and that a courier might equally carry on that occupation or that of a tourist guide. In its application it refers only to the activities of a tourist guide carried on by a person travelling with a group of tourists, and does not raise the issue whether that person is also acting as a courier.

15 It is therefore necessary to examine whether, in the absence of any Community harmonization, the application of the Greek legislation in question to tourist guides accompanying a group of tourists from another Member State is compatible with Articles 59 and 60 of the EEC Treaty.

16 It should further be pointed out that Articles 59 and 60 of the Treaty require not only the abolition of any discrimination against a person providing services on account of his nationality but also the abolition of any restriction on the freedom to provide services imposed on the ground that the person providing a service is established in a Member State other than the one in which the service is provided. In particular, the Member State cannot make the performance of the services in its territory subject to observance of all the conditions required for establishment; were it to do so the provisions securing freedom to provide services would be deprived of all practical effect.

17 The requirement imposed by the abovementioned provisions of Greek legislation amounts to such a restriction. By making the provision of services by tourist guides accompanying a group of tourists from another Member State subject to possession of a specific qualification, that legislation prevents both tour companies from providing that service with their own staff and self-employed tourist guides from offering their services to those companies for organized tours. It also prevents tourists taking part in such organized tours from availing themselves at will of the services in question.

18 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the 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. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).

19 Accordingly, those requirements can be regarded as compatible with Articles 59 and 60 of the Treaty only if it is established that with regard to the activity in question there are overriding reasons relating to the public interest which justify restrictions on the freedom to provide services, that the public interest is not already protected by the rules of the State of establishment and that the same result cannot be obtained by less restrictive rules.

20 The Greek government contends that the legislation in question is justified by the general interest in proper appreciation of the artistic and archaeological heritage of the country and in consumer protection. In that connection, it stresses the fundamental difference between the written and oral transmission of information on that heritage. In its view, the Greek authorities regulate the quality of printed material circulating within the country and take care that material disseminated outside Greece presents in a correct manner the country's artistic and cultural heritage. Control of information communicated orally by a tourist guide to a specific group of tourists would on the other hand be more difficult. The Greek Government considers that the legislation in issue is all the more justified since in some Member States the occupation of tourist guide may be carried on without any occupational qualification.

21 The general interest in the proper appreciation of the artistic and archaeological heritage of a country and in consumer protection can constitute an overriding reason justifying a restriction on the freedom to provide services. However, the requirement in question contained in the Greek legislation goes beyond what is necessary to ensure the safeguarding of that interest inasmuch as it makes the activities of a tourist guide accompanying groups of tourists from another Member State subject to possession of a licence.

22 The service of accompanying tourists is performed under quite specific conditions. The independent or employed tourist guide travels with the tourists and accompanies them in a closed group; in that group they move temporarily from the Member State of establishment to the Member State to be visited.

23 In those circumstances a licence requirement imposed by the Member State of destination has the effect of reducing the number of tourist guides qualified to accompany tourists in a closed group, which may lead a tour operator to have recourse instead to local guides employed or established in the Member State in which the service is to be performed. However, that consequence may have the drawback that tourists who are the recipients of the services in question do not have a guide who is familiar with their language, their interests and their specific expectations.

24 Moreover, the profitable operation of such group tours depends on the commercial reputation of the operator, who faces competitive pressure from other tour companies; the need to maintain that reputation and the competitive pressure themselves compel companies to be selective in employing tourist guides and exercise some control over the quality of their services. Depending on the specific expectations of the groups of tourists in question, that factor is likely to contribute to the proper appreciation of the artistic and archaeological heritage and the protection of consumers, in the case of conducted tours of places other than museums or historical monuments which may be visited only with a professional guide.

25 It follows that in view of the scale of the restrictions it imposes, the legislation in issue is disproportionate in relation to the objective pursued, namely to ensure the proper appreciation of places and things of historical interest, the widest possible dissemination of knowledge and the artistic and cultural heritage of the Member State in which the tour is conducted, and the protection of consumers.

26 The Greek government further submits that it is impossible to reconcile the Commission's point of view as expressed in its application with the action taken by it at the same time with a view to the adoption of the proposal for a directive on a second general system for the recognition of professional education and training (Official Journal 1989 C 263, p. 1), which complements Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years' duration (Official Journal 1989 L 19, p. 16).

27 It is true that in the case of occupations in respect of which the Community has laid down no minimum level of necessary qualifications, that proposal for a directive allows Member States themselves to determine that minimum level.

28 Nevertheless, it should be recalled that provisions of secondary legislation can only concern national measures which are compatible with the requirements of Article 59 of the Treaty, as defined in the case law of the Court.

29 It must consequently be held that by making the provision of services by tourist guides travelling with a group of tourists from another Member State, where those services consist in guiding such tourists in places other than museums and historical monuments which may be visited only with a specialized professional guide, subject to possession of a licence which requires specific training evidenced by a diploma, the Hellenic Republic has failed to fulfil its obligations under Article 59 of the Treaty.

Costs

30 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Hellenic Republic has been unsuccessful it must be ordered to pay the costs.

On those grounds,

THE COURT

hereby:

(1) Declares that by making the provision of services by tourist guides travelling with a group of tourists from another Member State, where those services consist in guiding such tourists in places other than museums or historical monuments which may be visited only with a specialized professional guide, subject to possession of a licence which requires specific training evidenced by a diploma, the Hellenic Republic has failed to fulfil its obligations under Article 59 of the EEC Treaty.

(2) Orders the Hellenic Republic to pay the costs.