WRITTEN QUESTION E-3013/00

by Freddy Blak (PSE) to the Commission

(26 September 2000)

Subject: Harassment of foreign tour guides

Several European cities have a local administration which prevents foreign couriers, guides and tour managers from working in their area under local protectionist rules. These rules often require special qualifications which only local guides can have.

A considerable number of tour guides have been arrested and have had to pay large fines for carrying out their work, which is unacceptable and contrary to internal market rules on the free movement of labour. Is it true that the Commission does not intend to take measures against a country such as Italy where particularly flagrant breaches of the Treaty of Rome provisions on freedom of movement occur?

Answer given by Mr Bolkestein on behalf of the Commission

(7 November 2000)

The situation to which the Honourable Member refers is well known to the Commission which maintains many contacts with the professional sector as well as the national authorities. Particular reference should be made to the working document on the question of tourist guides(1) as well as to the report to the Council and the Parliament(2) upon the application of Council Directive 92/51/EEC of 18th June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC(3).

First of all, it should be remembered that Member States are free to determine the rules of access and exercise of professions within their territory (provided that these rules are not discriminatory). They may, in particular require the possession of a specific qualification or diploma before being able to take up a given profession. These rules aim at guaranteeing a certain quality and are motivated for example by the protection of public health, and the protection of consumers. However, nationals of Member States that have obtained their qualification in another Member State are subject to Community law.

The profession of tourist guide is subject in Italy to the possession of a qualification at the level indicated in Directive 92/51. The Directive provides that nationals from one Member State have the right to exercise in another Member State a profession for which they are fully qualified in their Member State of origin. The host Member State can require the migrant to undergo an adaptation period or an aptitude test when there are substantial differences between the migrant's education and training and the requirements in the host Member State.

Italy has implemented the Directive through a decree adopted in 1994 (Decreto Legislativo 2 maggio 1994, n.319). This decree provides that recognition can be made subject to the accomplishment of an adaptation period or an aptitude test, at the choice of the migrant.

As for the application of these rules by cities, to which the Honourable Member refers, each Member State is free to delegate powers to its domestic authorities as it considers fit, and to implement directives by means of measures adopted by regional or local authorities. That division of powers does, however, not release it from the obligation to ensure that the provisions of the directive are properly implemented in national law(4).

The imposition of administrative or even penal fines upon people exercising a regulated profession without qualification or without prior recognition of their qualification obtained in another Member State is in principle not contrary to the above rules. As a matter of fact, 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.

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. The competence 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 context 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) has direct effect and confers rights on individuals that national authorities are bound to respect. Interested parties can hence best protect their individual rights by applying to national courts for the annulment of fines they deem to be imposed in violation of these provisions.

(1) SEC(97) 837 final.

(2) MARKT/D4/8052/4/99.

(3) OJ L 209, 24.7.1992 (OJ L 30, 9.2.1995) (as last modified).

(4) ECJ C-227-230/85.