COMMISSION STAFF WORKING PAPER - Summary of Member States' policies and legislation on the safety of services - Technical annex to the Report from the Commission to the European Parliament and the Council on the Safety of Services for Consumers {COM(2003) 313 final}

1. Introduction

2. approaches and overall policies

3. Policy elements

3.1 General legislation

3.2 Sector-specific legislation

3.3 Non-regulatory measures

3.4 Systematic collection of data and statistics

3.5 Priorities, developments

4. Legislative elements

4.1 Introduction

4.2 Obligation to provide safe services

4.3 Obligation to identify and assess risks, organise and plan activities

4.4 Obligation to inform consumers

4.5 Competent authorities with legal powers to monitor and take action

4.6 Obligation to notify authorities

4.7 Obligation to take out insurance

5 Conclusions

Annex: Overview of the Member States' policies and legislation on the Safety of Services

1. Introduction

This summary covers policies and legislation regarding consumer services, i.e. services mainly intended for the use of physical persons in their private capacity. The term covers a wide range of activities including health services, transport services and leisure- and sports services. Examples may vary from a bus ride and a climbing course to surgery in hospitals and visits to fun parks.

The summary focuses on policies and legislation regarding the health and physical safety of services - not economic and financial damages.

In addition to a summary of the situation in the Member States, the summary also covers the EEA /EFTA states Iceland and Norway.

The summary is based on an exchange of information between the Commission and the Member States initiated by a questionnaire circulated in September 2001. In addition to the replies from Member States to the questionnaire and subsequent discussions in the Consumer Safety Working Party, detailed investigations have been carried out in some key areas during May-June 2002. For details see annex 3.

The aim of the summary is to give an overview of the main policies and legislative structures in place in Member States and to describe these policies and pieces of legislation in sufficient detail to allow an impact assessment of possible options for action at the level of the European Union. No concrete references to legislation have been used in order to reduce the level of detail.

The presentation is divided into three main parts. First a description and comparison of overall approaches. Secondly a summary of the most important policy elements in place, and thirdly a more detailed comparison of the key legal obligations. For a presentation of the situation according to Member State, see Annex 1 & 2.

2. approaches and overall policies

There is no typical approach or policy in place in the majority of Member States with regard to safety of services. Some countries have not identified "safety of services" as one coherent policy category at all. They argue that the area is too wide and complex and have focused more on safety in different sectors, safety in specific buildings or locations or safety at work/workers safety. In addition the countries that have identified safety of services as an overarching subject, have used somewhat different approaches.

The difficulty in describing the national approaches and policies in the area in a clear and comprehensive way is thus considerable. This is further complicated by the differences in administrative organisation applicable in the different Member States. In some countries, like for example in Finland, central authorities have been attributed legislatory powers and the overall responsibility for monitoring and control, while other countries, like for example Austria and Spain have placed extensive competencies on the regional and even the local level according to the type of matter concerned.

Despite this complexity it seems possible to divide the Member States into three main groups. It should be emphasised that the categorisation does not in any way correspond to levels of safety:

a) Countries with separate policies and legislation of a general nature with an aim to secure consumer safety. The general legislation supplements sector-specific policies and legislation.

The group includes Finland, France, Norway, Portugal, Spain and Sweden. In Sweden for example, the general legislation on safety of services only applies in the case that no sector-specific legislation exists, while in other countries the concrete interpretation of the principle of lex specialis may be different.

b) Countries with general policies and legislation aiming at safety at work, including consumer safety in the service area. The general legislation supplements sector-specific policies and legislation directly aiming at the safety of services.

Ireland and the United Kingdom belong to this category. The UK has specific sectoral policies and legislation in place regarding for example transport services, but also general policy and legislation on safety at work, which in principle covers the transport sector. They draw the attention to the fact that the general legislation on safety at work aims not only at the safety of workers, but at the general public. Ireland has a similar concept in place.

c) Countries with sector-specific policies and legislation on the safety of certain services. The sector-specific legislation covers different types and aspects of these services.

