Opinion of the Advocate-General
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My Lords,
1. A Spanish criminal court (the Juzgado de lo Penal, No 4, Alicante) seeks a preliminary ruling from the Court, essentially for the purpose of ascertaining whether a Spanish law under which only the holders of certain qualifications may act as estate agents is compatible with Community law.
2. In Spain the profession of estate agent is governed by Decreto No 3248/69 of 4 December 1969. Under Article 5 of that decree, persons may act as estate agents only if they hold the appropriate professional qualification awarded by the State and are enrolled with the relevant professional association. Under Article 321 of the Spanish Criminal Code, it is an offence for a person to engage in a profession if he does not possess the necessary official qualifications or qualifications recognized as equivalent by law or by an international convention.
3. The defendants in the main proceedings are charged with acting as estate agents while not possessing the qualifications required by Spanish law for the pursuit of that profession. The defendants are Spanish nationals, resident in Spain, who do not claim to have obtained any qualification entitling them to act as estate agents in another Member State or to have acted as such in another Member State.
4. The defendants have attempted to raise a defence based on Community law, relying in particular on Council Directive 67/43/EEC of 12 January 1967 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with inter alia "real estate" (Official Journal, English Special Edition 1967, p. 3). The defendants contend that the Spanish law reserving the occupation of estate agent to the holders of a particular qualification is incompatible with Directive 67/43.
5. In the two cases pending before it the Juzgado de lo Penal, No 4, Alicante, has referred the following, identically worded questions to the Court:
"1. Are Article 1 of the Decree of 4 December 1969 and Royal Decree 1464/88, in so far as they provide that activities as an intermediary or broker for the purchase, sale and exchange of rural and urban property, for loans secured by a mortgage on such property, for the letting of rural and urban property, for the assignment and transfer and the provision of opinions on the value in the event of the sale, assignment or transfer of such property are functions specific to estate agents, valid in the light of Articles 2, 3 and 5 of Council Directive 67/43/EEC and, as from the entry into force of that directive, may a Member State, in the said real-estate sector, give the exclusive right to carry out such activities to a particular professional group?
2. May a Member State apply any kind of restriction or exclusion to that directive?"
6. As it stands, the first question is not of course admissible, inasmuch as it asks the Court to rule directly on the compatibility of specific provisions of national law with Community law. The Court can, however, provide the national court with such guidance as it needs, regarding the interpretation of Community law, to enable it to give judgment. The first question may be reformulated as asking whether a provision of national law which restricts the activities in question to the holders of a professional qualification for estate agents is compatible with Articles 2, 3 and 5 of Directive 67/43.
7. It must first be noted that the cases before the national court appear to have arisen out of a purely internal situation. It is clear from the order for reference that the cases have no connection with another Member State. As the Court has held on numerous occasions, the Treaty provisions on free movement do not apply to situations that are in every respect located within a single Member State: see, for example, Case C-41/90 Hoefner v Macrotron, judgment of 23 April 1991, at paragraph 37. The defendants cannot therefore invoke the Treaty provisions on the free movement of persons and services.
8. In this case, however, the questions referred concern, not the Treaty provisions, but a directive intended to implement freedom of establishment and freedom to provide services. It is therefore necessary to examine the scope of the directive, since there are of course many situations in which directives are applicable to purely internal situations.
9. Article 1 of Directive 67/43 provides:
"Member States shall abolish, in respect of the natural persons and companies or firms covered by Title 1 of the General Programmes for the abolition of restrictions on freedom of establishment and freedom to provide services (hereinafter called 'beneficiaries' ), the restrictions referred to in Title III of those General Programmes affecting the right to take up and pursue the activities specified in Articles 2 and 3 of this Directive."
10. Article 2 of the directive mentions various activities connected with transactions in immovable property. Article 3 deals with "business services not elsewhere classified".
11. The directive legislates by reference to the General Programme for the Abolition of Restrictions on Freedom to Provide Services (Official Journal, English Special Edition, Second Series, vol. IX, p. 3) and the General Programme for the Abolition of Restrictions on Freedom of Establishment (Official Journal, English Special Edition, Second Series, vol. IX, p. 7). I shall refer to the former as the Services General Programme and the latter as the Establishment General Programme.
12. The restrictions prohibited by the directive are those referred to in Title III of the General Programmes. A perusal of the said titles shows that the General Programmes are concerned solely with measures that discriminate, overtly or covertly, against nationals of other Member States. Thus the first paragraph of point A of Title III of the Services General Programme requires the abolition of any measure which "prohibits or hinders the person providing services in his pursuit of an activity as a self-employed person by treating him differently from nationals of the State concerned". The last paragraph of point A makes it clear that covert discrimination must be eliminated as well as overt discrimination. Corresponding provisions are contained in the Establishment General Programme (see the first paragraph of point A of Title III and point B of Title III).
13. Confirmation that the directive is concerned solely with discriminatory measures is to be found in Article 5(1), which provides:
"Member States shall in particular abolish the following restrictions:
(a) those which prevent beneficiaries from establishing themselves or providing services in the host country under the same conditions and with the same rights as nationals of that country;
(b) those existing by reason of administrative practices which result in treatment being applied to beneficiaries that is discriminatory by comparison with that applied to nationals."
In fact, the effect of the directive was superseded after the end of the transitional period by the direct effect of Articles 52 and 59 of the Treaty.
14. It may be noted that the last recital in the preamble to the directive states that "it does not seem appropriate to adopt at this moment measures concerning the coordination of provisions and the recognition of diplomas, certificates and other evidence of formal qualifications". Thus the directive does not seek to harmonize the conditions governing the taking-up and pursuit of the activities of estate agents in the Member States. A Member State does not therefore infringe the directive if it restricts performance of such activities to persons who possess certain qualifications, including membership of a particular professional association, provided that in doing so it does not discriminate, overtly or covertly, against nationals of other Member States.
15. The Ministerio Fiscal (the Spanish public prosecutor) points out in his observations that Spain has taken the measures needed to comply with the directive by adopting Real Decreto No 1464/88 of 2 December 1988, Article 1 of which allows nationals of other Member States to provide services and establish themselves in Spain as estate agents on the same terms as Spanish nationals.
16. In the circumstances it is clear that nationals of a Member State who have not acted as estate agents, or obtained a qualification entitling them to act as such, in another Member State cannot invoke the directive against a law of the first Member State which requires them to obtain a particular qualification in order to pursue that profession.
17. If the first question is answered thus, it will not be necessary to answer the second question.
Conclusion
18. I am accordingly of the opinion that the Court should answer the questions referred to it by the Juzgado de lo Penal, No 4, Alicante, as follows:
Council Directive 67/43/EEC does not preclude a Member State from restricting the activities mentioned in the order for reference to the holders of a professional qualification for estate agents, provided that in doing so it does not discriminate against nationals of other Member States.
(*) Original language: English.
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