61991J0147

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1. Freedom of movement for persons ° Freedom of establishment ° Freedom to provide services ° National rules which reserve certain activities in the real-estate sector to persons practising as estate agents within a regulated profession ° Whether permissible

(Council Directive 67/43/EEC)

2. Freedom of movement for persons ° Freedom of establishment ° Provisions of the Treaty ° Scope ratione personae

(EEC Treaty, Art. 52)

1. Directive 67/43/EEC concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. matters of "Real-estate" (excluding 6401) (ISIC Group ex 640), 2. the provision of certain "Business services not elsewhere classified" (ISIC Group 839) does not preclude national rules which reserve certain activities in the real-estate sector to persons practising as estate agents within a regulated profession.

2. The rules of the EEC Treaty concerning freedom of establishment apply only to nationals of a Member State of the Community.

In Case C-147/91,

REFERENCE to the Court under Article 177 of the EEC Treaty by the Juzgado de lo Penal No 4, Alicante (Spain), for a preliminary ruling in the criminal proceedings pending before that court against

Michele Ferrer Laderer,

on the interpretation of Council Directive 67/43/EEC of 12 January 1967 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. matters of "Real-estate" (excluding 6401) (ISIC Group ex 640), 2. the provision of certain "Business services not elsewhere classified" (ISIC Group 839) (OJ, English Special Edition 1967, p. 3),

THE COURT (Second Chamber),

composed of: F.A. Schockweiler, President of the Chamber, G.F. Mancini and J.L. Murray, Judges,

Advocate General: F.G. Jacobs,

Registrar: H.A. Ruehl, Principal Administrator,

after considering the written observations submitted on behalf of:

° the Colegio Oficial de Agentes de la Propiedad Inmobiliaria (Official Association of Estate Agents), by Jorge Jordana de Pozas Fuentes, of the Madrid Bar,

° the Ministerio Fiscal, by Ricardo Cabedo, Fiscal Jefe de Alicante, acting as Agent,

° Michele Ferrer Laderer, by José Manuel Gómez Robles, of the Malaga Bar (Spain),

° the Government of the French Republic, by Philippe Pouzoulet, Deputy Director in the Legal Affairs Directorate of the Ministry of Foreign Affairs, acting as Agent, and by Hélène Duchène, Secretary for Foreign Affairs at the same ministry, acting as deputy Agent,

° the Government of the Kingdom of Spain, by Alberto José Navarro González, Director-General for Legal and Institutional Coordination with the Communities in the office of the Secretary of State for the European Communities, and by Gloria Calvo Diaz, Abogado del Estado, of the Legal Department responsible for cases pending before the Court of Justice, acting as Agents,

° the Commission of the European Communities, by Étienne Lasnet, Legal Adviser, and Daniel Calleja, of its Legal Service, acting as Agents,

having regard to the Report for the Hearing,

after hearing the oral observations of the Colegio Oficial de Agentes de la Propiedad Inmobiliaria, Michele Ferrer Laderer, the Spanish Government and the Commission at the hearing on 7 May 1992,

after hearing the Opinion of the Advocate General at the sitting on 4 June 1992,

gives the following

Judgment

1 By order of 16 May 1991, which was received at the Court Registry on 31 May 1991, the Juzgado de lo Penal (Criminal Court) No 4, Alicante, Spain, referred to the Court for a preliminary ruling under Article 177 of the EEC Treaty three questions concerning the interpretation of Council Directive 67/43/EEC of 12 January 1967 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. matters of "Real estate" (excluding 6401) (ISIC Group ex 640), 2. the provision of certain "Business services not elsewhere classified" (ISIC Group 839).

2 Those questions were raised in a dispute between the Ministerio Fiscal and Michele Ferrer Laderer, resident in Spain, practising in Alicante as an estate agent without possessing the requisite professional qualifications and authorizations.

3 In the criminal proceedings instituted before it by the Ministerio Fiscal against Michele Ferrer Laderer, who is charged with the offence of practising a profession without authorization under Article 321 of the Spanish Criminal Code, the Juzgado de lo Penal No 4, Alicante, decided to stay the proceedings pending a preliminary ruling from the Court of Justice on the following questions:

"1. Are Article 1 of the Decree of 4 December 1969 and Royal Decree No 1464/84, in so far as they provide that activities as an intermediary or broker for the purchase, sale and exchange of rural and urban property, for loans secured by a mortgage on such property, for the letting of rural and urban property, for the assignment and transfer and the provision of opinions on the value in the event of the sale, assignment or transfer of such property are functions specific to estate agents, valid in the light of Articles 2, 3 and 5 of Council Directive 67/43/EEC and, as from the entry into force of that directive, may a Member State, in the said real-estate sector, give the exclusive right to carry on such activities to a particular professional group?

2. May a Member State apply any kind of restriction or exclusion to that directive?

3. Where other Member States of the Community do not impose any such requirements for the exercise of those occupations, may the Spanish State, in accordance with the abovementioned provisions, require nationals of those countries to possess qualifications or to undergo tests such as those prescribed in Spain in that connection for admission to the Colegio Oficial de Agentes de la Propiedad Inmobiliaria and thus for authorization for those purposes?"

4 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the written observations submitted to the Court, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

5 So far as concerns Questions 1 and 2, it is important to note that, in its judgment in Joined Cases C-330/90 and C-331/90 Lopez Brea [1992] ECR I-323, the Court has already held in reply to identical questions from the same Spanish Court, that Directive 67/43 does not preclude national rules which reserve certain activities in the real-estate sector to persons practising as estate agents within a regulated profession.

6 In reply to Question 3, it should be borne in mind that, under the cooperation procedure between the national courts and the Court of Justice, laid down in Article 177, it is for the Court to provide the national court with an answer enabling the latter to resolve the dispute before it, by interpreting such provisions of Community law as may be applicable.

7 The rules of the EEC Treaty on freedom of establishment and the provisions of secondary legislation, such as those of Directive 67/43, may be relied on only by a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or by a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law.

8 It is apparent from the documents annexed to the observations of the Ministerio Fiscal and from the statements made at the hearing before the Court by the legal representative of the defendant in the main proceedings that Michele Ferrer Laderer is a Swiss national.

9 Accordingly, the answer to Question 3 must be that the rules of the EEC Treaty concerning freedom of establishment apply only to nationals of a Member State of the Community.

Costs

10 The costs incurred by the Government of the French Republic, the Government of the Kingdom of Spain and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the proceedings pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT (Second Chamber),

in answer to the questions referred to it by the Juzgado de lo Penal No 4, Alicante, by order of 16 May 1991, hereby rules:

1. Council Directive 67/43/EEC of 12 January 1967 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. matters of "Real-estate" (excluding 6401) (ISIC Group ex 640), 2. the provision of certain "Business services not elsewhere classified" (ISIC Group 839) does not preclude national rules which reserve certain activities in the real-estate sector to persons practising as estate agents within a regulated profession.

2. The rules of the EEC Treaty concerning freedom of establishment apply only to nationals of a Member State of the Community.