C-306/89
ECLI:EU:C:1991:342
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OPINION OF MR LENZ —CASE C-306/89
OPINION OF MR ADVOCATE GENERAL LENZ delivered on 19 September 1991 *
Mr President, 3. On that basis the third recital of the Members of the Court, preamble describes the aim of the directive as follows:
1. In these proceedings for failure to fulfil 'in the absence of mutual recognition of an obligation under the Treaty, the diplomas and of immediate coordination, it Commission accuses the Hellenic Republic nevertheless appears desirable to facilitate of not transposing into national law Council the attainment of freedom of establishment Directive 82/470/EEC of 29 June 1982 on and freedom to provide services in respect measures to facilitate the effective exercise of the activities falling within ISIC Groups of freedom of establishment and freedom to 718 and 720 by the adoption of measures provide services in respect of activities of intended primarily to avoid causing excep self-employed persons in certain services tional difficulties for nationals of Member incidental to transport and travel agencies States in which the taking up of such acti (ISIC Group 718) and in storage and ware vities is not subject to any conditions'. housing (ISIC Group 720). 1
4. To that end the directive provides for a series of measures to be adopted in order to facilitate the exercise of the activities set out 2. That directive refers in the first recital of in Article 2. They concern, first of all, the its preamble to the legal position under the obligations to which the Member States are EEC Treaty in the area of freedom of subject as host States. Article 4(1) to (5) of establishment and the provision of services: the directive deals in that respect with the recognition of proof of good repute, of the fact that the person concerned has not previously been declared bankrupt and of his financial standing. Articles 5, 6 and 7 concern the requirements of the host State with regard to qualifications. Articles 6 and 'pursuant to the Treaty, all discriminatory 7(1), (2) and (3) define for that purpose the treatment based on nationality with regard cases in which a certain amount of to establishment and provision of services is professional experience is to be recognized prohibited as from the end of the transi as proof of the possession of the requisite tional period . . . '. knowledge and ability. Pursuant to Article 5. Member States in which the taking up or * Original language: German. pursuit of any activity to which the directive 1 — OJ 1982 L 213, p. 1. applies is subject to the satisfaction of
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certain requirements concerning qualifi 8. The Commission claims that the Court cations are to ensure that any beneficiary should who applies therefor is to be provided, before he establishes himself or takes up any activity on a temporary basis, with infor mation as to the rules governing the activity which he proposes to pursue. (i) declare that the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed period the laws, regulations and administrative provisions necessary 5. In order to ensure that the system to comply with Council Directive envisaged by the directive operates 82/470/EEC of 29 June 1982 on correctly, the Member States are required as measures to facilitate the effective States of origin, pursuant to Article 4(6) and exercise of freedom of establishment Article 7(4), to designate, within the and freedom to provide services in prescribed period for implementation, the respect of activities of self-employed authorities and bodies competent to issue persons in certain services incidental to the respective certificates and forthwith to transport and travel agencies (ISIC inform the other Member States and the Group 718) and in storage and ware Commission thereof. housing (ISIC Group 720);
6. Article 8 sets the period within which the (ii) order the Hellenic Republic to pay the directive is to be transposed at 18 months costs. from its notification. Since the directive was notified to the Member States on 2 July 1982, that period expired on 2 January 1984. 9. The defendant contends that the application should be dismissed and the applicant ordered to pay the costs. In the written procedure it took the view that it 7. Since the Commission did not receive had complied with its obligations under the any information within that period either directive. In support of that contention it from the defendant or in other way submitted with its defence a law, a presi regarding implementing measures in Greece, dential decree, a legislative decree and a it came to the conclusion that the defendant circular. In the oral procedure, however, it had not fulfilled its obligations under the conceded in response to questioning that directive. It therefore initiated the procedure delays did occur in transposing the under Article 169 of the EEC Treaty by a directive, since responsibility in that respect letter of 16 April 1985. Both in its letter of was divided among a number of ministries. formal notice and in the reasoned opinion the Commission called for notification of the measures taken by Greece to implement the directive. The Commission considered the answers given by Greece in the 10. I shall not here rehearse the facts and pre-litigation procedure to be unsatisfactory the submissions of the parties for which I and brought this action. refer to the Report for the Hearing.