Austria, Belgium, Denmark, Germany, Iceland and the Netherlands belong to this group. They all have sector-specific policies and legislation with regard to health services, transport and certain leisure services. In addition their product safety legislation to some extent covers service aspects.

3. Policy elements

3.1 General legislation

The Member States that have adopted general legislation have chosen different legislatory frameworks (there seems to be no country with a separate piece of legislation covering safety of services):

a) Integration into general legislation on Product Safety

Some Member States have chosen to integrate services into their legislation on product safety. Hence, the general requirements for consumer services are more or less parallel to those for products. In the Finnish Product Safety Act, for example, there is a general obligation only to place safe services on the market. Authorities have the necessary competencies to monitor, control and take action against unsafe services. Sweden and Norway have a similar legal framework. In the Norwegian legislation it is made clear that service providers are obliged to obtain knowledge about risks connected with their consumer services, to take action to reduce it and to inform consumers and authorities accordingly. This corresponds to the general regulations for products.

b) Integration into general legislation on consumer protection

Some Member States have included provisions regarding services in their general consumer legislation.

As an example Spain has a provision in their general Law for the Protection of Consumers and Users which states that service providers only shall put safe services on the market. Portugal has a similar provision.

c) Integration into general legislation on safety at work

Some Member States have extended the scope of their legislation on safety at work. In the United Kingdom for example, the Health and Safety at Work Act makes it clear that the objective is to protect employees and the general public against the risks to health and safety arising from the activities of persons at work. The legislation includes provisions on the obligation to secure safety at premises made available to the general public. The provisions are not explicitly aimed at the safety of consumer services.

3.2 Sector-specific legislation

3.2.1 Introduction

All Member States have adopted legislation in one or more sectors as a part of their policy on safety of services. Depending on the exact interpretation of the terms services and safety, the total amount of such legislation is extensive. It covers potentially all legislation on requirements concerning qualifications of specific service providers, all legislation on safety requirements of specific premises used to provide services and all legislation aimed directly at the provision of a specific service. The summary below is therefore not exhaustive, but tries to illustrate the main categories that are vertically regulated in most Member States. The emphasis is on legislation aimed at the provision of services.

3.2.2 Transport services

All Member States have adopted extensive legislation aiming at the safety of consumers when using a transport service. The national legislation is firmly linked with international and European legislation in the area.

3.2.3 Health services

All Member States have legislation in place in connection with safety of health services.

A cornerstone of the safety measures is the legislation securing licensing of qualified and trained medical personnel. In the United Kingdom, for example, the Medical Act sets up a specific Council with competence to secure that doctors whose conduct put patients at risk are no longer allowed to provide services. In Germany and other Member States there is general legislation on the registration and licensing of properly skilled health personnel.

Several Member States in addition have regulations on the reporting and follow-up of incidents and accidents in health institutions.

3.2.4 Accommodation services

All Member States have legislation in place regarding fire safety in hotels, mainly in accordance with the Community recommendation in the area.

Sector-specific legislation on other safety aspects of hotels, and safety legislation in connection with other accommodation services (dwellings, caravans, camping etc) also exists. This legislation is mainly connected with the construction of buildings and sites.

3.2.5 Leisure services

There are several pieces of legislation in place with regard to leisure services in most Member States. The legislation covers a wide variety of services including playgrounds, ski-rental services, discotheques and concerts. The legislation is fragmented and often based on concrete accidents. There seems to be no general approach in the sector. The types of legislation may be divided into three:

a) Regulation of premises

Many Member States have introduced legislation, which requires permission before premises are used for certain leisure services. The requirements typically include safety measures, for example to ensure the correct installation of products and the availability of emergency equipment etc. In Sweden for example, the Act on Technical Requirements for Buildings stipulate that buildings, but also other installations like skiing slopes and sport grounds must be constructed so that safe use is ensured. Danish regulations on funfairs and entertainment facilities stipulate that equipment used shall be inspected in advance and that the use can be made conditional.

b) Regulation of the qualifications of the service provider

In the leisure sector qualification requirements are particularly important. As an example, in Denmark an authorisation scheme has been introduced for pyrotechnic operators. In order to obtain an authorisation, the individuals concerned must have the appropriate training or must otherwise prove that they have the necessary skills to use fireworks. The authorisation is in the next turn a requirement for a police permit. In Austria extensive legislation on admittance of mountain guides is adopted on regional level.

c) Regulation of the performance of the service itself

In some cases sector legislation sets out requirements regarding the performance of the service itself. For example Danish legislation on Public Entertainment Facilities stipulates rules on instructions of staff, insurance and supervision when purchasing services like slides and shooting ranges. Norway has adopted detailed regulations on how to conduct diving courses.

