CJEC, 6th chamber, June 5, 1997, No C-398/95

THE COURT (Sixth Chamber)

1 By order of 7 November 1995, received at the Court on 18 December 1995, the Symvoulio Epikrateias (Council of State) referred to the Court for a preliminary ruling under Article 177 of the EC Treaty two questions on the interpretation of Articles 59 and 60 of the Treaty.

2 Those questions were raised in proceedings brought by Syndesmos ton en Elladi Touristikon Grafeion (Association of Tourist and Travel Agencies in Greece, hereinafter `the SETTG') for the annulment of Order No 10505-1988 of the Minister of Labour (Official Journal of the Greek Government 68-5.2.1988, Vol B, hereinafter `the order').

3 It is apparent from the case file that the order declared enforceable Decision No 54-1987 of the Defterovathmio Dioikitiko Diaititiko Dikastirio Athinon (Second Instance Administrative Arbitration Tribunal, Athens) upholding Decision No 55-1987 of the Protovathmio Dioikitiko Diaititiko Dikastirio Athinon (First Instance Administrative Arbitration Tribunal, Athens). The latter decision had resolved a collective labour dispute between the SETTG and Enosi Efopliston Epivatikon Plion (Union of Owners of Passenger Vessels, hereinafter `the EEEP'), on the one hand, and the Somateio Diplomatouchon Xenagon (Association of Certified Tourist Guides, hereinafter `the SDX'), on the other, concerning the working conditions and pay of tourist guides in Athens, the Piraeus and their surroundings.

4 The decisions are based on Article 37 of Law No 1545-1985 which provides that `tourist guides who possess the said licence to pursue the profession of guide and who have entered into agreements with tourist or travel agencies, with members of the Union of Owners of Passenger Vessels and with tourist agencies abroad directly or with their branch offices in Greece, in order to run tourist programmes organized by the latter, are bound by an employment relationship and are subject to the relevant provisions of Greek employment legislation as regards their relationship with their employers.'

5 Taking the view that the dispute raised a question concerning the interpretation of Community law, the Symvoulio Epikrateias decided to stay proceedings and refer the following questions to the Court:

`(1) Is Article 37 of Law No 1545-1985 which, in the circumstances referred to therein, prescribes a mandatory legal form of employment relationship between the parties - the legal form under which it is usual for the services of tourist guides to be provided in the circumstances described in that article - contrary to Article 59 et seq. of the EEC Treaty?

(2) If the answer is in the affirmative, is that provision justified by reasons relating to the general interest in maintaining industrial peace in the sensitive area of the supply of tourist services, in respect of which the Greek State, as a country for which tourism is important, has a reasonable and justifiable interest in intervening by regulation?'

Question 1

6 It is apparent from the order for reference that the first question must be construed as seeking in substance to ascertain whether the rules of a Member State which, by prescribing a mandatory legal form of employment relationship between the parties, prevent tourist and travel agencies, wherever they are established, from concluding, in connection with the operation of tourist programmes organized by them in that Member State, a contract for the provision of services with a tourist guide licensed to pursue the profession of guide in that State constitute a barrier for the purposes of Article 59 of the Treaty.

7 It should be pointed out at the outset that the activities of a tourist guide may be subject to two distinct sets of rules. A tourist agency may itself employ guides but it may also engage self-employed tourist guides. In the latter case, the service is provided by the tourist guide to the tourist agency and constitutes an activity carried on for remuneration within the meaning of Article 60 of the Treaty (Case C-198-89 Commission v Greece [1991] ECR I-727, paragraphs 5 and 6).

8 Furthermore, Article 59 of the Treaty applies not only where a person providing services and the recipient thereof are established in different Member States, but also in all cases where the person providing services offers those services in a Member State other than that in which he is established, wherever the recipients of those services may be established (Commission v Greece, cited above, paragraphs 8 to 10).

9 The first question which needs to be examined, therefore, is whether rules of the kind at issue in the main proceedings may, in the circumstances referred to in Article 59, affect the right of self-employed tourist guides from another Member State freely to provide services.

10 In that regard, SDX contends that those rules apply only to tourist guides established in Greece, since they refer only to those who are licensed to pursue the profession of guide in that State. It follows, in its view, from the judgment in Commission v Greece, cited above, that such a licence, which presupposes possession of a diploma, cannot be required of tourist guides from another Member State when they accompany a group of tourists to Greece.

11 That argument cannot be accepted.

12 The mere fact that tourist guides from another Member State do not need such a licence when they accompany a group of tourists to Greece does not mean that they cannot have an interest in acquiring the said diploma, in order to secure a higher qualification, and thus obtaining the licence to pursue the profession in that State. In those circumstances, the rules in question apply to them.