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B — Analysis however communicating the text of the provisions. Furthermore, it also mentioned the activity of shipping charterer, which is not subject to any rules in Greece. On the basis of those details the defendant took the view that, although the directive had still not been transposed in full, having regard to 11. First of all, a word should be said about the reform in progress, the legal position in the subject-matter of these proceedings. Greece was not contrary to Community law.
1. The abovementioned application raises 12. In its reasoned opinion, the Commission the question of the extent to which, in the examined in detail only the activities of Commission's view, the directive has not shipping agents and road accident experts been transposed. The Commission regularly and rejected the argument of the Greek chooses the formulation utilized here, as we Government. At the end of that opinion, know for example in the parallel however, it stated in addition that, since the proceedings for failure to fulfil obligations reply to its formal notice, it had received no under the Treaty brought against two other communication from the defendant which Member States, 2when it seeks to claim that would enable it to conclude that Greece had none of the necessary measures has been complied with its obligations under the adopted (within the prescribed period). It directive. The Commission is thus of the also used words to the same effect in its opinion, as I understand the application, reply. That interpretation of the application that the defendant has taken none of the may be questioned here, however, since in measures necessary to transpose the its application, which according to Article directive. 38(1)(c) of the Rules of Procedure of the Court, is to delimit the subject-matter, the Commission is proceeding in respect of only certain of the activities listed in Articles 2 and 3 of the directive, namely the activities of shipping agent, travel agent, warehouse- keeper and road accident expert, the other 13. 2. In so far as it emerged at the oral activities not being expressly mentioned. procedure that the defendant — also in the That is explained, however, by what took opinion of the Commission — has enacted place during the pre-litigation procedure. In at least some of the necessary measures in its letter inviting the defendant to submit its the course of the proceedings before the observations, the Commission requested the Court, that can have no influence on the defendant to submit a comprehensive survey decision to be taken by the Court. The of the various national rules ensuring the subject-matter of that decision is solely the transposition of each individual provision in legal position as it stood when the time-limit the directive. The defendant thereupon gave laid down by the Commission in its details of the rules which applied to the acti reasoned opinion expired. 3 vities mentioned in the application, without
3 — That is the view taken in the consistent case-law on the 2 — Compare the judgment in Case 283/86 Commission v transposition of directives: see, for example, judgment in Belgium [1988] ECR 3271 and the judgment in Case Case C-53/88 Commission v Greece [1990] ECR I-3917, 310/86 Commission v Italy[1988] ECR 3987. paragraph 8.
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14. II. I also regard the application with its concerning in particular good repute, no subject-matter thus defined as entirely well previous bankruptcy and professional founded, as might be expected in the light experience of the person concerned and in of the admission — albeit vague in that respect certainly cannot be regarded as scope — made by the defendant in the oral an adequate transposing measure. It is ques procedure and which I mentioned at the tionable, however, whether such transpo outset. None of the statements of the sition was necessary here at all. The presi
defendant and none of the texts submitted dential decree lays down no requirement by it contains any indications that the trans whatsoever regarding access to the activity position of the directive was even begun, of freight forwarder or for the exercise of still less completed, within the prescribed that activity. The defendant has explained in period. its defence that access to the occupation of freight forwarder is not regulated in Greece and that the presidential decree which it submitted is the only rule in that area. If 15. 1.
