draft services directive

8/2/2019 Draft Services Directive

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EUROPEAN PARLIAMENT

2004

2009

Committee on the Internal Market and Consumer Protection

PROVISIONAL

2004/0001(COD)Par 1 and Par 2

25.5.2005

***IDRAFT REPORT

on the proposal for a directive of the European Parliament and of the Council onservices in the internal market(COM(2004)0002 C5-0069/2004 2004/0001(COD))

Committee on the Internal Market and Consumer Protection

Rapporteur: Evelyne Gebhardt

Draftsman (*) : Anne Van Lancker, Committee on Employment and SocialAffairs

(*) Enhanced cooperation between committees Rule 47 of the Rules of Procedure


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PR_COD_1am

Symbols for procedures* Consultation procedure

majority of the votes cast **I Cooperation procedure (first reading)

majority of the votes cast **II Cooperation procedure (second reading)

majority of the votes cast, to approve the common positionmajority of Parliaments component Members, to reject or amend the common position

*** Assent proceduremajority of Parliaments component Members except in casescovered by Articles 105, 107, 161 and 300 of the EC Treaty and

Article 7 of the EU Treaty

***I Codecision procedure (first reading)majority of the votes cast ***II Codecision procedure (second reading)

majority of the votes cast, to approve the common positionmajority of Parliaments component Members, to reject or amend the common position

***III Codecision procedure (third reading)majority of the votes cast, to approve the joint text

(The type of procedure depends on the legal basis proposed by theCommission)

Amendments to a legislative text

In amendments by Parliament, amended text is highlighted in bold italics .Highlighting in normal italics is an indication for the relevant departmentsshowing parts of the legislative text for which a correction is proposed, toassist preparation of the final text (for instance, obvious errors or omissionsin a given language version). These suggested corrections are subject to theagreement of the departments concerned.


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CONTENTS

Page

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION ........ ......... ......... ......5

EXPLANATORY STATEMENT.........................................................................................90


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DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on servicesin the internal market(COM(2004)0002 C5-0069/2004 2004/0001(COD))

(Codecision procedure: first reading)

The European Parliament ,

having regard to the Commission proposal to the European Parliament and the Council(COM(2004)0002) 1,

having regard to Article 251(2) and Articles 47(2), 55, 71 and 80(2) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C5-0069/2004),

having regard to Rule 51 of its Rules of Procedure,

having regard to the report of the Committee on the Internal Market and Consumer Protection and the opinions of the Committee on Budgets, the Committee on Economic andMonetary Affairs, (A6-0000/2005);

1. Approves the Commission proposal as amended;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council and Commission.

Text proposed by the Commission Amendments by Parliament

Amendment 1Recital 1

(1) The European Union is seeking to forgeever closer links between the States and

peoples of Europe and to ensure economic

and social progress. In accordance withArticle 14(2) of the Treaty, the internalmarket comprises an area without internalfrontiers in which the free movement of services and the freedom of establishmentare ensured. The elimination of obstacles tothe development of service activities

between Member States is essential in order to strengthen the integration of the peoples

(1) The European Union is seeking to forgeever closer links between the States and

peoples of Europe and to ensure economic

and social progress. In accordance withArticle 14(2) of the Treaty, the internalmarket comprises an area without internalfrontiers in which the free movement of services and the freedom of establishmentare ensured. In order to promote growthand employment and to strengthencompetitiveness, the internal market inservices has to be fully operational, while

1 Not yet published in OJ.


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of Europe and to promote balanced andsustainable economic and social progress.

preserving the European social model.Thus the elimination of obstacles to thedevelopment of service activities betweenMember States is essential in order tostrengthen the integration of the peoples of

Europe and to promote balanced andsustainable economic and social progress.

Justification

This Directive must not jeopardise the higher standards of protection, which have beenestablished by the Member States and authorised by the Treaty, relating to employment,

protection of consumers and workers, the environment, health, etc. The March 2005 EuropeanCouncil explicitly called for all efforts to be undertaken within the legislative process to secure abroad consensus that meets all these objectives.


(3) Since services constitute the engine of economic growth and account for 70% of GDP and employment in the majority of Member States, this fragmentation of theinternal market has a negative impact on the

entire European economy, in particular onthe competitiveness of SMEs, and preventsconsumers from gaining access to a greater variety of competitively priced services. TheEuropean Parliament and the Council haveemphasised that the removal of legal barriersto the establishment of a genuine internalmarket is a matter of priority for achievingthe goal set by the Lisbon European Councilof making the European Union the mostcompetitive and dynamic knowledge-based

economy in the world by 2010. Removingthose barriers is essential in order to revivethe European economy, particularly in termsof employment and investment.

(3) Since services constitute the engine of economic growth and account for 70% of GDP and employment in the majority of Member States, this fragmentation of theinternal market has a negative impact on the

entire European economy, in particular onthe competitiveness of SMEs, and preventsconsumers from gaining access to a greater variety of competitively priced services. TheEuropean Parliament and the Council haveemphasised that the removal of legal barriersto the establishment of a genuine internalmarket is a matter of priority for achievingthe goal set by the Lisbon European Councilof making the European Union the mostcompetitive and dynamic knowledge-based

economy in the world by 2010. Removingthose barriers , while preserving the European social model, is essential in order to revive the European economy,

particularly in terms of employment andinvestment.

Justification

This Directive must not jeopardise the higher standards of protection, which have been


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established by the Member States and authorised by the Treaty, relating to employment, protection of consumers and workers, the environment, health, etc. The March 2005 EuropeanCouncil explicitly called for all efforts to be undertaken within the legislative process to secure abroad consensus that meets all these objectives.


(5) Those barriers cannot be removed solely by relying on direct application of Articles43 and 49 of the Treaty, since, on the onehand, addressing them on a case-by-case

basis through infringement proceduresagainst the Member States concerned would,especially following enlargement, be

extremely complicated for national andCommunity institutions, and, on the other hand, the lifting of many barriers requires

prior coordination of national legal schemes,including the setting up of administrativecooperation. As the European Parliamentand the Council have recognised, aCommunity legislative instrument makes it

possible to achieve a genuine internal marketfor services.

(5) Those barriers cannot be removed solely by relying on direct application of Articles43 and 49 of the Treaty, since, on the onehand, addressing them on a case-by-case

basis through infringement proceduresagainst the Member States concerned would,especially following enlargement, be

extremely complicated for national andCommunity institutions, and, on the other hand, the lifting of many barriers requires

prior coordination of national legal schemes,including the setting up of administrativecooperation. As the European Parliamentand the Council have recognised, aCommunity legislative instrument makes it

possible to achieve a genuine internal marketfor services. Thus, in order to secureeffective implementation of the free

movement of services, while upholding the European social model, an inventory of barriers already identified by the Court of

Justice as being contrary to the Treaty, theestablished case-law of the Court of Justiceon the principle of mutual recognition and the need for further harmonisation should be consolidated in a secondary legislationstandard.

