Keywords
Summary

Keywords

1 Freedom to provide services - Treaty provisions - Scope - Delimitation criterion - External factor - Establishment of the person providing services in a Member State other than that in which the service is performed

(EC Treaty, Art. 59)

2 Freedom to provide services - Restrictions - Prohibition - Scope - Measures applicable without distinction - Rules of a Member State prescribing a mandatory legal form of employment relationship between tourist and travel agencies organizing tourist programmes in that Member State and tourist guides licensed to pursue their profession in that State - Not permissible

(EC Treaty, Art. 59)

3 Freedom to provide services - Restrictions justified in the general interest - Whether permissible - Conditions

(EC Treaty, Art. 59)

4 Freedom to provide services - Restrictions - Rules of a Member State prescribing a mandatory legal form of employment relationship between tourist and travel agencies organizing tourist programmes in that Member State and tourist guides licensed to pursue their profession in that State - Justified by reasons relating to the general interest - Maintenance of industrial peace - Measure pursuing an economic aim - Excluded - Need for the measure - None

(EC Treaty, Art. 59)

Summary

5 Article 59 of the Treaty applies not only where a person providing services and the recipient thereof are established in different Member States, but also in all cases where the 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.

6 Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality, but also the abolition of any restriction, even if it applies without distinction to national providers of services and to those from other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services.

Accordingly, the rules of a Member State which, by prescribing a mandatory legal form of employment relationship between the parties, prevent tourist and travel agencies, wherever they are established, from concluding, in connection with the operation of tourist programmes organized by them in that Member State, a contract for the provision of services with a tourist guide from another Member State who is licensed to pursue his profession in the first State constitute a barrier for the purposes of Article 59 of the Treaty, in that they deprive the tourist guide from another Member State of the possibility of working in the first State as a self-employed person.

7 As a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by overriding reasons relating to the general interest and which apply to all persons or undertakings pursuing an activity in the State of destination. In particular, the restrictions must be suitable for securing the attainment of the objective which they pursue and they must not go beyond what is necessary in order to attain it.

8 The rules of a Member State which, by prescribing a mandatory legal form of employment relationship between the parties, prevent tourist and travel agencies, wherever they are established, from concluding, in connection with the operation of tourist programmes organized by them in that Member State, a contract for the provision of services with a tourist guide from another Member State who is licensed to pursue his profession in the first State cannot be justified by overriding reasons relating to the general interest in maintaining industrial peace since, in the first place, they were adopted in order to settle disputes between tourist guides and travel and tourist agencies and thereby prevent any adverse affects on tourism, and consequently on the country's economy, and they therefore pursue an economic aim, and secondly, it has not been shown to be necessary, in order to maintain industrial peace, to impose on tourist guides from other Member States restrictions on working as self-employed persons in connection with the operation of tourist programmes organized by travel and tourist agencies.