With regard to the statements and that is correct, there is no obligation in that text referring to individual activities in respect to transpose the abovementioned Greece, it was necessary to examine whether provisions of the directive. That would not they satisfied the provisions of the directive alter anything regarding the assessment of that the Member States had to comply with the application, however, since the as host States. Contrary to the opinion of the Commission has raised no particular defendant, it is not sufficient in that respect criticism with regard to the activity of to ensure equal treatment between Greek freight forwarder and has complained about nationals and the nationals of other Greece's failure to act only in so far as Member States. The obligations laid down implementing measures were necessary. in the directive for the recognition of certificates issued in the State of origin regarding, in particular, good repute, no previous bankruptcy and professional experience go further than the obligations 17. (b) With regard to the activity of under the Treaty, as is also clear from the shipping agent (Article 2(A) of the directive), aforementioned recitals in the preamble to the Greek Government admits that transpo the directive. On that basis the following sition of the provisions of the directive is points should be made. necessary and that it has still not been done. It has produced the text of a circular from the Ministry of Merchant Shipping (No 3111.9/2407 of 22 April 1988) and indicates that a draft law has been prepared which 16. (a) With regard to the activity of freight guarantees access to the occupation of forwarder (Article 2(A) of the directive), the shipping agent to the nationals of other defendant submitted Presidential Decree Member States without any discrimination 453/1984 of 5 October 1984. Pursuant to in comparison with its own nationals. Article 1 thereof, it serves to implement
4 Regulation No 11 of 27 June I960. It does not contain the rules laid down in Articles 4, 6 and 7 regarding the recognition of the certificates issued in other Member States 18. It must in fact be stated that the circular submitted does not display the legal nature 5 4 — Regulation of the Council concerning the abolition of that, according to consistent case-law, a discrimination in transport rates and conditions, in implementation of Article79(3) of the Treaty establishing the European Economic Community (OJ, English Special 5 — See, for example, judgment in Case 239/85 Commission v Edition 1959-62, p . 60) Belgium [1986] ECR 3645, paragraph 7
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transposing measure must have in order to concerned, there is no provision deter satisfy the third paragraph of Article 189 of mining what other certificates or declara the EEC Treaty. In particular such circulars tions are recognized as extracts from the do not guarantee that the content of the 'judicial record' (see the final part of Article directive takes the form of binding national 4(1) and Article 4(3) of the directive). With law that, in addition to its binding effect on regard to evidence of qualifications, it was the administration, has direct effects necessary to transpose Article 6(3) in 6 vis-à-vis third parties. Nor, incidentally, conjunction with Article 7; in that respect does the text of the circular correspond with also, however, there are no corresponding the provisions of the directive. It is true that, provisions in the Law submitted. in accordance with the content of the draft law as represented by the defendant, it is laid down in point No 3 of the circular that permission is to be granted to nationals of other Member States to carry on the occu pation of shipping agent under the same requirements as those laid down in the 20. I consider it very doubtful, moreover, Greek rules for Greek nationals. There is no whether Article 3 of the law referred to, provision, however, that can be regarded as which governs the granting of permission to having transposed the rules on equivalence Greek and foreign persons, is compatible in Articles 4, 6 and 7 of the directive. The with the principle of equal treatment in defendant's infringement in that respect is Articles 52 and 59 of the EEC Treaty. In thus established. the case of Greek applicants it forms the basis of an absolute duty to grant 10 permission, if the requirements set out in Article 4 are satisfied; for foreign persons the grant of permission, except where the State of origin gives Greek nationals a right to a corresponding permission (reciprocity), 19. (c) With regard to the activity of travel is at the discretion of the competent auth agent (Article 2(B)(a) of the directive), the orities. 11That question is not material in position is the same. For that activity, Law these proceedings, however, since the No 393/12976, which has been submitted in Commission complains only of the failure to this connection, lays down requirements 7 transpose the directive and not of an concerning good repute, the fact that the 8 infringement of the abovementioned applicant has not been declared bankrupt 9 provisions of the Treaty. and also his qualifications. That forms the basis of the defendant's duty to transpose into national law the rules on equivalence in Articles 4, 6 and 7. That, however, has not been done. As far as the requirements of good repute and no previous bankruptcy are
21. (d) In respect of the activity of ware- 6 — See judgment in Case C-36I/88 Commission v Germany [1991] ECR I-2567, paragraph 20. housekeeper (Article 2(C) of the directive) 'Z — See Article 4(1)(b) of the Law, which requires that no the Greek Government submits Legislative prison sentence of more than three months may have been imposed for certain offences, evidence of which is to be Decree No 3077/1954. It lays down, as furnished by an extract from the judicial record. requirements for the grant of permission for 8 — See Article 4(2)(b), which requires a certificate from the registrar of the competent court of first instance. 9 — See Article 4(1)(c) and (2)(d), where, as evidence of 10 — See paragraph (2): That permission shall be general knowledge (see Article 6(3) of Directive 82/470), a granted . . . (emphasis added). final diploma of secondary education of a certain level is 11 — See paragraph (3): Appropriate permission may ... be required. granted . . . (emphasis added).