Justification

This amendment shows the added value of this Directive and proposes a legal motivation for adopting a balanced instrument whose provisions do not go beyond what is necessary for achieving the objective of establishing a genuine internal market in services. On the other hand,the Commission proposal has not succeeded in properly justifying the new approach it haschosen, i.e. the country of origin principle, which breaks with the principle of equal treatment under Article 50 of the Treaty and the established case-law of more than 30 years whichinterprets and develops the Treatys provisions on the free provision of services.


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Amendment 4Recital 5 a (new)

(5a) It should be recalled that directivesadopted pursuant to Article 47(2) must aim

to achieve coordination of Member States laws, regulations and administrative provisions on taking up and pursuing activities as self-employed persons.Furthermore, Article 50 of the Treaty statesthat a person providing a service may, inorder to do so, temporarily pursue hisactivity in the Member State where theservice is provided, under the sameconditions as are imposed by that State onits own nationals.

Justification

There is a blatant contradiction between the country of origin principle and Article 50 of theTreaty, which is reproduced in Article III-145 of the Constitution. According to the country of origin principle, as defined in the Commissions proposal, an enterprise which provides a

service in any country of the Union is subject only to the law of its country of origin and is not required to comply with other, potentially more restrictive, national legislation. However, under

Article 50, the person providing a service has the right to be subject to the same conditions asthose imposed by the country of destination on its own nationals. The origin principle istherefore clearly contrary to the equal treatment principle laid down in the Treaties. Moreover,the country of origin principle runs counter to the spirit of European integration, which is based on coordinating the Member States provisions, as set out in Article 47(2).


(6) This Directive establishes a general legalframework which benefits a wide variety of

services while taking into account thedistinctive features of each type of activityor profession and its system of regulation.That framework is based on a dynamic andselective approach consisting in the removal,as a matter of priority, of barriers which may

be dismantled quickly and , for the others,the launching of a process of evaluation,consultation and complementaryharmonisation of specific issues , which willmake possible the progressive and

(6) This Directive establishes a general legalframework which benefits a wide variety of

services while taking into account thedistinctive features of each type of activityor profession and its system of regulation.That framework is based on a dynamic andselective approach consisting in the removal,as a matter of priority, of barriers which may

be dismantled quickly and the launching , at the same time, of a process of complementary harmonisation, which willmake possible the progressive andcoordinated modernisation of national


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coordinated modernisation of nationalregulatory systems for service activitieswhich is vital in order to achieve a genuineinternal market for services by 2010.Provision should be made for a balanced

mix of measures involving targetedharmonisation, administrative cooperation,the country of origin principle andencouragement of the development of codesof conduct on certain issues. Thatcoordination of national legislative regimesshould ensure a high degree of Communitylegal integration and a high level of

protection of general interest objectives,especially of consumer protection, which isvital in order to establish mutual trust

between Member States.

regulatory systems for service activitieswhich is vital in order to achieve a genuineinternal market for services by 2010.Provision should be made for a balancedmix of measures involving targeted

harmonisation, administrative cooperation,the mutual recognition and country of destination principles and encouragement of the development of codes of conduct oncertain issues. That coordination of nationallegislative regimes should ensure a highdegree of Community legal integration and ahigh level of protection of general interestobjectives, especially protection of consumers, the environment, publicsecurity and public health and compliance

with labour law , which is vital in order toestablish mutual trust between Member States.

Justification

This amendment proposes the legal instruments necessary to complete the internal market in services, while taking account of general interest objectives and adhering to the European social model.


(8) This Directive is consistent with other current Community initiatives concerningservices, particularly those relating to thecompetitiveness of business-related services,the safety of services, and work on patientmobility and the development of health carein the Community. It is also consistent with

current initiatives concerning the internalmarket, such as the proposal for aRegulation of the European Parliament andof the Council on sales promotions in theinternal market, and those concerningconsumer protection, such as the proposalfor a Directive on unfair commercial

practices and the proposal for a Regulationof the European Parliament and of theCouncil on cooperation between nationalauthorities responsible for the enforcement

(8) This Directive is without prejudice toother current Community initiativesconcerning services, particularly thoserelating to the competitiveness of business-related services, the safety of services, andwork on patient mobility and thedevelopment of health care in the

Community. It is also without prejudice tocurrent initiatives concerning the internalmarket, such as the proposal for aRegulation of the European Parliament andof the Council on sales promotions in theinternal market, and those concerningconsumer protection, such as the proposalfor a Directive on unfair commercial

practices and the proposal for a Regulationof the European Parliament and of theCouncil on cooperation between national


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of consumer protection laws (theRegulation on consumer protectioncooperation).

authorities responsible for the enforcementof consumer protection laws (theRegulation on consumer protectioncooperation).

Justification

Brings the text into line with the amendment to Article 2(2).


(8a) This Directive does not apply toservices of general interest. These activitiesare not covered by the definition in Article50 of the Treaty and do not therefore fall

within the scope of this Directive. This Directive does not affect the possibility for Member States to define, in accordancewith Community law, what they consider tobe services of general interest, how thoseservices should be organised and financed and what specific obligations they should be subject to. Furthermore, the criteria laid down in Article 2(1a) of this Directive donot prejudice a definition of services of

general interest in a future Community

legislative act on such services.

Justification

It needs to be made clear that services of general interest are not covered by this Directive, inaccordance with the concept of services established by the Treaty and the case-law of the Court of Justice. Services of general interest should be governed by a specific directive. The aim of thecriteria laid down in Article 2(1a) is to clarify the definition of this category of services, whileleaving Member States free to define what they consider to be services of general interest.

Amendment 8Recital 8 b (new)

(8b) Services of general economic interest,which are referred to in Articles 16 and 86(2) of the Treaty and which concern theareas of health and social security, social services, education and culture, areexcluded from the scope of this Directive sothat they can be dealt with specifically.


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Thus this Directive is without prejudice tothe future adoption of a framework directive on services of general interest.

Justification

Given their role in promoting social and territorial cohesion, services of general economicinterest should not be covered by this Directive but should be addressed by a specific framework directive.

Amendment 9Recital 8 c (new)

(8c) According to Article 45 of the Treaty

and established case-law, derogation fromthe basic rule of freedom of establishment should be restricted to activities which inthemselves are directly and specificallyconnected with the exercise of official authority. Thus, for example, the activitiesof security firms or security systems firmsand activities specific to the profession of lawyer, such as legal consultation and assistance and the representation and defence of parties in court, are not normally directly and specificallyconnected with the exercise of official authority. 1

1 Judgment of 9.3.2000 C-355/98Commission/Belgium; Judgment of 21.6.1974C-2/74 Reyners

Amendment 10

Recital 8 d (new)

(8d) Gambling activities which involvewagering a stake with pecuniary value in

games of chance, including lotteries and betting transactions, should be excluded

from the scope of this Directive in view of the existing provisions in many Member


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States which provide that profits made by alottery may only be used for certain

purposes, in particular those of general interest, or that they may be required to be

paid into the State budget.

Justification

In its established case-law, the European Court of Justice has left it up to the Member States governments to decide what restrictions to impose on the freedom to provide these services for the purposes of maintaining the social order and consumer protection, objectives which aredeemed to be overriding reasons relating to the public interest.

