EN Official Journal of the European Union CE 78/928

(2004/C 78 E/0982)

WRITTEN QUESTION P-0083/04

by Dirk Sterckx (ELDR) to the Commission

(14 January 2004)

Subject: Restrictions on freedom of movement for Flemish travel guides on trips abroad

It is reported that Flemish travel guides volunteering to accompanying groups on cultural trips to Italy, Spain, France and Greece can face serious problems when providing their services as guides in the Dutch language. They run the risk of being fined or even arrested by the local authorities because local rules and regulations do not permit foreigners to act as guides in their locality. These, however, are guides who, their volunteer status notwithstanding, undoubtedly have the necessary professional qualifications and training (in, for example, history of art) to enable a group to benefit from their expertise.

Does the Commission not consider that any such local rules and regulations prohibiting foreign guides from providing their services to groups they accompany on visits to public places are incompatible with the free movement of persons as laid down in the Treaty?

If so, will the Commission take the necessary steps to prevent such infringements, and will it lay down a set of rules, by analogy with the new proposal for a directive on the recognition of professional qualifications, that will meet the needs of this category of qualified volunteers by enabling them to provide their services to their own groups, on a personal basis and in their own language, on visits to other countries, without the risk of incurring penalties.

Answer given by Mr Bolkestein on behalf of the Commission

(11 February 2004)

The Commission would like first of all to recall that the Treaty provisions which are relevant to the question, i.e. Article 49 of the EC Treaty on the freedom to provide services, only apply to activities of a commercial nature. It is unclear, on the basis of the information provided by the Honourable Member, whether the activities carried out by travel guides who volunteer to accompany groups of tourists from other Member States on their visits to Greece, Spain, France and Italy are to be considered as commercial activities falling under the relevant articles of the EC Treaty.

As concerns any activities of a commercial character under Community law, the following reasoning applies: The Court of Justice has held in its rulings of 26 February 1991 in the cases C-180/89, C-154/89 and C-198/89 concerning the freedom to provide services for the profession of tourist guides that: ‘the general interest in the proper appreciation of places and things of historical interest and the widest possible dissemination of knowledge of artistic and cultural heritage of a country’ can constitute an overriding reason justifying a restriction on the freedom to provide services.

However, in accordance with the principle of proportionality, the application of national rules to providers of services established in another Member State must be appropriate for securing the attainment of the objective which they pursue and must not go beyond what is necessary in order to attain it (see Court of Justice ruling of 25 July 1991 in case C-76/90). On the basis of information provided, the Commission has analysed national rules which might restrict the freedom to provide services for tourist guides who accompany a closed group of tourists on a tour from another Member State in the light of the EC Treaty, in particular Article 49 and the Court's jurisprudence. As a consequence, the Commission has sent on the basis of Article 226 of the EC Treaty, a letter of formal notice to Italy on 19 December 2003.

The Commission is certainly ready to examine the situation in other Member States on the basis of further information which the Honourable Member might provide.

The proposal for a Directive of the Parliament and of the Council on the recognition of professional qualifications (1) stipulates that the Member States may not, for reasons relating to professional qualifications, restrict the freedom to provide services when the beneficiary is legally established in another Member State. It contributes to a further simplification of requirements with regard to the provision of services, as compared to establishment, and clarifies the concept of the provision of services. The adoption of this proposal would, therefore, provide further certainty and guarantees for tourist guides providing services into different Member States.

(1) OJ C 181 E, 30.7.2002.