Opinion of Advocate General Gulmann delivered on 9 December 1992

1 Original language: Danish.

2 The prohibition contained in Article 76 applies only until the provisions referred to in Article 75(1) have been laid down and only so long as the Council, acting unanimously, has not decided otherwise. Those two conditions are irrelevant for the purpose of these cases. At the material time the Council had not yet legislated to solve the problems arising from the lack of mutual recognition in the matter of boatmasters' certificates; see remarks below on the directive adopted in 1991.

3 It was pointed out that the German authorities had previously turned a blind eye to the fact that holders of the Groot Vaarbewijs II were navigating on German inland waterways without a German master's certificate. For example, according to the order for reference in Case C-221/91, the plaintiff in the main proceedings said that, although he had been subjected to checks on several occasions, he had never encountered any problem as a result of navigating on the strength of his Netherlands certificate. In the course of the oral procedure in the two cases, the Netherlands Government explained that the problems encountered in practice by boatmasters holding the Groot Vaarbewijs II had arisen in 1981, when the German legislation first made provision for recognition of foreign boatmasters' certificates. There had, it said, been 30 to 40 cases in the course of the last three years or so in which Netherlands barges had been inspected and allowed to continue their journey only if they took on board a pilot who held a German master's certificate.

4 In paragraphs 20 and 21 of its judgment in Case C-195/90 Commission v Germany [1992] ECR I-3141, the Court stated that Article 76 ... is intended to prevent the introduction by the Council of a common transport policy from being rendered more difficult, or from being obstructed, by the adoption, without the Council's agreement, of national measures the direct or indirect effect of which is to alter unfavourably the situation in a Member State of carriers from other Member States in relation to national carriers.

5 On the requirements of consistency and generality in administrative practices, reference may be made to the following statement by the Court in its judgment in Case 21/84 Commission v France [1985] ECR 1355, paragraph 13: It must however be noted that for an administrative practice to constitute a measure prohibited under Article 30 that practice must show a certain degree of consistency and generality. That generality must be assessed differendy according to whether the market concerned is one on which there are numerous traders or whether it is a market, such as that in postal franking machines, on which only a few undertakings are active. In the latter case, a national administration's treatment of a single undertaking may constitute a measure incompatible with Article 30 (paragraph 13).

6 I think that in practice the requirement for foreign boatmasters to have a German master's certificate places them in a less favourable situation than their German counterparts and does not simply constitute equal treatment as between foreign boatmasters and German boatmasters. In my view, these cases are therefore not an occasion for deciding whether Article 76 merely prohibits any Member State from placing foreign earners in a less favourable situation than its own carriers or whether it also prohibits any Member State from depriving carriers of other Member States of a relative advantage they previously enjoyed over its own carriers. On this problem, see paragraphs 14 to 17 of Advocate General Jacobs's Opinion in Case C-195/90 Commission v Germany [1992] ECR I-3141, at p. 3158, referred to in note 3 above.

7 See the First Council Directive of 4 December 1980 on the introduction of a Community driving licence (80/1263/EEC) (OJ 1980 L 375, p.1) and Council Directive 91/672/EEC on the reciprocal recognition of national boatmasters' certificates for the carriage of goods and passengers by inland waterway (OJ 1991 L 373, p. 29).

