C-45/93
ECLI:EU:C:1994:11
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COMMISSION v SPAIN
OPINION OF MR ADVOCATE GENERAL GULMANN delivered on 19 January 1994
Mr President, on four days a month, one day each Members of the Court, week ... .
1. The Commission has brought these pro ceedings for a declaration that, by applying a system whereby solely Spanish citizens, for eigners resident in Spain and nationals of other Member States under 21 years of age 3. The Government may, by decision of benefit from free admission to national the Council of Ministers, extend the museums, while tourists from other Member conditions for public visits referred to States are required to pay an entrance fee, the in paragraph 1 of this article to nationals Kingdom of Spain has infringed Articles 7 of other States'. and 59 of the EEC Treaty.
Pursuant to decisions of the Council of Ministers of 7 December 1982 and 2. The Regulation on State-Owned Muse 21 February 1986 the right of free admission ums and on the Spanish Museum System was to museums was granted, in addition to adopted by Royal Decree No 620/1987 Spanish nationals, to foreigners resident in of 10 April 1987. Article 22, which concerns Spain and young persons under 21 years of free public admission, contains the following age. provisions:
3. The Commission points out that the free movement of services pursuant to Article 59 of the Treaty entails the right for recipients ' 1. Persons of Spanish nationality may visit of services, including tourists, to go to State museums without charge subject another Member State in order to receive a to the conditions laid down by the service there on the same footing as nationals Council of Ministers, and in any event of that Member State. That right to equal treatment covers not just actual access to the services in question, in this case physical * Original language: Danish. access to museums, but also ancillary advan-
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OPINION OF MR GULMANN — CASE C-45/93
tages, in this instance admission without 4. In the administrative procedure before charge. this case was brought — initiated in July 1987 ·— the Spanish Government origi nally disputed the Commission's legal posi tion. It claimed in particular that the rules at issue fell outside the scope of the Treaty. Fol lowing the judgment in Cowan, however, the Spanish Government has abandoned that argument.
The Commission points out that visiting museums may be one of the determining rea sons for which tourists, as recipients of ser vices, decide to visit a Member State. It therefore considers that access to museums is one of the decisive factors for a tourist's visit to the territory of a Member State. It is However, it still contends that the case closely and indissolubly linked to the right against it should be dismissed and points out to freedom of movement enjoyed by tour that a proposal for an amendment of Arti ists. In the Commission's view, the legal cle 22 of the Royal Decree has been formu position in Spain reveals manifest discrimina lated and that that provision 'merely speci tion against nationals of other Member States fies in unequivocal terms what was already on grounds of their nationality which is the substance of the article which it amends clearly contrary to Articles 7 and 59 of the in so far as that article does not envisage dis Treaty. criminatory treatment of nationals of Mem ber States of the Community other than Spain as regards free admission to museums since paragraph 3 thereof expressly provided for the extension of the treatment afforded to Spanish nationals to nationals of other Mem ber States by decision of the Council of Min isters'.
The Commission bases its view in particular on the judgment of the Court of Justice in 1 Case 186/87 Cowan
1 — Case 186/87 Cowan [1989] ECR 195. The Court held inter 5. That argument is quite clearly untenable. alia that: '... the freedom to provide services includes the freedom for the recipients of services to go to another Mem In its application the Commission claims ber State in order to receive a service there, without being obstructed by restrictions, and that tourists, among others, that Spanish law does not in fact ensure must be regarded as recipients of services' (paragraph 15) and equal treatment of nationals of other Mem that: 'When Community law guarantees a natural person the freedom to go to another Member State the protection of ber States and that is not denied by the Span that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, ish Government. It is established that the is a corollary of that freedom of movement. It follows that Spanish Council of Ministers has not yet the prohibition of discrimination is applicable to recipients of services within the meaning of the Treaty as regards pro made use of the existing power to grant tection against the risk of assault and the right to obtain financial compensation provided for by national law when equal treatment and that there is therefore that risk materializes' (paragraph 17). still no such equal treatment.
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COMMISSION v SPAIN
Conclusion
6. Since the Commission is right in maintaining that for the reasons it has given there is a duty under the Treaty to afford equal treatment to nationals of other Member States with regard to payment for admission to museums, I would propose that the Court make a declaration against the Kingdom of Spain in the terms sought by the Commission and that the Kingdom of Spain should be ordered to pay the costs.
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