COMMON POSITION (EC) No 16/2006
adopted by the
Council on 24 July 2006
with a view to adopting
Directive 2006/.../EC of the European Parliament and of the Council of ...
on services
in the internal market
(2006/C 967 E/01)
THE
EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO- employment and of social
protection, equality between
PEAN
UNION,
men and women, sustainable and non-inflationary
Having
regard to the Treaty establishing the European Com- growth, a high degree of competitiveness
and conver-
munity,
and in particular the first and third sentence of Article gence of economic
performance, a high level of protec-
47(2)
and Article 55 thereof, tion and
improvement of the quality of the environment,
the raising of the standard of living and quality of life
Having
regard to the proposal from the Commission,
and economic and social cohesion
and solidarity among
Member States.
Having
regard to the opinion of the European Economic and
Social
Committee (1),
Having
regard to the opinion of the Committee of the
Regions
(2),
(2) A competitive market in
services is essential in order to
Acting
in accordance with the procedure laid down in Article promote economic growth and create jobs
in the Euro-
251 of
the Treaty (3),
pean Union. At present numerous barriers within the
Whereas:
internal market prevent providers, particularly small and
medium-sized enterprises (SMEs), from extending their
(1) The European Community is seeking to
forge ever closer
operations beyond their national borders and from
links between the States and
peoples of Europe and to taking full advantage of the
internal market. This
ensure economic and social
progress. In accordance with weakens the worldwide competitiveness of
European
Article 14(2) of the Treaty, the
internal market
Union providers. A free market which compels the
comprises an area without internal
frontiers in which
Member States to eliminate restrictions on cross-border
the free movement of services is
ensured. In accordance
provision of services while at the same time increasing
with Article 43 of the Treaty the
freedom of establish-
transparency and information for consumers would give
ment is ensured. Article 49 of the
Treaty establishes the
consumers wider choice and better services at lower
right to provide services within
the Community. The
prices.
elimination of barriers to the
development of service
activities between Member States is
essential in order to
strengthen the integration of the
peoples of Europe and
to promote balanced and sustainable
economic and
social progress. In eliminating such barriers it is essential
to ensure that the development of
service activities
(3) The report from the
Commission on `The State of the
contributes to the fulfilment of the
task laid down in
Internal Market for Services' drew up an inventory of a
Article 2 of the Treaty of
promoting throughout the large number of barriers which are
preventing or
Community a harmonious, balanced
and sustainable
slowing down the development of services between
development of economic activities,
a high level of
Member States, in particular those provided by SMEs,
which are predominant in the field of services. The
report concludes that a decade after the envisaged
(1) OJ
C 221, 8.9.2005, p. 113. completion
of the internal market, there is still a huge
(2) OJ
C 43, 18.2.2005, p. 18. gap between the vision of an
integrated European Union
(3)
Opinion of the European Parliament of 16 February 2006 (not yet economy and the reality
as experienced by European
published in the Official Journal).
Council Common Position of 24
July 2006 and Position of the European
Parliament of ... (not yet
citizens and providers. The barriers affect a wide variety
published in the Official
Journal). of service activities across all stages of
the provider's
C
270E/2 EN Official Journal of
the European Union 7.11.2006
activity and have a number of common
features,
enlargement, be extremely complicated for national and
including the fact that they often
arise from administra-
Community institutions, and, on the other hand, the
tive burdens, the legal uncertainty
associated with cross-
lifting of many barriers requires prior coordination of
border activity and the lack of mutual
trust between national
legal schemes, including the setting up of
Member States. administrative
cooperation. As the European Parliament
and the Council have recognised, a Community legisla-
tive instrument
makes it possible to achieve a genuine
internal market for services.
(4) Since services constitute the engine of
economic growth
and account for 70 % of GDP and
employment in most
Member States, this fragmentation of
the internal market
has a negative impact on the entire
European economy, (7) This Directive establishes a general legal
framework
in particular on the competitiveness of
SMEs and the which
benefits a wide variety of services while taking
movement of workers, and prevents
consumers from into
account the distinctive features of each type of
gaining access to a greater variety of
competitively activity
or profession and its system of regulation. That
priced services. It is important to
point out that the
framework is based on a dynamic and selective approach
services sector is a key employment
sector for women in
consisting in the removal, as a matter of priority, of
particular, and that they therefore
stand to benefit barriers which may be dismantled quickly and,
for the
greatly from new opportunities offered
by the comple- others,
the launching of a process of evaluation, consul-
tion of the internal market for
services. The European tation and complementary
harmonisation of specific
Parliament and the Council have
emphasised that the
issues, which will make possible the progressive and
removal of legal barriers to the
establishment of a coordinated modernisation of
national regulatory
genuine internal market is a matter of
priority for systems
for service activities which is vital in order to
achieving the goal set by the European
Council in achieve a
genuine internal market for services by 2010.
Lisbon of 23 and 24 March 2000 of
improving employ-
Provision should be made for a balanced mix of
ment and social cohesion and achieving
sustainable measures
involving targeted harmonisation, administra-
economic growth so as to make the
European Union the tive
cooperation, the provision on the freedom to
most competitive and dynamic knowledge-based provide services and
encouragement of the development
economy in the world by 2010, with more
and better of codes
of conduct on certain issues. That coordination
jobs. Removing those barriers, while
ensuring an of
national legislative regimes should ensure a high
advanced European social model, is thus
a basic condi- degree of
Community legal integration and a high level
tion for overcoming the difficulties
encountered in of
protection of general interest objectives, especially
implementing the Lisbon Strategy and
for reviving the
protection of consumers, which is vital in order to estab-
European economy, particularly in terms
of employment lish trust
between Member States. This Directive also
and investment. It is therefore
important to achieve an
takes into account other general interest objectives,
internal market for services, with the right balance including the protection of
the environment, public
between market opening and preserving
public services security
and public health as well as the need to comply
and social and consumer rights. with
labour law.
(5) It is therefore necessary to remove
barriers to the
freedom of establishment for providers
in Member States (8) It is appropriate that the provisions of
this Directive
and barriers to the free movement of
services as between
concerning the freedom of establishment and the free
Member States and to guarantee
recipients and providers
movement of services should apply only to the extent
the legal certainty necessary for the
exercise in practice that the
activities in question are open to competition,
of those two fundamental freedoms of
the Treaty. Since so that they do not oblige Member
States either to liber-
the barriers in the internal market for
services affect alise
services of general economic interest or to privatise
operators who wish to become
established in other
public entities which provide such services or to abolish
Member States as well as those who
provide a service in
existing monopolies for other activities or certain distri-
another Member State without being
established there, it
bution services.
is necessary to enable providers to
develop their service
activities within the internal market
either by becoming
established in a Member State or by
making use of the
free movement of services. Providers should be able to
choose between those two freedoms,
depending on their (9) This Directive applies only to
requirements which affect
strategy for growth in each Member
State. the access to, or the
exercise of, a service activity. There-
fore, it does not apply to requirements, such as road
traffic
rules, rules concerning the development or use of
land, town and country planning, building standards as
well as
administrative penalties imposed for non-compli-
(6) Those barriers cannot be removed solely by
relying on ance with
such rules which do not specifically regulate
direct application of Articles 43 and
49 of the Treaty, or
specifically affect the service activity but have to be
since, on the one hand, addressing them
on a case-by- respected
by providers in the course of carrying out
case basis through infringement procedures against the their economic activity in the
same way as by individuals
Member States concerned would,
especially following
acting in their private capacity.
7.11.2006 EN Official Journal of the European
Union C 270E/3
(10) This Directive does not concern
requirements governing
(15) This Directive respects
the exercise of fundamental rights
access to public funds for certain
providers. Such
applicable in the Member States and as recognised in the
requirements include notably those
laying down condi-
Charter of fundamental Rights of the European Union
tions under which providers are
entitled to receive
and the accompanying explanations, reconciling them
public funding, including specific
contractual conditions, with the fundamental freedoms laid down in
Articles 43
and in particular quality standards
which need to be and
49 of the Treaty. Those fundamental rights include
observed as a condition for receiving
public funds, for the
right to take industrial action in accordance with
example for social services.
national law and practices which respect Community
law.
(11) This Directive does not interfere with
measures taken by
Member States, in accordance with
Community law, in
relation to the protection or
promotion of cultural and
(16) This Directive concerns only providers established in a
linguistic diversity and media
pluralism, including the
Member State and does not cover external aspects. It
funding thereof. This Directive does
not prevent Member does
not concern negotiations within international orga-
States from applying their fundamental
rules and princi-
nisations on trade in services, in particular in the frame-
ples relating to the freedom of press
and freedom of work
of the General Agreement on Trade in Services
expression. This Directive does not
affect Member State
(GATS).
laws prohibiting discrimination on
grounds of nation-
ality or on grounds such as those set
out in Article 13 of
the Treaty.
(17) This Directive covers
only services which are performed
for an economic
consideration. Services of general
interest are not covered by the definition in Article 50
(12) This Directive aims at creating a legal
framework to of the
Treaty and therefore do not fall within the scope
ensure the freedom of establishment
and the free move- of
this Directive. Services of general economic interest
ment of services between the Member
States and does are
services that are performed for an economic consid-
not harmonise or prejudice criminal
law. However,
eration and therefore do fall within the scope of this
Member States should not be able to
restrict the freedom
Directive. However, certain services of general economic
to provide services by applying
criminal law provisions
interest, such as those that may exist in the field of
which specifically affect the access
to or the exercise of a
transport, are excluded from the scope of this Directive
service activity in circumvention of
the rules laid down and certain other services of general
economic interest,
in this Directive. for example,
those that may exist in the area of postal
services, are the subject of a
derogation from the provi-
sion on the freedom to provide services set out in this
Directive. This
Directive does not deal with the funding
of services of general economic interest and does not
apply
to systems of aids granted by Member States, in
particular in the social field, in accordance with Com-
(13) It is equally important that this
Directive fully respect
munity rules on competition. This Directive does not
Community initiatives based on Article
137 of the deal
with the follow-up to the Commission White Paper
Treaty with a view to achieving the
objectives of Article on
Services of General Interest.
136 thereof concerning the promotion
of employment
and improved living and working
conditions.
(18) Financial services should
be excluded from the scope of
(14) This Directive does not affect terms and
conditions of this
Directive since these activities are the subject of
employment, including maximum work
periods and
specific Community legislation aimed, as is this Direc-
minimum rest periods, minimum paid
annual holidays,
tive, at achieving a genuine internal market for services.
minimum rates of pay as well as
health, safety and
Consequently, this exclusion should cover all financial
hygiene at work, which Member States
apply in compli- services such as banking, credit,
insurance, including
ance with Community law, nor does it
affect relations
reinsurance, occupational or personal pensions, securi-
between social partners, including the
right to negotiate ties,
investment funds, payments and investment advice,
and conclude collective agreements,
the right to strike
including the services listed in Annex I to Directive
and to take industrial action in
accordance with national
2006/48/EC of the European Parliament and of the
law and practices which respect
Community law, nor
Council of 14 June 2006 relating to the taking up and
does it apply to services provided by
temporary work
pursuit of the business of credit institutions (1).
agencies. This Directive does not
affect Member States'
social security legislation. (1) OJ L
177, 30.6.2006, p. 1.
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the European Union 7.11.2006
(19) In view of the adoption in 2002 of a
package of legisla- in
which the recipient of the care is resident. This issue
tive instruments relating to
electronic communications
has been addressed by the Court of Justice on numerous
networks and services, as well as to
associated resources
occasions, and the Court has recognised patients' rights.
and services, which has established a
regulatory frame- It is
important to address this issue in another Com-
work facilitating access to those activities
within the munity legal
instrument in order to achieve greater legal
internal market, notably through the
elimination of most
certainty and clarity to the extent that this issue is not
individual authorisation schemes, it
is necessary to
already addressed in Council Regulation (EEC) No
exclude issues dealt with by those
instruments from the
1408/71 of 14 June 1971 on the application of social
scope of this Directive.
security schemes to employed persons, to self-employed
persons and to members of their families moving within
the Community (6).
(20) The exclusion from the scope of this
Directive as regards
matters of electronic communications
services as
covered by Directives 2002/19/EC of
the European (24) Audiovisual services, whatever their mode
of transmis-
Parliament and of the Council of 7
March 2002 on
sion, including within cinemas, should also be excluded
access to, and interconnection of,
electronic communica-
from the scope of this Directive. Furthermore, this Direc-
tions networks and associated
facilities (Access Direc-
tive should not apply to aids granted by Member States
tive) (1), 2002/20/EC of the European
Parliament and of in the
audiovisual sector which are covered by Com-
the Council of 7 March 2002 on the
authorisation of
munity rules on competition.
electronic communications networks and services
(Authorisation Directive) (2),
2002/21/EC of the Euro-
pean Parliament and of the Council of
7 March 2002 on
a common regulatory framework for
electronic commu-
nications networks and services
(Framework Direc-
(25) Gambling activities,
including lottery and betting trans-
tive) (3), 2002/22/EC of the European
Parliament and of
actions, should be excluded from the scope of this Direc-
the Council of 7 March 2002 on
universal service and
tive in view of the specific nature of these activities,
users' rights relating to electronic
communications which
entail implementation by Member States of poli-
networks and services (Universal
Service Directive) (4)
cies relating to public policy and consumer protection.
and 2002/58/EC of the European
Parliament and of the
Council of 12 July 2002 concerning the
processing of
personal data and the protection of
privacy in the elec-
tronic communications sector
(Directive on privacy and
electronic communications) (5) should
apply not only to (26) This Directive is without prejudice to the
application of
questions specifically dealt with in
these Directives but
Article 45 of the Treaty.
also to matters for which the
Directives explicitly leave
to Member States the possibility of
adopting certain
measures at national level.
