Commission of the European Communities v Italian Republic. (Freedom to provide services) [1991] EUECJ C-180/89 (26 February 1991)

Judgment 1 By an application lodged at the Court Registry on 24 May 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 the acquisition of a specific qualification obtained by success in an examination, in relation to guided tours of places other than museums or historical monuments which may be visited only with a specialized professional guide, the Italian Republic has failed to fulfil its obligations under Article 59 of the EEC Treaty. 2 The provisions in issue in this application are those of Article 11 of the Law of 17 May 1983 (Official Journal of the Italian Republic No 141 of 25 May 1983, p. 4091). According to those provisions, a tourist guide is a person whose occupation is to accompany individuals or groups of persons on visits to works of art, museums, galleries and archaeological excavations, and provide commentary on points of historical, artistic or architectural interest, landscapes and natural features. 3 On 10 February 1987, the Commission, pursuant to Article 169 of the EEC Treaty, addressed to the Italian Government a letter of formal notice. According to that letter Italy 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 22 June 1987 the Italian 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 Italian government to adopt the measures necessary to comply with it within a period of two months. On finding that the Italian 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 Italy who accompanies tourists on an organized tour from that other Member State to Italy 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 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). 9 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. 10 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. 11 It must next be determined whether the service in question is already covered by Community legislation. 12 The Italian 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. 13 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. 14 It is therefore necessary to examine whether, in the absence of any Community harmonization, the application of the Italian 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. 15 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. 16 The requirement imposed by the abovementioned provisions of Italian legislation amount 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. 17 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). 18 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. 19 The Italian government goes on to contend that the legislation in question is directed towards the protection of general interests relating to consumer protection and the conservation of the national historical and artistic heritage. As regards consumer protection, it states that the legislation seeks to ensure the quality of the service provided, so as to protect their actual recipient, namely the tourist. The interest in conservation of the national historical and artistic heritage is safeguarded by the tourist guide, who constitutes an intermediary between the visitor and the cultural asset. In the specific case of an organized tour by a group of foreign tourists, the protection of that interest is important inasmuch as, regard being had to their different cultural origins and the limited duration of such visits, the tourists retain only such image and knowledge of the cultural asset as may be conveyed to them by the tourist guide. 20 The general interest in consumer protection and in the conservation of the national historical and artistic heritage can constitute an overriding reason justifying a restriction on the freedom to provide services. However, the requirement in question contained in the Italian 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. 21 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. 22 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. 23 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 consumer protection and to the conservation of the national historical and artistic heritage, in the case of conducted tours of places other than museums or historical monuments which may be visited only with a professional guide. 24 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 the conservation of the historical and artistic heritage of the Member State in which the tour is conducted and the protection of consumers. 25 Finally, the Italian government argues that it is impossible to restrict the application of the legislation in question to guided tours of certain museums, monuments and specific cultural or historical sites which are open to the public. It considers that if that legislation concerned only a very limited number of such objects or places, the requirements of protection of consumers and of the national cultural heritage would not properly be met. If the legislation, on the contrary, applied to all items or places of major cultural significance it would inevitably apply to the items and places normally visited by tourists on organized tours. 26 It is true that the Commission excluded from its application guided tours of certain museums or monuments which may be visited only with a specialized guide. Nevertheless, as it explained at the hearing, that exclusion concerns only cases where, owing to the particular characteristics of certain places, national legislation requires specific qualifications additional to those required in order to obtain the tourist guide licence in question in these proceedings. 27 Contrary to the arguments of the Italian Government, the fact that that exclusion is only of limited scope cannot affect the protection of the consumer and of the cultural heritage. It is clear from the foregoing considerations that other than in those specific places, such protection is in any event adequately guaranteed in relation to tourist guides who provide their services in a closed group of tourists on a tour from another Member State. 28 It must consequently be held that by making the provision of services by tourist guides accompanying a group of tourists from another Member State, in relation to guided tours of places other than museums and historical monuments where a specialized guide is required, subject to possession of a licence issued after the acquisition of a specific qualification obtained by success in an examination, the Italian Republic has failed to fulfil its obligations under Article 59 of the EEC Treaty. Costs 29 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the Italian 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, in relation to guided tours of places other than museums or historical monuments where a specialized guide is required, subject to possession of a licence issued after the acquisition of a specific qualification obtained by success in an examination, the Italian Republic has failed to fulfil its obligations under Article 59 of the EEC Treaty; (2) Orders the Italian Republic to pay the costs. © European Communities, 2001 All rights reserved BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII