Directive 2006/123 / EC on services in the internal market
The directive of the European Parliament and of the Council on services in the internal market of December 12, 2006 (also called the European Services Directive or Bolkestein Directive ) is an EC directive for the implementation of the European internal market in the field of services .
Objective and legal basis
The creation of a common market, as provided for by the EC Treaty (Art. 14 and 49 ff.), Also includes the free cross-border provision of services. In many cases, however, there are provisions in the law of the EU member states that hinder the free access of service providers from other EU member states to the national service market. Reasons for such access restrictions can e.g. B. the protection of domestic providers , the guarantee of protective norms of national labor law or the prevention of a ruinous undercutting race.
The aim of the directive is to remove barriers to trade in services in the EU
- Simplification of administrative procedures for service providers,
- Strengthening the rights of consumers and businesses who purchase and receive services
- Promotion of cooperation between EU countries.
Its specific legal basis was the aim of “making it easier to take up and exercise self-employed activities” (Art. 47 EGV) as well as the applicability of this provision to the area of cross-border provision of services (Art. 55 EGV).
Just like the free movement of goods, the liberalization of the service market according to the foreign trade theory based on the neoclassical theory is expected to increase efficiency and welfare gains . The criticism from a perspective critical of globalization, detailed below, is directed against this expectation . However, the EU Commission takes the former point of view and regards the Services Directive as an important part of the so-called Lisbon Strategy , which envisaged developing Europe into the “most competitive and dynamic knowledge-based economic area in the world” by 2010.
The DLRL comprises 8 chapters:
- General provisions, Art. 1–4
- Administrative simplification through a single point of contact at the authorities for taking up and performing a service activity, Art. 5–8
- Freedom of establishment for service providers with simplified approval procedures, Art. 9–15
- Free movement of services regardless of the nationality or place of residence of the service provider and recipient, Art. 16-21
- Measures for quality assurance of services such as certification or quality seals and liability insurance, Art. 22–27
- Administrative cooperation between the Member States through administrative assistance and the participation of the Commission , Art. 28–36
- Convergence program with EU-wide codes of conduct for service providers and evaluation, Art. 37–43
- Final provisions with implementation deadline for the member states by December 28, 2009 at the latest, Art. 44–46
scope of application
"Service" is according to Art. 4 No. 1 DLRL any self-employed activity covered by Art. 50 of the contract that is usually performed for remuneration. Services therefore include in particular:
- artisanal and
- freelance work.
This spectrum includes e.g. B.
- retail and wholesale of goods and services,
- most regulated professions such as legal and tax advisors, architects and engineers,
- the construction industry,
- Business services such as office space entertainment, business consultancy and event organization as well
- Leisure and tourism services.
The directive guarantees, on the one hand, the EU-wide freedom of establishment for service providers and, on the other hand, certain rights for service providers.
However, the guideline applies in accordance with Art. 2 para. 2 DLRL, for example, not for:
- Financial services,
- Transport services,
- Temporary employment agency services,
- Health services,
- "Social services in connection with social housing, child care and support for families and permanently or temporarily needy persons, which are provided by the state, by service providers commissioned by it or by institutions recognized by it as non-profit"
as well as in the area of taxes (Art. 2 Para. 3 DLRL).
In contrast, so-called services of general interest such as old people's homes, childcare, facilities for the disabled, nursing home education, garbage collection, etc., are fundamentally subject to the freedom to provide services, insofar as these are already provided under market conditions in the Member State concerned. However, the member states are not obliged to take measures to liberalize their markets and / or privatize public service providers in areas of “general economic interest” (Art. 1 (2) DLD).
For the protection of workers in service companies that operate across borders, it is also important that both Directive 96/71 / EC on the posting of workers and Regulation EEC No. 1408/71 on the application of social security systems take precedence compared to the Services Directive (Art. 3 Para. 1 DLRL). This ensures, among other things, that if workers are posted from one EU member state to provide services in another, the labor and social law of the country of destination apply; the controversial country of origin principle does not apply in these areas.
