C-375/92

* Original language: German. 1 — Since both those provisions arc subject to the same rules, for the sake of simplicity only the term 'tourist guide' will be 3 — Case C-154/89 Commission v Frunce [1991] ECR I-659; used. Case C-180/89 Commission v Italy [1991] ECR I-709; Case 2 — BOE of 26 February 1964. C-198/89 Commission v Greece [1991] ECR I-727.

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OPINION OF MR LENZ — CASE C-375/92

to the fact that the need for a guide to hold a grounds for holding that the Kingdom of licence for which a course of vocational Spain has infringed the Treaty and ordering training with an examination is required pre­ it to bear the costs. In its defence, it refers to vents self-employed or employed tourist Decrees No 210/1989 of the Generalität de guides accompanying private groups of tour­ Catalunya and No 72/1992 of the Junta de ists on visits to Spain from pursuing their Castilla y León. Moreover, it refers to the activities. That requirement is not compatible regulations adopted by the Spanish State to with Article 59 of the Treaty in so far as it implement Community Directives (EEC) 4 5 relates to services provided at places other No 75/368 and 89/48. than museums or historic monuments which require the services of a specialized tourist guide.

9. Further details of the facts and the rele­ vant provisions will, in so far as is necessary, be set out later in this opinion.

6. Secondarily, the Commission considers that, by failing to communicate the informa­ tion requested regarding the legal provisions of the Comunidades Autónomas (Autono­ mous Communities) concerning the activity B — Analysis of tourist guide and guide-interpreter, Spain has infringed Article 5 of the Treaty.

11. In that context it must be noted that the Spain had not communicated the text of Kingdom of Spain consists of 17 Autono­ those provisions of the Autonomous Com­ mous Communities. It is common ground munities within the prescribed period. between the parties that those communities enjoy certain legislative competence in the area of tourism concerned in this case. It is also not disputed that the 1964 Order con­ tinues to apply in the territory of each of 14. In view of those statements, the first part those communities for so long, and in so far of the form of order sought by the Commis­ as, the competent legislative body has not sion, with which we are here concerned, adopted different rules. must be understood to the effect that it is aimed at establishing the infringement caused, in its opinion, by the 1964 Order throughout the whole of the area of its appli­ cation, with the exception of the Autono­ mous Communities of Catalunya and Castilla y León. In other words, that part of 12. At the time of the oral procedure only the form of order sought is limited geo­ two of the 17 communities had adopted cer­ graphically to the part of Spanish territory tain provisions which could be relevant to where it is established that the 1964 Order the present proceedings. Those provisions has not been amended or supplemented by were communicated to the Commission only provisions of the (abovementioned) Autono­ in the defence. The Commission then com­ mous Communities. mented on them in its reply and in the oral procedure.

15. 2. When the Commission's submissions are interpreted in that way, I consider them to be well founded.

and only persons of Spanish nationality are Spanish labour market which might have admitted to those examinations. It being dis­ resulted from the inflow of persons from crimination based on nationality, it falls in other Member States in search of work. principle under Article 48 (in so far as it However, there are no such grounds with affects employed tourist guides) and under regard to workers from other Member States Articles 52 and 59 of the Treaty (with respect already lawfully employed on Spanish terri­ to self-employed tourist guides). Since no tory. Not only the provisions of Title II of grounds can be discerned which could justify Regulation No 1612/68 apply for those the different treatment (under Articles 48 workers, but also Articles 48 and 49 of the 10 (4), 55 and 56), Spain has infringed those Treaty. Accordingly, with regard to that provisions of the Treaty. group of workers, the nationality require­ ment in dispute infringed Article 48 of the Treaty from the effective date of Spain's accession (1 January 1986), and thus also upon the expiry of the period set by the rea­ soned opinion. The Commission's complaint with regard to Article 48 of the Treaty is accordingly justified, at least in the limited form accepted by the Commission itself. 11 17. With regard to Article 48 in particular, the Commission has limited its complaint to workers who were already employed in Spain at the time of its accession. That calls for the following comments.

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Spanish State, in which the autonomous 22. In addition it should be recalled that the authorities react most sensitively to any ini­ Court has consistently held that a Member tiative which restricts their exclusive powers State may not plead internal circumstances in and is not limited to making proposals and order to justify a failure to comply with coordinating activities or to supervision by obligations resulting from Community 4 the State. In that respect, the Spanish Gov­ law. 1 ernment refers to the existence of unforeseen difficulties within the meaning of the judg­ ments in Case 52/84 Commission v Bel- 1 gium 2and Case 94/87 Commission v Ger- 3 many ('Alean'). 1

23. As a result it is established that, by applying the nationality requirement in question, Spain infringes Articles 48,52 and 59 of the Treaty.

