C-154/89

OPINION OF MR LENZ —CASE C-154/89

OPINION OF MR ADVOCATE GENERAL LENZ delivered on 5 December 1990*

Mr President, lay down less strict requirements for the Members of the Court, acquisition of a licence than are provided for in that Directive (cf. Article 1(a) and Article 2). As for Directive 75/368 'on measures to facilitate the effective exercise of freedom of establishment and freedom to A — Facts provide services in respect of various acti­ vities (ex ISIC Division 01 to 85) and, in particular, transitional measures in respect of those activities,' 2the activities of tourist 1. The three proceedings for Treaty guides are excluded from the scope of its infringements brought against France, provisions (cf. Article 2(5)). Greece and Italy before the Court today have not been joined, but they are so closely related from a factual point of view that I have taken the liberty of dealing with them in the same Opinion.

4. In the three defendant Member States there are legal provisions governing the acti­ 2. It is alleged against all three Member vities of tourist guides, whereas in a number States that they have infringed Article 59 of of other Member States those activities are the EEC Treaty, and in all three cases the not regulated. facts underlying that claim are essentially the same. The allegation is that the activities of tourist guides travelling with groups of tourists from another Member State are being impeded.

6. In those States only persons in possession of a licence (attested by a special document) 8. As I have already stated, the may carry on the activity of tourist guide as Commission's claim is not directed against so defined; in France that restriction only those rules as a whole, but only against the applies in those departments and munici­ fact that a tourist guide's licence is required palities listed in a decree of the Minister for the performance of services by such responsible for tourism. persons travelling with a closed group of tourists from another Member State.

B — Opinion activity in a different State from the one in which he is resident. The service provided by the operator to the tourists is performed and received in the host State, as is any service provided to the tourist by a self- 11. I In order to ascertain whether the employed person on behalf of the tour applications are well-founded — it is no operator, since the situation is that the longer necessary to discuss the direct effect tourists are in the host country in of the freedom guaranteed in this accordance with the intention of the 3 connection by the Treaty. I must first operator in order to receive the service. examine the question whether the activity in Both services Nefico — those of the issue constitutes a service within the operator and where appropriate those of the meaning of Article 59 et seq. of the EEC self-employed person working for him Treaty, so as to fall within the material correspond to the situation mentioned in scope of those provisions. Article 60(3), so that there is no reason not to treat them as falling under Article 59 et seq. of the EEC Treaty.

12. 1. We may begin by assuming that the activity — conducting tourists and providing commentary to them on objects of all kinds or landscapes — by its nature constitutes a 14. 3. The Greek Government, however, service within the meaning of Article 60(1) considers that approach to be incorrect, and of the EEC Treaty. A service is provided for takes the view that the wording of the first remuneration 4 which does not fall within paragraph of Article 59 of the EEC Treaty the scope of the free movement of goods or is not complied with if the provider of the capital or the free movement of persons service and its recipient are resident in the (freedom of movement for workers or same State. freedom of establishment).

same way as cases where the provider of the 'products' which are not 'goods'. As is service (alone) goes to the State in which apparent from a comparison of the first the recipient is resident (cf. the first paragraph of Article 59 and the third paragraph of Article 59 in conjunction with paragraph of Article 60, the authors of the the third paragraph of Article 60 of the Treaty regarded as particularly problematic, EEC Treaty), the recipient goes to the State and therefore in need of express regulation, where the person providing the service is the case in which the person providing the established, 6or the service itself is simply service performs his activity in the State in provided on a transfrontier basis. 7 On which the recipient is resident. In such a closer examination the problem concerns situation the interference with the interests not only those situations in which, as in this of the host State appeared to be particularly case, the provider and recipient of the manifest: service travel at the same time from the State where both are established to the State in which the service is to be performed and the recipient is to receive it. The problem (i) the person providing the service phys­ also arises even without any simultaneous ically enters the territory of the host change of location by the recipient State, so that on this ground alone the whenever the provider and the recipient of territorial interests of the State are in the service are resident in the same Member issue, at any rate when, as in most State. 8 cases, the person providing the service is not a national of the host State;