The decision-making process from the original “Bolkestein” draft to the Services Directive
According to Art. 47 (2) in conjunction with Art. 55 EGV, the co-decision procedure was used in the decision-making process for the adoption of the Services Directive , in which - roughly simplified - the European Parliament and the EU Council on the basis of a proposal by the EU Commission have to agree.
The Bolkestein design
The much-discussed proposal of the former EU Internal Market Commissioner Frits Bolkestein of January 13, 2004 (COM (2004) 0002) provided for a much more extensive elimination of intergovernmental barriers to the free trade in services compared to the final version. The scope of the proposal for a directive was already broader; in particular, the services of temporary employment agencies as well as most of the services of general interest later excluded from the scope should also be covered by the directive. The yardstick should be the fee for the service, regardless of whether the fee is paid by the end user or by a third party.
According to the will of the Commission, the directive - apart from a few expressly excluded regulations and legal matters - should also enjoy fundamental priority over all other European directives and regulations ; the above-mentioned social policy provisions were not among these exceptions.
The country of origin principle
According to the Commission's proposal, a service provider - some of which are included in the directive - should a. Apart from the exceptions defined in Art. 2 and 17, they are generally only subject to the laws of the country in which they are established (“ country of origin principle ” - Art. 16 Draft Directive). This principle is analogous to the principle of the Cassis de Dijon judgment in the area of the free movement of goods, according to which a product that is legally manufactured and / or marketed in one EU member state can also be sold in all other member states .
This principle sparked the protest against the draft directive in particular.
In Article 16 of the later directive, the country of origin principle is no longer explicitly mentioned, but the principle of the freedom to provide services (which is already the subject of the provisions on the European internal market in the EC Treaty) is reaffirmed and discrimination and unobjective restrictions on service providers are established prohibited in other EU member states. In this respect, the country of origin principle still applies - apart from important, but already provided for in the original draft, exemptions such as public order, public health, environmental protection and the provisions on conditions of employment (Art. 16 (3) of the Directive).
First discussion and protest phase
The draft was in 2004 and 2005, the subject of a general and sometimes very controversial run public debate with many contributors. It is widely believed that he was instrumental in the fact that the draft European Constitution was rejected in the referendums in France and the Netherlands .
Analysis of the parliamentary compromise ( 1st reading )
Accompanied by large Europe-wide demonstrations by critics of the directive, the majority of the EPP and PES in the EU Parliament finally decided on February 16, 2006 a compromise package between these two groups that had come about at the last minute with a total of 213 amendments to the Commission draft. Among other things, health , transport, security services , labor , industrial action , trade union and social law, as well as occupational health and safety , temporary employment agencies and some parts of public services have been completely excluded from the directive. Articles 24 and 25 of the directive, which were also controversial, were deleted by Parliament; According to many critics, these two articles would have made effective controls in the country of employment against posting companies practically impossible.
In a series of further changes, the original intention of the Commission to give the directive absolute priority over all other European regulations, with a few exceptions, was partially reversed by the Parliament and in particular private international law ( ROM I and ROM II agreements ) and Directive 96/71 / EC on the posting of workers took precedence over the Directive.
With its reformulation of Art. 16, Parliament did not take up the much more extensive and non-exhaustive list of “compelling reasons of general interest ”, from which the European Court of Justice considered the application of the law of the country of destination to be justified in each individual case. Although this non-exhaustive list can be found as a definition of the term in Article 4 (7a) of the Parliamentary Version, this definition is not used in Article 16.
