On 10 January 2017, as part of the roadmap laid out in the Single Market Strategy, the European Commission presented a legislative package on Services. The proposed measures aim “to make it easier for services providers to navigate administrative formalities, and to help Member States identify overly burdensome or out-dated requirements on professionals operating domestically or across borders”. The package consists of four initiatives:
v Proposal for a Directive on a proportionality test before adoption of new regulation of professions
The proposed Directive aims to create a legal framework for conducting proportionality assessments before introducing new or modifying existing legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions. According to the Commission, this action aims to introduce more clarity to the applicable criteria, strengthen reliability, transparency and comparability across Member States and ensure that rules are applied in an equal manner. More specifically, the proposal:
– obliges Member States to conduct an ex-ante proportionality assessment, substantiated by qualitative and, wherever possible, quantitative evidence;
– lists the justifications on grounds of public interest objectives on the basis of the TFEU or recognised as such by the Court of Justice;
– lays down a general obligation for Member States before introducing new or modifying existing provisions restricting access to or pursuit of regulated professions, to assess whether these provisions are necessary and suitable for securing the attainment of the objective pursued and do not go beyond what is necessary to attain that objective;
– sets out an obligation to inform all interested parties before introducing new measures and give them the possibility to express their views;
– provides for transparency of the proportionality assessments as well as a periodic review of the Directive.
v Proposal for a Regulation introducing a European services e-card and related administrative facilities and Proposal for a Directive on the legal and operational framework of the European services e-card
This initiative aims to make it easier for services providers to complete the administrative formalities required to provide services abroad. A proposal for a Regulation (binding legislative instrument with direct effect) defines the content of the electronic Services Card while a proposal for a Directive (binding legal instrument requiring transposition into national law) defines its implementation.
The proposed Regulation provides for the following:
– where a service provider plans to provide a service temporarily cross-border, the e-card would be issued by the home Member State. The host Member States would be able to object to issuance of the e-card where the Services Directive already allows them to do so under one of the overriding reasons of public interest. Once issued, the e-card would allow the holder to provide services on a temporary cross-border basis in the host Member State;
– where a service provider plans to provide services through a branch, agency or office in another Member State, the e-card is issued by the host Member State. In this case the service provider would still request the e-card with his home country authorities, who would check that the service provider is established on its territory in line with its applicable rules. In a second step, the home Member States authorities would initiate a process with the relevant host country administration to allow the latter to verify if the requesting service provider meets its host country regulatory requirements in compliance with the Services Directive.
The European services e-card would also include rules to facilitate obtaining insurance coverage for services provided across borders.
The proposed Directive, among other things, would:
– clarify the evidentiary value of a European services e-card;
– detail the effects of the e-card as proof of the ability of the holder to provide services in the territory of the host Member State;
– determine the validity of the e-card;
– safeguard the right of MS to invoke those overriding reasons of public interest;
– describe procedural steps for issuing a services e-card;
– list events occurring in the host MS which must trigger suspension or revocation of a services e-card.
v Proposal for a Directive on the enforcement of the Directive 2006/123/EC on services in the internal market, laying down a notification procedure for authorisation schemes and requirements related to services
The Services Directive provides that authorisation schemes and certain types of requirements related to services must be non-discriminatory, proportionate and justified by an overriding reason related to the public interest. To make sure that new measures imposed by MS actually fulfil these conditions, the Services Directive provides that MS shall notify to the Commission new or changed authorisation schemes. According to the Commission, this current notification procedure is not always effective. The Commission therefore presents a legislative instrument modernising the current procedure.
– Notification obligation: MS shall notify to the Commission any draft measure that introduces new or modify existing requirements or authorisation schemes. MS have to notify authorisation schemes, certain establishment requirements, certain requirements affecting the freedom to provide services and requirements concerning professional liability insurance and multidisciplinary activities.
– Consultation, alert and Decision: the proposal establishes a consultation period of 3 months following the notification of a draft measure. The Commission and other MS have a maximum of 2 months to comment on a notified measure, followed by a maximum of 1 month for the notifying MS to respond to such comments. The Commission may issue an alert to the notifying MS signalling that after assessing the notified measure, it has developed concerns about its compliance with the Services Directive. The issuing of an alert implies that the MS concerned shall not adopt the notified measure in question for 3 months. After an alert has been issued, the Commission may adopt a legally binding Decision finding the notified measure to be incompatible with the Services Directive and requesting the notifying MS to refrain from adopting it.
v Communication on reform recommendations for regulation in professional services
The Commission wishes to complete the evaluations undertaken within the framework of the European Semester, the annual coordination cycle of EU Member States’ economic policies. A Communication (non-binding instrument) identifies a number of means of reforming regulated professions. The Commission proposes measures to tackle remaining barriers, such as implementation measures for possible breaches of European law or legislative proposals targeting persistent obstacles.