Background Note Expert Group Meeting 19 th December 2011

Transcription

1 Ref. Ares(2016) /01/2016 PERFORMANCE CHECKS STATE OF PLAY OF THE INTERNAL MARKET IN THE TOURISM SECTOR Background Note Expert Group Meeting 19 th December 2011 In its Communication "Towards a better functioning Single Market for services" of 27 January 2011 ("January 2011 Communication"), the Commission announced an ambitious work plan to improve the internal market. One of the key actions therein are the "performance checks" of the Single Market for services, which should allow the Commission to get a realistic and useful overview of how the Single Market for services works for citizens and businesses. This is to be achieved by assessing how different pieces of EU legislation applying to services, when taken together, work in practice. This fact-finding exercise aims at determining whether the interaction of such pieces of EU legislation and the way they are implemented and applied by Member States is satisfactory or whether greater clarity or new measures are needed to make the Single Market for services work better. This background note presents the results of the performance check carried out in the tourism sector. The scenario on the tourism sector sent to Member States on 5 August 2011 involved the combined application of various Directives: Directive 2005/36/EC on the mutual recognition of professional qualifications (hereafter "Professional Qualifications Directive"), Directive 90/314/EEC on package travel, package holidays and package tours ("Package Travel Directive"), Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts ("Unfair Contract Terms Directive"), Directive 2000/31/EC on E-commerce ("E- Commerce Directive"), Directive 2006/123/EC on services in the internal market ("Services Directive") and of the rules of the Treaty on the Functioning of the European Union ("TFUE"). This background note relies on the responses by Member States to the questionnaire 1. ****** 1 The term Member States, in this note, is used to refer to the 27 EU Member States and the three EFTA countries participating in the European Economic Area (EEA), i.e. Norway, Iceland and Liechtenstein. All Member States have replied to the questionnaire. 1

2 SECTION 1: PROFESSIONAL SERVICES To facilitate the free movement of professional services across Europe, two complementary Directives have been adopted: the Professional Qualifications Directive and the Services Directive. Difficulties identified for the Internal Market for services seem to result from the wide and different use by Member States of the possibility to reserve certain service activities for certain operators having specific professional qualifications 2. However, neither the Services Directive, nor the Professional Qualifications Directive deals with the justification and proportionality of requirements reserving access to specific activities to the holders of specific professional qualifications. This question has to be analysed directly in the light of the TFEU provisions. Regulating the access to a service activity does not necessarily mean reserving the access to this service activity to the holders of specific professional qualifications. Thus in Belgium (Flanders), tourist guide is not considered as a regulated profession. However, there is an official training programme for tourist guides. Officially trained guides receive a professional card which is promoted by the regional tourist authority as a quality label. This certificate is nonetheless not a prerequisite for official guiding. Guides can operate in Flanders without any qualification. 1.1 Professional qualification Travel agencies are a regulated profession in 9 Member States: Austria, Belgium, France, Hungary, Italy, Luxembourg, Malta, Slovenia and Slovakia. In the Czech Republic, tour operators are a regulated profession but not travel agents. In the other Member States no professional qualification is required to perform the activity of tour operator or travel agent. The professional qualifications required to access the activity of travel agent seem to fall within the scope of Annex IV (list II, 3) of the Professional Qualifications Directive and the principle of automatic recognition on the basis of the professional experience in case of establishment (Article 18 of the Professional Qualifications Directive). It follows that if a travel agent established in one Member State seeks the recognition of his professional qualifications in another Member State, his professional qualifications should be automatically recognised if he fulfils the conditions for an automatic recognition (professional qualifications requirements). Member States should foresee the application of the general system of the recognition of professional qualifications only as an alternative in case that travel agent does not fulfil the conditions for an automatic recognition. According to the responses to the questionnaire, tourist guides are a regulated profession in 14 Member States 3 : Austria, Cyprus, Spain 4, France 5, Greece, Hungary, Italy, Lithuania, Malta, Poland, Portugal (the Azores and Madeira), Romania, Slovenia and Slovakia. 2 According to the Danish response, in order to create a well-functioning Internal Market and to promote the mobility of professionals in the EU, it could be relevant to examine the regulation of certain professions in the Member States in relation to a set of objective criteria, for example criteria justified by overriding reasons of general interest. 3 The situation in Latvia is not entirely clear. The response to the questionnaire states that tourist guide does not constitute a regulated profession. However, local authorities would have the right to determine those 2

3 The professional qualifications required to access the activity of tourist guide fall under the general system foreseen in the Professional Qualifications Directive. There is no automatic recognition in case of establishment but an assessment of the qualifications acquired in another Member State in order to evaluate if there is any substantial difference. Most Member States require relevant professional qualifications in the area of tourism in order to be able to access the profession of tourist guide. For example, in Romania a tourist guide qualification certificate is required. In Greece, a diploma of the school of tourist guides, organisation of tourism education and training is required. In Cyprus the possession of very specific knowledge linked to the country is required (knowledge of the history and art of Cyprus, of the archaeological and historical sights and of the natural environment and the modern life of the Republic). In Slovakia, knowledge of the country, its history, monuments, events is also required for pursuing the activity of tourist guide. The questionnaires also aimed at verifying whether use is made of standards when defining the content of the qualification. According to the responses, only Austria made a reference to the CEN standards for tourist guides 6. However, it should be pointed out that this standard refers to the necessity to have local knowledge for pursuing the activity. Some discrepancies in the identification of regulated professions appear between the responses to this questionnaire and the data received from the Member States in the database of regulated professions run by the European Commission. According to this database, travel agents are a regulated profession in 6 Member States 7 and tourist guides in 12 Member States 8. In some Member States efforts were made to deregulate some professional services in the tourism sector. In the Czech Republic, the profession of tourist guide has not been regulated since Thus, in continental Portugal the profession of tourist guide has been deregulated 10 recently (the autonomous regions of the Azores and Madeira have however maintained the regulation of the profession). The regions of Cataluña, Madrid and País Vasco in Spain have also eliminated the reserve of activity for tourist guides in the context of the tourism sites (historical centres, cultural and historical objects, culture monuments, places of activities of famous persons ) which may be shown only by a guide who has certified his vocational training. At the moment, no local authority has issued such regulation. 4 The profession of tourist guide is regulated in Spain in 14 autonomous communities out of 17, and in Ceuta. 5 In France, tourist guide is not a regulated profession per se. However, the professions of "conférencier national", "guide interprète national", "guide-interprète regional" and "guide-conférencier des villes et pays d'art et d'histoire" are regulated. 6 Standards are taken into account when evaluating the education received in another Member State. It is interesting also to note that the tourist guide training offered in Austria is mostly based on the European Standard EN CEN15565 concerning minimum training standards for tourist guides. Interestingly also, Austria when considering whether the same profession is exercised in the home Member State of the provider takes into account the standard EN CEN Austria, Belgium, Hungary, Italy, Slovenia and Slovakia. 8 Austria, Cyprus, Spain, France, Greece, Hungary, Italy, Lithuania, Malta, Poland, Romania and Slovenia. 9 There is however a professional organisation of tourist guides with a voluntary membership which offers an official training for tourist guides. 10 See the Decree-Law 92/2011 of 27 July No prior authorisation seems now to be required for tourist guides established in Portugal, except for the autonomous regions of the Azores and Madeira. 3

4 implementation of the Services Directive. In other regions (Navarra and País Vasco) tourist guides are not even a regulated profession. In France, although the profession of tourist guide is not regulated as such, a simplification of qualification requirements that exist in the sector for guiding professions can be observed (the professions of "conférencier national", "guide interprète national", "guide interprète régional" et "guide conférencier des villes et pays d'art et d'histoire" will be merged in March 2012 into one profession "guide-conférencier"). 1.2 Professions regulated at regional level The creation of reserves of activities for holders of specific professional qualifications, when regulated at regional level in federal or regional states, deserves particular attention. Interestingly, some professions appear to be regulated in federal or regional states only in some regions, in other Member States the scope of the activities is geographically restricted. In Spain, the profession of tourist guide is regulated in 14 autonomous communities and in Ceuta. In Portugal, the profession of tourist guide is now only regulated in the regions of the Azores and Madeira. In Poland 11, there are three types of tourist guides with limited territorial scope of exercise in Poland. In accordance with Article 10, paragraph 4 of the Services Directive, authorisations shall enable providers to have access to and exercise the service activity throughout the national territory, except where justified by an overriding reason relating to the public interest. When authorisations to carry out an activity are granted at regional level, it is important to ensure that their territorial validity is not unduly limited. One of the aims of the questionnaire was to verify that professional qualifications regulated at regional level are not an obstacle for the national validity of authorisations. The responses seem to point to a varied landscape in this regard. In Belgium, additional formalities are required by one region for travel agents and tour operators established in other regions of that Member State 12. In Portugal, the national validity principle of authorisations required to access and exercise the service activity of tourist guide in the two regions in which the activity is still regulated is in principle ensured by virtue of the horizontal law transposing the Services Directive. 11 Municipal tourist guides (10 Polish cities), field tourist guides (selected voivodships, areas, tourist routes), mountain tourist guides (the Tatra mountains, the Beskids Mountains or the Sudeten Mountains). Climbing tourist guides are another type of tourist guides but their scope of exercise is not restricted to particular regions. 12 The region of Brussels requires a copy of the authorisation granted by other regions. 4

5 1.3 Recognition of professional qualifications acquired in another Member State in case of establishment In conformity with Article 50 of the Professional Qualifications Directive, Member States can require some documents listed in Annex VII of the Directive for the recognition of professional qualifications 13. The responses show that most of the Member States require only the documents contained in this list. However, some Member States require additional documents. For example, in Greece, in order to be authorised to pursue the activity of tourist guide, the provider must give a copy of the certificate of criminal record and a certificate of military service (for the practice of the profession). The requirement is however no longer applied to EU nationals 14. In Belgium, in addition to the documents listed in Annex VII, the authorities require for travel agents letters from current or previous employers, where relevant a copy of employment contracts and witness declarations (Flanders). Amongst the documents which can prove the professional competence of the applicant or of the person in charge of the daily management of the head office are the declaration of honour from employers, testimony and other documents. In France, travel agents usually submit a certificate of working functions and the corresponding payrolls as a proof of professional experience, in addition to copies of documents attesting to professional qualifications, but there is no obligation to do so. The Professional Qualifications Directive does not contain any specific provision on the forms of the documents to be submitted. However the Code of Conduct 15 of the Professional Qualifications Directive does not consider as acceptable practice the obligation to provide the originals or documents authenticated by the consular authorities or the national administration. Requests for certified translations must be confined to the essential documents and Member States should recognise certified translations from the Member State of origin. In the Czech Republic (for tour operators), copies can be submitted. However the recognition authority may demand the submission of the original of such documents for examination. Documents must be submitted together with a translation into Czech. A certified translation might be required in case of doubts. In Hungary, a travel agent must provide certified copies and certified translations of the diplomas and certificates. The Hungarian authorities claim that this practice is compatible with the Code of Conduct of the Professional Qualifications Directive, as evidence of formal qualifications is to be considered as an essential document 16. In Greece, the documents certifying the provider's professional qualifications must be duly certified and translated into Greek. In Slovakia, the documents to be submitted for the recognition of professional qualifications for travel agents must be accompanied by a certified translation into the official language. 13 Among these documents are: a proof of the nationality, copies of the attestation of national competences/qualifications, proof of good character or repute, a document relating to the physical or mental health of the applicant, proof of the applicant's financial standing, proof of insurance. 14 With the adoption of MD No. ΔΙΑΔΠ/Φ.Α.2.1./1620 (Gov. Gaz B ) and the circular 2163 ( ). 15 Code of conduct approved by the group of coordinators for the Directive 2005/36/EC on the recognition of professional qualifications National administrative practices falling under Directive 2005/36/EC 16 The Hungarian authorities also point to Article 5(4) of the Services Directive, where there is a derogation from the requirement on certified copy/translations in case of Articles 7(2) and 50 of the Professional Qualifications Directive. 5

6 According to the Professional Qualifications Directive, for professions falling under the general system of recognition 17, Member States may impose compensation measures in case of substantial differences between the professional qualifications required in the host Member State and the professional qualifications obtained in the Member State of origin of the provider. According to their responses, most Member States allow providers to choose between a practical training and an examination. For travel agents, in Austria, Hungary, Italy, Luxembourg and Slovakia and for tour operators in the Czech Republic, a provider can choose between an aptitude test and an examination. However, it should be pointed out that travel agent is a regulated profession falling under the automatic recognition procedure foreseen under the Professional Qualifications Directive (Annex IV, List II,3). Therefore compensation measures should normally be applicable only if the provider does not meet the requirements of Article 18 of the Professional Qualifications Directive in terms of professional qualifications (professional experience, possibly supplemented by training). On the contrary, in Belgium (Flanders) compensating measures foreseen in the Professional Qualifications Directive, particularly the possibility of passing through an adaptation period or an aptitude test are not provided in the Flemish legislation for travel agents. They seem to apply only the automatic recognition procedure and to consider that if the person does not meet the requirements concerning the professional qualifications foreseen, then the authorisation should be granted to someone else who does meet these conditions. France does not foresee either compensating measures in case of substantial differences. In accordance with the general system under the Professional qualifications Directive, however, a provider should be able to prove his professional qualifications and be subject to compensation measures in case of substantial differences. The Professional Qualifications Directive does not contain any specific provision on the question of the fees for the recognition of professional qualifications. In line with Article 13, paragraph 2 of the Services Directive, any fee must be reasonable and proportionate to the cost of the authorisation procedure and shall not exceed the cost of the procedure. Only one Member State has indicated the fees required for the recognition of professional qualifications procedure 18. In other Member States, it appears from the replies that the recognition of professional qualifications is also procedurally linked with the payment of fees. For example, in Hungary, the travel agent must give a document attesting the payment of procedural fees when submitting a copy of his diploma and certificate. 1.4 Language requirements The Professional Qualifications Directive provides in its Article 53 that persons benefiting from the recognition of professional qualifications shall have knowledge of languages necessary for practising the profession in the host Member State. Such a requirement should be proportionate to the activity pursued and the assessment of the linguistic knowledge should not be linked to the recognition of professional qualifications procedure. 17 Pursuant to Article 10(a) of the Professional Qualifications Directive, the general system applies on a subsidiary basis to professionals pursuing an activity listed in Annex IV but who do not meet the requirements to benefit from automatic recognition on the basis of professional experience. 18 The Czech Republic has pointed out the cost for the recognition of professional qualifications for tour operators, i.e 2,000 CZK. 6

