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Sophie Malétras

TAIEX Seminar on the Directive on Services in the Internal Market Warsaw, 31.03.2008 Freedom to Provide Services Clause Article 16. Sophie Malétras. Freedom to Provide Services Clause.

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Sophie Malétras

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  1. TAIEX Seminar onthe Directive on Services in the Internal MarketWarsaw, 31.03.2008Freedom to Provide Services Clause Article 16 Sophie Malétras

  2. Freedom to Provide Services Clause • Art 16.1 prohibits MS to make access to or exercise of a service activity subject to requirements, unless they are non-discriminatory, proportionate and justified for one of the following reasons : • public policy, • public security, • public health or • the protection of the environment • Para 2 of article 16 gives an indicative list of prohibited requirements that cannot be imposed on a service provider or a service recipient (eg. obligation to establish, prior authorisations, etc) • Additional derogations (Art 17): SGEI, professional qualifications, social security, intellectual property rights, private international law, etc.

  3. Screening linked to the freedom to provide services (Art.39.5) MS are obliged to present a report to the Commission on national requirements whose application could fall under the derogations provided for by Art. 16 by the end of 2009  systematic screening of national legislation  limit application of national requirements  explain why remaining requirements apply After 2009: MS will have to notify changes in existing and new requirements relating to freedom to provide services together with reasons for their application

  4. Administrative cooperation (Chapter VI) Logic behind: • complementary to freedom to provide services clause • allocation of tasks between MS • main principlethat the MS of establishment ensures compliance with its requirements in case of a temporary movement of its service provider to another MS (except in cases of derogations in Art 16 and 17) • does not mean that the MS of establishment needs to carry out factual checks and controls in another MS, done at their request by other MS’ competent authorities

  5. What does it mean in practice? • No obligation to establish • No prior authorisations, registrations, declarations • Freedom to rent, buy, use premises in the host MS • No obligation to possess a specific ID card • No restrictions on use of equipment (tools, machinery) ”You can exercise your activity abroad as if it were at home“

  6. Screening linked to the freedom to provide services clause – the basis • Art. 16.1 prohibits MS to apply their requirements on services provided from other Member States unless non-discriminatory, proportionate and justified for one of the following reasons: • public policy (ordre public), • public security, • public health, • protection of the environment. • No other overriding reason of public interest can be evoked than these four. • Indicative list of most problematic requirements in Art. 16.2 (presumption for inapplicability).

  7. Screening linked to the freedom to provide services clause – what to screen • No screening of requirements regarding matters covered by derogations (Art. 17): • SGEI, • professional qualifications, • social security, • judicial recovery of debts • intellectual property rights, • private international law, • etc.

  8. Screening linked to the freedom to provide services clause – reporting/notification • MS have to screen their legislation to identify requirements they intend to apply to incoming service providers  report on such requirements by 28.12.2009 and  provide justification (4 reasons only!). • No obligation to abolish or modify. • Subsequent and continuous obligation to notify changes or new requirements.  Transparency for other MS and providers

  9. Thank you for your attentionSophie MalétrasEuropean CommissionDG Internal Market and Servicessophie.maletras@ec.europa.eu

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