Amendment 11

Recital 12

(12) Since transport services are alreadycovered by a set of Community instrumentsspecific to that field, they should beexcluded from the scope of this Directive tothe extent that they are regulated by other Community instruments adopted under Articles 71 and 80(2) of the Treaty.However, this Directive applies to servicesthat are not regulated by specificinstruments concerning transport, such ascash in transit or the transport of mortalremains.

(12) Transport services , including urbantransport, port services, taxis and ambulances, are excluded from the scope of this Directive whether or not they areregulated by other Community instrumentsadopted under Articles 71 and 80(2) of theTreaty. However, cash in transit and thetransport of mortal remains are included inthe scope of this Directive given that internal market problems have beenidentified in these fields .

Justification

All service activities in respect of which the Treaty provides specific legal bases should beexcluded from the scope of this Directive, in particular the fields of taxation, financial services

and transport services, with the exception of cash in transit and the transport of mortal remains, given the internal market problems that have been identified in these two fields.


(13) There is already a considerable body of Community law on service activities ,especially the regulated professions, postal

(13) The fields of service activities onwhich there is already a considerable bodyof Community law are excluded from the


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services, television broadcasting,information society services and servicesrelating to travel, holidays and packagetours. Service activities are also covered byother instruments which do not deal with a

specific category of services, such as thoserelating to consumer protection. This Directive builds on, and thus complements,the Community acquis. Where a serviceactivity is already covered by one or moreCommunity instruments, this Directive and those instruments will all apply , therequirements laid down by one adding tothose laid down by the others. Accordingly,appropriate provisions should be laid down,including provision for derogations, in

order to prevent incompatibilities and toensure consistency as between all thoseCommunity instruments.

scope of this Directive , especially theregulated professions, postal services,television broadcasting, information societyservices and services relating to travel,holidays , package tours , etc . Where an area

of service activities is already covered byone or more Community instruments, thisDirective will not apply to it . Moreover, this

Directive does not cover any derogations or exclusions laid down by those Communityinstruments, nor does it affect the adoptionof Community instruments for amending or replacing Community legislation onspecific service sectors.

Justification

This Directive must comply with the Community instruments regulating specific sectors and with future instruments for amending or replacing them in order to abide by the principle of legal certainty and acquired rights.


(13a) The purpose of the exception for areas of service activities already covered bysectoral directives is to avoid a situationwhere particular services which constitutean exception within sectoral regulation and which have deliberately been excluded from

European legislation automatically fall

within the scope of this Directive.

Justification

Clarification.



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(14) The concept of service covers a widevariety of ever-changing activities, including

business services such as managementconsultancy, certification and testing;facilities management, including officemaintenance and security; advertising;recruitment services, including employmentagencies; and the services of commercialagents. That concept also covers services

provided both to businesses and toconsumers, such as legal or fiscal advice;real estate services such as estate agencies;construction , including the services of architects; transport ; distributive trades; theorganisation of trade fairs; car rental; travelagencies; and security services. It alsocovers consumer services, such as those inthe field of tourism, including tour guides;audio-visual services; leisure services,sports centres and amusement parks ; healthand health care services; and household support services, such as help for theelderly . Those activities may involveservices requiring the proximity of provider and recipient, services requiring travel bythe recipient or the provider and services

which may be provided at a distance,including via the Internet.

(14) The concept of service covers a widevariety of ever-changing activities, including

business services such as managementconsultancy, certification and testing;facilities management, including office

maintenance and security; advertising;recruitment services, including employmentagencies; and the services of commercialagents. That concept also covers services

provided both to businesses and toconsumers, such as real estate services suchas estate agencies; construction; distributivetrades; the organisation of trade fairs; car rental; travel agencies; and security services.It also covers consumer services, such asleisure services, sports centres and

amusement parks. Those activities mayinvolve services requiring the proximity of

provider and recipient, services requiringtravel by the recipient or the provider andservices which may be provided at adistance, including via the Internet. Theannexes to this Directive contain indicativelists of the services falling within the scopehereof.

Justification

The deletions are necessary in order to ensure consistency with the scope of the Directive. Inaddition, it needs to be stated that the lists included in the annexes are not exhaustive, and that their aim is to make the scope of the Directive clearer.


(15) As the Court of Justice hasconsistently held with regard to Articles 49et seq of the Treaty, the concept of servicecovers any economic activity normally

provided for remuneration, without theservice having to be paid for by thosebenefiting from it and regardless of the

(15) As the Court of Justice hasconsistently held with regard to Articles 49et seq of the Treaty, the concept of servicecovers any economic activity normally

provided for remuneration, whichconstitutes consideration for the service inquestion. However, the characteristic of


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financing arrangements for theremuneration received in return, by wayof consideration. Any service whereby a

provider participates in the economy,irrespective of his legal status or aims, or

the field of action concerned, thusconstitutes a service.

remuneration is absent in the case of activities performed, for no consideration,by the State, or where the remunerationdoes not constitute consideration for theservice provided but a contribution to the

financing of a system, such as courses provided under the national educationsystem or the management of social security regimes which do not engage inan economic activity. These activities arenot covered by the definition in Article 50of the Treaty and do not therefore fall within the scope of this Directive.

1

1 Judgment of 27.9.1988 C- 263/86, Humbel

Judgment of 7.12.1996 C-109/92 Wirth

Justification

Brings the text into line with the definitions of service and commercial service.


(16) The characteristic of remuneration isabsent in the case of activities performed,

for no consideration, by the State in fulfilment of its social, cultural,educational and legal obligations. Theseactivities are not covered by the definitionin Article 50 of the Treaty and do not therefore fall within the scope of this

Directive.

deleted

Justification

This recital is covered by the amended Recital 15.


(17) This Directive does not concern the (17) This Directive does not concern the


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(20) The concept of authorisation schemecovers, inter alia, the administrative

procedures for granting authorisations,licences, approvals or concessions, and alsothe obligation, in order to be eligible toexercise the activity, to be registered as amember of a profession or entered in aregister, roll or database, to be officiallyappointed to a body or to obtain a card attesting to membership of a particular

profession. Authorisation may be granted not only by a formal decision but also by animplicit decision arising, for example, from

the silence of the competent authority or from the fact that the interested party must await acknowledgement of receipt of adeclaration in order to commence theactivity in question or for the latter tobecome lawful.

deleted

Justification



(21) The concept of the coordinated field covers all requirements applicable to accessto service activities and to the exercisethereof, in particular those laid down by thelaws, regulations and administrative

provisions of each Member State, whether

or not they fall within an area harmonised at Community level or are general or specific in nature and regardless of thelegal field to which they belong under national law.

deleted

Justification

Brings the text into line with the amendments to Articles 4(9) and 16.


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(24) With the aim of administrativesimplification, general formal requirements,

such as a certified translation, must not beimposed, except where objectively justified by an overriding reason relating to the publicinterest, such as the protection of workers. Itis also necessary to ensure that anauthorisation normally permits access to, or exercise of, a service act ivity throughout thenational territory, unless a new authorisationfor each establishment, for example for eachnew hypermarket, is objectively justified byan overriding reason relating to the public

interest , such as protection of the urbanenvironment .