(27) This Directive should not
cover those social services in
the areas of housing,
childcare and support to families
and persons in need which are provided by the State at
(21) Transport services, including urban
transport, taxis and
national, regional or local level by providers mandated
ambulances as well as port services,
should be excluded by
the State or by charities recognised as such by the
from the scope of this Directive. State
with the objective of ensuring support for those
who are permanently or temporarily in a particular state
of
need because of their insufficient family income or
total or partial lack of independence and for those who
risk being marginalised. These services are essential in
(22) The exclusion of healthcare from the scope
of this Direc- order to
guarantee the fundamental right to human
tive should cover healthcare and
pharmaceutical services
dignity and integrity and are a manifestation of the prin-
provided by health professionals to
patients to assess,
ciples of social cohesion and solidarity and should not
maintain or restore their state of
health where those be
affected by this Directive.
activities are reserved to a regulated
health profession in
the Member State in which the services
are provided.
(28) This Directive does not
deal with the funding of, or the
system of aids linked to, social services. Nor does it
(23) This Directive does not affect the
reimbursement of
affect the criteria or conditions set by Member States to
healthcare provided in a Member State
other than that ensure that social services
effectively carry out a function
to the benefit of the public interest and social cohesion.
In
addition, this Directive should not affect the principle
(1) OJ
L 108, 24.4.2002, p. 7. of universal
service in Member States' social services.
(2) OJ
L 108, 24.4.2002, p. 21.
(3) OJ
L 108, 24.4.2002, p. 33.
(4) OJ
L 108, 24.4.2002, p. 51. (6) OJ L 149, 5.7.1971, p.
2. Regulation as last amended by Regulation
(5) OJ
L 201, 31.7.2002, p. 37. Directive as amended by Directive (EC) No 629/2006 of the European
Parliament and of the Council
2006/24/EC (OJ L 105, 13.4.2006, p.
54). (OJ
L 114, 27.4.2006, p. 1).
7.11.2006 EN Official Journal of the European
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C 270E/5
(29) Given that the Treaty provides specific
legal bases for tenance;
advertising; recruitment services; and the
taxation matters and given the
Community instruments
services of commercial agents. The services covered are
already adopted in that field, it is
necessary to exclude also
services provided both to businesses and to consu-
the field of taxation from the scope
of this Directive. mers,
such as legal or fiscal advice; real estate services
such as estate agencies; construction, including the
services
of architects; distributive trades; the organisation
of trade fairs; car rental; and travel agencies. Consumer
services are also covered, such as those in the field of
(30) There is already a considerable body of
Community law tourism,
including tour guides; leisure services, sports
on service activities. This Directive
builds on, and thus
centres and amusement parks; and, to the extent that
complements, the Community acquis.
Conflicts between
they are not excluded from the scope of application of
this Directive and other Community
instruments have the
Directive, household support services, such as help
been identified and are addressed by
this Directive, for the elderly. Those activities may
involve services
including by means of derogations.
However, it is neces-
requiring the proximity of provider and recipient,
sary to provide a rule for any
residual and exceptional
services requiring travel by the recipient or the provider
cases where there is a conflict
between a provision of
and services which may be provided at a distance,
this Directive and a provision of another
Community including
via the Internet.
instrument. The existence of such a
conflict should be
determined in compliance with the
rules of the Treaty
on the right of establishment and the
free movement of
services.
(31) This Directive is consistent with and does
not affect
Directive 2005/36/EC of the European
Parliament and of
the Council of 7 September 2005 on the
recognition of (34) According to the case-law of the Court of
Justice, the
professional qualifications (1). It
deals with questions
assessment of whether certain activities, in particular
other than those relating to
professional qualifications,
activities which are publicly funded or provided by
for example professional liability
insurance, commercial
public entities, constitute a `service' has to be carried out
communications, multidisciplinary
activities and admin- on a case by case basis in the
light of all their character-
istrative simplification. With regard
to temporary cross-
istics, in particular the way they are provided, organised
border service provision, a derogation
from the provi- and
financed in the Member State concerned. The Court
sion on the freedom to provide
services in this Directive
of Justice has held that the essential characteristic of
ensures that Title II on the free
provision of services of
remuneration lies in the fact that it constitutes considera-
Directive 2005/36/EC is not affected.
Therefore, none of tion
for the services in question and has recognised that
the measures applicable under that
Directive in the the
characteristic of remuneration is absent in the case
Member State where the service is
provided is affected of
activities performed, for no consideration, by the
by the provision on the freedom to
provide services.
State or on behalf of the State in the context of its duties
in the social, cultural, educational and judicial fields,
such as courses provided under the national education
system, or the management of
social security schemes
which do not engage in economic activity. The payment
(32) This Directive is consistent with
Community legislation of a fee by recipients, for
example, a tuition or enrol-
on consumer protection, such as
Directive 2005/29/EC
ment fee paid by students in order to make a certain
of the European Parliament and of the
Council of
contribution to the operating expenses of a system, does
11 May 2005 concerning unfair
business-to-consumer
not in itself constitute remuneration because the service
commercial practices in the internal
market (the Unfair is
still essentially financed by public funds. These activ-
Commercial Practices Directive) (2)
and Regulation (EC)
ities are, therefore, not covered by the definition of
No 2006/2004 of the European Parliament and of the service in Article 50 of
the Treaty and do not therefore
Council of 27 October 2004 on
cooperation between
fall within the scope of this Directive.
national authorities responsible for the enforcement of
consumer protection laws (the
Regulation on consumer
protection cooperation) (3).
(33) The services covered by this Directive
concern a wide
variety of ever-changing activities,
including business
services such as management
consultancy, certification
and testing; facilities management,
including office main- (35) Non-profit making amateur sporting
activities are of
considerable
social importance. They often pursue
wholly social or recreational objectives. Thus, they might
(1) OJ
L 255, 30.9.2005, p. 22. not constitute
economic activities within the meaning of
(2) OJ
L 149, 11.6.2005, p. 22.
(3) OJ
L 364, 9.12.2004, p. 1. Regulation as amended by Directive Community law and should fall
outside the scope of this
2005/29/EC.
Directive.
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the European Union 7.11.2006
(36) The concept of `provider' should cover any
natural lishment,
it is important to determine the place of estab-
person who is a national of a Member
State or any legal lishment
from which the actual service concerned is
person engaged in a service activity
in a Member State,
provided. Where it is difficult to determine from which
in exercise either of the freedom of
establishment or of of several places of establishment
a given service is
the free movement of services. The
concept of provider
provided, the location of the provider's centre of activ-
should thus not be limited solely to
cross-border service ities
relating to this particular service should be that
provision within the framework of the
free movement of place
of establishment.
services but should also cover cases
in which an
operator establishes itself in a Member State in order to
develop its service activities there.
On the other hand,
the concept of a provider should not
cover the case of
branches in a Member State of
companies from third
countries because, under Article 48 of the Treaty, the (38) The concept of `legal persons', according to the Treaty
freedom of establishment and free
movement of services
provisions on establishment, leaves operators free to
may benefit only companies constituted
in accordance choose
the legal form which they deem suitable for
with the laws of a Member State and
having their regis-
carrying out their activity. Accordingly, `legal persons',
tered office, central administration
or principal place of
within the meaning of the Treaty, means all entities
business within the Community. The
concept of `reci-
constituted under, or governed by, the law of a Member
pient' should also cover third country
nationals who State,
irrespective of their legal form.
already benefit from rights conferred
upon them by
Community acts such as Regulation
(EEC) No 1408/71,
Council Directive 2003/109/EC of 25
November 2003
concerning the status of third-country
nationals who are
long-term residents (1), Council
Regulation (EC)
No 859/2003 of 14 May 2003 extending
the provisions (39) The concept of `authorisation scheme'
should cover,
of Regulation (EEC) No 1408/71 and
Regulation (EEC)
inter alia, the administrative procedures for granting
No 574/72 to nationals of third
countries who are not
authorisations, licences, approvals or concessions, and
already covered by those provisions
solely on the also
the obligation, in order to be eligible to exercise the
ground of their nationality (2) and
Directive 2004/38/EC
activity, to be registered as a member of a profession or
of the European Parliament and of the
Council of 29
entered in a register, roll or database, to be officially
April 2004 on the right of citizens of
the Union and
appointed to a body or to obtain a card attesting to
their family members to move and
reside freely within
membership of a particular profession. Authorisation
the territory of the Member States
(3). Furthermore, may
be granted not only by a formal decision but also
Member States may extend the concept
of recipient to by an
implicit decision arising, for example, from the
other third country nationals that are
present within silence
of the competent authority or from the fact that
their territory.
the interested party must
await acknowledgement of
receipt of a declaration in order to commence the
activity in question or
for the latter to become lawful.
(40) The concept of
`overriding reasons relating to the public
interest' to which reference
is made in certain provisions
(37) The place at which a provider is
established should be
of this Directive has been developed by the Court of
determined in accordance with the case
law of the Court Justice
in its case law in relation to Articles 43 and 49 of
of Justice according to which the
concept of establish-
the Treaty and may continue to evolve. The notion as
ment involves the actual pursuit of an economic activity recognised in the case law of
the Court of Justice covers
through a fixed establishment for an
indefinite period. at
least the following grounds: public policy, public
This requirement may also be fulfilled
where a company
security and public health, within the meaning of Arti-
is constituted for a given period or
where it rents the cles
46 and 55 of the Treaty; the maintenance of order
building or installation through which
it pursues its in
society; social policy objectives; the protection of the
activity. It may also be fulfilled
where a Member State recipients
of services; consumer protection; the protec-
grants authorisations for a limited
duration only in rela- tion
of workers, including the social protection of
tion to particular services. An
establishment does not workers; animal welfare; the
preservation of the financial
need to take the form of a subsidiary,
branch or agency, balance
of the social security system; the prevention of
but may consist of an office managed by
a provider's fraud;
the prevention of unfair competition; the protec-
own staff or by a person who is
independent but
tion of the environment and the urban environment,
authorised to act on a permanent basis
for the under-
including town and country planning; the protection of
taking, as would be the case with an
agency. According
creditors; safeguarding the sound administration of
to this definition, which requires the
actual pursuit of an
justice; road safety; the protection of intellectual prop-
economic activity at the place of
establishment of the
erty; cultural policy objectives, including safeguarding
provider, a mere letter box does not
constitute an estab- the
freedom of expression of various elements, in par-
lishment. Where a provider has several
places of estab- ticular
social, cultural, religious and philosophical values
of society; the need to ensure a high level of education,
(1) OJ
L 16, 23.1.2004, p. 44. the maintenance
of press diversity and the promotion of
(2) OJ
L 124, 20.5.2003, p. 1. the national
language; the preservation of national
(3) OJ
L 158, 30.4.2004, p. 77. historical and artistic heritage; and
veterinary policy.
7.11.2006 EN Official Journal of the European Union C
270E/7
(41) The concept of `public policy', as interpreted
by the establish an
objective, common to all Member States, of
Court of Justice, covers the
protection against a genuine
administrative simplification and to lay down provisions
and sufficiently serious threat
affecting one of the funda-
concerning, inter alia, the right to information, proce-
mental interests of society and may
include, in particu-
dures by electronic means and the establishment of a
lar, issues relating to human dignity,
the protection of
framework for authorisation schemes. Other measures
minors and vulnerable adults and
animal welfare. Simi-
adopted at national level to meet that objective could
larly, the concept of public security
includes issues of
involve reduction of the number of procedures and
public safety.
formalities applicable to service activities and the restric-
tion of such procedures and formalities to those which
are essential in order to achieve a general interest objec-
tive and which do not duplicate each other in terms of
(42) The rules relating to administrative
procedures should content
or purpose.
not aim at harmonising administrative
procedures but at
removing overly burdensome
authorisation schemes,
procedures and formalities that hinder
the freedom of
establishment and the creation of new
service undertak-
ings therefrom.
(47) With the aim of
administrative simplification, general
formal requirements, such as presentation of original
documents, certified copies or a certified translation,
(43) One of the fundamental difficulties faced,
in particular should not
be imposed, except where objectively justified
by SMEs, in accessing service
activities and exercising
by an overriding reason relating to the public interest,
them is the complexity, length and
legal uncertainty of such as the protection of
workers, public health, the
administrative procedures. For this
reason, following the
protection of the environment or the protection of
example of certain modernising and
good administrative
consumers. It is also necessary to ensure that an authori-
practice initiatives undertaken at
Community and
sation as a general rule permits access to, or exercise of,
national level, it is necessary to
establish principles of a
service activity throughout the national territory,
administrative simplification, inter
alia through the
unless a new authorisation for each establishment, for
limitation of the obligation of prior
authorisation to
example for each new hypermarket, or an authorisation
cases in which it is essential and the
introduction of the that is
restricted to a specific part of the national terri-
principle of tacit authorisation by
the competent autho- tory
is objectively justified by an overriding reason
rities after a certain period of time
elapsed. Such moder-
relating to the public interest.
nising action, while maintaining the requirements on
transparency and the updating of
information relating to
operators, is intended to eliminate
the delays, costs and
dissuasive effects which arise, for
example, from unne-
cessary or excessively complex and
burdensome proce- (48) In order to further simplify
administrative procedures, it
dures, the duplication of procedures,
the `red tape' is
appropriate to ensure that each provider has a single
involved in submitting documents, the
arbitrary use of point
through which he can complete all procedures and
powers by the competent authorities,
indeterminate or
formalities (hereinafter referred to as `points of single
excessively long periods before a
response is given, the
contact'). The number of points of single contact per
limited duration of validity of
authorisations granted and Member State may vary according to regional
or local
disproportionate fees and penalties.