7 For travel agents, only Belgium (Flanders) has pointed out that sufficient knowledge of Dutch is a precondition to access the profession. It should be noted that the sufficient knowledge of Dutch is indicated as a precondition to access the activity but the requirement is not imposed on cross-border providers. Regarding travel agencies, this knowledge needs to be ensured for at least one sales manager per office. It can be demonstrated through the language regime of the manager s degree or through his professional track record. Only when the licensing authority has doubts, the person in question will be invited to show his/her language skills to Toerisme Vlaanderen. There is no complex procedure and no language exam. For tourist guides, Cyprus requires the knowledge of the Greek language and at least one foreign language for tourist guides wishing to guide at all the places. In Romania, tourist guides from other Member States wishing to establish and obtain the Romanian tourist guide certificate have to bring proof of knowledge of Romanian language, in addition to a foreign language. In Slovenia a tourist guide need to pass a Slovene language exam in order to apply. In Hungary, the activities of tourist guide may be pursued in a language in respect of which the person conducting the activity has passed a language examination or has a language knowledge equivalent to that. No information was given on how the assessment of language knowledge is made. The proportionality of linguistic requirements for travel agents or tourist guides might be questionable, especially in case of cross border provision of services when the service is provided to recipients from the Member State of establishment of the provider. 1.5 Provision of professional cross-border services (with physical move) In case of cross-border provision of services for regulated professions, both Title II of the Professional Qualifications Directive and Article 16 of the Services Directive are applicable. The first one deals with matters linked to professional qualifications and the other one with other matters (such as commercial communications, insurance, etc.). According to Title II of the Professional Qualifications Directive, Member States can require an annual prior declaration to be sent to competent authorities and a registration pro forma to facilitate the application of disciplinary rules linked to professional qualifications. The possibility for Member States to require a prior recognition of professional qualifications is only foreseen for professions with implications for public health and safety and which do not benefit from the automatic recognition. Neither tourist guides nor travel agents appear to fall under that category. If the profession is not regulated in the home Member State, the host Member State can require a prior experience of at least 2 years preceding the provision of services. It should be noted that Slovenia recognises as an authorisation granted in the Member State of origin of the tourist guide and does not require the cross-border provider coming from another Member State to comply with formalities when providing services within its territory if the tourist guide starts the trip outside the Slovenian territory 19. In Cyprus, however, the temporary provision of services' right is recognised only for a tourist guide, citizen of another Member State, who accompanies a group of tourists coming from a Member State for an organised tour of a certain duration and of a prescribed route to places (except museums and historical monuments) and returns together with the group to his country of origin. It follows that, for instance, a Cypriot citizen established in Germany as a tourist guide will not benefit from the 19 Slovenia indicated that a tourist guide can stay for a month provided he/she is guiding groups coming from abroad. 7