(24) With the aim of administrativesimplification, general formal requirements,

such as a certified translation, must not beimposed, except where objectively justified by an overriding reason relating to the publicinterest, such as the protection of workers ,the environment or consumers . It is alsonecessary to ensure that an authorisationnormally permits access to, or exercise of, aservice activity throughout the nationalterritory, unless a new authorisation for eachestablishment, for example for each newhypermarket, or an authorisation that is

restricted to a specific part of the national territory is objectively justified by anoverriding reason relating to the publicinterest.


(25) It is appropriate to provide for single

points of contact in order to ensure that each provider has a single point at which he cancomplete all procedures and formalities. Thenumber of single points of contact per Member State may vary according toregional or local competencies or accordingto the activities concerned. The creation of single points of contact does not interferewith the allocation of functions amongcompetent authorities within each nationalsystem. Where several authorities at regional

or local level are competent, one of themmay assume the role of single point of contact and coordinator. Single points of contact may be set up not only byadministrative authorities but also bychambers of commerce or crafts, or by the

professional organisations or private bodiesto which a Member State decides to entrustthat function. Single points of contact havean important role to play in providing

(25) It is appropriate to provide for single

points of contact in order to ensure that each provider has a single point at which he cancomplete all procedures and formalities.Furthermore, the single point of contact should apply the principle of mutual recognition in order to ensuretransparency. Thus a further function of the single point of contact is to assess theequivalence of protection levels and to put in place means of redress allowing service

providers to contest decisions prohibiting

them from providing services on a national market. In the event of mutual recognitionbeing refused, the single point of contact should notify the Commission.

The number of single points of contact per Member State may vary according toregional or local competencies or accordingto the activities concerned. The creation of single points of contact does not interfere


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assistance to providers either as the authoritydirectly competent to issue the documentsnecessary to access a service activity or asan intermediary between the provider andthe authorities which are directly competent.

In its Recommendation of 22 April 1997 onimproving and simplifying the businessenvironment for business start-ups 1, theCommission was already encouragingMember States to introduce points of contactto simplify formalities.

with the allocation of functions amongcompetent authorities within each nationalsystem. Where several authorities at regionalor local level are competent, one of themmay assume the role of single point of

contact and coordinator. Single points of contact may be set up not only byadministrative authorities but also bychambers of commerce or crafts, or by the

professional organisations or private bodiesto which a Member State decides to entrustthat function. Single points of contact havean important role to play in providingassistance to providers either as the authoritydirectly competent to issue the documentsnecessary to access a service activity or as

an intermediary between the provider andthe authorities which are directly competent.In its Recommendation of 22 April 1997 onimproving and simplifying the businessenvironment for business start-ups, theCommission was already encouragingMember States to introduce points of contactto simplify formalities.

Justification

Brings the text into line with the amendment proposing Article 6(1b).


(25a) The possibility of pro formaregistration with the single point of contact,which may also be carried out by electronicmeans, should be provided for within the

framework of the freedom to provideservices. Pro forma registration should allow cross-border service providers toenjoy the same rights and be subject to thesame obligations as nationals of thecountry of destination, in particular to itsrules of conduct. The country of destination should be duly informed of the

1 OJ L 145, 5.6.1997, p. 29.


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service provision in order to ensure thequality of services provided by offering therecipients of those services the possibility of lodging a complaint via the single point of contact.

Justification

Brings the text into line with the amendment proposing Article 6(1a) and with existing Community legislation, in particular Directive .../.../EC of the European Parliament and of theCouncil on the recognition of professional qualifications.

Amendment 24

Recital 27(27) The possibility of gaining access to aservice activity may be made subject toauthorisation by the competent authoritiesonly if that decision satisfies the criteria of non-discrimination, necessity and

proportionality. That means, in particular,that authorisation schemes should be

permissible only where an a posteriori inspection would not be effective because of

the impossibility of ascertaining the defectsof the services concerned a posteriori, dueaccount being taken of the risks and dangers which could arise in the absence of a prior inspection. However, the provisionto that effect made by this Directive cannot

be relied upon in order to justifyauthorisation schemes which are prohibited

by other Community instruments such asDirective 1999/93/EC of the EuropeanParliament and the Council of

13 December 1999 on a Communityframework for electronic signatures, or Directive 2000/31/EC of the EuropeanParliament and of the Council of 8 June2000 on certain legal aspects of informationsociety services, in particular electroniccommerce, in the internal market ('Directiveon electronic commerce'). The results of the

process of mutual evaluation will make it possible to determine, at Community level,the types of activity for which authorisation

(27) The competent authorities may makethe possibility of gaining access to a serviceactivity subject to authorisation, if thatdecision satisfies the criteria of non-discrimination, necessity and

proportionality. However, the provision tothat effect made by this Directive cannot berelied upon in order to justify authorisationschemes which are prohibited by other

Community instruments such asDirective 1999/93/EC of the EuropeanParliament and the Council of 13 December 1999 on a Communityframework for electronic signatures, or Directive 2000/31/EC of the EuropeanParliament and of the Council of 8 June2000 on certain legal aspects of informationsociety services, in particular electroniccommerce, in the internal market (Directiveon electronic commerce). The results of the

process of mutual evaluation will make it possible to determine, at Community level,the types of activity for which authorisationschemes should be eliminated.


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schemes should be eliminated.

Justification

This wording is more consistent with the concept of the mutual recognition principle in theestablished case-law of the Court of Justice.


(28) In cases where the number of authorisations available for an activity islimited because of scarcity of naturalresources or technical capacity, as may be the

position, for example, with regard to theaward of analogue radio frequencies or theexploitation of hydro-electric plant, a

procedure for selection from among several potential candidates must be adopted, withthe aim of developing through opencompetition the quality and conditions for supply of services available to users. Such a

procedure must provide guarantees of transparency and impartiality and the

authorisation thus granted must not have anexcessive duration, or be subject to automaticrenewal, or confer any advantage on thesuccessful provider. In particular, theduration of the authorisation granted must befixed in such as way that it does not restrict or limit free competition beyond what isnecessary to enable the provider to recoup thecost of investment and to make a fair returnon the capital invested. Cases where thenumber of authorisations is limited for

reasons other than scarcity of naturalresources or technical capacity remain in anycase subject to the other provisions of thisDirective relating to authorisation schemes.

(28) In cases where the number of authorisations available for an activity islimited because of scarcity of naturalresources or technical capacity, as may be the

position, for example, with regard to theexploitation of hydro-electric plant, a

procedure for selection from among several potential candidates must be adopted, withthe aim of developing through opencompetition the quality and conditions for supply of services available to users.

Authorisation schemes must be based onselection procedures which guaranteeimpartiality and complete transparency for

potential candidates and the authorisationthus granted must not have an excessiveduration, or be subject to automatic renewal,or confer any advantage on the successful

provider. In particular, the duration of theauthorisation granted must be fixed in such asway that it does not restrict or limit freecompetition beyond what is necessary toenable the provider to recoup the cost of investment and to make a fair return on thecapital invested. Cases where the number of

authorisations is limited for reasons other than scarcity of natural resources or technicalcapacity remain in any case subject to theother provisions of this Directive relating toauthorisation schemes.