Such practices have
competencies or according to the activities concerned.
particularly significant dissuasive
effects on providers The
creation of points of single contact should not inter-
wishing to develop their activities in
other Member fere
with the allocation of functions among competent
States and require coordinated modernisation
within an authorities
within each national system. Where several
enlarged internal market of
twenty-five Member States.
authorities at regional or local level are competent, one
of them may
assume the role of point of single contact
and coordinator. Points of single contact may be set up
not
only by administrative authorities but also by cham-
(44) Member States should introduce, where
appropriate, bers
of commerce or crafts, or by the professional orga-
forms harmonised at Community level,
as established by
nisations or private bodies to which a Member State
the Commission, which will serve as an
equivalent to decides
to entrust that function. Points of single contact
certificates, attestations or any
other document in rela-
have an important role to play in providing assistance to
tion to establishment.
providers either as the authority directly competent to
issue the documents necessary to access a service activity
or as an intermediary between the
provider and the
authorities which are directly competent.
(45) In order to examine the need for
simplifying procedures
and formalities, Member States should be able, in par-
ticular, to take into account their
necessity, number,
possible duplication, cost, clarity
and accessibility, as
well as the delay and practical
difficulties to which they
could give rise for the provider
concerned. (49) The fee which may be charged by points of
single
contact should be proportionate to the cost of the proce-
dures and formalities with which they deal. This should
not prevent Member States from entrusting the points of
(46) In order to facilitate access to service
activities and the single
contact with the collection of other administrative
exercise thereof in the internal
market, it is necessary to fees,
such as the fee of supervisory bodies.
C
270E/8 EN Official Journal of
the European Union 7.11.2006
(50) It is necessary for providers and
recipients of services to
of non-discrimination, necessity and proportionality.
have easy access to certain types of
information It That
means, in particular, that authorisation schemes
should be for each Member State to determine,
within should be
permissible only where an a posteriori inspec-
the framework of this Directive, the
way in which provi- tion
would not be effective because of the impossibility
ders and recipients are provided with
information. In of
ascertaining the defects of the services concerned a
particular, the obligation on Member
States to ensure
posteriori, due account being taken of the risks and
that relevant information is easily accessible to providers dangers which could arise in the
absence of a prior
and recipients and that it can be
accessed by the public
inspection. However, the provision to that effect made
without obstacle could be fulfilled by
making this infor- by
this Directive cannot be relied upon in order to
mation accessible through a website.
Any information
justify authorisation schemes which are prohibited by
given should be provided in a clear
and unambiguous
other Community instruments such as
manner.
Directive 1999/93/EC of the European Parliament and
the Council of 13 December 1999 on a Community
framework for electronic signatures (1), or Directive
2000/31/EC of the European Parliament and of the
Council of 8 June 2000
on certain legal aspects of infor-
(51) The information provided to providers and
recipients of
services should include, in
particular, information on
mation society services, in particular electronic
procedures and formalities, contact
details of the compe-
commerce, in the internal market (Directive on elec-
tent authorities, conditions for
access to public registers
tronic commerce) (2). The results of the process of
and data bases and information
concerning available
mutual evaluation will make it possible to determine, at
remedies and the contact details of
associations and
Community level, the types of activity for which authori-
organisations from which providers or
recipients can
sation schemes should be eliminated.
obtain practical assistance. The
obligation on competent
authorities to assist providers and
recipients should not
include the provision of legal advice
in individual cases.
Nevertheless, general information on
the way in which (55) This Directive should be without prejudice
to the possi-
requirements are usually interpreted
or applied should
bility for Member States to withdraw authorisations after
be given. Issues such as liability for
providing incorrect they
have been issued, if the conditions for the granting
or misleading information should be
determined by of
the authorisation are no longer fulfilled.
Member States.
(56) According to the case law
of the Court of Justice, public
health, consumer protection, animal health and the
(52) The setting up, in the reasonably near
future, of elec- protection of the urban
environment constitute over-
tronic means of completing procedures
and formalities
riding reasons relating to the public interest. Such over-
will be vital for administrative
simplification in the field
riding reasons may justify the application of authorisa-
of service activities, for the benefit
of providers, recipi- tion
schemes and other restrictions. However, no such
ents and competent authorities. In
order to meet that
authorisation scheme or restriction should discriminate
obligation as to results, national
laws and other rules on
grounds of nationality. Further, the principles of
applicable to services may need to be
adapted. This obli-
necessity and proportionality should always be
gation should not prevent Member
States from providing
respected.
other means of completing such procedures
and formal-
ities, in addition to electronic
means. The fact that it
must be possible to complete those
procedures and
formalities at a distance means, in
particular, that (57) The provisions of this Directive relating
to authorisation
Member States must ensure that they
may be completed
schemes should concern cases where the access to or
across borders. The obligation as to
results does not
exercise of a service activity by operators requires a deci-
cover procedures or formalities which
by their very sion
by a competent authority. This concerns neither
nature are impossible to complete at a
distance. Further- decisions by competent authorities to
set up a public or
more, this does not interfere with
Member States' legisla-
private entity for the provision of a particular service
tion on the use of languages. nor the conclusion of contracts by
competent authorities
for the provision of a particular service which is
governed by rules on
public procurement, since this
Directive does not deal with rules on public procure-
ment.
(53) The granting of licences for certain
service activities may
require an interview with the
applicant by the competent
authority in order to assess the
applicant's personal
integrity and suitability for carrying
out the service in
question. In such cases, the
completion of formalities by
(58) In order to facilitate
access to and exercise of service
electronic means may not be appropriate. activities,
it is important to evaluate and report on
authorisation schemes and their justification. This
reporting
obligation concerns only the existence of
authorisation schemes and not the criteria and condi-
tions
for the granting of an authorisation.
(54) The possibility of gaining access to a
service activity
should be made subject to
authorisation by the compe-
(1) OJ L 13, 19.1.2000, p. 12.
tent authorities only if that decision
satisfies the criteria (2) OJ L 178,
17.7.2000, p. 1.
7.11.2006 EN Official Journal of the European
Union C 270E/9
(59) The authorisation should as a general rule
enable the
activities, where objectively justified by overriding
provider to have access to the service
activity, or to exer- reasons
relating to the public interest, including a legiti-
cise that activity, throughout the
national territory,
mate interest of third parties. Such different arrange-
unless a territorial limit is
justified by an overriding
ments could include national rules according to which,
reason relating to the public
interest. For example, envir-
in the absence of a response of the competent authority,
onmental protection may justify the
requirement to
the application is deemed to have been rejected, this
obtain an individual authorisation for
each installation
rejection being open to challenge before the courts.
on the national territory. This
provision should not
affect regional or local competences
for the granting of
authorisations within the Member
States.
(64) In order to establish a
genuine internal market for
(60) This Directive, and in particular the
provisions
services, it is necessary to abolish any restrictions on the
concerning authorisation schemes and
the territorial freedom of establishment and the
free movement of
scope of an authorisation, should not
interfere with the
services which are still enshrined in the laws of certain
division of regional or local
competences within the
Member States and which are incompatible with Articles
Member States, including regional and
local self-govern- 43
and 49 of the Treaty respectively. The restrictions to
ment and the use of official
languages.
be prohibited particularly affect the internal market for
services and should be systematically dismantled as soon
as
possible.
(61) The provision relating to the
non-duplication of condi-
tions for the granting of an
authorisation should not
prevent Member States from applying
their own condi-
tions as specified in the
authorisation scheme. It should
(65) Freedom of establishment
is predicated, in particular,
only require that competent
authorities, when consid-
upon the principle of equal treatment, which entails the
ering whether these conditions are met
by the applicant,
prohibition not only of any discrimination on grounds
take into account the equivalent
conditions which have of nationality but also of any
indirect discrimination
already been satisfied by the
applicant in another
based on other grounds but capable of producing the
Member State. This provision should
not require the
same result. Thus, access to a service activity or the exer-
application of the conditions for the
granting of an cise
thereof in a Member State, either as a principal or
authorisation provided for in the
authorisation scheme
secondary activity, should not be made subject to criteria
of another Member State.
such as place of establishment, residence, domicile or
principal provision of the service activity. However,
these criteria should not include requirements according
to which a provider or one of his employees or a repre-
sentative must be present during the exercise of the
(62) Where the number of authorisations
available for an
activity is limited because of
scarcity of natural resources
activity when this is justified by an overriding reason
or technical capacity, a procedure for
selection from
relating to the public interest. Furthermore, a Member
among several potential candidates
should be adopted
State should not restrict the legal capacity or the right of
with the aim of developing through
open competition
companies, incorporated in accordance with the law of
the quality and conditions for supply
of services avail-
another Member State on whose territory they have
able to users. Such a procedure should
provide guaran- their
primary establishment, to bring legal proceedings.
tees of transparency and impartiality
and the authorisa-
Moreover, a Member State should not be able to confer
tion thus granted should not have an
excessive duration, any
advantages on providers having a particular national
be subject to automatic renewal or
confer any advantage or local socio-economic link; nor
should it be able to
on the provider whose authorisation
has just expired. In
restrict, on grounds of place of establishment, the provi-
particular, the duration of the
authorisation granted
der's freedom to acquire, exploit or dispose of rights and
should be fixed in such a way that it
does not restrict or
goods or to access different forms of credit or accommo-
limit free competition beyond what is
necessary in order
dation in so far as those choices are useful for access to
to enable the provider to recoup the
cost of investment his
activity or for the effective exercise thereof.
and to make a fair return on the
capital invested. This
provision should not prevent Member
States from
limiting the number of authorisations
for reasons other
than scarcity of natural resources or
technical capacity.
These authorisations should remain in any case subject
to the other provisions of this
Directive relating to
(66) Access to or the exercise
of a service activity in the terri-
authorisation schemes. tory of a Member State should not
be subject to an
economic test. The prohibition of economic tests as a
prerequisite for
the grant of authorisation should cover
economic tests as such, but not requirements which are
objectively
justified by overriding reasons relating to the
(63) In the absence of different arrangements,
failing a public
interest, such as the protection of the urban envir-
response within a time period, an
authorisation should
onment, social policy or public health. The prohibition
be deemed to have been granted.
However, different
should not affect the exercise of the powers of the
arrangements may be put in place in
respect of certain
authorities responsible for applying competition law.
C
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the European Union 7.11.2006
(67) With respect to financial guarantees or
insurance, the
services in the social field, the Court of Justice has
prohibition of requirements should
concern only the
already recognised that it may be justified to subject the
obligation that the requested
financial guarantees or
provider to a requirement to be non-profit making.
insurance must be obtained from a
financial institution
established in the Member State
concerned.
(72) Services of a general
economic interest are entrusted
with important tasks
relating to social and territorial
(68) With respect to pre-registration, the
prohibition of
cohesion. The performance of these tasks should not be
requirements should concern only the
obligation that
obstructed as a result of the evaluation process provided
the provider, prior to the
establishment, be pre-regis-
for in this Directive. Requirements which are necessary
tered for a given period in a register
held in the Member for
the fulfilment of such tasks should not be affected by
State concerned. this
process while, at the same time, unjustified restric-
tions on the freedom of establishment should be
addressed.
(69) In order to coordinate the modernisation
of national
rules and regulations in a manner
consistent with the
requirements of the internal market,
it is necessary to (73) The requirements to be examined include
national rules
evaluate certain non-discriminatory
national require-
which, on grounds other than those relating to profes-
ments which, by their very nature,
could severely restrict
sional qualifications, reserve access to certain activities to
or even prevent access to an activity
or the exercise
particular providers. These requirements also include
thereof under the freedom of
establishment. This evalua-
obligations on a provider to take a specific legal form, in
tion process should be limited to the
compatibility of
particular to be a legal person, to be a company with
these requirements with the criteria
already established
individual ownership, to be a non-profit making organi-
by the Court of Justice on the freedom
of establishment. sation
or a company owned exclusively by natural
It should not concern the application
of Community
persons, and requirements which relate to the share-
competition law. Where such
requirements are discrimi-
holding of a company, in particular obligations to hold a
natory or not objectively justified by
an overriding
minimum amount of capital for certain service activities
reason relating to the public
interest, or where they are
or to have a specific qualification in order to hold share
disproportionate, they must be
abolished or amended.
capital in or to manage certain companies. The evalua-
The outcome of this assessment will be
different tion
of the compatibility of fixed minimum and/or
according to the nature of the
activity and the public
maximum tariffs with the freedom of establishment
interest concerned. In particular,
such requirements
concerns only tariffs imposed by competent authorities
could be fully justified when they
pursue social policy
specifically for the provision of certain services and not,
objectives. for
example, general rules on price determination, such
as for the renting of houses.
(70) For the purposes of this Directive, and
without prejudice
to Article 16 of the Treaty, services
may be considered (74) The mutual evaluation process means that
during the
to be services of general economic
interest only if they
transposition period Member States will first have to
are provided in application of a
special task in the public
conduct a screening of their legislation in order to ascer-
interest entrusted to the provider by
the Member State tain
whether any of the above mentioned requirements
concerned. This assignment should be
made by way of
exists in their legal systems. At the latest by the end of
one or more acts, the form of which is
determined by the
transposition period, Member States should draw up
the Member State concerned, and should
specify the a
report on the results of this screening. Each report will
precise nature of the special
task.
be submitted to all other Member States and interested
parties. Member States will then have six months in
which to submit their
observations on these reports. At
the latest by one year after the date of transposition of
this Directive, the Commission should
draw up a
(71) The mutual evaluation process provided for
in this summary
report, accompanied where appropriate by
Directive should not affect the freedom
of Member
proposals for further initiatives. If necessary the
States to set in their legislation a
high level of protection
Commission, in cooperation with the Member States,
of the public interest, in particular
in relation to social could
assist them to design a common method.
policy objectives. Furthermore, it is
necessary that the
mutual evaluation process take fully
into account the
specificity of services of general
economic interest and
of the particular tasks assigned to
them. This may justify
certain restrictions on the freedom of
establishment, in (75) The fact that this Directive specifies a
number of require-
particular where such restrictions
pursue the protection
ments to be abolished or evaluated by the Member
of public health and social policy
objectives and where
States during the transposition period is without preju-
they satisfy the conditions set out in Article 15(3)(a), (b) dice to any infringement
proceedings against a Member
and (c). For example, with regard to
the obligation to
State for failure to fulfil its obligations under Articles 43
take a specific legal form in order to
exercise certain or 49
of the Treaty.
7.11.2006 EN Official Journal of the European
Union C 270E/11
(76) This Directive does not concern the
application of Arti- (80) It is necessary to ensure that providers
are able to take
cles 28 to 30 of the Treaty relating
to the free move-
equipment which is integral to the provision of their
ment of goods. The restrictions
prohibited pursuant to
service with them when they travel to provide services
the provision on the freedom to
provide services cover in another Member State. In particular, it
is important to
the requirements applicable to access
to service activities avoid
cases in which the service could not be provided
or to the exercise thereof and not
those applicable to
without the equipment or situations in which providers
goods as such. incur
additional costs, for example, by hiring or
purchasing different equipment
to that which they habi-
tually use or by needing to deviate significantly from the
way
they habitually carry out their activity.
(77) Where an operator travels to another
Member State to
exercise a service activity there, a
distinction should be (81) The concept of equipment does not refer to
physical
made between situations covered by the
freedom of
objects which are either supplied by the provider to the
establishment and those covered, due
to the temporary client or become part of a
physical object as a result of
nature of the activities concerned, by
the free movement the
service activity, such as building materials or spare
of services. As regards the distinction
between the parts,
or which are consumed or left in situ in the
freedom of establishment and the free
movement of
course of the service provision, such as combustible
services, according to the case law of
the Court of Justice fuels,
explosives, fireworks, pesticides, poisons or medi-
the key element is whether or not the
operator is estab-
cines.
lished in the Member State where it
provides the service
concerned. If the operator is
established in the Member
State where it provides its services,
it should come under
the scope of application of the
freedom of establishment.
(82) The provisions of this
Directive should not preclude the
If, by contrast, the operator is not
established in the
application by a Member State of rules on employment
Member State where the service is
provided, its activities
conditions. Rules laid down by law, regulation or admin-
should be covered by the free movement
of services. The
istrative provisions should, in accordance with the
Court of Justice has consistently held
that the temporary Treaty, be justified for reasons relating
to the protection
nature of the activities in question
should be determined of
workers and be non-discriminatory, necessary, and
in the light not only of the duration
of the provision of
proportionate, as interpreted by the Court of Justice, and
the service, but also of its
regularity, periodical nature or
comply with other relevant Community law.
continuity. The fact that the activity
is temporary should
not mean that the provider may not
equip itself with
some forms of infrastructure in the
Member State where
the service is provided, such as an
office, chambers or (83) It is necessary to ensure that the
provision on the
consulting rooms, in so far as such
infrastructure is
freedom to provide services may be departed from only
necessary for the purposes of
providing the service in
in the areas covered by derogations. Those derogations
question. are
necessary in order to take into account the level of
integration of the internal
market or certain Community
instruments relating to services pursuant to which a
provider is subject to
the application of a law other than
that of the Member State of establishment. Moreover, by
way of exception,
measures against a given provider
(78) In order to secure effective
implementation of the free
should also be adopted in certain individual cases and
movement of services and to ensure
that recipients and
under certain strict procedural and substantive condi-
providers can benefit from and supply
services
tions. In addition, any restriction of the free movement
throughout the Community regardless of
borders, it is of
services should be permitted, by way of exception,
necessary to clarify the extent to
which requirements of
only if it is consistent with fundamental rights which
the Member State where the service is
provided can be form
an integral part of the general principles of law
imposed. It is indispensable to
provide that the provision
enshrined in the Community legal order.
on the freedom to provide services
does not prevent the
Member State where the service is
provided from
imposing, in compliance with the
principles set out in
Article 16(1)(a) to (c), its specific
requirements for (84) The derogation from the provision on the
freedom to
reasons of public policy or public
security or for the
provide services concerning postal services should cover
protection of public health or the
environment.
both activities reserved to the universal service provider
and other postal services.
(85) The derogation from the provision on the
freedom to
(79) The Court of Justice has consistently held
that Member provide
services relating to the judicial recovery of debts
States retain the right to take
measures in order to
and the reference to a possible future harmonisation
prevent providers from abusively
taking advantage of
instrument should concern only the access to and the
the internal market principles. Abuse
by a provider
exercise of activities which consist, notably, in bringing
should be established on a case by
case basis.
actions before a court relating to the recovery of debts.
C
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the European Union 7.11.2006
(86) This Directive should not affect terms and
conditions of munity law,
an activity is reserved in a Member State to
employment which, pursuant to
Directive 96/71/EC of
a particular profession, for example requirements which
the European Parliament and of the
Council of 16 reserve the provision of
legal advice to lawyers.
December 1996 concerning the posting
of workers in
the framework of the provision of
services (1), apply to
workers posted to provide a service in
the territory of
another Member State. In such cases,
Directive 96/71/EC
stipulates that providers have to
comply with terms and (89) The derogation from the provision on the
freedom to
conditions of employment in a listed
number of areas
provide services concerning matters relating to the regis-
applicable in the Member State where
the service is
tration of vehicles leased in a Member State other than
provided. These are: maximum work
periods and
that in which they are used follows from the case law of
minimum rest periods, minimum paid
annual holidays, the
Court of Justice, which has recognised that a
minimum rates of pay, including
overtime rates, the
Member State may impose such an obligation, in accord-
conditions of hiring out of workers,
in particular the ance
with proportionate conditions, in the case of vehi-
protection of workers hired out by temporary employ- cles used on its
territory. That exclusion does not cover
ment undertakings, health, safety and
hygiene at work,
occasional or temporary rental.
protective measures with regard to the terms and condi-
tions of employment of pregnant women
or women
who have recently given birth and of
children and
young people and equality of treatment
between men
and women and other provisions on
non-discrimination. (90) Contractual relations between the provider
and the client
This not only concerns terms and
conditions of employ-
as well as between an employer and employee should
ment which are laid down by law but
also those laid not
be subject to this Directive. The applicable law
down in collective agreements or
arbitration awards that
regarding the contractual or non contractual obligations
are officially declared or de facto
universally applicable of
the provider should be determined by the rules of
within the meaning of Directive
96/71/EC. Moreover,
private international law.
this Directive should not prevent Member States from
applying terms and conditions of
employment on
matters other than those listed in
Article 3(1) of
Directive 96/71/EC on the grounds of
public policy.
(91) It is necessary to afford Member States
the possibility,
exceptionally and on a case-by-case basis, of taking
measures
which derogate from the provision on the
freedom to provide services in respect of a provider
established in another Member State on grounds of the
safety of services. However, it should be possible to take
such measures only in the absence of harmonisation at
Community level.
(87) Neither should this Directive affect terms
and conditions
of employment in cases where the
worker employed for
the provision of a cross-border
service is recruited in the
Member State where the service is
provided. Further-
more, this Directive should not affect
the right for the (92) Restrictions on the free movement of
services, contrary
Member State where the service is
provided to determine to
this Directive, may arise not only from measures
the existence of an employment
relationship and the
applied to providers, but also from the many barriers to
distinction between self-employed
persons and employed
the use of services by recipients, especially consumers.
persons, including `false
self-employed persons'. In that
This Directive mentions, by way of illustration, certain
respect the essential characteristic
of an employment types
of restriction applied to a recipient wishing to use
relationship within the meaning of
Article 39 of the a
service performed by a provider established in another
Treaty should be the fact that for a
certain period of
Member State. This also includes cases where recipients
time a person provides services for
and under the direc- of a
service are under an obligation to obtain authorisa-
tion of another person in return for
which he receives tion
from or to make a declaration to their competent
remuneration. Any activity which a
person performs
authorities in order to receive a service from a provider
outside a relationship of
subordination must be classified
established in another Member State. This does not
as an activity pursued in a
self-employed capacity for the
concern general authorisation schemes which also apply
purposes of Articles 43 and 49 of the
Treaty. to the
use of a service supplied by a provider established
in the same Member State.
(93) The concept of financial assistance
provided for the use
of a particular service should not apply to systems of
aids granted by Member States, in particular in the social
(88) The provision on the freedom to provide
services should field or
in the cultural sector, which are covered by
not apply in cases where, in
conformity with Com-
Community rules on competition, nor to general finan-
cial assistance not linked to the use of a particular
(1) OJ
L 18, 21.1.1997, p. 1. service, for
example grants or loans to students.
7.11.2006 EN Official Journal of the European
Union
C 270E/13
(94) In accordance with the Treaty rules on the
free move- They
should not in any way prevent Member States
ment of services, discrimination on
grounds of the from applying, in
conformity with this Directive and
nationality of the recipient or
national or local residence
other Community law, additional or different quality
is prohibited. Such discrimination could
take the form of
requirements.
an obligation, imposed only on
nationals of another
Member State, to supply original
documents, certified
copies, a certificate of nationality
or official translations
of documents in order to benefit from
a service or from
more advantageous terms or prices.
However, the prohi- (98) Any operator providing services involving
a direct and
bition of discriminatory requirements
should not particular health, safety
or financial risk for the recipient
preclude the reservation of
advantages, especially as
or a third person should, in principle, be covered by
regards tariffs, to certain
recipients, if such reservation is
appropriate professional liability insurance, or by
based on legitimate and objective
criteria.
another form of guarantee which is equivalent or
comparable,
which means, in particular, that such an
operator should as a general rule have adequate insur-
ance
cover for services provided in one or more Member
States other than the Member State of establishment.
(95) The principle of non-discrimination within
the internal
market means that access by a
recipient, and especially
by a consumer, to a service on offer
to the public may
not be denied or restricted by
application of a criterion,
(99) The insurance or
guarantee should be appropriate to the
included in general conditions made
available to the
nature and extent of the risk. Therefore it should be
public, relating to the recipient's
nationality or place of
necessary for the provider to have cross-border cover
residence. It does not follow that it
will be unlawful only
if that provider actually provides services in other
discrimination if provision were made in such general Member States. Member
States should not lay down
conditions for different tariffs and
conditions to apply to
more detailed rules concerning the insurance cover and
the provision of a service, where
those tariffs, prices and
fix for example minimum thresholds for the insured
conditions are justified for objective
reasons that can sum
or limits on exclusions from the insurance cover.
vary from country to country, such as
additional costs
Providers and insurance companies should maintain the
incurred because of the distance
involved or the tech-
necessary flexibility to negotiate insurance policies
nical characteristics of the provision
of the service, or
precisely targeted to the nature and extent of the risk.
different market conditions, such as
higher or lower Furthermore, it is not necessary for an
obligation of
demand influenced by seasonality,
different vacation
appropriate insurance to be laid down by law. It should
periods in the Member States and
pricing by different
be sufficient if an insurance obligation is part of the
competitors, or extra risks linked to
rules differing from
ethical rules laid down by professional bodies. Finally,
those of the Member State of
establishment. Neither
there should be no obligation for insurance companies
does it follow that the non-provision
of a service to a to
provide insurance cover.
consumer for lack of the required
intellectual property
rights in a particular territory would
constitute unlawful
discrimination.
(100) It is necessary to put an end to total prohibitions on
commercial communications by the regulated profes-
sions, not by removing bans on the content of a
commercial communication but rather by removing
(96) It is appropriate to provide that, as one
of the means by those
bans which, in a general way and for a given
which the provider may make the
information which he
profession, forbid one or more forms of commercial
is obliged to supply easily accessible
to the recipient, he
communication, such as a ban on all advertising in one
supply his electronic address,
including that of his
or more given media. As regards the content and
website. Furthermore, the obligation
to make available
methods of commercial communication, it is necessary
certain information in the provider's
information docu- to
encourage professionals to draw up, in accordance
ments which present his services in
detail should not with Community law, codes of conduct at
Community
cover commercial communications of a
general nature,
level.
such as advertising, but rather
documents giving a
detailed description of the services
proposed, including
documents on a website.
(101) It is necessary and in the interest of recipients, in par-
ticular consumers, to
ensure that it is possible for provi-
ders to offer multidisciplinary services and that restric-
tions in this
regard be limited to what is necessary to
(97) It is necessary to provide in this
Directive for certain
ensure the impartiality, independence and integrity of
rules on high quality of services,
ensuring in particular
the regulated professions. This does not affect restric-
information and transparency
requirements. These rules
tions or prohibitions on carrying out particular activities
should apply both in cases of cross
border provision of
which aim at ensuring independence in cases in which a
services between Member States and in
cases of services
Member State entrusts a provider with a particular task,
provided in a Member State by a
provider established
notably in the area of urban development, nor should it
there, without imposing unnecessary
burdens on SMEs. affect the application of competition rules.
C
270E/14 EN Official Journal of
the European Union 7.11.2006
(102)
In order to increase transparency and promote assess- essential to provide for clear, legally binding
obligations
ments based on comparable criteria with
regard to the for
Member States to cooperate effectively.
quality of the services offered and
supplied to recipients,
it is important that information on the
meaning of
quality labels and other distinctive
marks relating to
these services be easily accessible.
That obligation of
transparency is particularly important
in areas such as (106) For the
purposes of the Chapter on administrative coop-
tourism, especially the hotel business,
in which the use eration,
`supervision' should cover activities such as
of a system of classification is widespread.
Moreover, it monitoring
and fact finding, problem solving, enforce-
is appropriate to examine the extent to
which European ment and
imposition of sanctions and subsequent
standardisation could facilitate
compatibility and quality
follow-up activities.
of services. European standards are
drawn up by the
European standards-setting bodies, the
European
Committee for Standardization (CEN),
the European
Committee for
Electrotechnical
Standardization (107) In
normal circumstances mutual assistance should take
(CENELEC) and the European
Telecommunications Stan-
place directly between competent authorities. The liaison
dards Institute (ETSI). Where
appropriate, the Commis-
points designated by Member States should be required
sion may, in accordance with the
procedures laid down
to facilitate this process only in the event of difficulties
in Directive 98/34/EC of the European
Parliament and of being
encountered, for instance if assistance is required
the Council of 22 June 1998 laying down
a procedure to
identify the relevant competent authority.
for the provision of information in the
field of technical
standards and regulations and of rules
on Information
Society services (1), issue a mandate
for the drawing up
of specific European standards. (108)
Certain obligations of mutual assistance should apply to
all matters covered by this Directive, including those
relating
to cases where a provider establishes in another
Member State. Other obligations of mutual assistance
should apply only in cases of cross-border provision of
(103)
In order to solve potential problems with compliance services, where the provision on the freedom
to provide
with judicial decisions, it is
appropriate to provide that
services applies. A further set of obligations should
Member States recognise equivalent
guarantees lodged
apply in all cases of cross-border provision of services,
with institutions or bodies such as
banks, insurance
including areas not covered by the provision on the
providers or other financial services
providers established
freedom to provide services. Cross-border provision of
in another Member State.
services should include cases where services are provided
at a distance and where the
recipient travels to the
Member State of establishment of the provider in order
to receive services.
(104)
The development of a network of Member States'
consumer protection authorities, which
is the subject of (109) In
cases where a provider moves temporarily to a
Regulation (EC) No 2006/2004,
complements the coop-
Member State other than the Member State of establish-
eration provided for in this Directive.
The application of ment, it
is necessary to provide for mutual assistance
consumer protection legislation in
cross-border cases, in
between those two Member States so that the former
particular with regard to new marketing
and selling can
carry out checks, inspections and enquiries at the
practices, as well as the need to
remove certain specific
request of the Member State of establishment or carry
obstacles to cooperation in this field,
necessitates a out such
checks on its own initiative if these are merely
greater degree of cooperation between
Member States. In
factual checks.
particular, it is necessary in this
area to ensure that
Member States require the cessation of
illegal practices
by operators in their territory who
target consumers in
another Member State.
(110) It should not be possible for Member States to circum-
vent the rules laid down in this Directive, including the
provision on the freedom to provide services, by
conducting checks,
inspections or investigations which
are discriminatory or disproportionate.
(105)
Administrative cooperation is essential to make the
internal market in services function
properly. Lack of
cooperation between Member States
results in prolifera-
tion of rules applicable to providers
or duplication of (111) The
provisions of this Directive concerning exchange of
controls for cross-border activities, and can also be used information regarding the good
repute of providers
by rogue traders to avoid supervision
or to circumvent should
not pre-empt initiatives in the area of police and
applicable national rules on services.
It is, therefore,
judicial cooperation in criminal matters, in particular on
the exchange of information between law enforcement
(1) OJ
L 204, 21.7.1998, p. 37. Directive as last amended by the 2003 authorities of the Member States and
on criminal
Act of Accession. records.
7.11.2006 EN Official Journal of the European
Union
C 270E/15
(112)
Cooperation between Member States requires a well- out in Article 5 of the Treaty. In accordance
with the
functioning electronic information
system in order to
principle of proportionality, as set out in that Article,
allow competent authorities easily to
identify their rele- this
Directive does not go beyond what is necessary in
vant interlocutors in other Member
States and to
order to achieve those objectives.
communicate in an efficient way.
(117) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of
28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission
(1).
(113)
It is necessary to provide that the Member States, in
cooperation with the Commission, are to
encourage
interested parties to draw up codes of
conduct at Com- (118) In
accordance with paragraph 34 of the Interinstitutional
munity level, aimed, in particular, at
promoting the
Agreement on better law-making (2), Member States are
quality of services and taking into
account the specific encouraged to draw up, for themselves and in
the
nature of each profession. Those codes
of conduct
interest of the Community, their own tables, which will,
should comply with Community law,
especially competi- as far as possible, illustrate the
correlation between the
tion law. They should be compatible with
legally binding Directive
and the transposition measures, and to make
rules governing professional ethics and
conduct in the them
public,
Member States.
HAVE ADOPTED THIS DIRECTIVE:
(114)
Member States should encourage the setting up of codes
of conduct, in particular, by
professional bodies, organi-
sations and associations at Community
level. These
codes of conduct should include, as
appropriate to the
specific nature of each profession,
rules for commercial CHAPTER I
communications relating to the regulated
professions
and rules of professional ethics and
conduct of the regu-
lated professions which aim, in
particular, at ensuring GENERAL PROVISIONS
independence, impartiality and
professional secrecy. In
addition, the conditions to which the
activities of estate
agents are subject should be included in
such codes of Article 1
conduct. Member States should take
accompanying
measures to encourage professional
bodies, organisations
and associations to implement at
national level the codes Subject matter
of conduct adopted at Community level.
1. This Directive establishes
general provisions facilitating
the exercise of the freedom of establishment for service provi-
ders and the free movement of services, while maintaining a
high quality of services.
(115)
Codes of conduct at Community level are intended to set
minimum standards of conduct and are
complementary 2. This Directive does not deal with the
liberalisation of
to Member States' legal requirements.
They do not services of general economic
interest, reserved to public or
preclude Member States, in accordance
with Community private
entities, nor with the privatisation of public entities
law, from taking more stringent measures
in law or providing
services.
national professional bodies from
providing for greater
protection in their national codes of
conduct. 3. This Directive does not deal with the
abolition of mono-
polies
providing services nor with aids granted by Member
States which are covered by Community rules on competition.
This
Directive does not affect the freedom of Member States to
(116)
Since the objectives of this Directive, namely the elimi- define, in conformity with Community
law, what they consider
nation of barriers to the freedom of
establishment for to be
services of general economic interest, how those services
providers in the Member States and to
the free provision should be
organised and financed, in compliance with the State
of services between Member States,
cannot be suffi- aid rules,
and what specific obligations they should be subject
ciently achieved by the Member States
and can therefore, to.
by reason of the scale of the action, be
better achieved at
Community level, the Community may adopt
measures, (1) OJ L 184,
17.7.1999, p. 23.
in accordance with the principle of
subsidiarity as set (2) OJ C
321, 31.12.2003, p. 1.
C 270E/16 EN Official Journal of the European
Union 7.11.2006
4. This Directive does not affect measures
taken at Com- (e)
services of temporary work agencies;
munity
level or at national level, in conformity with Com-
munity
law, to protect or promote cultural or linguistic diver-
sity or
media pluralism. (f) healthcare
services whether or not they are provided via
healthcare facilities, and regardless of the ways in which
they are organised and financed at national level or
whether they are public or private;
5. This Directive does not affect Member
States' rules of
criminal
law. However, Member States may not restrict the (g) audiovisual services, including
cinematographic services,
freedom
to provide services by applying criminal law provi- whatever their mode of production,
distribution and trans-
sions
which specifically regulate or affect access to or exercise mission, and radio
broadcasting;
of a
service activity in circumvention of the rules laid down in
this
Directive. (h) gambling
activities which involve wagering a stake with
pecuniary value in games of chance, including lotteries,
gambling in casinos
and betting transactions;
6. This Directive does not affect labour
law, that is any legal
or
contractual provision concerning employment conditions,
working
conditions, including health and safety at work and (i) activities which are connected with the
exercise of official
the
relationship between employers and workers, which authority as set out in Article 45 of
the Treaty;
Member
States apply in accordance with national law which
respects
Community law. Equally, this Directive does not affect (j) social services relating to
social housing, childcare and
the
social security legislation of the Member States. support of families and persons
permanently or temporarily
in need which are provided by the State, by providers
mandated by the
State or by charities recognised as such by
7. This Directive does not affect the
exercise of fundamental
the State;
rights
as recognised in the Member States and by Community
law.
Nor does it affect the right to negotiate, conclude and (k) private security services;
enforce
collective agreements and to take industrial action in
accordance
with national law and practices which respect Com-
munity
law. (l) services
provided by notaries and bailiffs, who are
appointed by an official act of government.
3. This Directive shall not apply to the
field of taxation.
Article 2
Article 3
Scope
Relationship with other provisions of Community law
1. This Directive shall apply to services
supplied by provi-
ders
established in a Member State. 1. If the provisions of this Directive
conflict with a provision
of another Community act governing specific aspects of access
to or exercise of a service activity in specific sectors or for
2. This Directive shall not apply to the
following activities: specific
professions, the provision of the other Community act
shall prevail and shall apply to those specific sectors or profes-
sions. These include:
(a)
non-economic services of general interest;
(a) Directive 96/71/EC;
(b)
financial services, such as banking, credit, insurance and re-
insurance, occupational or personal
pensions, securities,
investment funds, payment and investment
advice, (b)
Regulation (EEC) No 1408/71;
including the services listed in Annex I
to Directive
2006/48/EC; (c)
Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by law, regu-
lation or administrative action in Member States concerning
(c)
electronic communications services and networks, and the pursuit of television broadcasting
activities (1
associated facilities and services, with
respect to matters
);
covered by Directives 2002/19/EC, 2002/20/EC,
2002/21/EC, 2002/22/EC and
2002/58/EC;
(d) Directive 2005/36/EC.
(d)
services in the field of transport, including port services, (1) OJ L 298, 17.10.1989, p. 23.
Directive as amended by Directive
97/36/EC
of the European Parliament and of the Council (OJ L 202,
falling within the scope of Title V of
the Treaty;
30.7.1997, p. 60).
7.11.2006 EN
Official Journal of the European Union C 270E/17
2. This Directive does not concern rules of
private interna- bodies, or
the collective rules of professional associations
tional
law, in particular rules governing the law applicable to or other professional
organisations, adopted in the exercise
contractual
and non contractual obligations, including those of their legal autonomy; rules laid down in
collective
which
guarantee that consumers benefit from the protection agreements negotiated by the social partners
shall not as
granted
to them by the consumer protection rules laid down in such be seen as requirements within the meaning of
this
the
consumer legislation in force in their Member State. Directive;
3. Member States shall apply the provisions
of this Directive
in
compliance with the rules of the Treaty on the right of 8) `overriding reasons relating
to the public interest' means
establishment
and the free movement of services. reasons recognised as such in the case
law of the Court of
Justice,
including the following grounds: public policy;
public security; public safety; public health; preserving the
financial
equilibrium of the social security system; the
protection of consumers, recipients of services and
workers;
fairness of trade transactions; combating fraud;
the protection of the environment and the urban environ-
Article 4 ment; the
health of animals; intellectual property; the
conservation of the national historic and artistic heritage;
social policy objectives and cultural policy objectives;
Definitions
9) `competent authority' means
any body or authority which
For the
purposes of this Directive, the following definitions has a supervisory or regulatory role in a Member
State in
shall
apply: relation to
service activities, including, in particular,
administrative authorities, including courts acting as such,
1) `service' means any self-employed economic
activity,
professional bodies, and those professional associations or
normally provided for remuneration, as
referred to in other
professional organisations which, in the exercise of
Article 50 of the Treaty;
their legal autonomy, regulate in a collective manner
access to service activities or the exercise thereof;
2) `provider' means any natural person who is
a national of a
Member State, or any legal person as
referred to in Article
48 of the Treaty and established in a
Member State, who 10) `Member
State where the service is provided' means the
offers or provides a service;
Member State where the service is supplied by a provider
established in another Member State;
3) `recipient' means any natural person who
is a national of a
Member State or who benefits from rights
conferred upon
him by Community acts, or any legal
person as referred to
in Article 48 of the Treaty and
established in a Member 11)
`regulated profession' means a professional activity or a
State, who, for professional or
non-professional purposes,
group of professional activities as referred to in Article
uses, or wishes to use, a service; 3(1)(a)
of Directive 2005/36/EC;
4) `Member State of establishment' means the
Member State
in whose territory the provider of the
service concerned is 12)
`commercial communication' means any form of commu-
established; nication
designed to promote, directly or indirectly, the
goods, services or image of an undertaking, organisation
or person engaged in commercial, industrial or craft
5) `establishment' means the actual pursuit
of an economic activity
or practising a regulated profession. The following
activity, as referred to in Article 43
of the Treaty, by the do not
in themselves constitute commercial communica-
provider for an indefinite period and
through a stable tions:
infrastructure from where the business of providing
services is actually carried out;
6) `authorisation scheme' means any procedure
under which (a)
information enabling direct access to the activity of the
a provider or recipient is in effect
required to take steps in
undertaking, organisation or person, including in par-
order to obtain from a competent
authority a formal deci-
ticular a domain name or an electronic-mailing
sion, or an implied decision, concerning
access to a service
address;
activity or the exercise thereof;
7) `requirement' means any obligation,
prohibition, condition (b)
communications relating to the goods, services or
or limit provided for in the laws,
regulations or administra-
image of the undertaking, organisation or person,
tive provisions of the Member States or
in consequence of
compiled in an independent manner, particularly when
case-law, administrative practice, the
rules of professional
provided for no financial consideration.
