Registered organisation Name/company name: EUROPEAN FEDERATION OF TOURIST GUIDE ASSOCIATIONS Acronym: FEG Legal status: EUROPEAN REPRESENTATIVE OF TOURIST GUIDES Interest Representative Register ID number: 62223963956-70 Contact details of organisation's head office: 5 RUE FOURNIER CLICHY F-92110 FRANCE Telephone number: +34 609 061 551 / +34 690 807 822 / +34 928 943 668 Other contact information: E-MAIL ADDRESSES: FEG SECRETARIAT: secretariat@feg-touristguides.org FEG EX.CO.PRESIDENT: chairman@feg-touristguides.org FEG PRESIDENT PERSONAL: carlosortega@infonegocio.com COMMENTS FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Implementation of Directive 2006/123/EC on the profession of tourist guide Regarding tourist guide services and the scope of the Directive 2006/123/EC on services, we would like to contribute to the public consultation with the following remarks: 1. General Information - Tourist Guiding in the E.U. Whereas some tourism services have not developed professional qualifications, this is not the case with tourist guiding. On the contrary, Tourist Guiding has grown as a profession in the last fifty years or so and in at least 12 Member States the profession is regulated. In countries where the profession is not regulated by law there are recognised qualifications. Often they are very well established, and there are degrees of de-facto regulation. FEG COMMENT FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Page 1
As tourism has developed, member states have generally been anxious to protect cultural and natural heritage indeed, parts of the tourist guiding qualification are area specific. In professions this is not particularly unusual and is recognised in a number of EU documents and by the European Court of Justice. The key to cross-border provision of services is the measurement of the equivalence of professional qualifications from one member state to another. This issue is dealt with in Directive 2005/36/EC of 7 September 2005 on the Recognition of professional qualifications. The E.U. has never intended to harmonise educational systems of member states and there is a diversity qualifications in the same profession. This is recognised by The European Federation of Tourist Guide Associations (FEG), which is the only pan-european professional tourist guides organisation and is itself 25 years old this year. The Association represents over 40.000 of tourist guides from 22 European countries. This FEG opinion also compliments the work of CEN which has recently established the European Standard (EN 15565:2008) for the provision of training and qualification of tourist guides having been agreed by a consensus of normalisation experts representing the profession, users (including consumers), educationalists and government departments. These include representatives from member states where the profession is regulated. 2. Directive 2005/36/EC prevails over Directive 2006/123/ EC in relation to regulated professions, such as the profession of tourist guide. Directive 2006/123/EC of the 12 th December 2006 on services in the internal market is applicable to service providers established in a member-state, who exercise the right of freedom to establish or to provide services, i.e. they either move and establish themselves in another member-state or they temporarily provide services in another member-state, while remaining established in the member-state of their origin (see art. 1, par. 1 and art. 2. par. 1 of Directive 2006/123/EC). Directive 2006/123/EC has a wide scope of implementation, being initially a regulation for service providers of any profession. However, the Directive shall not apply, when more specific provisions of other Community acts are applicable. Such are the provisions of Directive 2005/36/EC of the 7 th September 2005 on the recognition of professional qualifications, whose scope is more specific, since it applies only to the regulated professions, such as the profession of tourist guide in most of the Member-States in the E.U.. Consequently, Directive 2005/36/EC prevails over Directive 2006/123/EC in member-states where the profession of tourist guide is a regulated profession. Thus, in cases of regulated professions in the sense of art. 3 par. 1.(a) of Directive 2005/36/EC, the provisions of the latter are applicable, since they are more specific, rather than the provisions of Directive 2996/123/EC, which are more general, in that context. FEG COMMENT FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Page 2
The precedence of Directive 2005/36/EC on the recognition of professional qualifications for regulated professions over Directive 2006/123/EC has been clearly acknowledged by the latter. Regarding the temporary provision of services in another member-state, art. 17, nr. 6 of the Directive 2006/123/EC clearly states that its provisions ARE NOT applicable on professions regulated by Directive 2005/36/EC. Regarding the establishment in another member-state, the general provisions of art. 3, par. 1.(d) of Directive 2006/123/EC are applicable, according to which in case of conflict, the provisions of Directive 2005/36/EC always prevail. In cases of regulated professions in a member-state, Directive 2005/36/EC always prevails, while Directive 2006/123/EC can only be applied supplementary, as long as it does not conflict to the former. Especially in cases where the regulation of a profession relates to overriding reasons of public interest (see art. 9, par. 1.