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the operation of, inter alia, a 'general occupation there bearing that designation. It warehouse', that the applicant must not relates, according to the defendant, only to have been convicted of certain offences 1 the drawing up of specific expert's reports. and that he must not have been declared All those observations have no significance bankrupt or had a bankruptcy petition for us, however, since the details given in 13 issued against him. However, the Legis Article 3 of the directive are, according to lative Decree contains no rules regarding the introductory sentence of that provision, the transposition of Article 4(1) and (3) of for guidance only. the directive. Since, pursuant to Article 4(8)(2), the Minister for Trade can also demand evidence of financial standing, there was also a need for the transposition of Article 4(4) of the directive, which governs the recognition of certificates issued by the banks of other Member States; but 24. All that need be examined is whether that, too, has not been done. one of the alternatives of Article 2 is appro priate. The activity consists in certifying certain facts in connection with traffic accidents for courts and authorities when ordered to do so by them or when requested to do so by one of the parties. 22. (e) I now come to the activity of The Greek Government clearly assumes that inspection or technical valuation of motor that activity comes within Article 2(D)(a) of vehicles (Article 2(D)(a) of the directive; the directive. Without it being necessary to hereinafter referred to as the activity of go into the details of the Greek motor vehicle examiner). In Greece, provisions — which have not been submitted according to the undisputed submissions of to the Court by either of the parties — it is the defendant, that activity is generally in my view sufficient to find that at least subject to no requirements. In so far as that part of the activities referred to — in so far, is so, no transposition was necessary. that is, as they are connected with road However, the Commission complains speci accidents — is included in the concept of fically about the failure to transpose the traffic accident experts within the meaning directive as regards the field in respect of of the Greek provisions as described to us which Greece refers to Article 55 of the by the defendant. EEC Treaty. The activity in question is that of road accident expert, mentioned in Article 3(D) (under the heading 'Greece') of the directive.
25. With regard to that activity as thus defined, Greece was required, according to the wording of the directive, to adopt 23. According to the submissions of the implementing measures. Persons who wish defendant, that designation is based on to draw up expert's reports for courts and Article 51 of the Greek Traffic Code. It is authorities in Greece as 'traffic accident not accurate, however, since the activity experts' must be included in a list which, mentioned in Article 2(D)(a) of the directive according to the information supplied by is not regulated in Greece and there is no Greece itself, is possible only if the applicant possesses scientific and technical training or 12 — Sec Article 5(l)(a) oi lhe Law professional experience in traffic matters. 13 — See Amele 5(l)(b) oi lhe Liw Thus the possession of technical knowledge
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and professional experience — which is to correspondingly narrower area of be established by training or professional application. experience •— is required. Greece was for that reason obliged, pursuant to Article 6(2) of the directive, to transpose into national law the rules laid down therein, which prescribe in detail the conditions in which 29. However, that activity does not come the actual exercise of the activity in question within Article 55 of the EEC Treaty. is to be recognized as evidence of the requisite knowledge and ability.
30. It must first of all be noted that the concept of official authority is a concept of Community law, because it defines the 26. The Greek Government apparently 'limits set by [Community law] ... in order disputes that consequence, as it explains that to prevent the effectiveness of the Treaty [in the Greek rule does not refer to the activity the area of freedom of establishment] from as a whole but only to the drawing up of being undermined by unilateral provisions 5 specific expert's reports. That, however, is adopted by the Member States'. 1 On that also irrelevant, since Article 6(2) refers in its basis alone the submission of the Greek unambiguous wording not only to the Government in its defence, according to taking up but also to the pursuit of the which the requirements connected with activity in question. 14 Since the latter is 'official authority' are satisfied, can be subject to restrictive conditions in dismissed, because, according to the Greek Greece — even if only in a certain provisions, preference is given to civil sector — there is an obligation to adopt servants or former civil servants as regards implementing measures in that respect. inclusion in the list of experts. That objection amounts to saying that the scope of Article 55 falls to be determined according to national criteria and, in the light of the case-law mentioned, it is 27. In Greece's opinion, however, that therefore unfounded. activity comes within Article 55 of the EEC Treaty.