6 — See the judgments in Joined Cases 286/82 and 26/83 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377 and in Case 186/87 Cowan v Tresor Public [1989] ECR 195 (iv) persons offering the service concerned 7 — See judgment in Case 155/73 Procureur dit Roi v Sacchi who are resident in the host State are [1974] ECR 409 at paragraph 6, ludgmem in Case 52/79 Procureur du Roi v Debaitve [1980] F.CR 833 at paragraph exposed to competition from under­ 8. ludgmcnl in Case 62/79 Codile! \ ClHf V'og Films and takings from other Member States. Othcri [1980] ECR 881. |udgmcnt in Case 262/81 Codile! \ Cmc log filmi [1982] ECR 3381 and ludgment in Case 252/85 Rond van Adverteerders \ Xclheríaiidí [1988] FCR 2085, see also the Įudgmeni in Case 205/84 ('»minimo» t Germany [ 1986] r CR 3755 8 — Example a French building companv builds a house in ltalv tor a client resident in France 18. Articles 59 et seq. secure the freedom to 9 — Foc. cit., p 205 provide services in spite of these potential

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OPINION OF MR LENZ — CASE C-154/89

22. II. The next question to be examined is whether the legal provisions of the defendant Member States in the case at issue contain a restriction covered by Article 19. In the light of these circumstances I 59 et seq. of the EEC Treaty, for which therefore consider it permissible to reason a justification must then be advanced in order fortiori and conclude that the present case for them to subsist in the light of those falls within the terms of Articles 59 et seq. provisions. That conclusion is also made necessary by the objective underlying the freedom to provide services; that freedom might otherwise not be able to play its part alongside the other freedoms, and a lacuna 23 1. As a simple matter of fact, I am in no would arise which was clearly not intended doubt that tourist guide services are by the authors of the Treaty. impeded by the contested legal provisions. It is not disputed by the defendant Member States that within the area of application of those provisions tour operators are not able to conduct tours with their own staff (as defined above), where those persons do not have the tourist guide licence of the State in 20. The correctness of this viewpoint may question, but are obliged to engage local be illustrated by a simple example. Assuming tourist guides who do have such a licence. that after advertising a French tour Conversely, tourists are not able to receive company had attracted tourists from the services offered by the accompanying tourist guide even where they prefer them to 10 — However, the interests of persons resident in the host State the services of the local tourist guide. Nor may be concerned in other respects, for example in the event of building works by the provider of the service. may those inconveniences be circum-

25. The provision of services to the operator by a self-employed tourist guide is also impeded. The effect of the contested 29. As the Commission rightly points out, it regulations is that he will be able to conduct follows from the cases cited on this last fewer visits (and therefore his remuneration point, that any provision, even a will be smaller) or — as is more likely non-discriminatory one, which in fact or in particularly in the case of Greece and law impedes the freedom to provide services Italy — he will not even be engaged in the first place. 13 — See judgment in Seco v EVI, cited above, at paragraph 8 in fine, the same consideration clearly underlies the ludgment in Rush Portuguesa cited above, particularly at paragraphs 11 — This is to say, with regard to a number of services the 11 and 12 We are not here concerned with discrimination recipient of the service may travel to the State where the lustified under Article 56 m coniunction with Article 66 person providing the service is established, if the latter is 14 — Judgment in Case 279/80 Webb [1981] ECR 3305, at impeded in carrying on his activity in the Slate in which paragraph 16, judgment of 4 December 1986 in Case the recipient of tne service is resident 205/84 Commission v Germany (freedom to provide 12 — Sec the judgment of 27 March 1990 in Case 113/89 Rush insurance services) [1986] ECR 3755, at paragraph 26, sec Portuguesa v Office nailonal d'immigration [1990] to that effect also ine ludgment in the Van Wesemael case, ECR I-1417. at paragraph 12 in fine. cited above

34. (i) The French and Italian Governments submit that under the case-law 31. 3. The examination of the infringement, of the Court there can be no infringement to which I must now proceed, may be of Article 59 in a case where the host State carried out both from the point of view of takes into consideration qualifications discrimination and from the point of view acquired in other Member States. Where a that the legislation is not compatible with host State requires a qualification for a Article 59 of the EEC Treaty even in the particular activity that State is obliged to absence of any such discrimination. take into consideration qualifications acquired in other Member States and to assess their equivalence; it does not, however, have to allow providers of services to carry on their activities if they have no 32. (a) Since the latter point of view is the (equivalent) qualification. broader, I shall start with it. The Court has held in this connection that, regard being had to the particular nature of certain services, specific requirements imposed on the persons providing the services may be 35. I do not share this view. As is apparent considered compatible with the Treaty from what I have set out above, the host where they result from the application of country, quite apart from taking into legislation governing such activities. consideration qualifications acquired However, the freedom to provide services is abroad, must first of all demonstrate that one of the fundamental principles of the the restriction in question is imposed on Treaty and may be restricted only by overriding grounds of public interest. Thus the Member State concerned must demon- 15 — See the wording of the judgment in Case 39/75 Coenen v Sociaal-Economische Raad [1975] ECR 1547, at paragraph 16 — See the judgment in Case 205/84 Commission v Germany, 6 in fine: '(requirements) ... which may prevent or cited above, at paragraph 27; judgment in Case 279/80 otherwise obstruct the activities of the person providing the Webb, cited above, at paragraph 17; and the Van Wesemael service'. judgment, cited above, at paragraph 27 et seq.