3.2.6 Services of general interest

Almost all Member States have adopted legislation in order to secure safe installation and provision of gas and electricity. These services are considered particularly dangerous. Other services of general interest like the collection, transport and treatment of waste, wastewater etc, are typically more regulated on grounds of environmental considerations.

3.2.7 Other services

Some Member States have also adopted vertical legislation for certain personal care services like hairdressing and solariums. Other regulated services include installation of certain products and construction and architectural services.

3.3 Non-regulatory measures

In most Member States there are non-regulatory elements in place in the area of service safety, typically in the form of codes of conduct, voluntary standards, guidelines and best practices. None of the Member States seem to have an overall strategy in order to promote such non-regulatory measures in the consumer area. Instead they are developed on an ad-hoc basis by certain business sectors in order to improve their market position by quality and safety indicators, or as a co-operation between businesses and authorities in areas where particular risks are found to exist.

It seems that the area of leisure services, sports, recreation etc is most influenced by non-regulatory measures. Examples include standards for ski-rental (France), pop concerts (Ireland), sports arenas (Ireland), equestrian centre's (riding) (the Netherlands) and diving courses (Sweden). In some cases voluntary elements are also present in sectors traditionally characterised by mandatory regulations. In Ireland for example gas installation is mainly governed by voluntary standards, while the United Kingdom has significant non-regulatory elements in their system for control of qualifications of health personnel.

Extended use of non-regulatory measures in combination with legislation has been developed in Finland. They have developed a system where general legal provisions on safety of services are worked out in detail for specific services in sets of "guidelines". These guidelines are used in connection with monitoring and control. The guidelines are not binding, but give examples of good practices and possible problematic areas. Furthermore the may have impact on the assessment of possible negligence when compensation for damages are being considered.

In the UK the HSE has established teams responsible for certain sectors of business which monitor risks in the sector and propose action based on an assessment of this. The use of non-regulatory measures is being considered along with mandatory measures. Guidelines or codes will be adopted where appropriate.

3.4 Systematic collection of data and statistics

No Member State has established comprehensive information systems in order to collect information on accidents and risks connected with services with a view to use this in their consumer policies. The information available seems to be fragmented, and although some sectors are well covered, little statistical data is available. The lack of information must be seen in the light of the methodological problems in defining whether an incident is connected with a service or a product, and because many activities are carried out without a service-element (sports, leisure activity). Furthermore the wide scope of the services-categories makes such comprehensive statistics difficult to obtain.

Still, in many sectors, like for example in the transport and health sectors, extensive sources of information on accidents exist, based on existing reporting requirements. Furthermore several sources of information exists in connection with case studies. The Dutch authorities have f. ex. collected information on accidents in swimming pools and water slides while France has statistics on equestrian centres and skiing.

3.5 Priorities, developments

There is no single trend in the development of policies or legislation on safety of services in the Member States, but it can be observed that in many countries, including Finland, Netherlands and France, significant efforts have been made in the last years with regard to leisure services and sports. Initiatives in "traditional" service-sectors like transport and health-services has mainly involved adjustment of existing practices, adaptation to new services (for example new health services) and attempts to simplify qualification procedures (Austria).

4. Legislative elements

4.1 Introduction

In both sectoral and general legislation on safety of services in the Member States there are certain core provisions of a general nature which set out obligations for service providers and establish a basis for administrative action. These core legislative elements will be described below.