8 specific provisions foreseen in the Cypriot law in case of temporary provision of services if he wants to provide temporary services in Cyprus. In Romania, tourist guides from other Member States who accompany groups of tourists from other countries do not need to obtain the Romanian certificate but they are subject to prior declaration obligations. Annual prior declaration (Article 7, paragraph 1, of the Professional Qualifications Directive) Some Member States, in line with Article 7, paragraph 1, of the Professional Qualifications Directive, require an annual prior declaration for tourist guides 20, whereas others do not 21.. Hungary specified not requiring a prior declaration in case of temporary provision of services for all professions assess on a case-by-case basis the necessity and proportionality to require such a prior declaration which is applied in a limited number of cases. France does not require any formality to be complied with prior to the provision of the service of the tourist guide except the obligation to indicate the qualifications to the persons using the services and to the manager of the museum or historic monument where tourists are guided. The identification by the provider of the competent authorities to whom he should send his prior declaration could also represent a barrier in the absence of clear information available. The responses received have not given any detail as to the authority in charge of receiving the prior declaration but some Member States recalled the task of PSC to facilitate the life of service providers. Some questions may arise concerning the geographical scope of the prior declaration sent, notably in federal countries. However, the prior declaration sent to one competent authority seems to be recognised as valid throughout the whole national territory in the Member States which regulate the profession and require a prior declaration 22. For example in Spain, one formality is explicitly recognised as being sufficient in Andalucía, Cantabria, Cataluña, Ceuta, Valencia, Galicia and La Rioja. In line with Article 7, paragraph 1, of the Professional Qualifications Directive, the prior declaration should be sent only for information purposes and should not be considered as a prior authorisation. The Directive does not provide for a deadline to send the prior declaration. However, in Slovakia, there is an obligation to present the documents required by law before the first provision of service. Article 7, paragraphs 1 and 2, lists the information that can be asked in the prior declaration (i.e information that the provider intends to provide services, details of any insurance cover and for the first declaration documents listed in Article 7, paragraph 2, see below). However, some Member States seem to go beyond Article 7, paragraph 1, by requesting information about the planned duration of the service provisions in the calendar year (Hungary and Spain). 20 Austria, Cyprus, Greece, Hungary, Italy, Lithuania, Malta, Poland, Portugal, Romania, Spain 21 Tourist guides: France, Slovenia. For Slovakia, it seems that there is no obligation for a tourist guide to send an annual prior declaration, however there is an obligation to present the documents required by law before the first provision of services. 22 Italy, Spain, Portugal 8

9 Documents to be provided in the declaration (Article 7, paragraph 2, of the Professional Qualifications Directive) Article 7, paragraph 2, of the Professional Qualifications Directive lists the documents that Member States can require as annex to the first prior annual declaration or if there is a material change in the situation of the provider. Those documents are: a proof of nationality of the provider, an attestation of legal establishment, evidence of professional qualifications, for professions not regulated in the home Member State proof of the exercise of the activity for at least 2 years. Most Member States seem to require documents in line with Article 7, paragraph 2, of the Professional Qualifications Directive for the provision of tourist guide services. However, some Member States seem to require extra documents such as evidence of no criminal convictions 23 for tourist guides in Poland. Registration pro forma (Article 6 of the Professional Qualifications Directive) According to Article 6 of the Professional Qualifications Directive Member States can require registration pro forma by incoming service providers to the competent professional chamber. According to the replies received, most of the Member States regulating the profession do not require a registration pro forma with the professional chamber for tourist guides 24. For example, in Slovakia, a tourist guide has no obligation to register with a chamber. Two years of prior professional experience if the profession is not regulated in the home Member State Member States may require 2 years of prior professional experience if the profession is not regulated in the home Member State of the provider. For tourist guides, nearly all the Member States regulating the profession require such prior experience if the profession is not regulated in the home Member State 25. However, Article 5, paragraph 1 (b) of the Professional Qualifications Directive provides that the condition requiring 2 years' pursuit shall not apply when either the profession or the education and training leading to the profession is regulated. Some Member States foresee such an exemption 26 for tourist guides. For example, in France, an exemption is foreseen if the provider can prove the completion of regulated training certifying a level of professional qualifications at least equivalent to the level immediately below that required and aimed specifically at the pursuit of this profession. In Cyprus, an exemption is foreseen for a provider who is either holder of a Title of studies of the Tourist Guide School or any other recognised Tourist Guide School or diploma/certificate (i.e regulated education) or has practiced the activities. Other Member States (Greece, Lithuania, Malta and Portugal) have not foreseen in their legislation such exemption in case of regulated education or training. 23 According to Article 7, paragraph 2, evidence of clean criminal record can be requested only for professions in the security sector. 24 Austria, France, Hungary, Italy, Lithuania, Malta, Poland, Portugal, Romania, Slovakia, Spain 25 Austria, Cyprus, Spain, France, Greece, Hungary, Italy, Lithuania, Malta, Poland, Portugal, Romania and Slovakia. However, Slovenia does not require such prior experience of 2 years. 26 Austria, Cyprus, Spain, France, Italy, Hungary, Poland, Romania and Slovakia. 9