C
270E/18 EN Official Journal of
the European Union 7.11.2006
CHAPTER
II of 21
December 1989 concerning disclosure requirements in
respect of branches opened in a Member State by certain types
of company governed by the law of another State (4).
ADMINISTRATIVE
SIMPLIFICATION
Article 5
Article 6
Simplification of
procedures Points of single
contact
1. Member States shall examine the
procedures and formal-
ities
applicable to access to a service activity and to the exercise 1. Member States shall ensure that it is possible for provi-
thereof.
Where procedures and formalities examined under this ders to
complete the following procedures and formalities
paragraph
are not sufficiently simple, Member States shall through points of single contact:
simplify
them. (a) all procedures and formalities
needed for access to his
service activities, in particular, all declarations, notifications
2. The Commission may introduce harmonised
forms at or
applications necessary for authorisation from the compe-
Community
level, in accordance with the procedure referred to tent authorities, including applications for
inclusion in a
in Article
40(2). These forms shall be equivalent to certificates, register, a roll or a
database, or for registration with a
attestations
and any other documents required of a provider. professional body or association;
(b) any applications for authorisation needed to exercise his
3. Where Member States require a provider
or recipient to
service activities.
supply
a certificate, attestation or any other document proving
that a
requirement has been satisfied, they shall accept any 2. The
establishment of points of single contact shall be
document
from another Member State which serves an equiva- without
prejudice to the allocation of functions and powers
lent
purpose or from which it is clear that the requirement in among the authorities within
national systems.
question
has been satisfied. They may not require a document
from
another Member State to be produced in its original
form,
or as a certified copy or as a certified translation, save in
the
cases provided for in other Community instruments or
where
such a requirement is justified by an overriding reason Article 7
relating
to the public interest, including public order and
security.
Right to information
The first
subparagraph shall not affect the right of Member
States
to require non-certified translations of documents in one 1. Member States shall ensure that the following information
of
their official languages. is easily accessible to providers and
recipients through the
points of single contact:
4. Paragraph 3 shall not apply to the
documents referred to (a) requirements applicable to
providers established in their
in
Article 7(2) and 50 of Directive 2005/36/EC, in Articles territory, in
particular those requirements concerning the
45(3),
46, 49 and 50 of Directive 2004/18/EC of the European procedures and formalities to be completed
in order to
Parliament
and of the Council of 31 March 2004 on the coor- access and to exercise service activities;
dination
of procedures for the award of public works contracts,
public
supply contracts and public service contracts (1), in (b) the contact details of the competent
authorities enabling
Article
3(2) of Directive 98/5/EC of the European Parliament the
latter to be contacted directly, including the details of
and of
the Council of 16 February 1998 to facilitate practice of those authorities
responsible for matters concerning the
the
profession of lawyer on a permanent basis in a Member exercise of service activities;
State
other than that in which the qualification was obtained (2),
in the
First Council Directive 68/151/EEC of 9 March 1968 on
coordination
of safeguards which, for the protection of the (c) the means of, and conditions for, accessing
public registers
interests
of members and others, are required by Member and databases on providers and
services;
States
of companies within the meaning of the second para-
graph
of Article 58 of the Treaty, with a view to making such (d) the means of redress which
are generally available in the
safeguards
equivalent throughout the Community (3) and in the event of dispute between the competent
authorities and the
Eleventh Council Directive 89/666/EEC
provider or the recipient, or between a provider and a reci-
pient or between
providers;
(1) OJ
L 134, 30.4.2004, p. 114. Directive as last amended by Commis-
sion Regulation (EC) No 2083/2005 (OJ L
333, 20.12.2005, p. 28). (e) the
contact details of the associations or organisations,
(2) OJ
L 77, 14.3.1998, p. 36. Directive as amended by the 2003 Act other than the competent
authorities, from which providers
of Accession. or
recipients may obtain practical assistance.
(3) OJ
L 65, 14.3.1968, p. 8. Directive as last amended by Directive
2003/58/EC of the European Parliament
and of the Council (OJ L
221, 4.9.2003, p. 13).
(4) OJ L 395, 30.12.1989, p. 36.
7.11.2006 EN Official Journal of the European
Union C 270E/19
2. Member States shall ensure that it is
possible for provi-
CHAPTER III
ders
and recipients to receive, at their request, assistance from
the
competent authorities, consisting in information on the FREEDOM OF
ESTABLISHMENT FOR PROVIDERS
way in
which the requirements referred to in point (a) of para-
graph 1
are generally interpreted and applied. Where appro-
priate,
such advice shall include a simple step-by-step guide.
The
information shall be provided in plain and intelligible
SECTION 1
language.
Authorisations
3. Member States shall ensure that the
information and
assistance
referred to in paragraphs 1 and 2 are provided in a
clear
and unambiguous manner, that they are easily accessible
at a
distance and by electronic means and that they are kept up
Article 9
to
date. Authorisation
schemes
4. Member States shall ensure that the
points of single 1. Member States shall not make access to a
service activity
contact
and the competent authorities respond as quickly as or the
exercise thereof subject to an authorisation scheme
possible
to any request for information or assistance as referred unless the following conditions are
satisfied:
to in
paragraphs 1 and 2 and, in cases where the request is
faulty
or unfounded, inform the applicant accordingly without (a) the authorisation scheme does
not discriminate against the
delay.
provider in question;
(b) the need
for an authorisation scheme is justified by an
5. Member States and the Commission shall
take accompa- overriding
reason relating to the public interest;
nying
measures in order to encourage points of single contact
to make
the information provided for in this Article available (c) the objective pursued cannot be
attained by means of a less
in
other Community languages. This does not interfere with restrictive measure, in particular because an a
posteriori
Member
States' legislation on the use of languages. inspection would take place too late to
be genuinely effec-
tive.
6. The obligation for competent
authorities to assist provi-
2. In the report referred to
in Article 39(1), Member States
ders
and recipients does not require those authorities to shall
identify their authorisation schemes and give reasons
provide
legal advice in individual cases but concerns only showing their compatibility with paragraph 1 of this
Article.
general
information on the way in which requirements are
usually
interpreted or applied. 3. This section shall not apply to those
aspects of authorisa-
tion schemes which are governed directly or indirectly by other
Community instruments.
Article 8
Article 10
Procedures by electronic
means
Conditions for the granting of authorisation
1. Member States shall ensure that all
procedures and form- 1. Authorisation schemes shall be based on
criteria which
alities
relating to access to a service activity and to the exercise preclude the competent authorities from
exercising their power
thereof
may be easily completed, at a distance and by electronic of assessment in an arbitrary manner.
means,
through the relevant point of single contact and with
the
relevant competent authorities. 2. The criteria referred to in paragraph 1 shall be:
(a)
non-discriminatory;
2. Paragraph 1 shall not apply to the
inspection of premises
on
which the service is provided or of equipment used by the (b) justified by an overriding
reason relating to the public
provider
or to physical examination of the capability or of the interest;
personal
integrity of the provider or of his responsible staff.
(c) proportionate to that public interest objective;
3. The Commission shall, in accordance
with the procedure (d) clear and
unambiguous;
referred
to in Article 40(2), adopt detailed rules for the imple-
mentation
of paragraph 1 of this Article with a view to facili- (e) objective;
tating
the interoperability of information systems and use of
procedures
by electronic means between Member States, taking (f) made public in advance;
into
account common standards developed at Community
level.
(g) transparent and accessible.
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Journal of the European Union 7.11.2006
3. The conditions for granting authorisation
for a new estab- 4. This Article shall be without prejudice
to the Member
lishment
shall not duplicate requirements and controls which States' ability to revoke authorisations, when
the conditions for
are
equivalent or essentially comparable as regards their authorisation are no longer met.
purpose
to which the provider is already subject in another
Member
State or in the same Member State. The liaison points
referred
to in Article 28(2) and the provider shall assist the
competent
authority by providing any necessary information Article 12
regarding
those requirements.
Selection
from among several candidates
4. The authorisation shall enable the
provider to have access
to the
service activity, or to exercise that activity, throughout
the
national territory, including by means of setting up agen- 1. Where the number of authorisations available for a given
cies,
subsidiaries, branches or offices, except where an authori- activity is limited because of
the scarcity of available natural
sation
for each individual establishment or a limitation of the resources or technical
capacity, Member States shall apply a
authorisation
to a certain part of the territory is justified by an selection procedure to potential candidates which
provides full
overriding
reason relating to the public interest. guarantees of impartiality and
transparency, including, in par-
ticular, adequate publicity about the
launch, conduct and
completion of the procedure.
5. The authorisation shall be granted as
soon as it is estab-
lished,
in the light of an appropriate examination, that the
conditions
for authorisation have been met. 2. In the cases referred to in paragraph 1, authorisation shall
be
granted for an appropriate limited period and may not be
open to automatic renewal nor confer any other advantage on
6. Except in the case of the granting of an
authorisation, the
provider whose authorisation has just expired or on any
any
decision from the competent authorities, including refusal person having any particular
links with that provider.
or
withdrawal of an authorisation, shall be fully reasoned and
shall
be open to challenge before the courts or other instances
of
appeal.
3. Subject to paragraph 1
and to Articles 9 and 10, Member
States may take into account, in establishing the rules for the
selection procedure, considerations of public health, social
7. This Article shall not call into question
the allocation of policy
objectives, the health and safety of employees or self-
the
competences, at local or regional level, of the Member employed persons, the protection of the environment, the
States'
authorities granting authorisations. preservation of cultural heritage
and other overriding reasons
relating to the public interest, in
conformity with Community
law.
Article 11
Duration of authorisation
Article 13
1. An authorisation granted to a provider
shall not be for a Authorisation procedures
limited
period, except where:
1. Authorisation procedures and formalities
shall be clear,
(a) the
authorisation is being automatically renewed or is made public in advance and be such as to provide
the appli-
subject only to the continued fulfilment
of requirements; cants
with a guarantee that their application will be dealt with
objectively and impartially.
(b) the
number of available authorisations is limited by an
overriding reason relating to the public
interest; or 2. Authorisation procedures and formalities
shall not be
(c) a
limited authorisation period can be justified by an over- dissuasive and shall not unduly
complicate or delay the provi-
riding reason relating to the public
interest. sion
of the service. They shall be easily accessible and any
charges
which the applicants may incur from their application
shall be reasonable and proportionate to the cost of the author-
2. Paragraph 1 shall not concern the maximum
period isation
procedures in question and shall not exceed the cost of
before
the end of which the provider must actually commence the procedures.
his activity
after receiving authorisation.
3. Authorisation procedures
and formalities shall provide
3. Member States shall require a provider to
inform the rele- applicants with a guarantee that their
application will be
vant
point of single contact provided for in Article 6 of the processed as quickly as
possible and, in any event, within a
following
changes:
reasonable period which is fixed and
made public in advance.
The period shall run only from the time when all documenta-
(a) the
creation of subsidiaries whose activities fall within the tion has been submitted. When
justified by the complexity of
scope of the authorisation scheme, the
issue, the time period may be extended once, by the
competent
authority, for a limited time. The extension and its
(b)
changes in his situation which result in the conditions for duration shall be duly
motivated and shall be notified to the
authorisation no longer being met.
applicant before the original period has expired.
7.11.2006 EN Official Journal of the
European Union C 270E/21
4. Failing a response within the time
period set or extended
obligation on the provider to have its principal establish-
in
accordance with paragraph 3, authorisation shall be deemed ment in their territory, or restrictions on the
freedom to
to have
been granted. Different arrangements may nevertheless choose between establishment in the form of an
agency,
be put
in place, where justified by overriding reasons relating branch or subsidiary;
to the
public interest, including a legitimate interest of third
parties.
4) conditions of reciprocity with the Member State in which
the provider already has an establishment, save in the case
5. All applications for authorisation shall
be acknowledged of
conditions of reciprocity provided for in Community
as
quickly as possible. The acknowledgement must specify the instruments concerning
energy;
following:
(a) the
period referred to in paragraph 3; 5) the case-by-case application of
an economic test making the
granting of authorisation subject to proof of the existence
(b) the
available means of redress; of an economic need or market demand, an assessment of
the potential or current economic effects of the activity or
(c)
where applicable, a statement that in the absence of a an assessment of the
appropriateness of the activity in rela-
response within the period specified,
the authorisation shall
tion to the economic planning objectives set by the compe-
be deemed to have been granted.
tent authority; this prohibition shall not concern planning
requirements which do not pursue economic aims but serve
6. In the case of an incomplete
application, the applicant
overriding reasons relating to the public interest;
shall
be informed as quickly as possible of the need to supply
any
additional documentation, as well as of any possible effects
on the
period referred to in paragraph 3. 6) the direct or indirect
involvement of competing operators,
including within consultative bodies, in the granting of
7. When a request is rejected because it
fails to comply with
authorisations or in the adoption of other decisions of the
the
required procedures or formalities, the applicant shall be competent authorities, with
the exception of professional
informed
of the rejection as quickly as possible. bodies and associations or other
organisations acting as the
competent authority;
this prohibition shall not concern the
consultation of organisations, such as chambers of
commerce or social
partners, on matters other than indivi-
dual applications for authorisation, or a consultation of the
public
at large;
SECTION 2
Requirements prohibited or subject to
evaluation 7) an
obligation to provide or participate in a financial guar-
antee or to take out insurance from a provider or body
established in their territory. This shall not affect the possi-
bility for Member States to require insurance or financial
Article
14 guarantees as such, nor
shall it affect requirements relating
to the participation in a collective compensation fund, for
instance for
members of professional bodies or organisa-
Prohibited
requirements
tions;
Member
States shall not make access to, or the exercise of, a
service
activity in their territory subject to compliance with any 8) an obligation to have been
pre-registered, for a given
of the
following:
period, in the registers held in their territory or to have
previously exercised the activity for a given period in their
1)
discriminatory requirements based directly or indirectly on territory.
nationality or, in the case of
companies, the location of the
registered office, including in
particular:
(a) nationality requirements for the
provider, his staff,
persons holding the share capital
or members of the Article 15
provider's management or
supervisory bodies;
(b) a requirement that the provider, his
staff, persons
holding the share capital or
members of the provider's Requirements to be evaluated
management or supervisory bodies
be resident within
the territory;
2) a
prohibition on having an establishment in more than one 1. Member States shall examine whether, under their legal
Member State or on being entered in the
registers or system, any
of the requirements listed in paragraph 2 are
enrolled with professional bodies or
associations of more imposed
and shall ensure that any such requirements are
than one Member State;
compatible with the conditions laid down in paragraph 3.