Justification



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(29) The overriding reasons relating to the public interest to which reference is made

in certain harmonisation provisions of this Directive are those recognised by the Court of Justice in relation to Articles 43 and 49of the Treaty, notably the protection of consumers, recipients of services, workersand the urban environment.

deleted

Justification

Brings the text into line with the amendments to Articles 16 and 40 and Recital 40.


(32) The prohibition of economic tests as a prerequisite for the grant of authorisationcovers economic tests as such, but not requirements which are objectively justified by overriding reasons relating to the publicinterest, such as protection of the urban

environment. That prohibition does not affect the exercise of the powers of theauthorities responsible for applying competition law.

deleted

Justification



(33) In order to coordinate the modernisationof national rules and regulations in amanner consistent with the requirements of the internal market, it is necessary toevaluate certain non-discriminatory national requirements which, by their very nature,could severely restrict or even prevent accessto an activity or the exercise thereof under the freedom of establishment. Member States

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establish the principle that a provider maybe subject only to the law of the Member

State in which he is established. That principle is essential in order to enable providers, especially SMEs, to avail

themselves with full legal certainty of theopportunities offered by the internal market. By thus facilitating the freemovement of services between Member States, that principle, together withharmonisation and mutual assistancemeasures, also enables recipients to gainaccess to a wider choice of high qualityservices from other Member States. That

principle should be complemented by anassistance mechanism enabling the recipient,

in particular, to be informed about the lawsof the other Member States, and by theharmonisation of rules on the transparencyof service activities.

consolidate the principle of mutual recognition. According to that principle,the freedom to provide services, as one of the fundamental principles of the Treaty,may be restricted only by provisions which

are justified by the public interest and which are imposed on all persons or undertakings pursuing an activity in the

Member State of destination in so far asthat interest is not safeguarded by the

provisions to which the provider of theservice is subject in the Member State of hisestablishment. Thus the conditions laid down in the legislation of the Member Stateof destination cannot duplicate equivalent conditions, justifications and guarantees

which have already been satisfied in the Member State of establishment. By thusfacilitating the free movement of services

between Member States, that principle,together with further harmonisationmeasures, also enables recipients to gainaccess to a wider choice of high qualityservices from other Member States. That

principle should be complemented by anassistance mechanism enabling the recipient,in particular, to be informed about the lawsof the other Member States, and by theharmonisation of rules on the transparencyof service activities 1.

1 Judgment of 9.3.2000 C-355/98

Commission/Belgium Judgment of 4.12.1986 C-205/84Commission/Germany

Judgment of 17.12.1981 C-279/80 Webb

Justification

This amendment seeks to provide a definition of the principle of mutual recognition inaccordance with the established case-law of the Court of Justice. The difference between this

principle and the country of origin principle is clear. Under the country of origin principle, asdefined in this recital, a service provider can be subject, in principle, only to the legislation of the country in which he is established. The principle of mutual recognition, on the other hand, isbased on the concept of equivalence. Thus the conditions laid down in the legislation of the

Member State of destination cannot duplicate equivalent conditions which have already been satisfied in the Member State of origin.


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(38) It is also necessary to ensure thatsupervision of service activities is carriedout at source , that is to say, by thecompetent authorities of the Member Statein which the provider is established . Thecompetent authorities of the country of origin are best placed to ensure theeffectiveness and continuity of supervisionof the provider and to provide protection

for recipients not only in their own Member

State but also elsewhere in the Community. In order to establish mutual trust between Member States in the regulation of serviceactivities, it should be clearly laid down that responsibility under Community law for supervision of the activities of providers,regardless of the place where the service is

provided, lies with the Member State of origin. Determination of judicial

jurisdiction does not fall within the scope of this Directive but within that of Council

Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and therecognition and enforcement of judgmentsin civil and commercial matters, or other Community instruments such as

Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the

provision of services.

(38) It is also necessary to ensure thatsupervision of service activities is carriedout by the country of destination , that is tosay, by the competent authorities of theMember State in which the service is

provided . The supervisory authority of thecountry of destination must take intoaccount the supervision and verificationsalready carried out in the Member State of establishment. The administrativecooperation provided for in this Directiveand the establishment of a single point of contact will facilitate that supervision and control.

1OJ L 12 of 16.1.2001, p. 1. Directive last

amended by the Act of Accession 2003.2

OJ L 18 of 21.1.1997, p. 1.

Justification

Brings the text into line with the amendments seeking to replace the country of origin principlewith the mutual recognition principle.


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(39) As a corollary to the principle that thelaw of the country of origin should apply

and that the country of origin should beresponsible for supervision, it is necessaryto lay down the principle that Member Statesmay not restrict services coming fromanother Member State.

(39) It is necessary to lay down the principlethat Member States may restrict services

coming from another Member State only byregulations which are justified byoverriding reasons relating to the publicinterest and which apply to all persons or undertakings pursuing an activity in thecountry of destination in so far as that interest is not safeguarded by the rules towhich the provider of the service is subject in the Member State of his establishment.

In particular, such requirements must beobjectively necessary and must not go

beyond what is necessary in order toachieve those objectives

1 .

1 Judgment of 3.10.2000 C-58/98 Corsten

Justification

Brings the text into line with the case-law of the Court of Justice and with the replacement of thecountry of origin principle by the mutual recognition principle.


(40) It is necessary to provide that the rulethat the law of the country of origin is toapply may be departed from only in theareas covered by derogations, general or transitional. Those derogations arenecessary in order to take into account thelevel of integration of the internal market or certain Community instruments relating to services pursuant to which a provider issubject to the application of a law other than that of the Member State of origin.

Moreover, by way of exception, measuresagainst a given provider may also beadopted in certain individual cases and under certain strict procedural and substantive conditions. In order to ensurethe legal certainty which is essential in

(40) It is necessary to recall that only theexceptions relating to public policy, publicsecurity and public health referred to in

Article 46 of the Treaty may be invoked to justify national regulations which are not applicable to service providers without discrimination as regards their origin. Inthe case of non-discriminatory restrictions,overriding reasons relating to the publicinterest which the Court of Justice hasrecognised include professional rulesintended to protect recipients of a service,

protection of intellectual property, protection of workers, consumer protection,conservation of the national historical and artistic heritage, promotion of archaeological, historical and artistic


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order to encourage SMEs to provide their services in other Member States, thosederogations should be limited to what isstrictly necessary. In particular, derogationshould be possible only for reasons related

to the safety of services, exercise of a health profession or matters of public policy, suchas the protection of minors, and to theextent that national provisions in this field have not been harmonised. In addition, anyrestriction of the freedom to provideservices should be permitted, by way of exception, only if it is consistent with

fundamental rights which, as the Court of Justice has consistently held, form anintegral part of the general principles of

law enshrined in the Community legal order.

wealth and the widest possibledissemination of knowledge of the artisticand cultural heritage of a country.