(b) of Directive 2006/123/EC), such as the profession of tourist guide, the Services Directive practically does not affect the implementation of Directive 2005/36/EC. Article 4, nr. 8 of Directive 2006/123/EC acknowledges as overriding reasons of public interest, among others, the protection of consumers, the maintenance of cultural, artistic and national heritage or aims of cultural policy all of which apply to the profession of tourist guide in Greece and justify the regulation and licensing system thereof. Moreover, the European Court of Justice has explicitly ruled that the regulation of the profession of tourist guide serves reasons of public interest (see Court of Justice decisions C- 180/89, C-154/89 and C- 198/89 of 26.2.1991). Meaning, a) In member-states where the profession of tourist guide is regulated by law, the Directive 2005/36/EC is applicable, rather than the Directive 2006/123/EC. b) In member-states where the profession of tourist guide is not regulated by law, there is always special training and almost always licensing for the exercise of this activity, in order to protect the cultural heritage of a place and to avoid misleading of consumers and tourism stakeholders. We ask from the Commission to finally clarify this issue, which is causing a great deal of misunderstanding among member-states, tourism stakeholders, media and is ultimately misleading consumers as to what exactly applies for regulated professions such as tourist guides in the E.U. FEG COMMENT FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Page 3
3. We would like to additionally emphasise that the professions of Tourist Guide and Tour Manager are clearly distinguished in the European Standard EN13809: 2003. This is also stated by the Commission in its Report COM (2001) 171 final, 28/3/2001 Community measures affecting tourism, about the implementation of Directive 92/51/EC and also in the Commission s Working Paper on Tourist Guides SEC (97) final 837, 13/5/1997. CEN EN 13809: 2003 Tour manager: "Person who manages and supervises the itinerary on behalf of the tour operator, ensuring the programme is carried out as described in the tour operator s literature and sold to the traveller/ consumer and who gives local practical information." Tourist guide: "Person who guides visitors in the language of their choice and interprets the cultural and natural heritage of an area, which person normally possesses an area-specific qualification usually issued and/ or recognized by the appropriate authorities." This distinction has been repeatedly recognised by the European Commission in the past. In most of the European countries, the legal situation is very straightforward: Tourist Guide and Tour Manager are two distinct professions, according to national and E.U. terminology. Still, the WRONG terminology is very often used in official Commission papers as well as their translation in various E.U. languages regarding tourist guides and tour managers professions. In this context, it is quite clear that only qualifications for a particular profession can be recognised in a different EU member country, according to Directive 2005/36/EC. Thus, it is definitely not the aim of the Services Directive to allow individuals that practice one profession (tour manager) in one European country, to go to a different EU member country and practice a different profession (tourist guide). It is not in the interest of consumers to blur the distinctions between the two professions. The Commission and the travel industry should instead focus on clear definitions and distinctions, in order to uphold high standards of professional services. For the European Tourist Guides, the way forward is the CEN European Standard EN 15565: 2008, which sets out a framework for tourist guide education and best practice standards and it is based on the previously established CEN terminology on tourism EN 13809: 2003. FEG COMMENT FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Page 4
4. Conclusion For all the above reasons, the Commission has to clarify that the tourist guiding profession in most of the E.U. member-states DOES NOT fall within the scope of the Directive 2006/123/EC. In the majority of member-states, the profession of tourist guide is legally regulated, and even if it not, it is still the subject of professional training and qualification and is directly related to the cultural and natural heritage of each member state. The framework of Directive 2005/36/EC, together with CEN s standards EN 13809: 2003 and EN 15565: 2008 is a more appropriate way forward which will provide greater clarity and transparency for the profession and consumers alike. For all the above reasons, the tourist guiding profession should not fall under the directive 2006/123/EC on services. It is regulated in a number of states, is the subject of professional training and qualification and is directly related to the cultural and natural heritage of each member state. The framework of Directive 2005/36/EC, including the development of a common platform, together with CEN s work is a more appropriate way forward which will provide greater clarity and transparency for the profession and consumers alike. On behalf of the Executive Committee, Carlos A. Ortega Gutiérrez, FEG, Chairman Chairman@feg-touristguides.org FEG COMMENT FOR PUBLIC CONSULTATION ON DIRECTIVE 2006/123 ON SERVICES Page 5