13 It follows that such rules may affect the right of self-employed tourist guides from another Member State freely to provide services where they are licensed to pursue the profession in the first State and offer their services in connection with the operation of tourist programmes organized in that State by tourist or travel agencies, wherever those agencies are established within the Community.

14 The next point to consider is whether rules of the kind at issue in the main proceedings constitute a barrier to the freedom of self-employed tourist guides from other Member States to provide services.

15 It is common ground that such rules apply without distinction to all licensed tourist guides.

16 However, Article 59 of the Treaty requires not only the elimination of all discrimination against a person providing services on the ground of his nationality but also the abolition of any restriction, even if it applies without distinction to nationals providing services and to those of other Member States, when it is liable to prohibit or otherwise impede the activities of a provider of services established in another Member State where he lawfully provides similar services (Case C-76-90 Säger [1991] ECR I-4221, paragraph 12).

17 It should be noted that such rules, in mandatorily characterizing as an employment relationship, for the purposes of national law, a relationship involving the provision of services by a tourist guide in connection with the operation of tourist programmes in the State concerned, deprive a tourist guide from another Member State of the possibility of working in the first Member State as a self-employed person.

18 Such rules therefore constitute a barrier to the freedom of tourist guides from other Member States to provide services of that kind as self-employed persons.

19 The answer to the first question must therefore be that the rules of a Member State which, by prescribing a mandatory legal form of employment relationship between the parties, prevent tourist and travel agencies, wherever they are established, from concluding, in connection with the operation of tourist programmes organized by them in that Member State, a contract for the provision of services with a tourist guide from another Member State who is licensed to pursue his profession in the first State constitute a barrier for the purposes of Article 59 of the Treaty.

Question 2

20 In its second question, the national court asks whether a barrier of that kind can be justified by reasons relating to the general interest in maintaining industrial peace in the sensitive area of the supply of tourist services, in respect of which the Greek State, as a country for which tourism is important, has a reasonable and justifiable interest in intervening by regulation.

21 The Court has consistently held that, as a fundamental principle of the Treaty, the freedom to provide services may be limited only by rules which are justified by overriding reasons relating to the general interest and which apply to all persons or undertakings pursuing an activity in the State of destination. In particular, the restrictions must be suitable for securing the attainment of the objective which they pursue and they must not go beyond what is necessary in order to attain it (Säger, cited above, paragraph 15; Case C-288-89 Gouda and Others [1991] ECR I-407, paragraphs 13 to 15; Case C-19-92 Kraus [1993] ECR I-1663, paragraph 32, and Case C-55-94 Gebhard [1995] ECR I-4165, paragraph 37).

22 With regard to the question whether maintaining industrial peace may constitute an overriding reason relating to the general interest which justifies the rules at issue in the main proceedings, it is apparent from the order for reference that those rules were adopted in order to settle long-standing disputes between tourist guides and travel and tourist agencies and thereby prevent any adverse effects on tourism, and consequently on the country's economy. In that regard, the Greek Government itself pointed out at the hearing that the rules at issue were adopted in order to ensure the proper functioning of the national economy.

23 However, maintaining industrial peace as a means of bringing a collective labour dispute to an end and thereby preventing any adverse effects on an economic sector, and consequently on the economy of the State, must be regarded as an economic aim which cannot constitute a reason relating to the general interest that justifies a restriction of a fundamental freedom guaranteed by the Treaty (see Gouda and Others, cited above, paragraph 11).

24 Furthermore, as the Advocate General has pointed out in point 66 of his Opinion, none of the parties which have submitted observations in these proceedings has contended that, in order to maintain industrial peace, it was necessary to impose on tourist guides from other Member States restrictions on working as self-employed persons in connection with the operation of tourist programmes organized in Greece by travel and tourist agencies.

25 The answer to the second question must therefore be that such rules cannot be justified by reasons relating to the general interest in maintaining industrial peace as a means of bringing a collective labour dispute to an end and thereby preventing any adverse effects on an economic sector, and consequently on the economy of the State.

Costs

26 The costs incurred by the Greek Government and the Commission of the European Communities, which have submitted observations to the Court, are not recoverable. Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court.

On those grounds,

THE COURT

(Sixth Chamber),

in answer to the questions referred to it by the Symvouliou Epikrateias, by order of 7 November 1995, hereby rules:

1. The rules of a Member State which, by prescribing a mandatory legal form of employment relationship between the parties, prevent tourist and travel agencies, wherever they are established, from concluding, in connection with the operation of tourist programmes organized by them in that Member State, a contract for the provision of services with a tourist guide from another Member State who is licensed to pursue his profession in the first State constitute a barrier for the purposes of Article 59 of the EC Treaty.

2. Such rules cannot be justified by reasons relating to the general interest in maintaining industrial peace as a means of bringing a collective labour dispute to an end and thereby preventing any adverse effects on an economic sector, and consequently on the economy of the State.