10 Distinction between establishment and cross-border service provision Establishment is defined as the actual pursuit of an economic activity for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out 27. If an incoming service provider cannot be considered as being established, he should be considered as providing temporary services. In conformity with Article 5, paragraph 2, of the Professional Qualifications Directive, the temporary and occasional nature of the provision of services has to be assessed on a case-by-case basis, in particular in relation to its duration, its frequency, its regularity and its continuity. Sector-specific legislation should distinguish between established providers and temporary service providers. Interestingly, in their responses certain Member States have recognised the lack of distinction in their legislation. For example, it seems that the Polish and Slovenian laws for tourist guides fail to differentiate in details between establishment and temporary and occasional cross-border provision of services. However, concerning procedures for the recognition of professional qualifications, in case of cross-border provision of services in Poland, the only requirement is to submit a prior declaration. The Portuguese authorities recognised that the sector-specific legislation in Madera and the Azores regulating tourist guides is silent about cross-border provision of services (see Section 1.7 below for restrictions to the provision of cross-border services in the Azores). Such lack of legal certainty for the service providers can prevent cross-border provisions of services. The distinction may be sometimes difficult to apply in practice for the national competent authorities. According to the responses, the distinction is generally made on the basis of a case-by-case analysis. Austria pointed out that the duration of the touristic season and the length of stays should be taken into account when assessing if the provider is providing temporary services. In the Czech Republic, the distinction between establishment and crossborder provision of services is assessed on a case-by-case basis, in particular in relation to its duration, its frequency, its regularity and its continuity. The Italian authorities noted that they assess on a case-by-case basis taking into account the nature, duration and frequency of the service provision even if they receive no information on the duration and frequency of the cross-border provision of services. In that respect, as mentioned above, some Member States (Hungary and Spain) require in the prior declaration information about the planned duration of the service provisions in the calendar year. It should be noted that Slovenia, Cyprus and Romania seem to have a restrictive interpretation of the temporary nature of the cross-border provision of services by tourist guides by requiring that they accompany groups of tourist from other countries into their territory. It follows that, for instance, a tourist guide established in another Member State who stays in Cyprus and Romania during one month for the purpose of providing tourist guide services to 3 different groups coming from other Member States would not be considered as providing temporary cross-border services because he will not start to provide services outside the territory of Cyprus 28 or Romania. 27 Article 4, paragraph 5, of the Services Directive and Article 49 TFEU as interpreted by the European Court of Justice. 28 Cyprus indicated that parameters have been set up by the competent authority in order to assess the length, duration or continuity of the provision of such service and to distinguish between established providers and temporary service providers. 10

11 1.6 Provision of professional cross-border services (without physical move) The Professional Qualifications Directive is applicable only if the provider is physically crossing the border 29. Therefore, in case of cross-border provision of services by mail or telephone, only Article 16 of the Services Directive or the E-Commerce Directive for electronic provision of services would be applicable. Most of the Member States do not seem to apply the Professional Qualifications Directive in case of cross-border provision of services without physical move. However, Italian authorities have indicated that they apply this Directive to services provided by phone or mail. They require an annual prior declaration regarding the provision of these services. In case of electronic services, there is no notification requirement. The application of Title II of the Professional Qualifications Directive to cross-border provision of services by phone or mail goes beyond the scope of the Professional Qualifications Directive and appears to be in breach of Article 16 of the Services Directive. 1.7 Specific qualifications required for specific monuments in the case of tourist guide According to Title II of the Professional Qualifications Directive and Article 16 of the Services Directive, Member States cannot restrict the provision of services within their territory for reasons outside the scope of these two directives. However interestingly some Member States seem to restrict the provision of services for tourist guides established in another Member State by reserving the guidance in specific monuments to the holders of specific professional qualifications. Specific knowledge is required to guide tourists in certain areas or certain types of monuments in those cases. For example, in Cyprus, a tourist guide who wants to provide guiding services in museums and historical sites must have specific area knowledge. The tourist guide must obtain a prior licence based on the knowledge of the history and art of Cyprus, of the archaeological and historical sights and of the natural environment and the modern life of the Republic 30. In Lithuania, a list of museums and objects and places of cultural and natural heritage is established by the competent authorities. In such places, tours can only be carried out with a guide holding the guide's certificate from Lithuania. In Malta, a temporary tourist guide can provide his service in one of the specially designated locations as listed in the Schedule of the Tourist Guide regulations only if he supplies evidence of his knowledge of such a specially designated location with the prior declaration. In Portugal, in the autonomous region of the Azores, there is a requirement barring tourist guides not qualified under regional law from providing services next to the world heritage sites, mobile and immobile national heritage and nature reserve sites. In France, tour guiding in the museums and historical sites seem to require providers to hold a professional identity card. Another limitation to the provision of tourist guide services is the fact that the visits inside a monument can only be guided by the personnel employed in those places. For example, in some National heritage sites in Spain, tourists can only be guided by the persons employed there. In Poland and Romania, a tourist guide can only provide tour guide services in any museum or other premises as long as the task is not performed by a permanent employee of 29 Article 5, paragraph 1 of the Professional Qualifications Directive. 30 Cyprus argues this is necessary, since no matter how skilful the tourist guide, knowledge of the specific area in which they are allowed to provide the service is hardly transferable. This guarantees high quality of the service. 11

