Opinion of the Advocate General — ECLI:EU:C:1998:227
Date: 1998-05-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Right of establishment;Consumer protection;Approximation of laws;Freedom to provide services
Procedure: Reference for a preliminary ruling
Origin: France

summary
proceedings before a French court against the
institution situated in France if he considers
that the guarantor is taking too long to act.
This means that what is concerned is not
merely a commitment of the institution con­
cerned vis-à-vis the guarantor but a real com­
mitment to assume, vis-à-vis the French
authorities, all the commitments incumbent
upon the guarantor himself. The requirement
to assume an obligation of that nature is tan­
tamount in practice to requiring that the secu­
rity issued by a credit institution or an insur­
ance company established in another Member
State should be supplemented by an identical
11 — OJ 1990 L 330, p. 44.
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AMBRY
security from an institution of the same type
established in France, so that what is involved
is a veritable refusal to accord to a security
offered under the regime of freedom to pro­
vide services, introduced by Directives 89/646
and 92/49, a value equivalent to that of a
security offered by an institution situated in
France. Such a refusal to accept the validity of
the 'European passport' which those direc­
tives were intended to create through an
authorisation which would be valid in all
Member States does not seem to me to be in
proportion to the requirements of consumer
protection on which it purports to be based.
33. The second is the argument, put forward
by the French Government, that without the
required agreement it is impossible to ensure
that the Préfet will be able to bring summary
proceedings against a guarantor who fails to
act quickly. I can, of course, accept that the
French Government would want a Préfet,
when he is forced to take proceedings, to be
able to bring the matter before a French court
and not, in the emergency situation in which
he has to act, to have to face the difficulties
and delays which might accompany proceed­
ings initiated in a foreign court. I think, how­
ever, that this concern is not one that can jus­
tify, with respect to the principle of
proportionality, the requirement laid down in
Article 14. In order for the same power to be
made available to the Préfet, it would have
been sufficient to require that where the secu­
rity is provided by an economic operator
established in another Member State that
operator should accept a clause in the con­
tract conferring jurisdiction on the French
courts with regard to any disputes which
might arise as a result of the implementation
of the security, bearing in mind that the judg­
ment delivered by a French court would enjoy
all the facilities offered under the Brussels
Convention for its enforcement.
34. The third negative aspect is that the French
legislation is based on the premiss that making
funds available for the purpose of repatriating
the customers of a travel agency which is
unable to meet its commitments will neces­
sarily take too long for the repatriation to be
arranged under the most satisfactory condi­
tions and will always be less efficient than if
the guarantor were established in France,
without giving a foreign guarantor any oppor­
tunity to provide proof that, in his case, this
premiss does not in any way reflect the real
situation.
35. As I have already pointed out above, a
guarantor may be established in another
Member State but be situated in immediate
geographical proximity to the Préfecture
which is required to take action, which would
certainly offer him numerous advantages,
whereas a guarantor established in France
could in fact be a long distance away and
might take some time in order actually to
deliver the necessary funds.
36. I admit, of course that a guarantor estab­
lished in another Member State will in most
cases encounter greater difficulties than one
established in France, but the French legisla­
tion should have taken into account, in accor­
dance with procedures which it is not for me
to specify, the fact that there may be cases in
which there can be no doubt about the effec­
tiveness of action by a foreign guarantor. It
would certainly have been less restrictive of
the freedom to provide services to have
adopted legislation which enabled the national
authority to refuse to accept securities which
did not meet certain objectively denned cri­
teria of effectiveness, or to require the guar-
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OPINION OF MR MISCHO —CASE C-410/96
antor to provide concrete evidence enabling
the effectiveness of the security provided by
him to be recognised. By laying down a rule
that is too general and which does not enable
individual situations to be taken into account
the French legislation, here again, departs
from what is required by the principle of
proportionality.
Conclusion
37. Taking all the foregoing factors into consideration, I propose that the Court
should give the following answer to the question referred to it for a preliminary
ruling by the Tribunal de Grande Instance, Metz:
The principle of freedom to provide services, as laid down in Article 59 of the EC
Treaty and the Second Council Directive No 89/646/EEC of 15 December 1989 on
the coordination of the laws, regulations and administrative provisions relating to
the taking up and pursuit of the activity of credit institutions and insurance com­
panies, and amending Directive 77/780/EEC, and in Council Directive 92/49/EEC
of 18 June 1992 on the coordination of the laws, regulations and administrative
provisions relating to direct insurance other than life insurance and amending
Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive), pre­
cludes national rules, which like those resulting in France from Article 14 of Decree
No 94.490, require, as regards the security which travel agencies must hold, where
a financial security is arranged with a credit institution or an insurance company
established in another Member State, the conclusion of an agreement between the
guarantor and a credit institution or an insurance company established in national
territory in order to ensure the repatriation of travellers.
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