Justification

Brings the text into line with the amendments to Articles 16, 17, 18 and 19 and with thereplacement of the country of origin principle by the mutual recognition principle.

Amendment 34

Recital 41

(41) In cases where a provider movestemporarily to a Member State other thanthe Member State of origin, it is necessaryto provide for mutual assistance betweenthose two States so that the former cancarry out checks, inspections and enquiriesat the request of the Member State of originor carry out such checks on its owninitiative if these are merely factual checks.

Moreover, it should be possible in the caseof posted workers for the Member State of

posting to take action against a provider established in another Member State inorder to ensure compliance with theemployment and working conditionsapplicable under Directive 96/71/EC.

deleted

Justification


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Brings the text into line with the amendment to Article 36 and with the replacement of thecountry of origin principle by the mutual recognition principle.


(42) It is appropriate to provide for derogation from the country of origin

principle in the case of services covered bya general prohibition in the Member Stateto which a provider has moved, if that

prohibition is objectively justified byreasons relating to public policy, publicsecurity or public health. That derogation

should be limited to general prohibitionsand should not, for example, cover national schemes which, while not prohibiting anactivity in a general manner, reserve theexercise of that activity to one or several specific operators, or which prohibit theexercise of an activity without prior authorisation. The fact that a Member

State permits an activity, but reserves it tocertain operators, means that the activity isnot subject to a general prohibition and is

not regarded as inherently contrary to public policy, public security or publichealth. Consequently, the exclusion of suchan activity from the scope of the Directivewould not be justified.

deleted

Justification

Brings the text into line with the amendments to Articles 16 and 17 and with the replacement of the country of origin principle by the mutual recognition principle.


(43)The country of origin principle should not apply to specific requirements, laid down by the Member State to which a

provider has moved, the rationale for whichis inextricably linked to the particular characteristics of the place where the

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service is provided, and which must be fulfilled in order to maintain public policy, public safety, public health or the protection of the environment. Such would be the position, for example, in the case of

authorisations to occupy or use the publichighway, requirements relating to theorganisation of public events or requirements relating to the safety of building sites.

Justification



(44) The exclusion from the country of origin principle of matters relating to theregistration of vehicles leased in a Member

State other than that in which they are used follows from the case-law of the Court of Justice, which has accepted that a Member State may impose such an obligation, inaccordance with proportionate conditions,in the case of vehicles used on its territory.That exclusion does not cover occasional or temporary rental.

deleted

Justification



(45) A number of Directives concerning contracts concluded by consumers havealready been adopted at Community level.

However, the approach followed by those Directives is one of minimal

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harmonisation. In order to limit as far as possible divergences between consumer protection rules across the Community that fragment the internal market to thedetriment of consumers and enterprises, the

Commission stated in its Communicationon consumer policy strategy 2002-2006 1

that one of the its key priorities would be full harmonisation. Furthermore, theCommission stressed in its Action Plan onA more coherent European contract law

2

the need for greater coherence in Europeanconsumer law which would entail, in

particular, a review of the existing law oncontracts concluded with consumers inorder to remedy residual inconsistencies, to

fill gaps and to simplify legislation.1

OJ C 137, 8.6.2002, p. 2.2

OJ C 63, 15.3.2003, p. 1.

Justification



(46) It is appropriate to apply the country of origin principle to the field of contractsconcluded by consumers for the supply of services only to the extent that Community

Directives provide for full harmonisation,because in such cases the levels of consumer protection are equivalent. Thederogation from the country of origin

principle relating to the non-contractual liability of a provider in the case of anaccident involving a person and occurring as a consequence of the service provider'sactivities in the Member State into whichhe has moved temporarily concerns

physical or material damage suffered by a person in the accident.

deleted

Justification


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(47) It is necessary to allow Member Statesthe possibility, exceptionally and on acase-by-case basis, of taking measureswhich derogate from the country of origin

principle in respect of a provider established in another Member State, for certain reasons such as the safety of services. It should be possible to take such

measures only in the absence of harmonisation at Community level. Moreover, that possibility should not permit restrictive measures to be taken in areas inwhich other Directives prohibit all derogation from the free movement of services, such as Directive 1999/93/EC or

Directive 98/84/EC of the European Parliament and the Council of 20 November 1998 on the legal protection of services based on, or consisting of,

conditional access. Nor should that possibility permit the extension or limitation of derogations provided for inother Directives, such as Council Directive89/552/EEC of 3 October 1989 on thecoordination of certain provisions laid down by law, regulation or administrativeaction in Member States concerning the

pursuit of television broadcasting activitiesor Directive 2000/31/EC.

deleted

1OJ L 320, 28.11.1998, p. 54.

2 OJ L 298, 17.10.1989, p. 23. Directive amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L202, 30.1.1997, p. 60).

Justification



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(51) In accordance with the principlesestablished by the Court of Justice withregard to the freedom to provide services,and without endangering the financial balance of Member States social securitysystems, greater legal certainty as regardsthe reimbursement of health costs should be provided for patients, who benefit asrecipients from the free movement of services, and for health professionals and managers of social security systems.

deleted

Justification

Brings the text into line with the amendments seeking to remove health services from the scope of this Directive. A horizontal framework directive of this kind is not an appropriate instrument for dealing with health services. It is therefore preferable to adopt specific legislation on health

services and improving patient mobility.

Amendment 42

Recital 53(53) Article 22 of Regulation (EEC) No1408/71, which concerns authorisation for assuming the costs of health care provided in another Member State, contributes, asthe Court of Justice has emphasised, to

facilitating the free movement of patientsand the provision of cross-border medical services. The purpose of that provision is toensure that insured persons possessing an

authorisation have access to health care inanother Member State under conditionswhich, as regards the assumption of costs,are as favourable as those applying toinsured persons in that Member State. It thus confers on insured persons rights theywould not otherwise have and facilitates the

free movement of services. On the other hand, that provision does not seek toregulate, nor in any way to prevent,reimbursement, at the rates applicable in

deleted


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(55) As the Court of Justice hasconsistently held with regard to the freemovement of services, a system of prior authorisation for the reimbursement of hospital care provided in another Member

State appears justified by the need to planthe number of hospital infrastructures,their geographical distribution, the mode of their organisation, the equipment withwhich they are provided and even thenature of the medical services which theyare able to offer. The aims of such

planning are to ensure, within each Member State, sufficient permanent accessto a balanced range of quality hospital care, to secure efficient cost management and, so far as is possible, to avoid wastageof financial, technical or human resources.

In accordance with the case-law of theCourt of Justice, the concept of hospital care must be objectively defined and asystem of prior authorisation must be

proportionate to the general interest objective pursued.

deleted

Justification

Brings the text into line with the amendments seeking to remove health services from the scope of

this Directive. A horizontal framework directive of this kind is not an appropriate instrument for dealing with health services. It is therefore preferable to adopt specific legislation on health



(56) Article 22 of Council Regulation(EEC) No 1408/71 specifies the

deleted


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circumstances in which the competent national institution may not refuse anauthorisation sought on the basis of that

provision. Member States may not refuseauthorisation in cases where the hospital

care in question, when provided in their territory, is covered by their social securitysystem, and treatment which is identical or equally effective cannot be obtained in timein their territory under the conditions laid down by their social security system. TheCourt of Justice has consistently held that the condition relating to acceptable delaymust be considered together with all thecircumstances of each case, taking dueaccount not only of the medical condition

of the patient at the time whenauthorisation is requested, but also hismedical history and the probable evolutionof his illness.