12 the premise. This is justified by national authorities based on the fact that guides employed by the touristic site would seem to be best suited to give complete, correct and documented information. In Slovakia, the operation of municipal and state-owned cultural establishments such as museums, galleries and other cultural monuments, as well as caves, is usually arranged by the operator through his employees or a similar relationship which precludes other service providers from doing so. It is important to recall that in its case law concerning temporary provision of tourist guide services, the European Court of Justice declared as contrary to Article 56 TFEU the obligation for tourist guides accompanying a group of tourists from another Member State, in relation to guided tours of places other than museums and historical monuments where a specialized guide is required, to obtain a licence issued after the acquisition of a specific qualification obtained by success in an examination 31. The Court recognised that for guided tours of certain museums or monuments, it might be required that they may be visited only with a specialized guide. Nevertheless, that exclusion concerned only cases where, owing to the particular characteristics of certain places, national legislation requires specific qualifications additional to those required in order to obtain the tourist guide licence. However with the adoption of the Professional Qualifications Directive in 2005 and its specific provisions on temporary provision of services, the situation has changed. It follows from Title II of this Directive (Article 7, paragraph 4) that a Member State can provide for a prior recognition of professional qualifications only for professions having public health and safety implications. Tourist guides do not fall under that category. Therefore, in line with Title II of the Professional Qualifications Directive, Member States are obliged to accept provisions of services from qualified tourist guides established in other Member States on the sole basis of a prior annual declaration and irrespective of the licence attesting local heritage knowledge. 1.8 Controls It seems that most of the controls of the tourist guides activities are performed at a local level which might cause some difficulties if the local authorities are not aware of the specific regime for temporary cross-border providers. For example, in Lithuania, all checks of guided tours are being conducted by the authorities of the municipalities at the places where guided tours take place. Similarly in Austria, controls are organised and executed by the Trade authorities at district level. In Malta, a special team of trained inspectors is dedicated to check areas and sites normally frequented by tourist and guided tours. In Portugal, checks are performed by way of impromptu inspections by the regional inspection authorities, the police and any other administrative authority at tourist sites and at the place of establishment of travel agencies that hire tourist guides. In Poland, the controls are mostly carried out in the municipal area. Those whose qualifications have been recognised are granted a tourist guide card identical to the one granted to Polish providers by the voivodship marshall. The persons carrying out the control have the list of cross-border service providers too and there is no requirement to present any other document than that identity card. Finally, Hungary recalled the role of the IMI system to facilitate the tasks of national authorities when it comes to controlling the providers. 31 See notably case C-189/89, Commission against Italy. 12

13 No information was received on the fines and sanctions that can be imposed on tourist guides in breach of the national rules. Points for discussion Does this Background note correctly reflect the situation in your Member State? For Member States not regulating the activities of travel agent or tourist guides, are you aware of specific difficulties encountered by your providers when they want to provide services in a Member State that regulates the activities? For Member States regulating the activities of travel agent and tourist guides, why do some of you not distinguish between establishment and cross-border activities? Is there a need to simplify national proceedings for the recognition of professional qualifications? Is there a need for Member States to reassess the choice made to require a prior declaration in case of temporary provision of services for all professions? How do you assess the knowledge of the language? What is your assessment of the proportionality of language requirements in the tourism area? What could be done to facilitate the free movement of services of tourist guides in every Member State without reserving the guidance in certain historical monuments/places/monuments is reserved to the holders of specific qualifications but ensuring that the tourist guides are qualified in their Member States of establishment for the purpose of pursuing the same profession? What can be done to increase legal certainty for providers in these cases? In your opinion, could the use of administrative cooperation of competent authorities through the Internal Market Information (IMI) system by competent authorities facilitate the ad- hoc controls of the providers? 13