The EPP's leading negotiators confirmed that the country of origin principle was retained despite the removal of the term . The EPP negotiator, Evelyne Gebhardt's opponent in negotiating the amendments adopted by Parliament, the British Conservative Malcolm Harbor , declared after the vote in the EU Parliament: “The country of origin principle is part of European law. It is still valid. The work of the EPP-ED Group… paved the way for this result ” . Likewise, the Austrian ÖVP member Karas, who was also involved in the negotiations, stated that: “The term country of origin principle is no longer used, but the basic principle remains” .
Commission position on Parliament's amendments
On April 4, 2006, the European Commission presented an amended draft (COM (2006) 160). In it, it formally adopted many of the amendments made by Parliament, namely the amended Art. 16. In many other places, however, the Commission text deviated from the wording of the Parliamentary amendments. In addition to purely editorial changes to the parliamentary texts, the Commission also made changes to the content. In other places, the Commission formally accepted amendments made by Parliament in relation to this draft directive, but transferred the original content to other documents; so was z. For example, the deletion of Articles 24 and 25 was adopted in the amended Services Directive, but a Commission Communication COM (2006) 159 was also published on April 4, 2006, which again contained large parts of the deleted Articles 24 and 25.
Council common position
The Council of the European Union then agreed on May 29, 2006 on a " Common Position " (10003/06), which was officially adopted by the Council on July 24, 2006, made up of the ministers of the Member States responsible for competition policy. This is largely based on the amended Commission draft of April 4, 2006. However, it also contains some important deviations from this Commission version. For example, in the common position For example, the application of national criminal law is restricted in comparison to the amended version of the Commission insofar as criminal law provisions are not to be applied "which specifically regulate or influence the commencement or exercise of a service activity" (Art. 1 No. 5 of the Common Position). Art. 1 no. 7 sentence 2 - which in the amended version of the commission still provided without any reservation that the right to collective bargaining and to strike remains unaffected, was severely restricted insofar as these rights should now only remain unaffected by the directive if they are applied "in compliance with Community law". In particular, the Central and Eastern European Member States, the UK and the Netherlands had advocated these and other changes in the Council. On the other hand, because of their resistance, the fundamental revision of those articles in the amended Commission draft that had been called for by some actors that deal with mutual cooperation between authorities in the control of service providers failed. The Council adopted largely unchanged the formulations of the Commission on Articles 14 and 15, which either prohibit certain existing national regulations for the establishment of service providers or make them subject to compulsory reasons and, compared to the current legal situation, provide for stricter requirements for the adoption of such new regulations at national level.
Adoption and entry into force of the directive
The common position was officially forwarded to the European Parliament in September 2006. It was adopted by the European Parliament in 2nd reading on November 15, 2006 with a few changes. The Council approved these changes on December 11, 2006.
The directive was published in the EU Official Journal on December 27, 2006 as an EC directive and has been effective since its implementation in the respective national law by the individual member states on December 28, 2009.
According to Art. 39 (1) and (5), the Member States had to submit a report to the Commission by this date at the latest on the requirements relating to Articles 9, 15, 16 and 25 they wish to continue to maintain vis-à-vis foreign service providers. They also had to justify why they considered these requirements to be justified. Subsequently, Art. 39 (2) DL-RL provided for a mutual evaluation of these reports.
Criticism of the directive
Trade unions and globalization critics continued to see some concerns even after taking into account the amendments made by Parliament. These concerns have grown due to the fact that the Commission draft and the common position diverge again, as this in turn restricts some important parliamentary amendments.
The restriction of the control options of the country of employment to enforce its minimum standards for wages, working hours, vacation and occupational safety according to the Posting of Workers Directive 96/71 EC is also criticized. According to the proposal, companies that deploy (“post”) their employees across borders should no longer have to register in the country of work, no longer need to name responsible persons there and no longer have to keep working papers ready.
Country of origin principle
For many critics, Bolkestein's proposal was a symbol of the EU Commission's neoliberal course. They feared in particular a downward spiral in the regulation and control of companies in the service sector. With regard to the country of origin principle, there was fear of a race between the member states in which companies would switch to the EU country with the lowest standards and controls.