Member States shall adapt their laws, regulations or administra-
3)
restrictions on the freedom of a provider to choose between tive provisions so as to make
them compatible with those
a principal or a secondary
establishment, in particular an conditions.
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270E/22 EN Official Journal of the
European Union 7.11.2006
2. Member States shall examine whether
their legal system (a) the
requirements that they intend to maintain and the
makes
access to a service activity or the exercise of it subject to reasons why they consider that
those requirements comply
compliance
with any of the following non-discriminatory with
the conditions set out in paragraph 3;
requirements:
(b) the requirements which have been abolished or made less
stringent.
(a)
quantitative or territorial restrictions, in particular in the
form of limits fixed according to
population or of a 6. From ... (*), Member States shall not
introduce any new
minimum geographical distance between
providers; requirement
of a kind listed in paragraph 2, unless that require-
ment satisfies the conditions laid down in paragraph 3.
(b) an obligation
on a provider to take a specific legal form; 7. Member
States shall notify the Commission of any new
laws, regulations or administrative provisions which set
(c)
requirements which relate to the shareholding of a requirements as referred to in paragraph 6,
together with the
company; reasons
for those requirements. The Commission shall commu-
nicate the provisions concerned to the other Member States.
Such notification shall not prevent Member States from
(d)
requirements, other than those concerning matters covered adopting the provisions in
question.
by Directive 2005/36/EC or provided for
in other Com-
munity instruments, which reserve access
to the service
activity in question to particular
providers by virtue of the Within a
period of 3 months from the date of receipt of the
specific nature of the activity;
notification, the Commission shall examine the compatibility of
any new requirements with Community law and, where appro-
priate, shall adopt a decision requesting the Member State in
(e) a
ban on having more than one establishment in the terri- question to refrain from adopting
them or to abolish them.
tory of the same State;
The notification of a draft
national law in accordance with
Directive 98/34/EC shall fulfil the obligation of notification
(f)
requirements fixing a minimum number of employees; provided for in this Directive.
(g)
fixed minimum and/or maximum tariffs with which the
provider must comply;
CHAPTER IV
(h) an
obligation on the provider to supply other specific FREE MOVEMENT OF SERVICES
services jointly with his service.
3. Member States shall verify that the
requirements referred SECTION 1
to in
paragraph 2 satisfy the following conditions:
Freedom to provide services and related derogations
(a)
non-discrimination: requirements must be neither directly
nor indirectly discriminatory according to nationality nor,
with regard to companies, according to
the location of the Article 16
registered office;
Freedom to provide
services
(b)
necessity: requirements must be justified by an overriding
reason relating to the public
interest;
1. Member States shall
respect the right of providers to
provide services in a Member State other than that in which
(c)
proportionality: requirements must be suitable for securing they are established.
the attainment of the objective pursued;
they must not go
beyond what is necessary to attain that
objective and it The Member
State in which the service is provided shall ensure
must not be possible to replace those
requirements with free access to and free exercise of a
service activity within its
other, less restrictive measures which
attain the same result. territory.
4. Paragraphs 1, 2 and 3 shall apply to
legislation in the Member States
shall not make access to or exercise of a service
field
of services of general economic interest only insofar as the activity in their territory subject to
compliance with any
application
of these paragraphs does not obstruct the perfor- requirements which do not respect the following
principles:
mance,
in law or in fact, of the particular task assigned to
them.
(a) non-discrimination: the requirement may be neither directly
nor indirectly discriminatory with regard to nationality or,
in the case of legal persons, with regard to the Member
State in which they are established;
5. In the mutual evaluation report
provided for in
Article
39(1), Member States shall specify the following: (*) Date of
entry into force of this Directive.
7.11.2006 EN Official Journal of the European
Union
C 270E/23
(b)
necessity: the requirement must be justified for reasons of the application of this
Article, in which it shall consider the
public policy, public security, public
health or the protec- need
to propose harmonisation measures regarding service
tion of the environment;
activities covered by this Directive.
(c)
proportionality: the requirement must be suitable for
attaining the objective pursued, and
must not go beyond
what is necessary to attain that
objective.
Article 17
Additional derogations from the freedom to provide
2. Member States may not restrict the
freedom to provide services
services
in the case of a provider established in another
Member
State by imposing any of the following requirements:
Article
16 shall not apply to:
(a) an
obligation on the provider to have an establishment in 1) Services of general
economic interest which are provided
their territory; in another Member State,
inter alia:
(b) an
obligation on the provider to obtain an authorisation (a) in the postal sector, services covered
by Directive
from their competent authorities
including entry in a 97/67/EC of the European Parliament
and of the
register or registration with a
professional body or associa- Council of 15 December 1997 on common rules
for
tion in their territory, except where
provided for in this
the development of the internal market of Community
Directive or other instruments of
Community law;
postal services and the improvement of quality of
service (1);
(c) a
ban on the provider setting up a certain form or type of (b) in the electricity
sector, services covered by Directive
infrastructure in their territory,
including an office or cham-
2003/54/EC of the European Parliament and of the
bers, which the provider needs in order
to supply the
Council of 26 June 2003 concerning common rules
services in question; for
the internal market in electricity (2);
(c) in the gas sector, services covered by Directive
(d) the
application of specific contractual arrangements 2003/55/EC of the European
Parliament and of the
between the provider and the recipient
which prevent or Council of 26 June 2003 concerning
common rules
restrict service provision by the
self-employed;
for the internal market in natural gas (3);
(d) water distribution and
supply services and waste water
(e) an
obligation on the provider to possess an identity docu- services;
ment issued by its competent authorities
specific to the
exercise of a service activity;
(e) treatment of waste;
(f)
requirements, except for those necessary for health and 2) matters covered by
Directive 96/71/EC;
safety at work, which affect the use of
equipment and mate-
rial which are an integral part of the
service provided; 3)
matters covered by Directive 95/46/EC of the European
Parliament and of the Council of 24 October 1995 on the
protection of individuals with regard to the processing of
(g)
restrictions on the freedom to provide the services referred personal data and on the
free movement of such data (4);
to in Article 19. 4) matters
covered by Council Directive 77/249/EEC of 22
March 1977 to
facilitate the effective exercise by lawyers
3. The Member State to which the provider
moves shall not of
freedom to provide services (5);
be
prevented from imposing requirements with regard to the
provision
of a service activity, where they are justified for 5) the activity of judicial recovery of debts;
reasons
of public policy, public security, public health or the
protection
of the environment and in accordance with para- 6) matters covered by Title II of Directive
2005/36/EC, as
graph
1. Nor shall that Member State be prevented from well as requirements in the Member
State where the
applying,
in accordance with Community law, its rules on service is provided which reserve an
activity to a particular
employment
conditions, including those laid down in collective profession;
agreements.
(1)
OJ L 15, 21.1.1998, p. 14. Directive as last amended by Regulation
(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).
(2) OJ L 176, 15.7.2003, p. 37. Directive as amended by Council Direc-
4. By ... (*) the Commission shall, after
consultation of the tive
2004/85/EC (OJ L 236, 7.7.2004, p. 10).
Member
States and the social partners at Community level, (3) OJ L 176, 15.7.2003, p. 57.
submit
to the European Parliament and the Council a report on (4) OJ L 281, 23.11.1995, p.
31. Directive as last amended by Regu-
lation (EC) No 1882/2003.
(5) OJ L 78, 26.3.1977, p. 17. Directive as last amended by the 2003
(*)
Five years after the entry into force of this Directive. Act of Accession.
C
270E/24 EN Official Journal of
the European Union 7.11.2006
7) matters covered by Regulation (EEC) No
1408/71; provider
established in another Member State, take measures
relating to the safety of
services.
8) as regards administrative formalities
concerning the free
movement of persons and their
residence, matters covered
by the provisions of Directive
2004/38/EC that lay down
2. The measures provided for
in paragraph 1 may be taken
administrative formalities of the
competent authorities of only
if the mutual assistance procedure laid down in Article 35
the Member State where the service is
provided with is complied with and the following
conditions are fulfilled:
which beneficiaries must comply;
9) as regards third country nationals who
move to another (a) the
national provisions in accordance with which the
Member State in the context of the
provision of a service,
measure is taken have not been subject to Community
the possibility for Member States to
require visa or resi-
harmonisation in the field of the safety of services;
dence permits for third country
nationals who are not
covered by the mutual recognition
regime provided for in (b)
the measures provide for a higher level of protection of the
Article 21 of the Convention
implementing the Schengen
recipient than would be the case in a measure taken by the
Agreement of 14 June 1985 on the
gradual abolition of
Member State of establishment in accordance with its
checks at the common borders (1) or the
possibility to
national provisions;
oblige third country nationals to
report to the competent
authorities of the Member State in
which the service is
provided on or after their entry; (c) the Member State of establishment has
not taken any
measures or has taken measures which are insufficient as
10) as
regards the shipment of waste, matters covered by compared with those referred to in Article
35(2);
Council Regulation (EEC) No 259/93 of 1
February 1993
on the supervision and control of
shipments of waste (d)
the measures are proportionate.
within, into and out of the European
Community (2);
11)
copyright, neighbouring rights and rights covered by 3.
Paragraphs 1 and 2 shall be without prejudice to provi-
Council Directive 87/54/EEC of 16 December
1986 on the sions, laid
down in Community instruments, which guarantee
legal protection of topographies of
semiconductor the
freedom to provide services or which allow derogations
products (3) and by Directive 96/9/EC
of the European therefrom.
Parliament and of the Council of 11
March 1996 on the
legal protection of databases (4), as
well as industrial prop-
erty rights;
12)
acts requiring by law the involvement of a notary;
13)
matters covered by Directive 2006/43/EC of the European
SECTION 2
Parliament and of the Council of 17 May
2006 on statu-
tory audit of annual accounts and
consolidated
accounts (5);
Rights of recipients of services
14) the
registration of vehicles leased in another Member State;
15)
provisions regarding contractual and non-contractual obli-
gations, including the form of
contracts, determined
pursuant to the rules of private
international law. Article 19
Prohibited restrictions
Article 18
Case-by-case
derogations
Member States may not impose on a recipient requirements
which restrict
the use of a service supplied by a provider estab-
lished in another Member State, in particular the following
1. By way of derogation from Article 16, and
in exceptional requirements:
circumstances
only, a Member State may, in respect of a
(a) an obligation to obtain authorisation from or to make a
(1) OJ
L 239, 22.9.2000, p. 19. Convention as last amended by Regu- declaration to their competent
authorities;
lation (EC) No 1160/2005 of the European
Parliament and of the
Council (OJ L 191, 22.7.2005, p. 18).
(2) OJ
L 30, 6.2.1993, p. 1. Regulation as last amended by Commission (b) discriminatory limits on the grant
of financial assistance by
Regulation (EC) No 2557/2001 (OJ L 349,
31.12.2001, p. 1).
(3) OJ
L 24, 27.1.1987, p. 36. reason of the fact that
the provider is established in another
(4) OJ
L 77, 27.3.1996, p. 20. Member State or
by reason of the location of the place at
(5) OJ
L 157, 9.6.2006, p. 87. which the
service is provided.
7.11.2006 EN Official Journal of the European
Union
C 270E/25
Article 20 each other mutual assistance and
shall put in place all possible
measures for effective cooperation. Together with the Commis-
sion, Member States shall put in place practical arrangements
Non-discrimination necessary for the implementation of
paragraph 1.