strate that it is in all respects necessary in requirements laid down by the host State order to protect that interest. The must satisfy. It states: requirement for Member States to take into consideration the fact that the interest to be protected 'is already protected by the rules of the State of establishment' in fact represents only part of that comprehensive 'It follows that those requirements may be assessment of necessity: a restriction may regarded as compatible with Articles 59 and prove not to be necessary where the rules of 60 of the EEC Treaty only if it is estab­ the State of establishment sufficiently lished that in the field of activity concerned protect the interest in question. Where there there are imperative reasons relating to the are no such rules (as in many cases covered public interest which justify restrictions on by the present proceedings), that does not the freedom to provide services, that the necessarily mean that the restriction is public interest is not already protected by necessary. It must in each case be examined the rules of the State of establishment and whether 'the same result cannot be obtained that the same result cannot be obtained by 19 by less restrictive rules' (I would add: even less restrictive rules.' by rules which provide for no restrictions). The point is in my view particularly clearly brought out in the judgment in Commission 1 v Germany. 7 38. It is clear from that wording and from the fact that the Court examined the various 20 points separately that the 'necessity of the restriction' must be assessed from every point 36. After observing that the host State must of view. have regard to the fact that the general interest is 'safeguarded by the provisions to which the provider of a service is subject in the Member State of his establishment', the Court goes on to state in paragraph 27: 39. Unlike the defendant Member States, I can see no conflict between this conclusion and the Commission's proposal 'for a Council Directive on a second general system for the recognition of professional 'In addition, such requirements must be education and training which complements 21 objectively justified by the need to ensure Directive 89/48/EEC'. Under that that professional rules of conduct are proposal (Article 5) the Member States may complied with and that the interests which not in the cases covered — including the such rules are designed to safeguard are activities of tourist guides, where that occu­ protected.' 18 pation is regulated in individual Member States (see Article 2) — refuse to authorize the pursuit of the regulated occupation if the applicant holds a diploma acquired in another Member State or has two years' occupational experience. 37. In paragraph 29 of that judgment the Court summarizes the conditions which the 19 — Emphasis added. 20 — See Commimon v Germany ai paragraphs 30 et seq , 34 et 17 — Case 205/84, cited above seq ; 42 et seq. 18 — Emphasis added. 21 — OJ 1989 C 263, p 1.

40. However, that is not to say that provision to tourists of the fullest and most permission to carry on the activity may be relevant information possible, and in the refused where that would infringe Article converse situation those interests are 59. If the proposed text had already been adversely affected. The difference is that adopted it would have to be interpreted to consumer protection seeks to safeguard the that effect, regard being had to the funda­ interests of every individual consumer, mental freedom guaranteed in Article 59. whilst in relation to the proper appreciation Moreover, I do not find the argument put of the resources mentioned above the forward by the defendant Member States on collective effect of the information provided this point convincing, since the text relied is the determining factor. The intangible on forms part of secondary Community law value of such a place or thing is enhanced if and in addition is only a proposal, so that as many people as possible have the most even if there were truly a contradiction it accurate and — taking into account the could not affect the application of Article purpose and the possibilities of a tourist 59. 22 visit — the fullest knowledge possible. Massive dissemination of incorrect infor­ mation would have a negative effect on that value. 41. (ii) As is already clear from the extracts quoted, the test for determining whether a restriction is justified is the existence of 'imperative reasons relating to the public interest'. 44. Consumer protection may without any doubt constitute an imperative public interest. As to the proper appreciation of the 42. In this connection . the defendant resources in question, it is certainly true that Member States rely on two grounds: such an interest may be established with regard to certain places or things of historical, artistic or cultural value. The (i) the conservation and proper exact scope of this seems to me to be ques­ appreciation of historical, artistic and tionable, and I am not convinced that cultural resources or — according to the everything that falls under the definition of French government — the widest tourist guide activity in the legal provisions possible dissemination of knowledge of the three Member States also comes about the cultural and artistic heritage within an overriding public interest. The of the country; matter does not in the end turn on that point, however, as will become clear from what I have to say below.