31. Consideration of the case from the point of view of Article 55 of the EEC Treaty could end here, since the defendant 28. If that view were correct, the directive has put forward no other argument on that would not in fact extend to that activity. In point in the proceedings before the Court. that respect Article 57 of the EEC Treaty However, it is apparent from the defence would not apply as a legal basis, and conse that the activity of expert witness in quently interpretation in a manner in question is subject to the particular conformity with the Treaty, which, as is requirements of the Greek rules only in so known, takes precedence over a finding of far as it is exercised for the courts or auth- invalidity, causes the directive to have a orities. Since in proceedings under Article 169 of the EEC Treaty the public interest in 14 — This wide scope is necessary to achieve not only the freedom to provide services but aiso the freedom of estab lishment: sec judgment in Case 197/84 Steinhauser v City 15 — Judgment in Case 147/86 Commission v Greece [1988] of Biarritz [1985] ECR 1819, paragraph 16. ECR 1637, paragraph 8.
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the observance of Community law by the court, even when the intervention or Member States is paramount, I consider it assistance of the avocat is compulsory or is a appropriate to examine Article 55 from that legal monopoly, cannot be considered as point of view also, although Greece has not connected with the exercise of official 18 raised that aspect in its defence. authority'.
33. The Court explained that by saying that 32. The Court has yet to give a general definition in the abstract of the concept of Official authority' within the meaning of Article 55 of the EEC Treaty. In the 16 Reyners case, however, the Court decided on a factual situation comparable with that 'The exercise of these activities leaves the in the present action. Such a situation is discretion of judicial authorities and the free characterized by the fact that the State, exercise of judicial power intact'. 19 through its organs, is acting in the exercise of official authority, while the activity in question of the individual is in some way or other connected with that State action. In such a situation the activity of the person 34. Those observations may be transposed concerned is of the same legal nature as the to this case. In the absence of other indi State action in the exercise of official cations we may thus assume that the authority only if, 'taken on its own, [it findings of an accident expert in Greece constitutes] a direct and specific connexion who submits an expert's report pursuant to 17 with the exercise of official authority'. an order from an authority or a court are The Court held that that condition was not not binding on the authority issuing that met with regard to all the essential activities order. There is at most an indirect invol of the profession of avocat: vement in the exercise of official authority. That conclusion is all the more justified as the State maintains control not only over the utilization of the content of each indi vidual expert's report but also over the 20 exercise of the activity as a whole. 'professional activities involving contacts, even regular and organic, with the courts, including even compulsory cooperation in their functioning, do not constitute, as such, connexion with the exercise of official 35. The submissions of the defendant with authority. The most typical activities of the regard to the activities of traffic experts, profession of avocat, in particular, such as according to which the activity of accident consultation and legal assistance and also expert comes within Article 55 of the EEC representation and the defence of parties in Treaty, must consequently be dismissed. 16 — Judgment in Ose 2/74 Reyners v Belgium [19741 ECR 631 18 — Judgment in the Reyners case, cued above, paragraph 51
17 — Judgment in the Reyners case, cited above, paragraphs 45 et scq and 54 and paragraph 2 of the operative part , confirmed 19 — Judgment in the Reyners case, cued above , paragraph 53 in the judgment in Case C-3 / 88 Commission v Italy [1989Ì 20 — See, on that point , iiidgmcnt in Case 147/86, cued above, ECR 4035 paragraph 10
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36. That also permits us to reject the 39. (J) It must be held that there has been argument put forward by the defendant no transposition of Article 5 of the directive, during the pre-litigation procedure that the which concerns the information to be activity of accident expert is the subject of a provided to interested parties regarding declaration made by certain Member States requirements as to qualifications, in relation and entered at their request in the Council to any of the activities discussed before the minutes when the directive was drawn up, Court (see (a) to (e) above) the exercise of according to which the directive does not which is subject to such conditions. apply to the activity of traffic accident expert. Since that declaration, at least as far as Greece is concerned, is compatible with neither Article 55 nor the wording of the directive, its content is contrary to Community law. It is therefore, quite apart 21 from its unilateral nature, of no relevance.
