Services in EU single market strategy

In the blog entry Evidence-based European market reforms?, we saw that the condensed single market communication could be used in parallel with the staff working document underpinning the reforms:

Upgrading the Single Market: more opportunities for people and business; Brussels, 28.10.2015 COM(2015) 550 final (22 pages)

A Single Market Strategy for Europe - Analysis and Evidence; Brussels, 28.10.2015 SWD(2015) 202 final (108 pages)

(We found that cross-border VAT offered crushing prima facie evidence of failure from the viewpoint of a single market for SMEs, but we left a detailed discussion until later.)

Domestic keys

The many facets of overdeveloped obstacles for (domestic and) cross-border services and the underdeveloped EU-wide markets were discussed in section 2.3, in the strategy COM(2015) 550 on pages 7-10, but in much greater detail in the analysis paper SWD(2015) 202, on pages 13-39.

Restrictions in the retail sector (section 2.4), page 10 in the communication and pages 39-50 in the supporting working paper, raise similar thoughts:   

EU “red tape” is not the only villain. In many cases the improvement of markets for services - to the benefit of consumers and businesses - requires reforms primarily in the EU member states.

The most concrete Commission proposal was a legislative act to create a services passport to demonstrate professional qualifications. Despite enforcement powers regarding clear breaches, increasingly the Commission seems to assume the role of a guiding mentor and motivational coach, hoping to sway local, regional or state authorities.

Discrimination

The discussion about discrimination (section 2.5), pages 10-12 of the communication and pages 51-54 of the evidence paper, turns to annoying geo-blocking and lame excuses, but with burdensome and fragmented VAT and copyright, how much single market can we realistically expect from SMEs (or anyone under contractual freedom)?

Since the Commission refers to Article 20(2) of the Services Directive 2006/123, let us at least take a look at the excuses provided by the non-discrimination provision:

Article 20

Non-discrimination

1. Member States shall ensure that the recipient is not made subject to discriminatory requirements based on his nationality or place of residence.

2. Member States shall ensure that the general conditions of access to a service, which are made available to the public at 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 differences in the conditions of access where those differences are directly justified by objective criteria.

“Directly justified by objective criteria” is one more question to remember, when we deal with the concrete actions and proposals of the Commission, based on the 2015 strategy for the single market.

Ralf Grahn

EU Services Directive: Transposition (Sweden and Finland)

The member states of the European Union have had three years to turn the EU’s Services Directive 2006/123 into national law. But with the transposition period drawing to a close in a few days, on 27 December 2009, a majority of the countries have still not reported on the needed execution measures, if we look at what the EU web pages tell us.

No national execution measures have been reported (or updated) with regard to Sweden and Finland, but is the situation on the ground as bad as it looks?


Commission & Eur-Lex



The Commission’s Services Directive News page gives the impression that the transposition record in the EU member states is far from complete, as does the web page on Implementation. The Eur-Lex web page on National Execution Measures contains details on only a minority of the member states.



Issue 56 of Single Market News (2009-4) has an article on the challenging transposition of the EU’s Services Directive and accompanying legislation into national law (page 6-7).

Reported transposition measures may be insufficient, but on the other hand, the updating of the web pages might lag behind, and the situation may not be as gloomy as at first glance.


Sweden

For example, no reference was available on the National Execution Measures page with regard to Sweden, but if we check the Swedish legal data base SFS, we see an Act and a Regulation on services in the internal market, both published 24 November 2009:




Lag om tjänster på den inre marknaden (SFS 2009:1079)



Förordning on tjänster på den inre marknaden (SFS 2009:1078)


Finland


The Finnish parliament adopted the government’s proposal on 3 December and sent its response to the government on 8 December 2009. On 17 December the government remitted the acts to the president for signature into law, so they have been approved although not promulgated as yet (Eduskunnan vastaus 213/2009 – HE 216/2009 vp; Valtioneuvoston yleisistunto 17.12.2009).


In other words, the situation may be better than the impression we get from the EU web pages.



Services Directive

The Services Directive 2006/123:


DIRECTIVE 2006/123/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 December 2006 on services in the internal market, published in the Official Journal of the European Union (OJEU) 27.12.2006 L 376/36.




Ralf Grahn



P.S. Read why Julien Frisch recommends Bloggingportal.eu, the multilingual aggregator of euroblogs (18 December 2009).

EU Services Directive: Government bill in Sweden

The national transposition of the Services Directive has advanced in Sweden. The government has presented a bill to the Parliament (Riksdag).

Officially, Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, was published in the Official Journal of the European Union (OJEU) 27.12.2006 L 376/36.



Here is a link to the Swedish bill Regeringens proposition Genomförande av tjänstedirektivet 2008/09:187 (293 pages).


The Services Directive has to be transposed into national legislation before 28 December 2009.