46. (1) I should like first of all to relate accordance with the criteria of suitability the Commission' line of argument — which and necessity (in the wider sense). recognizes the objectives pursued but does not approve of the means used in this case (licence requirement) — to the judgments cited. As I have said, under that case-law a Member State is allowed to take only such measures restrictive of the freedom to provide services as are necessary in the light 48. (2) The Commission first disputes the of the objectives pursued. However, the appropriateness of the measures, in relation Commission challenges the disputed primarily to the concern for the proper measures not only on the basis it describes appreciation of the cultural, historical and as the criterion of 'necessity'; it also artistic heritage. The Commission takes the considers that the measures are ineffective view that the dissemination of information in protecting one of the two interests put 23 concerning such resources is already forward — in other words they are not ensured to a large extent by the media. appropriate. There can be no doubt that this, Freedom of the press and of expression too, is a significant criterion. A measure means that this information is not subject to which is inappropriate for obtaining the any effective control. Such information objective pursued can never be deemed to therefore has at least as great an impact on be 'necessary'. If the suitability of a measure the appreciation of such resources as infor­ for that purpose is established, it must then mation provided by tourist guides. be determined whether the Member State could have safeguarded the interest in question equally well by a less stringent measure or indeed whether it is adequately safeguarded without any regulation. Conversely, such examination may be 49. The defendant Member States reply to dispensed with if the measure is deemed that point with two main arguments. from the outset not to be necessary because it is not appropriate.

51. I cannot but share the Commission's 54. (b) At this point the French and Italian view on this point. As regards first of all the Governments argue that information proper appreciation of the artistic, historical conveyed by a tourist guide has a greater and cultural heritage, a comprehensive view impact on the recipient than information must be taken, as I have already said. The disseminated by the media. Tourists, it is idea which the public has of such resources, said, are strongly influenced by the service on which their appreciation depends, is to a provided by the tourist guide, because of large extent influenced by printed matter, their differing cultural origins and the and also by radio and television broadcasts. normally limited period of the visit. I cannot imagine that Greece (or any other Moreover, tourist information disseminated of the defendant Member States) can effec­ in printed matter is subjected to the reader's tively control within their own borders all great critical faculty. Since the attitude of a these sources of information without unjus­ person being led in a closed tourist group is tified censorship. As far as the products of more passive than that of the reader of foreign publishing houses or radio and tele­ written information, it is necessary for vision stations are concerned, there is no tourist guides to be trained. jurisdiction. And even influence without any legal compulsion does not seem to me to be always possible, either in the case of Europeans or in the case of interested persons from other countries, for example the United States, whose impression of the 55. I do not think that this argument carries resources in question is just as significant as conviction, at least as regards the proper that of Europeans in relation to the proper appreciation of artistic, historical and appreciation of those resources. cultural heritage.

show an interest going beyond mere 60. (3) In my opinion the Commission curiosity in such a visit, so that the spoken rightly contests the necessity of the information given by the tourist guide will restrictions in question. be forgotten after a very short time. A really interested and critical visitor will obtain written information to assist his memory (and will judge what he hears against that material). The requirement imposed by the defendant Member States has no effect on any of these matters. 61. In the Commission's view, we are dealing with a closed group: the tourist guide representing the tour company and the tourists (as consumers) travel together from the Member State in which the tour company is established in order respectively to provide and receive the service in another Member State. In those circumstances the business reputation of the tour company in conjunction with the competition on that 58. As far as consumer protection is market affords sufficient protection for the concerned, it must be acknowledged that consumer. these considerations are not relevant to the same extent, since it is the individual consumer that must be taken into account, not the public as a whole. In that connection it is not impossible that a consumer on a conducted tour may receive incorrect information which detracts from 62 (a) On this point it seems appropriate the value of the service paid for by him, and to make a preliminary observation relating that he never subsequently discovers the true to the nature and content of the service. As facts so as to redress the situation. I have already pointed out, this case concerns solely the provision of infor­ mation, indeed information of a kind intended to enrich tourists culturally in their leisure time. For the tourist as consumer defective information has no far-reaching consequences, and in particular does not seriously injure him physically, psycho­ logically or financially. As to the proper appreciation of the resources in question, it 59. It may therefore be concluded that the should be borne in mind that we are not measures challenged by the Commission are here concerned with the provision of inappropriate in relation to the objective of academic education, much less with ensuing proper appreciation of artistic, scientific research. Furthermore, the historical and cultural heritage. In regard to detriment incurred can in no way be said to consumer protection their appropriateness is be irreparable, either for the consumer as an also questionable, although it has not been individual or for the cultural resource in convincingly refuted by the Commission in question. As soon as the tourist discovers all respects. As I will show, however, the true facts from information available to nothing in the end turns on this point. him, the defect is corrected.