Justification




(57) The assumption of costs, by the social security systems of the Member States, inrespect of health care provided in another

Member State must not be lower than that provided for by their own social security

system for health care provided in their territory. As the Court has consistently

pointed out with regard to the freemovement of services, in the absence of authorisation, the reimbursement of non-hospital care in accordance with the scalesof the Member State of affiliation would not have a significant effect on the

financing of its social security system. Incases where authorisation has been

granted, in the framework of Article 22 of

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Regulation (EEC) No 1408/71, theassumption of costs is made in accordancewith the rates applicable in the Member

State in which the health care is provided. However, if the level of coverage is lower

than that to which the patient would havebeen entitled if he had received the samecare in the Member State of affiliation, thelatter must assume the remaining costs upto the level which would have applied.

Justification




(58) As regards the posting of workers inthe context of the provision of services in a

Member State other than the Member Stateof origin, it is necessary to clarify the

division of roles and tasks between the Member State of origin and the Member State of posting, in order to facilitate the free movement of services. The present Directive does not aim to address issues of labour law as such. The division of tasksand the specifying of the forms of cooperation between the Member State of origin and the Member State of posting

facilitates the free movement of services,especially by abolishing certain

disproportionate administrative procedures,while also improving the monitoring of compliance with employment and working conditions in accordance with Directive96/71/EC.

deleted

Justification

For reasons of legal certainty, any clarifications concerning the posting of workers should bedealt with by Directive 96/71/EC. This Directive should be without prejudice to the sectoral


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directives regulating service activities.


(59) In order to avoid discriminatory or disproportionate administrative formalities,which would be a disincentive to SMEs in

particular, it is necessary to preclude the Member State of posting from making postings subject to compliance withrequirements such as an obligation torequest authorisation from the authorities.The obligation to make a declaration to the

authorities of the Member State of posting should also be prohibited. However, it should be possible to maintain such anobligation until 31 December 2008 in the

field of building work in accordance withthe Annex to Directive 96/71/EC. In that connection, a group of Member Stateexperts on the application of that Directiveare studying ways to improveadministrative cooperation between

Member States in order to facilitate

supervision. Furthermore, as regardsemployment and working conditions other than those laid down in Directive 96/71/EC,it should not be possible for the Member

State of posting to take restrictive measuresagainst a provider established in another

Member State.

deleted

Justification

For reasons of legal certainty, any clarifications concerning the posting of workers should bedealt with by the existing Directive 96/71/EC. This Directive must not prejudice the sectoral directives regulating service activities.


(60) By virtue of the free movement of services, a service provider is entitled to

post workers even if they are not

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Community citizens but third countrynationals, provided that they are legally

present and lawfully employed in the Member State of origin. It is appropriate to place the Member State of origin under an

obligation to ensure that any posted worker who is a third country national fulfils theconditions for residence and lawful employment laid down in its legislation,including with regard to social security. It is also appropriate to preclude the host

Member State from imposing on the worker or the provider any preventative controls,especially as regards right of entry or residence permits, except in certain cases.

Nor should it be possible for the host

Member State to impose any obligationssuch as possession of an employment contract of indefinite duration or a record of previous employment in the Member

State of origin of the provider.

Justification



(61) Following the adoption of Council Regulation (EC) No 859/2003 of 14 May2003 extending the provisions of

Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationalsof third countries who are not alreadycovered by those provisions solely on the

ground of their nationality1 , third country

nationals are covered by a system of cooperation on the application of social security schemes to employed persons and to members of their families moving withinthe Community, established by Regulation(EEC) No 1408/71, under which the rulesof the country under whose social security

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scheme the worker is insured are to apply.1

OJ L 124 of 20.5.2003, p. 1.

Justification


Amendment 51Article 1

This Directive establishes general provisions facilitating exercise of thefreedom of establishment for service

providers and the free movement of services.

This Directive establishes general provisions facilitating exercise of thefreedom of establishment for service

providers and the free movement of services while maintaining a high qualityof services.

This Directive shall in no way affect labour law, in particular the legislative

provisions applicable to employment relationships, including the right to takeindustrial action and reach collectiveagreements, or national social securitylegislation.

Justification

Serves to clarify the scope of the Directive. The reference to maintaining a high quality of services reflects the social aspect of the objectives of the Lisbon Agenda and is consistent withthe objectives of the EU set out in Articles 136 and 137 of the EC Treaty. The Directive should not clash in any way with labour law or other related regulations such as collective agreements.

Amendment 52Article 2, paragraph 1

1. This Directive shall apply to servicessupplied by providers established in aMember State.

1. Within the framework set out in Article1, this Directive shall apply to commercial services supplied by providers establishedin a Member State.


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Justification

It should be made clear that only services of a commercial nature, within the meaning of theTreaty and case-law, can be covered by the scope of this Directive.

Amendment 53Article 2, paragraph 1 a (new)

1a. This Directive shall not apply toservices of general interest performed and defined by Member States in fulfilment of their general interest obligations nor toservices in the performance of which theservice providers are subject to particular requirements imposed by Member Statesor the Community regarding the proper

performance of certain general interest tasks, and in respect of which the

following criteria apply:

- security of supply;

- general accessibility;

- universal coverage;

- continuity;

- affordability;

- legal certainty;

- sustainability;

- territorial and social cohesion;

- education and cultural diversity.

Justification

It should be made clear that services of general interest are not covered by this Directive. Theaim of the criteria is to clarify the definition of this category of services, while leaving Member States free to define what they consider to be services of general interest.

Amendment 54Article 2, paragraph 1 b (new)


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1b. This Directive shall not apply toservices provided or funded wholly or in

part by a Member State or by regional or local authorities with a view to securing or maintaining public interest objectives.

Justification

Brings the text into line with the amendment to Article 2(1a), seeking to clarify the nature of services of general interest.

Amendment 55Article 2, paragraph 1 c (new)

1c. This Directive shall not apply toservices which, while economic in nature,

pursue a general interest objective and are thus subject to specific public-sector requirements, in particular:

a) health and social security services and other social and welfare services;

b) educational and cultural services;

c) audiovisual services.

Justification

Services of general economic interest must not be covered by this Directive. Given their role in promoting social and economic cohesion, they should be covered by a specific framework directive.

Amendment 56Article 2, paragraph 1 d (new)

1d. This Directive shall not apply tooccupations and activities which are

permanently or temporarily connected with the exercise of official authority in a

Member State.

Justification


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This amendment, which brings the text into line with Article 45 of the Treaty and the established case-law of the Court of Justice, seeks to improve clarification of the scope of the Directive.