8 The Court's judgment in Case 16/78 Choquet [1978] ECR 2293 is not inconsistent with that line of thinking. That case concerned the compatibility with Community law of German rules under which holders of foreign driving licences who had been established for more than one year in the Federal Republic of Germany were obliged to obtain a German driving licence. The Court acknowledged that legislative provisions of that kind could indirectly affect not only the rights guaranteed by Articles 48 and 52 of the Treaty but also those guaranteed by Article 59 in connection with the freedom to provide services. Its judgment in that case could therefore ostensibly be invoked to support the idea that, despite the rule contained in Article 61, Article 59 is generally applicable to the national rules on driving licences and similar certificates. But that would be a misinterpretation. The judgment in that case is not concerned with those who provide services in the field of transport but with all those who use motor vehicles when exercising their principal activity as employed or self-employed persons — whether, in the case of self-employed persons, they wish to become established or to provide services —and for whom a driving licence is consequently of some importance in their work. In paragraph 4 of the judgment, the Court stated that ... national rules relating to the issue and mutual recognition of driving licences by the Member States exert an influence, both direct and indirect, on the exercise of the rights guaranteed by the provisions of the Treaty relating to freedom of movement for workers, to establishment and, subject to the reference contained in Article 61(1) of the Treaty, to the provision of services in general (my emphasis).

9 The directive lists the boatmasters' certificates, including the Groot Vaarbewijs II, which must be recognized as valid for the purposes of navigation on certain waterways including some German waterways. The decision on reciprocal recognition of boatmasters' certificates was taken without any need for Member States' provisions on the issuing of boatmasters certificates to be harmonized first. Thus Article 5 of the Directive provides for harmonization in this connection to be effected by 31 December 1994 at the latest. The Directive thus reflects the Member States' view that the issuing of such certificates is subject to requirements in respect of qualifications which make it reasonable to authorize navigation on the waterways concerned.

10 Case 167/73 Commission v France [1974] ECR 359, paragraph 21.

11 See Case 71/76 Thieffry [1977] ECR 765, paragraphs 15 to 19, Case 222/86 Heylens [1987] ECR 4097, paragraph 12, Case C-340/89 Vlassopoulou [1990] ECR I-2357, paragraph 14, and Case C-104/91 Barreli [1992] ECR I-3003, paragraph 9.

12 It will become clear from the considerations set out below that I do not think Article 5 of the Treaty constitutes an essential legal basis for establishing an obligation to recognize occupational qualifications in connection with the provision of services.

13 Case 13/83 Parliament v Council [1985] ECR 1513.

14 See also paragraph 7 of the judgment in Case C-17/90 Pound Wieger [1991] ECR I-5253, where the reasoning is similar.

15 As already mentioned, it follows from the judgment in Commission v France cited in note 9 that the general rules of the Treaty are directly applicable to the field of transport unless the Treaty expressly excludes their application.

16 See paragraphs 62 and 64 of the judgment in Parliament v Council cited in note 12 above.

17 See paragraph 65 of the judgment in Parliament v Council. See also the judgment in Commission v France cited in note 9, where the Court held that since transport is basically a service, it has been found necessary to provide a special system for it, taking into account the special aspects of this branch of activity. With this object, a special exemption has been provided by Article 61(1) ... (paragraphs 27 and 28).

18 See paragraph 11 of the judgment in Pinaud Wieger cited in note 13 above.

19 A similar example is to be found, in the field of services, in the problems associated with the recognition of licences to drive motor vehicles, where there is also a difference in treatment which it is hard to justify and which arises from the fact that Articles 59 and 60 do not apply to transport. As mentioned in footnote 7, the Court held in its judgment in Cboquet that persons such as tradesmen or businessmen who provide services in fields other than transport and who use a means of transport to do so may rely on Articles 59 and 60 if, in the Sute where the service is provided, their provision of the service is indirectly affected by obstacles arising from requirements which are not objectively justified with respect to proof of their ability to drive the means of transport they are using. It is difficult to see why such persons should be deemed to be protected by Articles 59 and 60 while those for whom the certificates at issue are a direct condition for the pursuit of their occupation are not.

20 It should also be noted that the Court, in Choquet, expressly made a reservation with regard to Article 61 which is almost certainly to be understood as meaning that Article 61 also applies to the field at issue in these cases.

21 See note 12. I refer in this connection to the Opinion of Advocate General Darmon in Pinaud Wieger, cited in note 13 above, at p. 5262.

