WRITTEN QUESTION P-0360/01

by Werner Langen (PPE-DE) to the Commission

(8 February 2001)

Subject: Obstacles to the work of travel guides in Portugal

It is often the case with short tourist trips to Portugal that German guides are obstructed in their work or threatened by local couturiers and threatened with the police. There have even been acts of physical violence. Portuguese couriers and officials have cited Decree 179/89 of 27 May 1989 which apparently is a violation of EU legislation. Accordingly, on 23 March 1999 the Portuguese government enacted a new Decree, 93/99, which permits EU citizens to perform

the duties of courier for short tourist visits. However, this is subject to other conditions (Article 6A of Decree 93/99 in conjunction with Article 5 II of Decree 179/89) which provide for restrictions in respect of certain towns and cities and monuments (Annex to Decree 93/99).

Can the Commission answer the following:

1. On what grounds was Decree 179/89 a violation of EU legislation?

2. Is the new Decree (93/99), and in particular its Annex, in essence a violation of EU legislation, and in particular the right of freedom to exercise a profession and/or the principle of freedom of movement on the labour market in the European Union? If so, how does the Commission intend to help EU legislation prevail in this respect in Portugal and, where applicable, to ensure that such violations do not occur either de jure or de facto?

Answer given by Mr Bolkestein on behalf of the Commission

(7 March 2001)

Portuguese law No 179/89 (Decreto-Lei No 179/89, de 27 de Maio) transposed 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(1), as regards the profession of tourist guide. In Portugal this profession is regulated, i.e. the pursuit of this profession is subject to the possession of a specific qualification. Law No 179/89 introduced, in accordance with the Directive, a procedure of professional recognition designed to allow tourist guides from other Member States to practise their profession in Portugal.

However, the law in question was contrary to Article 49 (ex 59) of the EC Treaty, as interpreted by the case law of the Court of Justice on tourist guides(2). Under this case law, a distinction must be made between tourist guides who establish themselves in another Member State in order to work there on a permanent basis and tourist guides working temporarily in another Member State within the context of the provision of services. In the first instance, a Member State can justifiably require tourist guides from other Member States to undertake national training or to obtain recognition of their qualifications. In the second instance, however, such a requirement would infringe the principle of freedom to provide services. The Court has nevertheless found that there is a general interest justifying restrictions on the freedom to provide services by tourist guides, in the proper appreciation of places and things of historical interest and the widest possible dissemination of knowledge of the artistic and cultural heritage of a country. It has consequently specified that making the provision of services of tourist guides subject to the possession of a professional qualification infringes the principle of 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. The Court has thus acknowledged an exception to the freedom to provide services by tourist guides.

In order to comply with the Court of Justice's findings, the Portuguese government adopted Law No 93/99 (Decreto-Lei No 93/99 de 23 de Maio) which amended Law No 179/89 with the aim, on the one hand, of allowing tourist guides from other Member States to provide services in Portugal without having to obtain previous recognition of their qualifications and, on the other hand, of identifying the sites in Portugal covered by the exception in question. The list of sites, which is contained in the annex to Law No 179/89, as amended, does not appear to be in contradiction with the principles of proportionality and subsidiarity.

In these circumstances, the Commission considers that Portuguese legislation is not in breach of Community law.

(1) OJ L 19, 24.1.1989.

(2) Judgments 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 Hellenic Republic [1991] ECR I-727).