40. 2. "With regard to the obligations of the Member States as States of origin under Articles 4(6) and 7(4) of the directive, which consist in designating the authorities which 37. Purely for the sake of completeness, it are competent to issue the certificates in should be pointed out that Greece is not accordance with Article 4(1) to (5), Article justified according to the Treaty in reserving 6 and Article 7(1) and (2), it must be the activity of traffic accident experts to its declared that the Greek Government has own nationals. If the preferential treatment communicated no statutory provisions of civil servants and former civil servants which serve to transpose those rules. In concerning inclusion in the list mentioned reply to a request from the Court, it merely above has such a consequence — although stated that the Department for Relations the defendant disputes it — that would with the European Community is competent constitute a further infringement of the to issue certificates to interested persons Treaty, which, however, is not part of the who wish to exercise an occupation in subject-matter of this application; however, another Member State, which it does on the proper transposition of the directive basis of diplomas concerning ability, on the logically requires every discrimination basis of certificates from professional or against nationals of other Member States to trade associations and tax authorities, and be removed. so forth. That department was designated in the framework of the accession nego tiations, following a request from the Commission concerning its communication 22 of 13 July 1974. First of all, there is no measure which has the legal form necessary for the transposition of the directive. Secondly, the designation of that 38. All in all, it must be declared that, as the Commission claims, there is also an 22 — Communication from the Commission concerning the infringement on the part of the defendant proofs, declarations and certificates relating to : with regard to the activity of traffic expert — good repute, — absence of previous bankruptcy, (Article 2(D)(a) of the directive). — nature and duration of activity in country of provenance, provided for in Council Directives adopted before 1 June 21 — See in that respect judgment in Case 143/83 Commission v 1973 in the field of freedom of establishment and freedom Denmark [1985] ECR 427, paragraph 12 et seq. to provide services (OJ 1974 C 81, p. 1).
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department as the competent authority to necessary to transpose Directive 82/470 which the defendant refers has no within the prescribed period. In so far as the connection with the certificates under defendant refers, on the other hand, to the 23 Directive 82/470, which are at issue here. 'reservations' which it caused to be entered In so far as the Greek Government refers in in the Council minutes in the form of a its rejoinder to the competence of certain declaration (No 7889/82/ETS 40), those authorities to accept certificates, it fails to reservations also being the subject of a joint appreciate, in my opinion, that that is not declaration by the Council and the the object of the directive. The obligations Commission, I am of the opinion that, in of the Member States under Articles 4(6) the absence of precise information regarding and 7(4) of the directive concern them as the content of all those declarations, there is States of origin, which issue the certificates no need for us to go into the matter. which the host States must accept. The competence of the authorities which accept the certificates is determined by the rules of the host States concerning the individual activities. The remarks of the defendant at the hearing indicate that it has meanwhile come to share that point of view. 42. In so far as national circumstances such as the division of competences may have made it more difficult for the defendant to comply with its Community law obligations 41. 3. It must thus be declared that the within the prescribed time, that, according defendant has not adopted the measures to consistent case-law, is also irrelevant.
C — Conclusion
43 . I therefore propose that the Court should :
(1) Declare that the Hellenic Republic has failed to fulfil its obligations under the EEC Treaty by not adopting within the prescribed period the laws, regulations and administrative provisions necessary to transpose Council Directive 82 / 470 / EEC of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of acti vities of self-employed persons in certain services incidental to transport and travel agencies (ISIC Group 718) and in storage and warehousing (ISIC Group 720 );
(2) Order the Hellenic Republic to pay the costs.
23 — Sec the list of directives to which the Commission's communication — sec previous footnote — is applicable: Annex 2 to the communication.
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