Proposal for a Council directive extending the freedom to provide cross-border services to third-country nationals established within the Community
Date: 1999-01-27
Institutions: European Commission
Subjects: foreign national, free movement of workers, freedom to provide services, frontier worker, self-employed person

10.3.1999

EN

Official  Journal  of  the  European  Communities

C  67/17

Proposal  for  a  Council  Directive  extending  the  freedom  to  provide  cross(cid:220)border  services  to
third(cid:220)country  nationals  established  within  the  Community

(1999/C  67/10)

(Text  with  EEA  relevance)

COM(1999)  3  final  -  1999/0013(CNS)

(Submitted  by  the  Commission  on  12  February  1999)

THE  COUNCIL  OF  THE  EUROPEAN  UNION,

protection  equivalent  to  that  enjoyed  by  employed
workers;

Having  regard  to  the  Treaty  establishing  the  European
Community,  and  in  particular  the  second  paragraph  of
Article  59  thereof,

Having  regard  to  the  proposal  from  the  Commission,

Having 
Parliament,

regard 

to 

the  opinion  of 

the  European

Having  regard  to  the  opinion  of  the  Economic  and
Social  Committee,

to 

the 

(1)(cid:217)Whereas,  pursuant  to  point  (c)  of  Article  3  of  the
Treaty,  the  abolition,  between  Member  States,  of
obstacles 
services
constitutes  one  of  the  objectives  of  the  Community;
whereas  the  free  movement  of  services  may  be
extended  to  self(cid:220)employed  persons  who  are  not
citizens  of  the  Union,  but  third(cid:220)country  nationals
legally  present  in  the  Community;

free  movement  of 

(2)(cid:217)Whereas  the  Treaty  has  provided  for  this  extension
for  more  than  40  years;  whereas  it  is  not  justifiable
that  a  third(cid:220)country  national  with  an  ongoing
actual  link  with  the  economy  of  a  Member  State
should  be  unable  to  enjoy  the  benefit  of  the
freedom  to  provide  services,  otherwise  than  by
setting  up  a  company  within  the  meaning  of  Article
58  of  the  Treaty,  nor  that  self(cid:220)employed  third(cid:220)
their  capacity  as
country  nationals  cannot, 
natural  persons,  enjoy  such  freedom;

in 

(3)(cid:217)Whereas  employed  workers  who  are  third(cid:220)country
nationals  may  be  posted  whereas  self(cid:220)employed
persons  whose  activities  add  to  the  value  of  the
economy  of  a  Member  State  are  debarred  from
cross(cid:220)border  activities 
internal
market;  whereas  the  extension  of  the  freedom  to
provide 
third(cid:220)country
nationals  does  not  affect  the  application  of  national
provisions  affording  such  persons  a  degree  of  social

self(cid:220)employed 

throughout 

services 

the 

to 

the  conditions 

.(cid:216).(cid:216)./.(cid:216).(cid:216)./EC  when 

(4)(cid:217)Whereas  it  is  appropriate,  therefore,  to  introduce
such  an  extension  through  European  Parliament
the
and  Council  Directive 
Community  clarifies 
for  posting
workers  who  are  nationals  of  a  third  country  for
the  provision  of  services;  whereas,  in  view  of  Article
61(1)  of  the  Treaty,  the  scope  ratione  personae  of
service
this  Directive  cannot  be  extended 
providers  operating  in  the  transport  sector  except
by  a 
the  Treaty
provisions  governing  the  common  transport  policy;

specific  act  adopted  under 

to 

(5)(cid:217)Whereas  a  self(cid:220)employed  person  who  is  a  national
of  a  third  country  should  enjoy  no  right  of  estab(cid:220)
lishment  in  the  Member  State  in  which  he  provides
his  services;  whereas  this  Directive  does  not  affect
other  rights  already  recognised  at  Community  or
national  level  or  under  international  agreements,
including  those  guaranteed  by  the  Convention  for
the  Protection  of  Human  Rights,  particularly  as
regards  family  life;