This regulation has now been replaced. This means that general EU law applies, ie basically unlimited access for EU service providers to all EU member states. This follows from Articles 43 and 49 of the EC Treaty.
Implementation of the directive
The directive had to be transposed into national law within a three-year period (Article 44, Paragraph 1 and Others 1). The implementation deadline was December 28, 2009. In order to coordinate implementation in Germany, the Federal Chancellor and the Prime Ministers of the federal states entrusted the Conference of Economic Ministers (WMK) and the Federal Ministry of Economics and Technology (BMWi) with the overall coordination of implementation. The implementation itself affects all legislative levels, according to the federal division of responsibilities, the federal government, the states, the municipalities, but also chambers and religious communities under public law.
Point of single contact
The guideline (Article 6 ff.) Provides for the establishment of so-called points of single contact through which service providers can process procedures and formalities for starting and performing their service activities. The points of single contact must also provide the necessary information for service providers.
The federal government and the federal states have agreed that the points of single contact in Germany will act as procedural guides and mediators. By using them, they replace the service-related administrative procedures. The establishment of the point of single contact in Germany is the responsibility of the federal states in accordance with the federal jurisdiction. For example, the single point of contact for the state of Brandenburg is responsible for the state of Brandenburg or the single point of contact for Hesse or the single point of contact for Saxony.
To a large extent, the guideline also provides that fees in the economic administration of individual authorities, such as trade offices, are only billed according to the expenditure incurred. Previously, most permits (restaurant concessions, real estate agent permits, etc.) were allowed to skim off their economic utility. In Rhineland-Palatinate, for example, a restaurant license used to cost € 1,600 in standard cases, now it only costs € 340, which is calculated according to the expenses of the authorities (personnel and material costs).
As part of the review of standards, the federal government, states, municipalities, chambers, religious communities and other statutory bodies under public law must check whether this law is compatible with the requirements of the directive. The test criteria are, in particular, freedom from discrimination, necessity and proportionality. For this purpose, an IT application was developed using a common standards test grid that simplifies testing and minimizes incorrect tests.
The testing of standards in Germany has largely been completed or is about to be completed. At the end of the implementation period, the Services Directive provides for several reporting obligations on the results of the standards test, which in Germany are automatically fulfilled by the standards test grid.
Electronic processing of proceedings
The points of single contact and the competent authorities must be able to handle all procedures for taking up and performing a service activity within the framework of the Services Directive “easily remotely and electronically”. For this purpose, the points of single contact and the responsible authorities must provide an IT infrastructure. The Deutschland-Online project “Service Directive” has defined minimum standards for this.
Implementation status 2012
Although the guideline should have been implemented by the end of 2009, implementation is lagging behind schedule. The Council of the European Union reports countless changes that have already been made. Nevertheless, there are still several countries that have some catching up to do. Eurochambers, the association of chambers of commerce in the EU, found in a report from February 2010 that 44 percent of those surveyed were still late. Affected are v. a. Bulgaria, Greece, Ireland, Italy, Latvia, Poland, Slovakia and Slovenia. The European Commission announced a policy of "zero tolerance" for non-compliance with member states' obligations under the directive.
European Commission complaints about incomplete implementation
On October 27, 2011, the European Commission announced that it was bringing Germany, Austria and Greece to the European Court of Justice for incomplete implementation of the directive. For the first time, the Commission made use of the new option created by the Lisbon Treaty to apply to the ECJ for fines in the first case. The three Member States are the only ones that have not yet fully implemented the directive. The daily penalty payments applied for are EUR 141,362.55 for Germany, EUR 44,876.16 for Austria and EUR 51,200.10 for Greece.
European Commission's legal policy
On January 10, 2017, the European Commission presented its proposals for a further development of the Services Directive. The subsidiarity complaint passed by the German Bundestag on March 8, 2017 was unsuccessful.
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