Opinion of Mr Advocate General Lenz delivered on 15 December 1993
1 Original language: German.
2 Since both those provisions arc subject to the same rules, for the sake of simplicity only the term tourist guide will be used.
3 BOE of 26 February 1964.
4 Case C-154/89 Commission v Frunce [1991] ECR I-659; Case C-180/89 Commission v Italy [1991] ECR I-709; Case C-198/89 Commission v Greece [1991] ECR I-727.
5 Council Directive 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 (OJ 1975 L 167, p. 22).
6 Council Directive of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years duration (OJ 1989 L 19, p. 16).
7 Sec point 2, above.
8 That is the relevant date: see most recently the judgment of 1 December 1993 in Case C-37/93 Commission v Belgium [1993] ECR I-6295, paragraph 5.
9 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ English Special Edition 1968 (II), p. 475).
10 See, with respect to the reciprocal clause in favour of the other Member States, the judgment in Case 9/88 Lopes áa Veiga v Staatssecretaris van Justitie [1989] ECR 2989, paragraph 10.
11 See the judgment in Case 9/88, cited in the previous footnote, paragraphs 10 and 11, and the judgment in Case 305/87 Commission v Greece [1989] ECR 1461. The latter judgment concerned Article 45 of the Greek Act of Accession.
12 In reality, according to the case-law cited, those migrant workers who were lawfully employed in Spain only after the accession enjoy the rights resulting from Article 48 of the Treaty before the expiry of the transitional period within the meaning of Article 56 of the Act of Accession. It is only for their first employment that they are unable to rely on Article 48.
13 [1986] ECR 89, paragraph 16.
14 [1989] ECR 175.
15 Sec, for example, judgment in Case C-374/89 Commission v Belgium [1991] ECR I-367, paragraph 10.
16 Whilst the case-law cited below admittedly relates only to Articles 48 and 52, there is however no doubt that the principles developed in that respect arc also applicable in the case of Article 59.
17 Judgment in Case C-340/89 Vlassopoulou [1991] ECR I-2357, paragraphs 16 and 17; judgment in Case C-104/91 Aguirre Borrell [1992] ECR I-3003, paragraphs 11 and 12.
18 Judgment in Vlassopoullou, cited above, paragraph 22, and in Aguirre Borrell, cited above, paragraph 15; see most recently the judgment of 31 March 1993 in Case C-19/92 Kraus [1993] ECR I-1663, paragraph 40.
19 Judgment in Case C-120/8S Commission v Italy [1991] ECR I-621, paragraph 11.
20 Point 8, above.
21 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 May 1992).
22 Article 7 (1) of directive and of the Royal Decree No 439/1992; sec also the second and third recital of the directive.
23 DOE No 80 of 22 November 1991.
24 BOE No 170 of 16 July 1992.
25 Judgments in Case 2/73 Geddo v Ente Nazionale Risi [1973] ECR 865, paragraph 4; on the relationship between Article 5 and Article 76 of the Treaty, see the judgment in Case C-195/90 Commission v Germany [1992] ECR I-3141, paragraphs 36 to 38; with respect to the relationship between Article 5 and Article 189 (3), see now also the judgment of 13 October 1993 in Case C-378/92 Commission v Spain [1993] ECR I-5092, paragraph 6.
26 Footnote 16 above.
27 See, for example, the judgment in Case C-104/91 Agitine Borrell, cited above, footnote 16: operative part and paragraph 9 respectively.
28 Point 18 and footnote 9 above.
29 Footnote 3 above.
30 See paragraph 2 of that judgment.
31 Judgments in Case 272/86 Commission v Greece [1988] ECR 4895, paragraphs 31 and 32; Case C-137/91 Commission v Greece [1992] ECR I-4023, paragraph 3 et seq., in particular paragraph 6.