(6)  Whereas  the  temporary  nature  of  the  activities  in
question  has  to  be  determined  in  the  light,  not  only
of  the  duration  of  the  provision  of  the  service,  but
also  of 
its  regularity,  periodicity  or  continuity;
whereas  this  does  not  mean  that  the  provider  of
services  may  not  equip  himself  with  some  form  of
infrastructure  in  so  far  as  such  infrastructure  is
necessary 
the
service;

the  purposes  of  performing 

for 

is  provided;  whereas, 

(7)(cid:217)Whereas  the  freedom  to  provide  services  entails  as
a  corollary  the  right  of  entry  into  and  residence  on
the  territory  of  the  Member  State  in  which  the
in  the  absence  of
service 
uniform  national  documents  covering  the  various
aspects  of  movement,  a  document  known  as  an  "EC
service  provision  card’  should  be  the  instrument
facilitating  the  provision  of  cross(cid:220)border  services
with  a  view  to  current  or  potential  movements  in
connection  with  normal  activities;  whereas  it  should
be  for  the  service  provider  to  decide  whether  to
apply  for  the  EC  service  provision  card;  whereas

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10.3.1999

this  Directive,  similarly,  does  not  affect  the  under(cid:220)
takings  of  the  Community  and  its  Member  States,
given  in  the  context  of  the  General  Agreement  on
Trade 
in  Services  (GATS)(cid:216)(˛);  whereas  the  EC
service  provision  card  should  include  only  the  data
required  under  Directive  95/46/EC  of 
the
European  Parliament  and  of  the  Council  of  24
October  1995  on  the  protection  of  individuals  with
regard  to  the  processing  of  personal  data  and  on
the  free  movement  of  such  data(cid:216)(ˇ).

(8)(cid:217)Whereas  the  Member  State  issuing  the  EC  service
provision  card  should  take  account  of  public  policy
factors  aimed  at  combating  clandestine 
immi(cid:220)
gration,  by  certifying  the  lawfulness  of  the  situation
in  the  Member  State  in  which  the  service  provider
is  established;  whereas  this  document  should  ensure
that  the  main  activity  of  a  self(cid:220)employed  person  is
pursued  in  the  Member  State  in  which  he  is  estab(cid:220)
lished;  whereas  that  document  should  be  safe(cid:220)
guarded  against  falsification;  whereas  it  is  therefore
no  longer  necessary  to  require  an  entry  visa;

is  established 

in  which 
should 

(9)(cid:217)Whereas  the  EC  service  provision  card  issued  by
the  self(cid:220)employed
the  Member  State 
person 
the
thus  afford 
necessary  guarantee  that  any  other  Member  State  in
which  services  are  provided  will  admit  the  entry
and  residence  of  that  person  for  the  purpose  of  one
or  more  services,  namely  residence  during  and  at
the  time  of  the  provision  of  the  service;  whereas
this  guarantee  should  include  the  obligation  not  to
consider  the  movement  as  an  interruption  of  the
period  of  residence  and  of  the  initially  permitted
self(cid:220)employed  activity,  and  in  particular  not,  under
any  circumstances,  to  refuse  readmission  of  the
person  concerned;  whereas  the  Member  State  in
which  the  service  is  provided  should  therefore  no
longer  be  able  to  impose  its  own  requirements  as
regards  entry  and  residence  and  access  to  a  self(cid:220)
employed  activity;

(10)(cid:217)Whereas  each  Member  State  in  which  a  service  is
provided  should  be  able  to  make  it  obligatory  to
declare,  before  the  entry  of  the  provider  concerned
into  the  territory,  his  intended  presence  and  the
service  or  services  for  which  he  is  moving;  whereas
an  obligation  to  make  a  prior  declaration  should
enable  the  Member  State 
in  question  to  take
measure 
in  specific  cases  on  grounds  of  public
order,  public  security  or  public  health,  within
limits  set  by  this  Directive;  whereas  each
the 

for 

for  which 

the  services 

Member  State  in  which  a  service  is  provided  should
also  be  able  to  make  it  obligatory  to  obtain,  after
entry,  a  temporary  residence  permit  if  the  time
required 
the  self(cid:220)
employed  person  is  moving  exceeds  six  months  out
of  a  period  of  twelve  months;  whereas  the  period  of
validity  of  a  residence  permit  should  be  limited  to
the  period  of  validity  of  the  EC  service  provision
card  on  the  grounds  that  the  Member  State  intends
to  issue  a  residence  permit  in  accordance  with  its
own  rules  in  the  case  of  residence  for  a  period  of
more  than  twelve  months;

