Odbor kompatibility s právem ES Úřad vlády ČR	I S A P Informační Systém pro Aproximaci Práva
	Databáze č. 17 : Databáze judikatury

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	Číslo (Kód CELEX): Number (CELEX Code):		61992J0375

	Název: Title:		ECJ Judgment of 22 March 1994 Case C-375/92 Commission of the European Communities v Kingdom of Spain [1994] ECR I-923

	Publikace: Publication:

	Předmět (klíčová slova): Keywords

	Související předpisy: Corresponding acts:

	Odkaz na souvisejicí judikáty: Corresponding Judgements:		· Case C-340/89 Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden- Wuerttemberg [1991] ECR I-2357. · Case C-154/89 Commission v France [1991] ECR I-659.


	Plný text: Fulltext:		Ne

Fakta:
According to the Spanish Order of 31 January 1964 approving the Rules on the Exercise of the Activity of Private Tourist Guide
Boletin Oficial del Estado of 26 February 1964.
, the profession of tourist guide (or guide-interpreter) could be exercised only by a person who had passed the examinations organised for that purpose by the Ministry of Information and Tourism
Article 12.
. Only persons with Spanish nationality were admitted to those examinations
Article 13(a).
, and success in those examinations led to the issue of a licence
Article 21.
. Moreover, although tourist groups could be accompanied by a courier from their own country, the latter had to use the services of a guide-interpreter
Article 11(3).
, who was also required to be a Spanish national
Article 13(a).
. The exercise of those activities by unauthorised persons was subject to sanctions
Article 7.
.
At the time of the action, this order was still in force in most of the 17 Autonomous Communities of which Spain is comprised. Only two Autonomous Communities had adopted provisions derogating from it.
By letter of 30 July 1990 the Commission informed the Spanish Government that it considered the Spanish order to be incompatible with Articles 39, 43 and 49 (ex Articles 48, 52 and 59) of the Treaty. Secondarily, the Commission considered that, by failing to communicate the information requested regarding the relevant rules adopted by the Autonomous Communities, Spain had infringed Article 10 (ex Art. 5) of the Treaty. Consequently, the Commission gave the Kingdom of Spain formal notice to submit observations to. Since that letter did not achieve the desired result, the Commission brought the matter before the Court on the basis of Article 169 of the Treaty.

Názor soudu a komentář:
Firstly, with regard to the provision concerning the nationality of candidates for the examinations, the Court noted that that provision restricted access to the profession of tourist guide and guide-interpreter to persons of Spanish nationality. In the Court’s view, such a restriction is incompatible with the Treaty since Articles 39, 43 and 49 (ex Articles 48, 52 and 59) of the Treaty require the elimination of any discrimination against Community nationals on grounds of nationality with regard to access to employment, establishment and the provision of services.
Secondly, the Court observed that the Spanish rules did not establish a procedure enabling qualifications acquired by Community nationals in other Member States to be recognised. In application of the Directives 75/368
Council Directive 75/368/EEC of 16 June 1975 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of various activities (ex ISIC Division 01 to 85) and, in particular, transitional measures in respect of those activities (OJ 1975 L 167, p. 22).
and 89/48
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 (OJ 1989 L 19, p. 16).
, Spain had adopted rules on the assessment of qualifications obtained in other Member States, but those rules did not cover tourist guides. The Court considered that the failure to provide for such a procedure infringed Articles 39, 43 and 49 (ex Articles 48, 52 and 59) of the Treaty. It recalled that it had consistently held that a Member State which makes the access to a profession subject to the possession of professional qualifications must take into consideration the evidence of qualifications acquired in other Member States. The authorities of the host Member State must be able to assure themselves that a foreign diploma certifies that its holder has qualifications which are equivalent to those certified by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed to possess, having regard to the nature and duration of the studies and practical training to which the diploma relates (see
Vlassopoulou;
Case C-104/91
Aguirre Borrell and Others v Colegio Oficial de Agentes de la Propriedad Immobiliaria
[1992] ECR I-3003).
Thirdly, the Court dealt with the Commission’s complaint that the need for a guide to hold a licence for which a course of vocational training with an examination is required prevents self-employed or employed tourist guides accompanying private groups of tourists on visits to Spain from pursuing their activities. Here again the Court confirmed the Commission’s view and held, with reference to its ”tourist guide judgments” ( Case C-154/89; Case C-180/89
Commission v Italy
[1991] ECR I-709; Case C-198/89
Commission v Greece
[1991] ECR I-727), that the requirement of a licence and a specific training was not compatible with Article 49 (ex Article 59) of the Treaty in so far as it related to services provided at places other than museums or historic monuments which may be visited only with a specialised professional guide.
Finally, the Court found that the failure of the Spanish government to provide the information requested by the Commission during the administrative proceedings breached Article 10 (ex Art. 5) of the Treaty because it made the achievement of the Commission’s task under the Treaty more difficult

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