2. This Directive shall not apply to the following activities:

2. This Directive shall not apply to theareas of service activities covered bysectoral directives :

(a ) financial services as defined in Article2(b) of Directive 2002/65/EC;

(b) electronic communications servicesand networks, and associated facilitiesand services, with respect to matterscovered by Directives 2002/19/EC

1 ,

2002/20/EC 2 , 2002/21/EC

3 , 2002/22/EC

4

and 2002/58/EC 5

of the European Parliament and of the Council;

(c) transport services to the extent that

they are governed by other Communityinstruments the legal basis of which is

Article 71 or Article 80(2) of the Treaty.1

OJ L 108, 24.4.2002, p. 7.2

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. 51.5 OJ L 201, 31.7.2002, p. 37.

Justification

This Directive must comply with the Community instruments regulating specific sectors and with future instruments for amending or replacing them in order to adhere to the principle of legal certainty and acquired rights.



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3. This Directive does not apply to the fieldof taxation, with the exception of Articles 14 and 16 to the extent that therestrictions identified therein are not covered by a C ommunity instrument on

tax harmonisation .

3. This Directive does not apply to the fieldof taxation, with the exception of the non-discrimination provisions of Articles 14and 20;

Justification

Clarification

Amendment 59Article 2, paragraph 3 a (new)

3a. This Directive shall not apply to gambling activities which involvewagering a stake with pecuniary value in

games of chance, including lotteries and betting transactions, nor shall it cover access to activities for the judicial or extra-judicial recovery of debts.

Justification

Gambling and debt-recovery activities should be excluded from the scope of this Directive inview of the fact that the Court of Justice has left it up to the Member States to decide what restrictions to impose on the freedom to provide these services for the purposes of maintaining the social order and consumer protection.

Amendment 60Article 3

Member States shall apply the provisionsof this Directive in compliance with therules of the Treaty on the right of establishment and the free movement of services.

Application of this Directive shall not prevent the application of provisions of other Community instruments as regardsthe services governed by those provisions.

Member States shall apply the provisionsof this Directive in compliance with therules of the Treaty on the right of establishment and the free movement of services.

Application of this Directive shall in noway affect the application of provisions of other Community instruments as regardsthe services governed by those provisions.


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This Directive shall not affect theapplication of Community legislative or other initiatives in the field of consumer

protection, labour law and law relating toreparation of loss and damage.

Justification


Amendment 61Article 4, point (1)

(1) service means any self-employedeconomic activity, as referred to in Article50 of the Treaty, consisting in the

provision of a service for consideration ;

(1) service means any self-employedeconomic activity, as referred to in Article50 of the Treaty, normally provided for remuneration, which constitutesconsideration for the service in questionand is normally agreed upon by the

provider and the recipient of the service.Fees which the recipient of a service isrequired to pay as a contribution to the

financing of a system shall not constituteconsideration for the service ;

Justification

A clearer definition of the concept of services in accordance with the established case-law of theCourt of Justice is required in order to clarify the scope of this Directive, and in particular thedistinction with services of general interest.

Amendment 62Article 4, point (1 a) (new)

(1a) public service obligations meansspecific requirements that are imposed by

public authorities on the provider of theservice in order to ensure that certain

public interest objectives are met;

Justification

This paragraph is taken from the definition established by the European Commission in itsCommunication on the White Paper on services of general interest (COM(2004) 374 final).


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Amendment 63Article 4, point 1 b (new)

(1b) commercial service means an activityconsisting in the sale of a service for purelyeconomic and financial purposes;

Justification



(7) requirement means any obligation, prohibition, condition or limit provided for inthe laws, regulations or administrative

provisions of the Member States or inconsequence of case-law , administrative practiceor the rules of professional bodies, or thecollective rules of professional associations or other professional organisations, adopted inthe exercise of their legal autonomy ;

7) requirement means any obligation, prohibition, condition or limit provided for inthe laws, regulations or administrative

provisions of the Member States or inconsequence of case-law and administrative

practice;

Justification

In accordance with the amendment to Article 1, the Directive should not clash with labour law or other related regulations such as collective agreements.


(8) competent authority means any body or authority which has a supervisory or regulatoryrole in a Member State in relation to serviceactivities, including, in particular, administrativeauthorities, professional bodies, and those

professional associations or other professionalorganisations which, in the exercise of their legal autonomy, regulate in a collective manner access to service activities or the exercisethereof;

8) competent authority means any body or authority which has a supervisory or regulatoryrole in a Member State in relation to serviceactivities, including, in particular, administrativeauthorities, public establishments, professional

bodies, and those professional associations or other professional organisations which, in theexercise of their legal autonomy, regulate in acollective manner access to service activities or the exercise thereof;


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Justification

In accordance with the different structures and traditions in the Member States, publicestablishments can also be designated as the competent authority.


(9) coordinated field means any requirement applicable to access to service activities or tothe exercise thereof;

deleted

Justification

This definition remains far too vague.


(10) hospital care means medical carewhich can be provided only within amedical infrastructure and whichnormally requires the accommodationtherein of the person receiving the care,the name, organisation and financing of that infrastructure being irrelevant for the

purposes of classifying such care ashospital care;

deleted

Justification For the purpose of consistency, this amendment seeks to remove health services from the scopeof this Directive. A horizontal framework directive of this kind is not an appropriate instrument

for dealing with health services. It is therefore preferable to adopt specific legislation on health



(11) Member State of posting means theMember State in whose territory a provider

posts a worker in order to provide services there;

(11) country of destination means the Member State in whose territory a provider posts aworker in order to provide services there;


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Justification

This term is more precise. The term Member State of posting could be confused with a service providers country of origin.


(13) regulated profession means a professionalactivity or a group of professional activities ,access to which or pursuit of which, or one of the modes of pursuing which, is conditional,directly or indirectly, upon possession of specific professional qualifications, pursuant tolaws, regulations or administrative provisions ;

(13) regulated profession means a professionalactivity or a group of professional activitieswithin the meaning of Directive .../.../EC of the

European Parliament and of the Council onrecognition of professional qualifications ;

Justification

The legislation needs to be consistent.

Amendment 70Article 4, point (14 a) (new)

(14a) worker: for the purposes of this Directive, the definition of a worker is that which applies in the law of the Member State towhose territory the worker is posted;

Justification

This definition of a worker is used in Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the

provision of services (Article 2(2)).Amendment 71Chapter II, title

Chapter II

Freedom of establishment for service providers

Section 1

Administrative simplification

Chapter II

Administrative simplification

Justification


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Administrative simplification must be applied not only to the freedom of establishment for service providers but also to the freedom to provide services. This is why the structure of theCommission proposal has been modified in order to apply Articles 5-8 to the two fundamental

freedoms.


1. Member States shall simplify the proceduresand formalities applicable to access to a serviceactivity and to the exercise thereof.

1. Member States shall verify the proceduresand formalities applicable to access to aservice activity and to the exercise thereof.Where the procedures and formalitiesverified in accordance with this paragraphare not sufficiently simple, Member Statesshall simplify them.

Member States and the Commission shall encourage, where appropriate, thedevelopment of harmonised European

forms. Those forms shall be equivalent tocertificates, attestations and any other documents on establishment whichdemonstra

draft services directive

Documents