treatment  between 

(11)  Whereas  for  this  extension  to  be  effective  there
must  be  equality  of 
third(cid:220)
country  nationals  and  citizens  of  the  Union  in  their
capacity  as  service  providers  as  regards  the  recog(cid:220)
nition  of  diplomas,  certificates  and  other  qualifi(cid:220)
cations  acquired  within  the  Community;  whereas
this  equality  of  treatment  should  be  restricted  to  the
provision  of  services;  whereas  it  should  not  cover
diplomas, 
certificates  and  other  qualifications
acquired  in  a  third  country  and  only  recognised  in
a  Member  State;

(12)(cid:217)Whereas  the  Member  States  should  not  be  able  to
confer  more  favourable  treatment  on  self(cid:220)employed
persons  established  outside  the  Community  than  on
those  established  within  the  Community;  whereas
the  Member  States  should  be  able  to  derogate  from
this  Directive  on  grounds  of  public  order,  public
security  or  public  health;  whereas  the  limits  of  such
derogation  should  be  determined  with  respect  to
service 
the 
providers
national 
concerned  on 
the  coordination
provided  for  in  Council  Directive  64/221/EEC  of
25  February  1964  on  the  coordination  of  special
measures  concerning  the  movement  and  residence
of  foreign  nationals  which  are  justified  on  grounds
of  public  policy,  public  security  or  public  health(cid:216)(—),
as  last  amended  by  Directive  75/35/EEC(cid:216)((cid:209));

the  basis  of 

third(cid:220)country 

(13)(cid:217)Whereas 

it 

it  would  be  useful 

is  vital  to  ensure  close  cooperation
between  the  competent  authorities  of  the  Member
States;  whereas 
the
competent  authorities  of  the  Member  States  to
the  EC  service
format 
adopt  a  standard 
provision  card;  whereas  the  Commission  should  be
empowered  to  lay  down  this  format  and  other
procedures 
the  EC  service
provision  card  in  accordance  with  the  committee

in  connection  with 

for 

for 

(˛)(cid:217)OJ  L  336,  23.12.1994,  p.  191.
(ˇ)(cid:217)OJ  L  281,  23.11.1995,  p.  31.

(—)(cid:217)OJ  56,  4.4.1964,  p.  850/64.
((cid:209))(cid:217)OJ  L  14,  20.1.1975,  p.  14.

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procedures  set  out  in  Council  Regulation  (EC)  No
1683/95  of  29  May  1995  laying  down  a  uniform
format  for  visas(cid:216)(˛);

3.(cid:218)(cid:217)For  the  purposes  of  this  Directive,  "service  provider’
means  any  natural  person  who 
third(cid:220)country
national  and  who,  in  the  Member  State  of  establishment,

is  a 

(14)(cid:217)Whereas, 

this  Directive  does  not  affect 

the
competence  of  the  Member  States  to  decide  which
third(cid:220)country  nationals  are  to  be  admitted  for  the
purposes  of  a  self(cid:220)employed  activity,  the  conditions
on  which  such  admission  should  be  extended  or
which  professional  activities  are 
regulated  on
national  territory,  and  which  are  not;

(15)(cid:217)Whereas, 

in  accordance  with 

the  principle  of
proportionality  as  set  out  in  the  third  paragraph  of
Article  3b  of  the  EC  Treaty,  this  Directive  does  not
is  necessary  for  achieving  the
go  beyond  what 
objective  of  the  free  movement  of  services;  whereas
it  allows  Member  States  to  make  their  checks  to
determine  whether  a 
is
providing  cross(cid:220)border  services  on  a  temporary
basis  or  is  pursuing  a  permanent  activity  on  the
territory  of  a  Member  State  other  than  the  one  in
which  he  has  his  main  establishment;  whereas  it  is
limited  to  movements  for  periods  of  not  more  than
twelve  months  for  the  purpose  of  providing  services
in  another  Member  State,  and  to  the  recognition  of
diplomas, 
certificates  and  other  qualifications
acquired  within  the  Community;

third(cid:220)country  national 

(16)(cid:217)Whereas,  for  the  purpose  of 

Directive,  Member  States  should 
appropriate  system  of  sanctions;

implementing  this
lay  down  an

(17)  Whereas,  not  later  than  four  years  after  the  date  of
transposal  of  this  Directive,  the  Commission  must
examine  its  application  with  a  view  to  proposing
any  necessary  amendments,

(a)(cid:217)has 

lawfully  set  up  his  main  establishment  from
which  he  has  maintained  an  actual,  continuous  link
as  a  self(cid:220)employed  person  with  the  economy  of  that
Member  State  for  at  least  twelve  months;

(b)  has  his  residence,  in  accordance  with  the  legislation

of  that  State;

(c) is  not  also  an  employee.