1. Member States shall ensure that the
recipient is not made 4. The Commission shall, in accordance with
the procedure
subject
to discriminatory requirements based on his nationality referred to in Article 40(2), adopt
measures for the implemen-
or
place of residence. tation of
paragraphs 1, 2 and 3 of this Article, specifying the
technical mechanisms for the exchange of information between
the bodies of the various Member States and, in particular, the
2. Member States shall ensure that the
general conditions of
interoperability of information systems, taking into account
access
to a service, which are made available to the public at common standards.
large
by the provider, do not contain discriminatory provisions
relating
to the nationality or place of residence of the recipient,
but
without precluding the possibility of providing for differ-
ences
in the conditions of access where those differences are
directly
justified by objective criteria. CHAPTER V
QUALITY OF SERVICES
Article 21 Article 22
Assistance for
recipients
Information on providers and their services
1. Member States shall ensure that
recipients can obtain, in
their
Member State of residence, the following information: 1. Member
States shall ensure that providers make the
following information available to the recipient:
(a)
general information on the requirements applicable in
other Member States relating to access
to, and exercise of, (a) the name
of the provider, his legal status and form, the
service activities, in particular those
relating to consumer
geographic address at which he is established and details
protection;
enabling him to be contacted rapidly and communicated
with directly and, as the
case may be, by electronic means;
(b)
general information on the means of redress available in
the case of a dispute between a provider
and a recipient; (b) where the
provider is registered in a trade or other similar
public register, the name of that register and the provider's
registration number, or equivalent means of identification
(c) the
contact details of associations or organisations, in that register;
including the centres of the European
Consumer Centres
Network, from which providers or
recipients may obtain (c)
where the activity is subject to an authorisation scheme,
practical assistance.
the particulars of the relevant competent authority or the
single point of
contact;
Where
appropriate, advice from the competent authorities shall
include
a simple step-by-step guide. Information and assistance (d) where the provider exercises an
activity which is subject to
shall
be provided in a clear and unambiguous manner, shall be VAT, the identification
number referred to in Article 22(1)
easily
accessible at a distance, including by electronic means, of Sixth Council Directive
77/388/EEC of 17 May 1977 on
and
shall be kept up to date. the
harmonisation of the laws of the Member States
relating to turnover taxes - Common system of value
2. Member States may confer responsibility
for the task added
tax: uniform basis of assessment (1);
referred
to in paragraph 1 on points of single contact or on
any
other body, such as the centres of the European Consumer (e) in the case of the regulated
professions, any professional
Centres
Network, consumer associations or Euro Info Centres. body or similar institution with which the
provider is regis-
tered, the professional title and the Member State in which
that title has been granted;
Member
States shall communicate to the Commission the
names
and contact details of the designated bodies. The
Commission
shall transmit them to all Member States. (f) the general conditions and clauses, if
any, used by the
provider;
3. In fulfilment of the requirements set out
in paragraphs 1 (g) the
existence of contractual clauses, if any, used by the
and 2,
the body approached by the recipient shall, if necessary, provider concerning the law
applicable to the contract and/
contact
the relevant body for the Member State concerned. The or the competent courts;
latter
shall send the information requested as soon as possible
to the
requesting body which shall forward the information to (1) OJ L 145, 13.6.1977, p. 1.
Directive as last amended by Directive
the
recipient. Member States shall ensure that those bodies give 2006/18/EC (OJ L 51, 22.2.2006,
p. 12).
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270E/26 EN Official Journal of
the European Union 7.11.2006
(h) the
existence of an after-sales guarantee, if any, not 4. Member
States shall ensure that the information which a
imposed by law;
provider must supply in accordance with this Chapter is made
available or communicated in a clear
and unambiguous
manner, and in good time before conclusion of the contract or,
(i) the
price of the service, where a price is pre-determined by where there is no written contract,
before the service is
the provider for a given type of
service;
provided.
(j) the
main features of the service, if not already apparent
from the context; 5. The information requirements laid down in
this Chapter
are in addition to requirements already provided for in Com-
(k) the
insurance or guarantees referred to in Article 23(1), and munity law and do not prevent Member
States from imposing
in particular the contact details of the
insurer or guarantor additional
information requirements applicable to providers
and the territorial coverage.
established in their territory.
2. Member States shall ensure that the
information referred
to in
paragraph 1, according to the provider's preference: 6. The
Commission may, in accordance with the procedure
referred to in Article 40(2), specify the content of the informa-
tion provided for in paragraphs 1
and 3 of this Article
(a) is
supplied by the provider on his own initiative; according to the specific nature of certain
activities and may
specify
the practical means of implementing paragraph 2 of
this Article.
(b) is
easily accessible to the recipient at the place where the
service is provided or the contract
concluded;
(c) can
be easily accessed by the recipient electronically by
means of an address supplied by the
provider; Article 23
(d)
appears in any information documents supplied to the reci-
pient by the provider which set out a
detailed description
of the service he provides.
Professional liability insurance and guarantees
3. Member States shall ensure that, at the
recipient's request,
providers
supply the following additional information: 1.
Member States may ensure that providers whose services
present a direct and particular risk to the health or safety of the
recipient or a third person, or to the financial security of the
(a)
where the price is not pre-determined by the provider for a recipient, subscribe to
professional liability insurance appro-
given type of service, the price of the
service or, if an exact priate to
the nature and extent of the risk, or provide a guar-
price cannot be given, the method for
calculating the price antee or
similar arrangement which is equivalent or essentially
so that it can be checked by the
recipient, or a sufficiently
comparable as regards its purpose.
detailed estimate;
(b) as
regards the regulated professions, a reference to the 2. When a
provider establishes himself in their territory,
professional rules applicable in the
Member State of estab- Member
States may not require professional liability insurance
lishment and how to access them; or a
guarantee from the provider where he is already covered
by a guarantee which is equivalent, or essentially comparable
as regards its purpose and the cover it provides in terms of the
(c)
information on their multidisciplinary activities and part- insured risk, the insured sum or a
ceiling for the guarantee and
nerships which are directly linked to
the service in question possible
exclusions from the cover, in another Member State in
and on the measures taken to avoid
conflicts of interest. which
the provider is already established. Where equivalence is
That information shall be included in
any information only
partial, Member States may require a supplementary guar-
document in which providers give a detailed
description of antee to cover
those aspects not already covered.
their services;
(d) any
codes of conduct to which the provider is subject and When a Member State requires a provider established in
its
the address at which these codes may be
consulted by elec- territory to
subscribe to professional liability insurance or to
tronic means, specifying the language
version available; provide
another guarantee, that Member State shall accept as
sufficient evidence attestations of such insurance cover issued
(e)
where a provider is subject to a code of conduct, or by credit institutions and insurers established
in other Member
member of a trade association or
professional body which
States.
provides for recourse to a non-judicial
means of dispute
settlement, information in this respect.
The provider shall
specify how to access detailed
information on the charac-
3. Paragraphs 1 and 2 shall
not affect professional insurance
teristics of, and conditions for, the
use of non-judicial or
guarantee arrangements provided for in other Community
means of dispute settlement.
instruments.
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Union C 270E/27
4. For the implementation of paragraph 1,
the Commission ethics
and conduct, which vary according to the specific
may, in
accordance with the procedure referred to in Article nature of each profession, and is necessary in
order to
40(2),
establish a list of services which exhibit the characteris- ensure their independence and
impartiality;
tics
referred to in paragraph 1 of this Article and establish
common
criteria for defining, for the purposes of the insurance
or
guarantees referred to in that paragraph, what is appropriate (b) providers of certification,
accreditation, technical moni-
to the
nature and extent of the risk. toring, test or trial
services, in so far as is justified in order
to ensure their independence and impartiality.
5. For the purpose of this Article 2. Where multidisciplinary activities
between providers
referred to in points (a) and (b) of paragraph 1 are authorised,
-
`direct and particular risk' means a risk arising directly from Member States shall ensure the following:
the provision of the service,
(a) that conflicts of interest and incompatibilities between
-
`health and safety' means, in relation to a recipient or a certain activities are
prevented;
third person, the prevention of death or
serious personal
injury, (b)
that the independence and impartiality required for certain
-
`financial security' means, in relation to a recipient, the activities is secured;
prevention of substantial losses of
money or of value of
property, (c) that the rules governing
professional ethics and conduct for
different activities are compatible with one another, espe-
-
`professional liability insurance' means insurance taken out cially as regards matters of
professional secrecy.
by a provider in respect of potential
liabilities to recipients
and, where applicable, third parties
arising out of the provi- 3. In the report referred to in Article
39(1), Member States
sion of the service.
shall indicate which providers are subject to the requirements
laid down in paragraph 1 of this
Article, the content of those
requirements and the reasons for which they consider them to
be
justified.
Article 24
Commercial
communications by the regulated professions
Article 26
1. Member States shall remove all total
prohibitions on
commercial
communications by the regulated professions.
Policy on quality of services
2. Member States shall ensure that
commercial communica-
tions
by the regulated professions comply with professional
rules,
in conformity with Community law, which relate, in par- 1. Member States shall, in cooperation with the Commis-
ticular,
to the independence, dignity and integrity of the profes- sion, take accompanying measures to
encourage providers to
sion,
as well as to professional secrecy, in a manner consistent take action on a voluntary basis in
order to ensure the quality
with
the specific nature of each profession. Professional rules of service provision, in particular
through use of one of the
on
commercial communications shall be non-discriminatory, following methods:
justified
by an overriding reason relating to the public interest
and
proportionate. (a)
certification or assessment of their activities by independent
or accredited bodies;
(b) drawing up their own quality charter or participation in
Article 25 quality charters or labels drawn up by
professional bodies
at Community level.
Multidisciplinary
activities
2. Member States shall
ensure that information on the
significance of certain labels and the criteria for applying labels
1. Member States shall ensure that
providers are not made and other quality marks relating to
services can be easily
subject
to requirements which oblige them to exercise a given accessed by providers and recipients.
specific
activity exclusively or which restrict the exercise jointly
or in
partnership of different activities.
3. Member States shall, in
cooperation with the Commis-
sion, take accompanying measures to encourage professional
However,
the following providers may be made subject to such bodies, as well as chambers of commerce and craft
associations
requirements:
and consumer
associations, in their territory to cooperate at
Community level in order to promote the quality of service
(a) the
regulated professions, in so far as is justified in order to provision, especially by making it
easier to assess the compe-
guarantee compliance with the rules
governing professional tence of
a provider.
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Journal of the European Union 7.11.2006
4. Member States shall, in cooperation
with the Commis-
4. Member States shall take
the general measures necessary
sion,
take accompanying measures to encourage the develop- to ensure that providers who are subject
to a code of conduct,
ment of
independent assessments, notably by consumer asso- or are members of a trade association or
professional body,
ciations,
in relation to the quality and defects of service provi- which provides for recourse
to a non-judicial means of dispute
sion,
and, in particular, the development at Community level of settlement inform the
recipient thereof and mention that fact in
comparative
trials or testing and the communication of the any document which presents their services
in detail, specifying
results. how to access
detailed information on the characteristics of,
and conditions for, the use of such a mechanism.
5. Member States, in cooperation with the
Commission,
shall
encourage the development of voluntary European stan-
dards
with the aim of facilitating compatibility between services
supplied
by providers in different Member States, information
to the
recipient and the quality of service provision. CHAPTER
VI
ADMINISTRATIVE COOPERATION
Article 27
Article 28
Settlement of
disputes
Mutual assistance -
general obligations
1. Member States shall take the general
measures necessary
to
ensure that providers supply contact details, in particular a
postal
address, fax number or e-mail address and telephone 1.
Member States shall give each other mutual assistance,
number
to which all recipients, including those resident in and shall put in place measures for
effective cooperation with
another
Member State, can send a complaint or a request for one another, in order to ensure the
supervision of providers
information
about the service provided. Providers shall supply and the services they provide.
their
legal address if this is not their usual address for cor-
respondence.
2. For the purposes of this
Chapter, Member States shall
designate
one or more liaison points, the contact details of
Member
States shall take the general measures necessary to which shall be communicated to the other
Member States and
ensure
that providers respond to the complaints referred to in the Commission. The
Commission shall publish and regularly
the
first subparagraph in the shortest possible time and make update the list of liaison
points.
their
best efforts to find a satisfactory solution.
3. Information requests and
requests to carry out any
2. Member States shall take the general
measures necessary
checks, inspections and investigations under this Chapter shall
to
ensure that providers are obliged to demonstrate compliance be duly motivated, in
particular by specifying the reason for
with the
obligations laid down in this Directive as to the provi- the request. Information
exchanged shall be used only in
sion of
information and to demonstrate that the information is respect of the matter for
which it was requested.
accurate.
4. In the event of
receiving a request for assistance from
3. Where a financial guarantee is
required for compliance
competent authorities in another
Member State, Member States
with a
judicial decision, Member States shall recognise equiva- shall ensure that
providers established in their territory supply
lent
guarantees lodged with a credit institution or insurer estab- their competent authorities
with all the information necessary
lished
in another Member State. Such credit institutions must for supervising their
activities in compliance with their national
be
authorised in a Member State in accordance with Directive laws.
2006/48/EC
and such insurers in accordance, as appropriate,
with
First Council Directive 73/239/EEC of 24 July 1973 on
the
coordination of laws, regulations and administrative provi-
sions
relating to the taking-up and pursuit of the business of 5. In the event of difficulty in meeting a
request for informa-
direct insurance other than life
assurance (1) and tion or in carrying out checks,
inspections or investigations,
Directive
2002/83/EC of the European Parliament and of the the Member State in question shall rapidly
inform the
Council
of 5 November 2002 concerning life assurance (2). requesting Member State with a view to
finding a solution.
(1) OJ
L 228, 16.8.1973, p. 3. Directive as last amended by Directive
2005/68/EC of the European Parliament
and of the Council (OJ L
6. Member States shall
supply the information requested by
323, 9.12.2005, p. 1).
(2) OJ
L 345, 19.12.2002, p. 1. Directive as last amended by Directive other Member States or the
Commission by electronic means
2005/68/EC. and within
the shortest possible period of time.
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7. Member States shall ensure that registers
in which provi- 2. The Member State of establishment shall
not refrain from
ders
have been entered, and which may be consulted by the taking supervisory or enforcement measures in its
territory on
competent
authorities in their territory, may also be consulted, the grounds that the service has been
provided or caused
in
accordance with the same conditions, by the equivalent damage in another Member State.
competent
authorities of the other Member States.