14 SECTION 2: INSURANCE/GUARANTEE OBLIGATIONS The mutual evaluation process foreseen in the Services Directive revealed that difficulties for cross-border service providers could result from insurance or guarantee requirements. In its January 2011 Communication, the Commission agreed to assessing these difficulties with a view to deciding on the need for specific initiatives. This note attempts to further analyze these obstacles in the case of travel agents and tour operators providing services in several Member State. The analysis is carried out on the basis of an assessment of the interaction of the Package Travel Directive, which has triggered the establishment of insurance and guarantee obligations by Member States, and the Services Directive The Package Travel Directive The Package Travel Directive covers the sale of a pre-arranged combination of transport, accommodation and tourism services. Consumers are covered where, at least, two of these elements are sold or offered for sale at an inclusive price and the service covers a period of more than twenty-four hours or includes over-night accommodation 32. The Package Travel Directive is a minimum harmonisation directive, which allows Member States to adopt more stringent provisions for the protection of consumers 33. Many of its provisions leave a very large margin of discretion for national legislators. Consequently, the approaches taken by different Member States differ considerably Liability insurances for contractual obligations The Directive contains rules concerning the liability of package organisers and retailers, who must accept responsibility for the performance of the services offered 34. It makes use of the formula "the organiser and/or retailer", which leaves discretion to the Member States as to which one of them should be obliged to fulfil the duties imposed by the Directive 35. The Directive does not oblige Member States, however, to impose insurance obligations on service providers to cover contractual liability. The majority of Member States have made provision for a different and separate liability of the organiser and the retailer, with each of them being liable for problems arising in their 32 For the purposes of the Package Travel Directive, the definition of "consumer" differs from the scope of most consumer directives, since it covers the person who takes, or agrees to take, the package, e.g. it is not limited to private persons acting outside their profession. 33 See Article 8 of Package Travel Directive: "Member States may adopt or return more stringent provisions in the field covered by this Directive to protect the consumer". 34 Article 5 of the Package Travel Directive obliges Member States to take the necessary steps to ensure that the organiser and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organiser and/or retailer or by other suppliers of services. 35 "Organiser" is defined as the person who, other than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer. The "retailer" is defined as the person who sells or offers for sale the package put together by the organiser. Often in the past, organisers were tour operators and retailers travel agents. pages 4 and 8. 14

15 respective spheres 36. The liability for improper or non-performance of the package contract rests in most Member States with the tour organiser. However, in many Member States there are also variations of joint liability between the organiser and the retailer. Differences between Member States' legislation and the possibility for the consumer to claim his rights may then be problematic in particular in cases where the retailer and the organiser are established in different Member States. To address this shortcoming, certain Member States (the Netherlands, Belgium) who only make the travel organiser party to the contract liable seem to have adopted a system of joint liability in cases in which a travel agent sells packages organized by a tour operator established in another Member State. In the Netherlands, the person who in the conduct of his business as an agent acts on behalf of the tour operator established in another Member State is deemed to be the travel organiser and thus has to fulfil obligations applicable to tour operators established in Dutch territory 37. Finally, it is important to stress that not all Member States have laid down insurance obligations in legislation with a view to ensuring the ability to cover the liability for the performance of the contract. According to the responses to the questionnaires, insurance is compulsory in Belgium, Bulgaria, Cyprus, Greece, Iceland, Italy, Lithuania, Malta (only to cover third party liability), Slovenia and Sweden (security lodged). In Belgium, the Czech (however, it is insurance for the case of bankruptcy) Republic, France and Luxembourg, tour operators/travel agents have to be insured against financial consequences arising from their professional liability. No insurance is required in Denmark 38, Estonia, Germany, Finland, Latvia, Liechtenstein, Hungary, Malta, the Netherlands, Norway, Poland, Romania, Spain, Sweden or the United Kingdom Securities for the tour operator/travel agency insolvency The Directive also contains provisions on the security to be provided by the organiser/retailer and covering repayment of the price and repatriation of consumers in the event of insolvency 39. The text of the Directive leaves broad discretion to the Member States in the choice of the appropriate measures. 40 The questionnaire aimed at clarifying whether and how the corresponding implementing provisions in national law are applied and whether they create barriers for the internal market. The responses indicate that most of the Member States only require security for package travels as required by the Package Travel Directive and not for other services such as single services. Examples of Member States who have gone beyond the mandate of the Package 36 See Report on the Implementation of Directive 90/314/EEC on Package Travel and Holiday Tours in the Domestic Legislation of EC Member States. 37 See Dutch Civil Code, Article 7:500 para The Danish response indicates however that member of the Danish Tour Operator and Travel Agents association are obliged to have a professional liability insurance 39 Article 7 of the Package Travel Directive states that the organiser and/or retailer party to the contract shall provide sufficient evidence of security for the refund of money paid over and for the repatriation of the consumer in the event of insolvency. 40 See Report on the Implementation of Directive 90/314/EEC on Package Travel and Holiday Tours in the Domestic Legislation of EC Member States. There is, however, no room for interpretation as regards the very clear aim of the provision: to provide that the security provided by retailers/organisers must cover the total refund of money paid over and the full repatriation costs. 15