Article  2

1.(cid:218)(cid:217)When  a  provider  of  services  proposes, 
in  the
ordinary  course  of  his  business,  to  move  to,  and  to  reside
in,  one  or  more  other  Member  States,  in  his  capacity  as
such,  the  Member  State  in  which  he  is  established  shall
be  obliged  to  issue  to  him,  at  his  request,  a  document  to
be  known  as  an  "EC  service  provision  card’.

For  the  purposes  of  the  first  paragraph,  confirmation
shall  be  given  that  the  service  provider  is  affiliated  to  the
social  security  scheme  of  the  competent  Member  State
against  the  risk  of  sickness  and  industrial  accident,  or,
failing  such  affiliation,  is  covered  by  insurance  against
sickness  and  industrial  accident  during  his  movements
through  one  or  more  other  Member  States.

2.(cid:218)(cid:217)The  EC  service  provision  card  shall  be  valid  for  12
months.  It  shall  be  renewable  only  if  the  conditions  as  to
its  issue  are  fulfilled  once  more.

3.(cid:218)(cid:217)The  EC  service  provision  card  shall  be  a  separate
document  belonging  to  the  service  provider,  and  shall
contain  the  following  data:

HAS  ADOPTED  THIS  DIRECTIVE:

(a)(cid:217)details  of  the  service  provider;

Article  1

(b) the  period  of  validity;

1.(cid:218)(cid:217)Member  States  shall  ensure  that  nationals  of  a  third
country  established  within  the  Community  enjoy  the
freedom  to  provide  services 
in  accordance  with  the
provisions  of  this  Directive.

2.(cid:218)(cid:217)This  Directive  shall  not  cover  nationals  of  a  third
country  as  recipients  of  cross(cid:220)border 
services  and
provisions  of  services  in  the  transport  sector.

(c) the  issuing  authority  and  issuing  Member  State.

the 
falsification 

The  precise  details,  a  specimen  of  the  document  to  be
to
issued,  and 
an
shall  be 
prevent 
implementing 
the
in 
procedure  laid  down  in  Article  6  of  Regulation  (EC)
No  1683/95.

technical  specifications  designed 
in 
laid  down 
accordance  with 

regulation 

(˛)(cid:217)OJ  L  164,  14.7.1995,  p.  1.

4.(cid:218)(cid:217)The  Member  State  issuing  the  EC  service  provision
card  may  not  regard  the  movement  for  the  provision  of

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10.3.1999

services  as  being  an  interruption  of  the  service  provider’s
period  of  residence  or  self(cid:220)employed  activity  on 
its
territory.

Community  with  a  view  to  performing  the  activity
concerned  and  issued  by  a  competent  authority  of  a
Member  State.

The 
issuing  Member  State  may  not  refuse,  under
national  regulations,  the  readmission  to  its  territory  of
the  service  provider,  for  any  reason  whatsoever.

Article  3

1.(cid:218)(cid:217)Any  Member  State  in  which  services  are  provided
shall  permit  the  entry  into  and  residence  on  its  territory
of  a  self(cid:220)employed  person  who 
third(cid:220)country
national  for  the  purposes  of  one  or  more  provisions  of
services,  if  such  person  is  in  possession  of  the  EC  service
provision  card,  and  of  an  identity  card  or  passport  valid
for  the  period  in  which  the  services  are  to  be  provided.

is  a 

2.(cid:218)(cid:217)No  Member  State  in  which  a  service  is  provided
may  require  from  the  service  provider

(a)(cid:217)an  entry  or  exit  visa;

(b) a  residence  permit  other  than  that  specified 

in

paragraph  3;  or

(c) an  authorisation  to  provide  services,  such  as  a  work
permit,  a  foreign  businessman’s  identity  card  or  a
business  card;  or

d)

impose  any  obligation  equivalent  to  points  (a),  (b)
and  (c).