Provisions which are specific for certain services, for example certain skills required by a doctor in one Member State, or the number of test dives required during a diving course in another Member State are not discussed here. Such a summary would be extremely far-reaching, due to the scope of the subject.

4.2 Obligation to provide safe services

In Finnish, French, Portuguese, Spanish and Swedish legislation there are general legal provisions that require that service providers are only to market "safe services". Different definitions and criteria on what is considered to be a "safe" service support the obligation. In the Finnish Act, for example a consumer service is deemed to involve a health hazard if "any flaw or imperfection either in the way the service is performed or in the structure or composition of any article to be used in providing the service or any untrue, misleading or inadequate information supplied in respect of the service may give rise to injury, poisoning, illness or any other health hazard". In the French provision services must "in normal conditions of use or in other conditions which can normally be foreseen by the professional, be as safe as can reasonably be expected, and must not be detrimental to health".

In the United Kingdom, a similar provision is included in legislation on safety at work, according to which persons in control of premises where work is carried out, have a duty to take reasonable measures to ensure that the premises and plant are safe and without risk to health.

Austrian regional legislation on mountain guides provides an example of a general safety obligation in sector-specific legislation. In the Tyrol Montainguide regulations, the mountain guide is obliged to carry out his activities in a way that does not endanger the consumer.

4.3 Obligation to identify and assess risks, organise and plan activities

There are different attempts to impose general control mechanisms and management systems with regard to services. In France, for example, in the regulations regarding public playgrounds, the responsible person is obliged to keep up to date the maintenance plan of the playground and records of the work carried out. The documents must be available to the authorities upon request. In Norwegian legislation all service providers are explicitly obliged to obtain the necessary knowledge in order to assess risks connected with the service provided, and to take reasonable measures in order to prevent damages to health. Furthermore service providers are obliged to establish internal control systems to ensure systematic and safe organisation of their activities. In the relevant provision it is stated that "the person responsible for the enterprise shall ensure that internal control is introduced and performed in the enterprise" and that "internal control shall be adapted to the nature, activities, risks and size of the enterprise to the extent required to comply with requirements set out in...safety legislation". The focus of the Norwegian authorities is therefore on control with the existence and use of systematic safety procedures. In the regional Tyrol regulation on mountaineering services art 8 the mountain guide among other things is obliged to assess the capacity of participating consumers, to ensure that the proper equipment is used etc.

In the UK, the Management of Health and Safety at Work Regulations require a service provider to perform a risk assessment. The monitoring of these Regulations is carried out as part of the HSE's general inspection activities. When carrying out an inspection, the inspector will consider any aspects of the business in question which appear to require a risk assessment (e.g. working at heights, or with transport machinery) and will then test whether the business has complied with the requirements of the Regulations. The HSE's inspections activities are themselves organised on the basis of an assessment of relative risk. Each business is allocated to a risk category based on the outcome of previous inspections, on complaints received, and on accident reports. That category determines how frequently the business is inspected. 'workplace contact officers' who introduce the business to health and safety requirements and conduct an initial risk category assessment contact new businesses.

4.4 Obligation to inform consumers

Some Member States have introduced provisions in their sector-specific legislation regarding service provider's obligation to inform consumers. There seems to be no general automatic obligation for service providers to inform consumers about the risks connected with the service in place except from in Finland. The obligation follows somewhat indirectly from paragraph 4 of the Act, where it is stipulated that a service is deemed to be unsafe and therefore prohibited if"...any untrue, misleading or inadequate information supplied in respect of the service can produce an injury, poisoning, illness or any other hazard to health". Thus there is an indirect obligation to provide adequate and sufficient information on risks. In addition the Finnish Supervisory Authority may require the operator to inform the consumer of risks associated with a service. This option has never been used in practice, because the Finnish Consumer Authorities have chosen to inform consumers directly themselves. In Norway the competent authority may decide to require a service-provider to publish information on safety aspects of the service. This has been done for example in relation to white water rafting where the person responsible is specifically obliged to inform the participants about the hazards in the river, how to avoid these hazards etc.