63. It may therefore be said that the danger relations on the labour market and the for the interests involved is slight and any lawful interests of the workforce concerned. damage is not irreversible, and that dis­ That is evident, moreover, in the legislation tinguishes this case from cases of medical, of some of the Member States in this legal or building services to which in matter, which is designed first to eliminate particular the Italian Government has possible abuse and secondly to restrict the referred. Whether the protection of certain scope of such activities or even prohibit interests can be left to market forces, them altogether.' thereby allowing the fundamental right of freedom of services to take priority over restrictive provisions, cannot be determined independently of such considerations. If that 66. In Commission v Germany it was were not so, the Member States could at 25 stated: will impose licence requirements (the licence being obtained by success in an exam­ ination), even for quite simple and innocuous activities in order to impede the freedom to provide services on grounds, ' .. . the insurance sector is a particularly say, of 'consumer protection'. sensitive area from the point of view of the protection of the consumer both as a policy­ holder and as an insured person. This is so in particular because of the specific nature of the service provided by the insurer, which 64. That seems to me to be the approach is linked to future events, the occurrence of taken by the Court in examining whether which, or at least the timing of which, is restrictions on the freedom to provide uncertain at the time when the contract is services were justified when it has assessed concluded. An insured person who does not the actual threats to the interests in obtain payment under a policy following an question; in doing so it did not rely on event giving rise to a claim may find himself abstract concepts (such as 'consumer in a very precarious position. Similarly, it is protection') but had regard to the actual as a rule very difficult for a person seeking circumstances. insurance to judge whether the likely future development of the insurer's financial position and the terms of the contract, usually imposed by the insurer, offer him sufficient guarantees that he will receive 24 65. Thus in the Webb judgment it was payment under the policy if a claimable held that: event occurs.

68. The customers of tour operators entrust 70. Moreover, as regards the problem of the latter with the arrangement of their incorrect items of information, it seems holidays, that is to say of a considerable obvious to me that every conducted tour part of their free time — the best time of the must be prepared by the tourist guide, at year, as the slogan of a well-known least on the first occasions in the case of operator has described it. The service repeated tours. That preparation must be provided by the operator is not limited from carried out — I do not know of any other the point of view of the traveller to the way — by drawing on generally accessible technical details of the journey, but extends sources. The examination requirement can also to providing satisfaction in only have a qualified impact here, and none this — compared with the rest of the at all if the examinations are of a general year — brief period. If that is not provided, nature, as in France and Greece. Here too, there is nothing to stop the traveller from market forces in the tour operator's State of choosing a different operator for the next establishment afford at least equivalent tour. Customer fidelity to a brand strikes me guarantees. as a difficult concept here. Moreover, the operator has a reputation to uphold, which may not be of much significance in retaining existing customers but is important in extending his clientele. Since the correctness of information given at the destination may 71 (c) In addition, it may be thought that be checked at any time, deficiencies in this the tourist is protected as a consumer by the respect may have a negative effect on the choice available to him on the spot. Local development of a circle of customers as guides who have a licence are probably described above. In that connection I should identifiable as such. Should the tourist wish like to make two observations. to have recourse to such a guide, he may do so at any time; the tour operator cannot in any event compel the tourist to avail himself of the services (already paid for by him) of the tourist guide acting on behalf of the operator.

73. Thus it is not necessary to address the question whether the contents of the exam­ ination are such that its necessity in that 76. III. Before formulating a proposal on form may be denied. As the Commission the basis of the foregoing, I must briefly rightly points out, that is probably true deal with the fact that the Commission where the examination is held wholly or to seeks judgment against the three defendant a considerable extent in another language or Member States only to the extent to which knowledge is examined of languages other they impede the activities of tourist guides than the language of the tourist guide which at places other than museums or historical he uses when accompanying groups of monuments. tourists, normally the language of the country in which the operator is established. As far as the language of the host country is concerned the manner in which the operator establishes contacts on the spot should be left to him. That need not necessarily be through the intermediary of the tourist guide. 77. If I have correctly understood the arguments at the hearing, this qualification arises from the fact that at one point there was a possibility of a compromise between the Commission and the three defendant Member States. If that compromise had been reached the Commission would have accepted the contested restriction on the 74. Nor do I need to go into the fact that freedom to provide services in regard to Greece clearly does not recognize tourist museums and historical monuments but not guide licences issued by other States, a otherwise. That does not explain why matter which would also fall to be examined freedom to provide services should be under the heading of necessity. thought to be affected in an unacceptable manner only in the latter case. On the basis of the considerations set out above the services of a tourist guide in the case of museums or historical monuments may not be treated differently from the other services mentioned in the application. However, we 75. (b) The question may also remain open are, of course, precluded from going whether the requirement to take the exam­ beyond the submissions put before us.