22 See paragraph 65 of the judgment in Parliament v Council, cited in note 12 above.

23 See point 48 of his Opinion in Pinaud Wieger, cited in note 20 above.

24 See Case 33/74 Van Binsbergen [1974] ECR 1299, paragraph 10, and Case C-154/89 Commission v France [1991] ECR I-659, paragraph 12.

25 See Webb, cited under point 21 above, paragraph 16, and similar judgments in Case 205/84 Commission v Germany [1986] ECR 3755, paragraph 26, and Commission v France, cited in note 23 above, paragraph 12.

26 See, inter alia, the judgment in Commission v France (Tourist guides), cited above, paragraph 14.

27 See, for example, the judgment in Borrell and Others, cited above in note 10, in which the Court declared, in paragraph 19, that ... the rules of the Treaty on freedom of establishment do not affect the Member States' power to impose criminal penalties in respect of the illegal pursuit by a national of another Member State of a regulated profession, in particular in cases where the Community national has failed to seek verification as to whether the diploma or professional qualification awarded to him in his State of origin is equivalent to that required in the host State, or in cases where such equivalence has not been recognized.

28 See judgment in Commission v France (Tourist guides), cited in note 23 above.

29 This view is confirmed by the judgment in Joined Cases 110/78 and 111/78 Van Wesemael [1979] ECR 35. In that judgment, the Court interpreted Articles 59 and 60 in order to Assess the legality of the Kingdom of Belgium's requirement that a licence be held for the operation of employment agencies for entertainers. The question referred to the Court arose in the context of criminal proceedings against persons charged with infringing Belgian law. The Court held that the requirement to hold a licence is not objectively justined when the person providing the service is established in another Member Sute and in that State holds a licence issued under conditions comparable to those required by the State in which the service is provided ... (paragraph 30). It was therefore for the national court before which the case was brought to consider whether the licences were in fact equivalent and, where appropriate, to release the providers of services concerned.

30 I consider this view to be confirmed by the judgment in Webb, cited under point 21 above. That case concerned Netherlands legislation governing the provision of manpower. The Court emphasized that that was a particularly sensitive matter and referred to differences there may be in conditions on the labour market between one Member Sute and another ... and the diversity of the criteria -which may be applied with regard to the pursuit of activities of that nature. On those grounds, the Court declared in paragraph 21 that Article 59 does not preclude a Member Sute which requires agencies for the provision of manpower to hold a Učence from requiring a provider of services established in another Member State and pursuing such activities on the territory of the first Member Sute to comply with that condition even if he holds a licence issued by the Sute in which he is esublished, provided however that in the first place ... the Member Sute ... and in the second place that it ukes into account the evidence and guarantees already produced by the provider of the services for the pursuit of his activities in the Member Sute in which he is esublished.

31 Attention should be drawn in this connection to the Netherlands Government's statement that the highest qualifications are required to obtain the Netherlands certificate, the Groot Vaarbewijs II, since it entitles holders to sail all types of vessel. Also, as already mentioned, the Netherlands Government argues that there is no objective reason for not authorizing navigation on the German canals at issue in the present case, since they are broadly comparable to Netherlands inland waterways. The German Government, on the other hand, contends that the German legislation makes provision for the recognition of foreign certificates and that there had in fact been negotiations with the Netherlands Government on the subject of recognition for Netherlands boatmasters' certificates. The German Government had not felt able to grant such recognition at the time, since it considered that the Netherlands rules governing the issue of boatmasters' certificates did not offer sufficient guarantees, if only because the requirement to hold a valid certificate had been in existence only since 1 April 1991 and certain transitional arrangements applicable up to 1984 had enabled boatmen to obtain a master's certificate simply by declaring that they fulfilled the required conditions in respect of aptitude and experience. I consider it to be of decisive importance in this case that Directive 91/672 recognizes the Netherlands Groot Vaarbewijs II as valid for a number of German waterways. In the light of that fact, the German Government's arguments appear somewhat unconvincing.