4.5 Competent authorities with legal powers to monitor and take action

The countries that have adopted general legislation on safety of services in addition to sector-specific legislation have typically established corresponding competencies for monitoring and inspections at a general level. The monitoring of consumer services is normally carried out in close connection with monitoring of product safety and/or safety at work; either by consumer authorities or authorities focusing on safety at work. Finland for example has placed the competence in the Finnish Consumer Agency, Portugal has established a Safety Commission which deals with service safety and the United Kingdom has competencies within the Health and Safety Commission and the Health and Safety Executive (HSE). The general competencies are to a large degree delegated to regional and local levels, and they are subsidiary to the competencies of sector-specific authorities. In the United Kingdom, the HSE seeks to agree demarcation lines based on an assessment of expertise, economy, efficiency and suitability. On this basis fire safety is left to the fire safety authorities, most transport to the relevant transport authorities etc.

The competent authorities have normally a wide range of measures available to them based on results of monitoring and inspections. In France and in Finland for example the competent authorities may order the service-provider to take measures to address the risk posed or they can prohibit the provision of the service temporarily or permanently. Examples of practical intervention include the closing of a Finnish skiing centre in December 2001 and the closing of a French sun centre in 1999. The skiing centre was found to have significant safety problems during pre-season preparation and was closed ex ante, before any accidents happened, while the French sun centre had been subject to complaints after severe sunburns. The French prohibition was based on the general safety obligation in the French Act on consumer protection. Normally fines and criminal proceedings are available in accordance with a consideration of the concrete case. In some countries the competent authorities also have the possibility of introducing pre-licensing requirements of certain services that involve significant risks.

In countries with no general legislation or policy, no overarching competent authority is established. Still, these countries, like Denmark for example, often have transport authorities, health authorities and justice authorities with significant competencies with regard to services, including possibilities to order measures, prohibit services or impose sanctions. In Austria, competent authorities for surveillance of public events (pop concerts, fun fares, circus etc) are established on regional level.

An important issue is the priority setting of such authorities In the UK, a formalised procedure for classification of monitoring information has been developed so that sectors with particular risks are subject to more close follow up. In Portugal surveillance information is submitted to the Safety Commission, which in their turn advise the government on priorities for legislative action. This has lead to the introduction of a Portuguese focus on services offered to children, for example moveable goals on playgrounds.

4.6 Obligation to notify authorities

Within sectors like transport and health services there are extensive requirements in place on notification to authorities on risks and incidents. For example in the area of air transport there is an extensive dialogue between service providers and aviation authorities based on reporting.

On a more general level some Member States have introduced notification requirements for all service providers. In Finland for example, service providers are obliged to provide the supervisory authority with information on hazards involved with services and about measures taken in that connection. Furthermore all details necessary to carry out inspections must be provided. In Norway similar provisions exist when services pose significant risks to health and safety.

4.7 Obligation to take out insurance

Within certain service sectors Member States have introduced an obligation for service providers to take out insurance. For example in the Austrian regional legislation in Tyrol on Mountain Guides, the service provider must be insured "sufficiently" in order to obtain a permit to operate as mountain guide. In Danish legislation on funfairs and public entertainment facilities, the service provider must take out an insurance limited up to approximately EUR 850 000 (DEK 5 million) for physical damages to consumers. There seems to be no national legislation in place establishing insurance obligations for service providers in general.

5 Conclusions

All Member States have adopted extensive sector-specific legislation with regard to the safety of core services like transport services, health services and gas and electric installations. When it comes to other kinds of services, for example leisure and sports services, the type of policy varies significantly. Some Member States have adopted supplemental general legislation with corresponding institutional and procedural arrangements aiming specifically at consumer safety. Other Member States rely on ad hoc legislation initiatives and voluntary measures, and/or on general legislation on safety at work. The main development in the area the last 10 years has been the establishment of general horizontal safety legislation in some Member States and the increased focus on sports and leisure services.

Annex: Overview of the Member States' [1] policies and legislation on the Safety of Services [2]

[1] EFTA/EEA states also included

[2] Based on answers to the Commission's questionnaire ref BD/rb - B4 D/4325 and on answers to individual follow up questions during spring 2002

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