20. That submission cannot be accepted. According to that case-law, the existence of 'unforeseen difficulties' (which in any case must also be 'unforeseeable') imposes on the 24. (b) With regard to the failure to provide Commission a duty of genuine cooperation, for a procedure for assessing qualifications in the sense that it must negotiate on propos­ obtained in other Member States, the Com­ als of the Member State concerned for mission correctly points out that the basic 15 amendments to a decision under Article 93 freedoms granted by Articles 48, 52 and 59 (2) of the Treaty in order to overcome the include inter alia the following principle: difficulties whilst observing Community law.

That examination procedure must enable the 27. That view is correct. The principles of authorities of the host Member State to legal certainty and the protection of individ­ assure themselves, on an objective basis, that uals require that, in areas covered by Com­ the foreign diploma certifies that its holder munity law, the Member States' legal rules has knowledge and qualifications which are, should be worded unequivocally so as to if not identical, at least equivalent to those give the persons concerned a clear and pre­ certified by the national diploma. That cise understanding of their rights and obliga­ assessment of the equivalence of the foreign tions and to enable national courts to ensure diploma must be carried out exclusively in that those rights and obligations are the light of the level of knowledge and qual­ observed. 18

ifications which its holder can be assumed to possess in the light of that diploma, having regard to the nature and duration of the studies and practical training to which the 16 diploma relates.'

28. It being clear that the 1964 Order con­ tains no provision satisfying those principles, the defendant Member State has relied on the rules implementing Directives 75/368 19 and 89/48. It must therefore be examined whether, in adopting those provisions, it has done everything necessary. 25. Moreover, any decision taken must be capable of being made the subject of judicial proceedings in which its legality under Com­ munity law can be reviewed and the person concerned must be able to ascertain the rea­ 17 sons for the decision taken in his regard.

31. The same applies to the provisions implementing Directive 89/48. It is true that Spain has adopted Royal Decree 34. Before I finish with that point, I would 22 No 1665/1991 of 25 October 1991 in order like to make two further short comments on to implement that directive into national law. the extent of that infringement. It is also true that Royal Decree 23 No 767/1992 of 26 June 1992 inserted the profession of Tècnico de Empresas y Activ­ idades Turísticas into the annexes to Decxee No 1695/1991.

20 — Anicle 2 (5) of the directive; Article 2 (f) of the Royal Decree No 439/1992 of 30 April 1992 (BOE No 111 of 8 35. First, contrary to the Commission's May 1992). 21 — Article 7 (1) of directive and of the Royal Decree view, it does not seem to me to be appropri­ No 439/1992; sec also the second and third recital of the ate to invoke Article 5 of the Treaty in addi­ directive. 22 — DOE No 80 of 22 November 1991. tion to the provisions on the relevant basic 23 — BOE No 170 of 16 July 1992. freedoms (Articles 48, 52 and 59). In

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Case 2/73 Geddo v Ente Nazionale Risi 37. Secondly, because of the infringement of the Court of Justice held: Article 48, the limitation arising out of the 27 Lopes da Veiga case applies.

38. (c) While the aspects considered up to 'In providing that Member States shall take this point concerned the access to the licence all appropriate measures to ensure that their entitling the profession of tourist guide to be obligations are carried out and shall abstain pursued, the Commission's complaint based from any measure liable to jeopardize the on the 'tourist guide judgments' poses a attainment of the objectives of the Treaty, question which arises before the question of Article 5 imposes a general obligation on the requirements for access to the profession. Member States, the actual significance of That question is whether the extent to which which depends, in each particular case, on a licence is needed as such is compatible with the provisions of the Treaty or on the rules Community law, in particular with Arti­ laid down within its general framework.' cle 59 of the Treaty.

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help to, tourists with regard to both histori­ failed to fulfil its obligations under Article 59 cal monuments, art or history and also trans­ of the EEC Treaty'. port connections, accommodation and, gen­ erally, all areas which could be of interest, with the objective of imparting an extensive knowledge of the touristic wealth of the country and ensuring that the available facil­ ities are fully used for the benefit of travel­ 43. That finding is wholly applicable to the lers and tourists. abovementioned Spanish provisions.

41. That definition embraces all the activities 44. The infringement of Article 59, which is concerned in the judgment in Case C-198/89 moreover not contested by the Spanish Gov­ 28 ernment, is therefore established. Commission v Greece, one of the three 29 'tourist guide judgments'.

II. The failure to communicate the legal pro- visions of the Autonomous Communities 42. With respect to the Greek rules, the Court of Justice held that the Hellenic Republic:

45. The Commission complains that, by fail­ ing to communicate the wording of the pro­ visions adopted by the Autonomous Com­ munities, despite repeated requests to do so, 'by making the provision of services by tour­ the defendant Member State has infringed ist guides travelling with a group of tourists Article 5 of the Treaty. from another Member State, where those ser­ vices consist in guiding such tourists in places other than museums or historical monuments which may be visited only with a specialized professional guide, subject to possession of a licence which requires spe­ cific training evidenced by a diploma, [had] 46. As a matter of principle, it should be stated that under Article 5 the Member States are required, following a request from the Commission, to communicate to it within a 28 — Footnote 3 above. 29 — See paragraph 2 of that judgment. reasonable period the information needed by

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