Ralf Grahn

EU Services Directive: Sweden

The Swedish government has published a draft Bill on the Services Directive 2006/123/EC and sent it to the Council on Legislation for a legal opinion. This is normally the last stop before presenting a bill to the Parliament (Riksdag).

In the Swedish tradition, Lagrådsremiss: Genomförande av tjänstedirektivet (8 april 2009) comes with ample reasons, which may be of interest to drafters and practitioners in other EU member states. It comprises 247 pages.




The Services Directive, officially Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, was published in the Official Journal of the European Union (OJEU) 27.12.2006 L 376/36. (The link is to the English version.)


The transposition date for the Services Directive is 28 December 2009 (Article 44).


Ralf Grahn

Sweden: EU Services Directive

The Swedish Government has published a hefty memorandum (consultation paper) on the EU Services Directive, officially Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376/36.
The 630 page publication called Genomförande av tjänstedirektivet, Ds 2008:75, contains both reasons and the planned legislation, and it is available at:

http://www.regeringen.se/content/1/c6/11/41/16/1e89331c.pdf

There is an English summary from page 26 to page 41.

A large number of authorities and organisations are consulted, and they have until 15 January 2009 to present their views. The Government’s transposition bill is planned for May 2009, and the amended legislation is intended to enter into force 28 December 2009.

***

Preparatory legislative documents in Sweden (memorandums and government bills) are traditionally thorough and, especially before the publication of new legal books on a subject, they are invaluable resources for researchers, students and practitioners.


Ralf Grahn

EU TFEU: Scope of services

The European Court of Justice (ECJ) has done much to give meaning to the treaty provisions regarding the right to provide (and to receive) cross-border services within the European Community (European Union).

By preserving the treaty rules, the Treaty of Lisbon upholds the benefits of the internal market to both service providers and receivers of services.

We look at a short reform history of Article 50 of the Treaty establishing the European Community, with examples of services, and we suggest further reading for the ones who want to explore the context.

***

The Treaty of Lisbon (ToL) makes the briefest mention of Article 50 of the Treaty establishing the European Community (TEC). The only express amendment, in OJ 17.12.2007 C 306/55 is the following:

57) In Article 50, third paragraph, the words ‘the State’ shall be replaced by ‘the Member State’.

***

The surrounding provision is found in the latest consolidated version of the treaties, the current TEU and TEC, in the Official Journal (OJ 29.12.2006 C 321 E/62):

Article 50 TEC

Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

‘Services’ shall in particular include:

(a) activities of an industrial character;

(b) activities of a commercial character;

(c) activities of craftsmen;

(d) activities of the professions.

Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.

***

If the Lisbon Treaty enters into force, the provision should exist in the following context, with the express and horizontal amendments as well as renumbering concerning the Treaty on the Functioning of the European Union (TFEU):

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 3 ‘Services’

Article 50 TFEU (ToL), renumbered Article 57 TFEU

Services shall be considered to be ‘services’ within the meaning of the Treaties where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

‘Services’ shall in particular include:

(a) activities of an industrial character;

(b) activities of a commercial character;

(c) activities of craftsmen;

(d) activities of the professions.

Without prejudice to the provisions of the Chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the Member State where the service is provided, under the same conditions as are imposed by that State on its own nationals.

***

Article III-30 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/33) and Article III-145 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63) differ so little from the current and future provision that it is there is no need to repeat them here.

***

The UK FCO’s ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command paper 7311) concludes, quite correctly, that Article 57 TFEU (Article 50 ToL) is:

“In substance the same as Article 50 TEC.”

***

Yesterday’s post ‘EU TFEU: Freedom to provide services’ looked at the drafting history of Article 49 TEC and ToL (renumbered Article 56 TFEU) and suggested a number of web resources for further study.

Today, we recommend a book text on the substantive EU law on services:

Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law Ninth Edition (Oxford University Press, 2006), Chapter 22 ‘Freedom to provide services; freedom to receive services’ (page 468 to 493), which describes the evolution of ECJ jurisprudence on services.

With the marginal changes of the Lisbon Treaty (not yet in force) readers can rely on the text concerning the treaty provisions, but since publication the so called Services Directive was finally enacted.

Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF

The Service Directive, addressed to the member states, has entered into force, but they have time until 28 December 2009 to transpose its provisions.

The Service Directive is much less distinguished by the quality of its contents than by the collective sigh of relief generated by the fact that it was enacted at all, having become one of the spectres haunting the French referendum debate on the Constitutional Treaty in 2005.

For the sake of fairness, a more upbeat view is presented by the UK Department for Business, Enterprise and Regulatory Reform (BERR) in its 5 November 2007 consultation paper ‘Implementing the Services Directive, Consultation Document on Implementing the EU Services Directive in the UK’, where Gareth Thomas MP, Parliamentary Under Secretary of State for Trade and Consumer Affairs, said (page 3):

“I believe the Service Directive is a genuinely market-opening measure that will bring real benefits to the UK.”

See:

http://www.berr.gov.uk/files/file42207.pdf


Ralf Grahn