C-330/90

1. A Spanish criminal court (the Juzgado de lo Penal, N o 4, Alicante) seeks a 4. The defendants have attempted to raise a preliminary ruling from the Court, essen­ defence based on Community law, relying tially for the purpose of ascertaining in particular on Council Directive whether a Spanish law under which only the 67/43/EEC of 12 January 1967 concerning holders of certain qualifications may act as the attainment of freedom of establishment estate agents is compatible with Community and freedom to provide services in respect law. of activities of self-employed persons concerned with inter alia 'real estate' (Official Journal, English Special Edition 1967, p. 3). The defendants contend that the Spanish law reserving the occupation of estate agent to the holders of a particular 2. In Spain the profession of estate agent is qualification is incompatible with Directive governed by Decreto N o 3248/69 of 4 67/43. December 1969. Under Article 5 of that decree, persons may act as estate agents only if they hold the appropriate professional qualification awarded by the State and are enrolled with the relevant 5. In the two cases pending before it the professional association. Under Article 321 Juzgado de lo Penal, N o 4, Alicante, has of the Spanish Criminal Code, it is an referred the following, identically worded offence for a person to engage in a questions to the Court: profession if he does not possess the necessary official qualifications or qualifi­ cations recognized as equivalent by law or by an international convention. '1. Are Article 1 of the Decree of 4 December 1969 and Royal Decree 1464/88, in so far as they provide that activities as an intermediary or broker for the purchase, sale and exchange of 3. The defendants in the main proceedings rural and urban property, for loans are charged with acting as estate agents secured by a mortgage on such property, while not possessing the qualifications for the letting of rural and urban required by Spanish law for the pursuit of property, for the assignment and transfer that profession. The defendants are Spanish and the provision of opinions on the nationals, resident in Spain, who do not value in the event of the sale, assignment claim to have obtained any qualification or transfer of such property are

9. Article 1 of Directive 67/43 provides: 6. As it stands, the first question is not of course admissible, inasmuch as it asks the Court to rule directly on the compatibility of specific provisions of national law with 'Member Sutes shall abolish, in respect of Community law. The Court can, however, the natural persons and companies or firms provide the national court with such covered by Title 1 of the General guidance as it needs, regarding the interpre- Programmes for the abolition of restrictions tation of Community law, to enable it to on freedom of establishment and freedom give judgment. The first question may be to provide services (hereinafter called reformulated as asking whether a provision "beneficiaries"), the restrictions referred to of national law which restricts the activities in Title III of those General Programmes in question to the holders of a professional affecting the right to take up and pursue the qualification for estate agents is compatible activities specified in Articles 2 and 3 of this with Articles 2, 3 and 5 of Directive 67/43. Directive.'

10. Article 2 of the directive mentions various activities connected with trans- actions in immovable property. Article 3 7. It must first be noted that the cases deals with 'business services not elsewhere before the national court appear to have classified'. arisen out of a purely internal situation. It is clear from the order for reference that the cases have no connection with another Member State. As the Court has held on 11. The directive legislates by reference to numerous occasions, the Treaty provisions the General Programme for the Abolition of on free movement do not apply to situations Restrictions on Freedom to Provide Services that are in every respect located within a (Official Journal, English Special Edition,

In fan, the effect of the directive was 12. The restrictions prohibited by the superseded after the end of the transitional directive are those referred to in Title I I Iof period by the direct effect of Articles 52 and the General Programmes. A perusal of the 59 of the Treaty. said tides shows that the General Programmes are concerned solely with measures that discriminate, overtly or covertly, against nationals of other Member States. Thus the first paragraph of point A of Title I I I of the Services General 14. It may be noted that the last recital in Programme requires the abolition of any the preamble to the directive states that 'it measure which 'prohibits or hinders the does not seem appropriate to adopt at this person providing services in his pursuit of moment measures concerning the coordi- an activity as a self-employed person by nation of provisions and the recognition of treating him differently from nationals of diplomas, certificates and other evidence of the State concerned'. The last paragraph of formal qualifications'. Thus the directive point A makes it clear that covert discrimi- does not seek to harmonize the conditions nation must be eliminated as well as overt governing the taking-up and pursuit of the discrimination. Corresponding provisions activities of estate agents in the Member are contained in the Establishment General States. A Member State does not therefore Programme (see the first paragraph of point infringe the directive if it restricts A of Title m and point B of Tide III). performance of such activities to persons who possess certain qualifications, including membership of a particular professional association, provided that in doing so it 13. Confirmation that the directive is does not discriminate, overdy or covenly, concerned solely with discriminatory against nationals of other Member Sutes. measures is to be found in Article 5(1), which provides:

Council Directive 67/43/EEC does not preclude a Member Sute from restricting the activities mentioned in the order for reference to the holders of a professional qualification for estate agents, provided that in doing so it does not discriminate against nationals of other Member States.

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