International Journal of Tourism, Travel and Hospitality Law contract. Article 3, paragraph 4, indeed mandates the compulsory stipulation of an insurance coverage to ensure professional liability protection36 for the customer using the service. The insurance policy was already specified in some regional laws, but there was no uniformity across the entire national territory. Once the professional is defined, Article 3 establishes the rule that the practice of the profession is always subject to passing the national qualification examination, except in some limited cases. The first exemption case concerns citizens of the European Union, or of a state belonging to the European Economic Area or Switzerland, who are qualified in their own country. They can temporarily and occasionally perform the guiding activity under a regime of free provision, as provided by Article 9 of Legislative Decree No. 206 of November 9, 200737. The concept, which is quite relative, of temporariness and occasional nature, will be clarified and defined in the implementing decrees of the law, to avoid leaving room for freedom or uncertainties that could lead to evading the regulation. However, the responsibility for determining the temporary and occasional nature of the service remains with the Ministry of Tourism. (art. 6, paragraph 9). The second exemption case concerns those who accompany visitors during extraordinary openings organized by legal entities and third-sector organizations for sites that do not qualify as cultural institutes or places for visits conducted without the assistance of tourist guides. This exemption applies to visits for which any form of payment or registration is excluded. In essence, it refers to all cases where there are extraordinary visits not at cultural institutes or places, organized by associations that are strictly prohibited from receiving any amounts, even just as registration fees. This provision aims to curb a practice that is not uncommon today and is potentially evasive of the principles contained in this law. But the real innovation introduced in this article, which will have significant practical impacts, is established in paragraph 3, It stipulates that in institutes and places of culture defined by Article 101 of the Code of Cultural and Landscape Heritage, Legislative Decree of January 22, 2004, no. 42, even if they belong to private entities and are open to the public, the entry and performance of tourist guide activities cannot be prohibited or hindered. On several occasions, guide associations have requested that the practice of prohibiting entry to qualified guides in favour of in-house guides, often without proper credentials, be stopped 38. The potential closures by managers of cultural venues, in fact, create clear distortions to the free movement of professionals, often in favour of individuals without specific expertise, to the detriment of the service user and in clear contrast to the requirements of European regulations39. With this rationale, and also with the intention of facilitating the continuous training of guides on the field, Article 9 has also included the right for tourist guides with an identification card, thus immediately recognizable, not only to access sites for free while performing illustrative activities but also to access them for study and training purposes, regardless of the ownership of the site. Access for educational purposes, since it was not previously provided for by law, was in the past possible only on a discretionary basis. and assigns a specific ATECO code. ATECO is the classification of economic activities adopted by ISTAT for statistical purposes, namely for the production and dissemination of official statistical data. 36 Regarding professional liability see among others: M. Gazzarra, Professional indemnity insurance (L’assicurazione di responsabilità civile professionale), Napoli, 2016. 37 Art. 3 second paragraph, l.190/23. For an in-depth exploration of the topic of the recognition of foreign guides, please refer to S. Cavaliere, The uncertain boundaries of the legal regulation of the tourist guide profession between European Union law and national legal systems (Gli incerti confini della disciplina giuridica della professione di guida turistica tra diritto dell’unione europea e ordinamento nazionale), in Dir. pubb. Eu., 1/2017, p. 22 and seq. There is much criticism from trade associations regarding the possibility for European guides to operate occasionally and temporarily. See www.guideroma.ferderagit.com. An assessment of the risks in this regard can only be made in light of the criteria identified in the implementing decrees, which have not yet been issued. 38 “Finally, it is necessary to facilitate the performance of licensed tourist guides within institutes and cultural sites, removing obstacles that too often prevent them from conducting guided tours for their clients due to the 'monopoly' effectively exercised by service providers. Often, tourist guides are not allowed to operate in certain sites due to the presence of in-house guides or exclusive agreements with local guides. This creates a paradoxical situation: clients brought by external guides can enter, while the professional must remain outside”. Federazione nazionale guide turistiche, in www.parlamento.it 39 As evidence of the apparent recurrence of this practice, Article 12 (prohibitions and sanctions), paragraph 4, reaffirms what is already stipulated in Article 3, paragraph 3. It reiterates the prohibition against prohibiting or hindering the entry of the tourist guide and the performance of related activities in all institutes and places of culture as defined in Article 101 of the Code of Cultural Heritage and Landscape.
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