Report for the Hearing in Case C-180/89

I — Facts and procedure

1. Legal Background

Law No 217 of 17 May 1983 (GURI No 141 of 25 May 1983, p. 4091) is the framework law with regard to tourism. Article 11 of that Law provides, inter alia, that:

In accordance with the same article, the regions must ascertain whether tourist guides, in addition to having a perfect knowledge of one or more foreign languages, possess a thorough knowledge of the works of art, monuments, places and things of archaeological interest, the scenery or, generally, the natural surroundings of the locality in which the occupation is to be carried on.

Regional legislation enacted in pursuance of the abovementioned framework law restricts the occupation of tourist guide to persons who hold a licence issued by the competent authority, which requires the acquisition of a qualification obtained by success in an examination.

In some Member States the occupation of tourist guide is also subject to professional rules; in others there are no such rules.

The fourteenth recital in the preamble to Council Directive 75/368/EEC of 16 June 1975 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of various activities (ex ISIC Division 01 to 85) and, in particular, transitional measures in respect of those activities (Official Journal 1975 L 167, p. 22) states as follows:

Article 2(5) of that directive provides that it is not to apply to the activities of tourist guides, with the exception of the activities of couriers and interpreter-guides.

The Commission has published a proposal for a Council Directive on a second general system for the recognition of professional education and training, which complements Directive 89/48/EEC (Official Journal 1989 C 263, p. 1). The second recital in the preamble to the proposal states that:

Article 5 of the proposal provides, inter alia, as follows:

2. Background to the dispute

The incompatibility of certain effects of the Italian legislation with Article 59 of the EEC Treaty formed the subject matter of a letter from the Commission to the Italian government of 10 February 1987. In that letter the Commission, in accordance with the procedure provided for in Article 169 of the EEC Treaty, requested the Italian government to submit its observations within a period of two months from the date of receipt of that letter. By a letter dated 22 June 1987 the Italian authorities disputed the Commission's views. The Commission issued a reasoned opinion on 20 April 1988. Since comparable legislation to that in issue is in force in Italy, Spain, Portugal and Greece, the French authorities suggested to the Commission that a meeting should be arranged with those Member States. That meeting was held on 25 November 1988. Following that meeting the Italian authorities, in a letter of 7 December 1988, proposed a compromise to the Commission. By a letter of 2 February 1989 the Commission replied that it did not consider the compromise with which the Italian authorities have associated themselves to be such as to alter its position as stated in the reasoned opinion of 20 April 1988. In the same letter the Italian authorities were requested to inform the Commission, within thirty days of receipt of the letter, whether they would comply with the reasoned opinion. By a letter of the 21 March 1989, the Italian authorities confirmed that they did not agree with the Commission's point of view.

3. Procedure

The Commission's application was received at the Court Registry on 24 May 1989. The written procedure followed the normal course.

Upon hearing the repon of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory enquiry.

II — Forms of order sought by the parties

The Commission, the applicant, claims that the Court should:

The Italian Republic, the defendant contends that the Court should:

III — Pleas in law and arguments of the parties

The Commission considers that certain effects of the Italian legislation concerning the activities of tourist guides are incompatible with Article 59 of the EEC Treaty. In the present application it is not challenging any specific rules applicable to guided tours of certain museums or cultural and historic sites open to the public, which may require guides to have special qualifications. The general interest in ensuring proper appreciation of the historical and cultural heritage may justify the requirement of such occupational qualifications.

The present proceedings concern the specific case of the activities of salaried tourist guides who work for a tour operator established in another Member State which from its operating centre organizes group travel to Italy for tourists (for example by coach). On behalf of the tour operator the guide accompanies the group throughout the whole journey, travels abroad with the group and provides commentary on the cultural, historical and artistic features of the country. That undertaking, acting solely through the intermediary of its guides, is therefore the provider of the services. According to the Commission, the Court has held that type of work to constitute the provision of services (judgment of the Court in Joined Cases 62/81 and 63/81 Seco v EVI[1982] ECR 223).

The qualification requirement contained in the relevant Italian legislation in issue prevents a tour operator established in a Member State where the occupation of tourist guide is not regulated from using its own guides who usually accompany groups of tourists. Those guides have no licence. Consequently, the undertaking is obliged to engage a local guide who has a licence or, failing that, the guides accompanying the group must have obtained the requisite Italian qualification. The legislation thus impeder the undertaking's freedom to provide services to tourists and the guide's freedom to provide services to the tour operator and to the tourists, who would prefer their usual guide.

The Commission emphasizes that Article 59 of the EEC Treaty envisages the abolition of restrictions on freedom to provide services, even those applicable without discrimination, where such restrictions are not justified by the general interest.

In the first place, the legislation in question is not supported by the general interest in the protection of consumers. The situation is one of a closed circuit: the tourist guide, representing the tour operator, and the tourists (the consumers) travel together from the Member State in which the tour operator is established in order respectively to provide and receive the service in question in another Member State. In such a situation, the commercial reputation of the tour operator, having regard to the degree of competition in the market, affords a sufficient degree of protection to the interests of consumers.

Nor, owing to its ineffectiveness, is the legislation in issue justified by the general interest in proper appreciation of the historical and cultural heritage. Cultural and historical information is already

disseminated to a large extent, in many different ways, by the media. Freedom of the press and of expression means that such information is free of any real control. Consequently, such information has at least as great an impact on the appreciation of tourist and cultural assets as the information given by tourist guides.

According to the Italian Government, a distinction must be drawn between the occupation of tourist guide and that of courier. Only the latter occupation has been the subject of Community harmonization, by the abovementioned Council Directive 75/368. In that connection the Italian Government refers to the fourteenth recital and Article 2(5) of that directive. Accordingly authorization to carry on the occupation of a courier in no way entails the right to act as a tourist guide. In the absence of Community harmonization in regard to tourist guides, the Italian legislation in question is not incompatible with Article 59 of the EEC Treaty.

The Italian Government submits that the legislation seeks to protect general interests relating to consumer protection and the conservation of the national historical and artistic heritage. With regard to consumer protection, it states that the legislation seeks to ensure the quality of the services provided, so as to protect their actual recipient, namely the tourist. The interest in conservation of the national historical and artistic heritage is safeguarded by the fact that the tourist guide acts as intermediary between the visitor and the cultural asset. Thus the guide plays an important role in the image projected of the cultural asset. In the specific case of an organized tour by a group of foreign tourists, the protection of those interests is important. On account of their different cultural origins and the limited duration of such visits, such tourists are strongly influenced by what is said by the guide.

According to the Italian Government, it is impractical to restrict the application of the legislation in question to guided tours of certain museums, monuments and specific cultural historical sites which are open to the public. If those rules covered a limited number of situations its effectiveness with regard to the requirements of protection of consumers and of the national cultural heritage could be open to doubt. If the legislation applied to all items or places of major cultural significance, it would almost inevitably govern the items and places normally visited by tourists on organized tours.

The Italian Government denies that the Italian legislation is ineffective. Tourist information disseminated in written form is subject to the critical appraisal of the reader. Since the attitude of a person being conducted in a closed group is more passive than that of readers of written information, it is necessary for tourist guides to be trained.

In its reply the Commission points out that it has never maintained that the two occupations of courier and tourist guide were identical or that a courier is automatically authorized to act as a tourist guide. Even if the tourist guide accompanying a group of tourists may in fact perform both functions, that in no way means that one function is equivalent to the other. The occupation of tourist guide is not governed by Directive 75/368, cited above, and must therefore comply with Article 59 of the EEC Treaty.

1 Language of the case Italian