3.(cid:218)(cid:217)Any  Member  State  in  which  a  service  is  provided
may  require  the  service  provider  to  declare,  before  he
enters  the  territory,  his  intended  presence,  the  period  of
presence  provided  for  and  the  service  provision  or
provisions  for  which  he  is  moving.  If  the  total  period
in
required 
question  exceeds  six  months  out  of  a  period  of  twelve
months,  the  Member  State  shall  issue,  after  entry,  a
temporary  residence  permit  showing  that  residence  is
authorised.

the  service  provision  or  provisions 

for 

4.(cid:218)(cid:217)In  order  to  facilitate  the  provision  of  services,  any
Member  State  in  which  a  service  is  carried  out  shall
third(cid:220)country
ensure  equality  of 
nationals  and  citizens  of  the  Union  in  their  capacity  as
service  providers  as  regards  the  recognition  of  diplomas,
certificates  and  other  qualifications  acquired  within  the

treatment  between 

Article  4

1.(cid:218)(cid:217)Member  States  shall  not  give  more  favourable
treatment  to  self(cid:220)employed  persons  established  outside
the  Community  than  to  those  established  within  the
Community.

2.(cid:218)(cid:217)Member  States  may  not  derogate 
this
Directive  except  on  grounds  of  public  order,  public
security  or  public  health, 
in  which  case  Directive
64/221/EEC  shall  apply  mutatis  mutandis.

from 

Article  5

to 

1.(cid:218)(cid:217)The  Member  States  shall  designate  the  authorities
responsible  for  issuing  the  EC  service  provision  card  and
the  temporary  residence  permit,  and  for  receiving  the
in  Article  3(3).  They  shall
information  referred 
provide  the  Commission  and  the  other  Member  States
with  a 
list  of  such  authorities.  They  shall  take  the
necessary  measures  for  simplifying  as  far  as  possible  the
formalities,  deadlines  and  procedures  for  obtaining  the
abovementioned  documents,  which  shall  be  issued  free  of
charge  or  on  payment  of  a  sum  not  exceeding  the  duties
and  taxes  payable  for  the  issuing  of  identity  cards  to
national  citizens.

2.(cid:218)(cid:217)Member  States 
for  cooperation
between  the  public  administrations  responsible  under
the
national 
implementation  of  this  Directive.

for  matters  connected  with 

shall  provide 

legislation 

Cooperation  shall  in  particular  entail  replying  to  any
reasoned  request  for  information.  It  shall  be  provided
free  of  charge  and  without  delay.

Article  6

rules  adopted 

Member  States  shall  lay  down  the  penalties  applicable  to
infringements  of  national 
the
implementation  of  this  Directive  and  shall  take  all
necessary  measures  to  ensure  their  enforcement.  The
penalties  shall  be  effective,  proportionate  and  deterrent.
Member  States  shall  notify  the  Commission  of  these
provisions  not  later  than  the  date  specified  in  Article  8,
and  as  soon  as  possible  in  the  event  of  any  subsequent
changes.

for 

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Article  7

No  later  than  four  years  after  the  date  specified  in
Article  8,  the  Commission  shall  report  to  the  European
Parliament  and  the  Council  on  the  implementation  of
this  Directive  in  the  Member  States  and  shall  propose
any  necessary  changes.

Article  8

When  Member  States  adopt  those  provisions,  they  shall
contain  a  reference  to  this  Directive  or  shall  be  accom(cid:220)
panied  by  such  a  reference  on  the  occasion  of  their
official  publication.  Member  States  shall  determine  how
such  reference  is  to  be  made.

Article  9

This  Directive  shall  enter  into  force  on  the  twentieth  day
following  that  of  its  publication  in  the  Official  Journal  of
the  European  Communities.

Member  States  shall  adopt  and  publish  not  later  than  30
June  2002 
laws,  regulations  and  administrative
provisions  necessary  to  comply  with  this  Directive.  They
shall  forthwith  inform  the  Commission  thereof.

the 

Article  10

This  Directive  is  addressed  to  the  Member  States.