WRITTEN QUESTION P-0901/00

by Robert Evans (PSE) to the Commission

(21 March 2000)

Subject: Tour Managers and Tour Guides

I understand that the European Commission has had some involvement in this issue in the past and is well aware of the difficulties Tour Managers experience in attempting to exercise their right to work in other EU countries.

London members of the International Association of Tour Managers have contacted me. Whilst recognising the clear difference of the qualification Tour Guide, in being able to guide in historic monuments and museums, they feel that both the stretching of this definition and excessive demands for qualification as a Tour Guide (in some places including residence), are unreasonable restrictions.

Instances of Tour Managers being fined for walking groups from a coach to their restaurant have been cited as not uncommon.

Does the Commission intend to take any further action in this regard to clear up this confusion and end these restrictions?

Answer given by Mr Bolkestein on behalf of the Commission

(13 April 2000)

The matter of the difficulties faced by tour managers in the exercise of their profession abroad has been raised with the Commission by the relevant professional organisations such as the European Tour Operators Association (ETOA), the European Travel & Tourism Action Group (ETAG) and the International Road Transport Union (IRU). On this matter in general the Commission would refer the Honourable Member to the answers given by the Commission to Written Questions E-2615/96 by Mr Kellett-Bowman(1) and E-797/98 by Ms Daskalaki(2). The Commission's working paper on tourist guides, which was adopted in 1997, provides all relevant details on the applicable Community legislation(3).

The Honourable Member indicates that two restrictions are regarded as unreasonable by the International Association of Tour Managers: the interpretation of the definition historic monuments and museums and the excessive demands for tourist guide qualifications.

On the first point, the Commission observes that in its judgements on tourist guides (judgements of 26.2.1991, Case C-154/89 France [1991] ECR I-659, C-180/89 Italy [1991] ECR I- 709 and C-198/89 Greece [1991] ECR I-727), the Court of justice clearly ruled that making the provision of services of tourist guides subject to the possession of a professional licence infringes the freedom to provide services, where those services consist in guiding tourists in places other than museums or historical monuments which may be visited only with a specialised professional guide. Therefore, the provision of services by tourist guides coming from other Member States is limited by this exception. As to the type of museums and historical monuments which are subject to specific national rules, tourist guides must comply with national legislation. The Commission has carefully analysed the legislation adopted by the Member States to comply with these judgements and found it compatible with Community law in the light of the principles of subsidiarity and proportionality. The Commission considers that in the absence of detailed criteria of interpretation laid down by the Court the exception for museums or historical monuments which may be visited only with a specialised professional guide can be interpreted in the light of the principle of proportionality.

According to this principle, national laws that restrict the freedoms established by the EC Treaty must be proportionate to the goals pursued. The Court ruled that the aim of this exception is to protect the general interest in the proper appreciation of places and things of historical interest and to ensure the widest dissemination of knowledge of the artistic and cultural heritage of a Member State (see judgement of 26 February 1991 in Case C-154/89, paragraph 21). Therefore, the proportionality of the legislation adopted by each Member State in order to comply with the tourist guides judgments should be assessed, for every site or every category of sites included in the exception, against the requirement of a specialised professional guide to protect the proper appreciation of places and things of historical interest and to ensure the widest possible dissemination of knowledge of the artistic and cultural heritage. Such an appraisal lies primarily with the Member State concerned as it is the national authorities which are best placed to assess local historical, cultural and artistic interests. The Commission considers that too broad an interpretation of this exception, covering practically all the museums and historic monuments could be in contradiction with the Court's judgements.

On the second point, in the absence of harmonisation of the training and other conditions of access to a profession, each Member State remains free to regulate professions within their territory and to establish the level of qualifications required for their exercise. When Member States regulate the profession of tourist guide Council Directive 89/48/EEC 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(4) and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC(5) apply. To the Commission's knowledge, the condition of residency is not required in any Member State in order to obtain recognition of the qualification as tourist guide. The Commission has never received any complaint concerning a refusal by a Member State to recognise a tourist guide qualification or concerning any

particular difficulty regarding recognition procedures in this area. Interested parties are invited to make known the existence of such requirements to the Commission.

As regards the imposition of fines on tour managers, the problem appears to be due mainly to a confusion between the profession of tour manager and that of tourist guide. According to the principle of subsidiarity, the responsibility for the definition of the scope of these two professions lies with the Member States. The facts brought so far to the Commission's attention in this connection do not indicate a practice that could constitute an infringement of the EC Treaty. The Commission would in any case remind the Honourable Member that Article 49 (ex Article 59) of the EC Treaty (freedom to provide services) can have direct effect and confers rights on individuals that national authorities must respect. Interested parties can therefore best protect their rights by applying to the national courts for the annulment of such fines under its provisions.

(1) OJ C 72, 7.3.1997.

(2) OJ C 323, 23.10.1998.

(3) SEC(97) 837 final.

(4) OJ L 19, 24.1.1989.

(5) OJ L 209, 24.7.1992.