Amended proposal for a Council Directive extending the freedom to provide cross-border services to third-country nationals established within the Community
Date: 2000-05-08
Institutions: European Commission
Subjects: foreign national, freedom to provide services, frontier worker, labour law

31.10.2000

EN

Official Journal of the European Communities

C 311 E/197

Amended proposal for a Council Directive extending the freedom to provide cross-border services
to third-country nationals established within the Community (1)

(2000/C 311 E/12)

(Text with EEA relevance)

COM(2000) 271 final (cid:151) 1999/0013(CNS)

(Submitted by the Commission pursuant to Article 250(2) of the EC Treaty on 8 May 2000)

(1) OJ C 67, 10.3.1999, p. 17.

INITIAL PROPOSAL

AMENDED PROPOSAL

THE COUNCIL OF THE EUROPEAN UNION,

Unchanged

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

Having regard to the Treaty establishing the European
Community, and in particular
the second paragraph of
Article 49 thereof,

Having regard to the proposal from the Commission,

Unchanged

Having regard to the opinion of the European Parliament (1),

Having regard to the opinion of
Committee (2),

the Economic and Social

Whereas:

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

constitutes one of
the

the Community. Whereas

services

of

(1) Pursuant to point (c) of Article 3(1) of the Treaty, the
abolition, between Member States, of obstacles to the
free movement of
the
the Community. The free movement of
objectives of
services may be extended to self-employed persons who
are not citizens of the Union but third-country nationals
legally present in the Community.

constitutes one of

services

(2) Whereas the Treaty has provided for this extension for
more than 40 years. Whereas it is not justifiable that a
third-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-employed third-
country nationals cannot,
in their capacity as natural
persons, enjoy such freedom.

___________
(1) Opinion given on 3.2.2000 (not yet published in the Official

Journal).

(2) OJ C 209, 22.7.1999, p. 5.

(2) The Treaty has provided for this extension for more than
40 years. It is not justifiable that a third-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 48 of the
Treaty, nor
self-employed third-country nationals
cannot, in their capacity as natural persons, enjoy such
freedom.

that

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INITIAL PROPOSAL

AMENDED PROPOSAL

(3) Whereas

employed workers who are

third-country
nationals may be posted whereas self-employed persons
whose activities add to the value of the economy of a
Member State are debarred from cross-border activities
throughout the internal market. Whereas the extension
of the freedom to provide services to self-employed third-
country nationals does not affect
the application of
national provisions affording such persons a degree of
social protection equivalent to that enjoyed by employed
workers.

(3) Employed workers who are third-country nationals may
be posted whereas self-employed persons whose activities
add to the value of the economy of a Member State are
the
debarred from cross-border activities
internal market. The
freedom to
provide services to self-employed third-country nationals
does not affect
the application of national provisions
affording such persons a degree of social protection
equivalent to that enjoyed by employed workers.

throughout
the

extension of

(4) Whereas it is appropriate, therefore, to introduce such an
extension at a time when, through European Parliament
and Council Directive . . ./. . ./EC, the Community is clar-
for posting workers who are
ifying the conditions
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
this Directive cannot be
extended to service providers operating in the transport
sector except by a specific act adopted under the Treaty
provisions governing the common transport policy.

(4) It is appropriate, therefore, to introduce such an extension
at a time when, through European Parliament and Council
Directive . . ./. . ./EC,
the Community is clarifying the
conditions for posting workers who are nationals of a
third country for the provision of services.
In view of
Article 51(1) of the Treaty, the scope ratione personae of
this Directive cannot be extended to service providers
operating in the transport sector except by a specific act
adopted under
the Treaty provisions governing the
common transport policy.

(5) Whereas a self-employed person who is a national of a
third country should enjoy no right of establishment in
the Member State in which he provides his services.
rights
Whereas
level or
already recognised at Community or national
including
under
those
agreements,
guaranteed by the Convention for
the Protection of
Human Rights, particularly as regards family life.

this Directive does not affect other

international

(5) A self-employed person who is a national of a third
country should enjoy no right of establishment in the
Member State in which he provides his services. This
Directive does not affect other rights already recognised
level or under international
at Community or national
agreements, including those guaranteed by the Convention
for the Protection of Human Rights, particularly as regards
family life.

(5a) A self-employed worker who is a third-country national
may benefit from the freedom to provide services only if
he maintains his principal establishment in a Member
State and if his residence is authorised for at
least
there are doubts as to the self-
twelve months.
is
employed status of a third-country national,
essential for a person covered by this Directive to be
properly identified.

If

it

(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 for the purposes of performing the service.

(6) 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, peri-
odicity or continuity. 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 for the purposes of performing the service.

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Official Journal of the European Communities

C 311 E/199

INITIAL PROPOSAL

AMENDED PROPOSAL

in

connection with

(7) 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 service is
provided. Whereas in the absence of uniform national
documents covering the various aspects of movement, a
document known as an (cid:145)EC service provision card(cid:146) should
be the instrument
facilitating the provision of cross-
border services with a view to current or potential
movements
activities.
Whereas it should be for the service provider to decide
the EC service provision card.
whether
the
Whereas this Directive, similarly, does not affect
undertakings of the Community and its Member States
given in the context of the General Agreement on Trade
in Services (GATS) (1). 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 (2).

to apply for

normal

(8) Whereas

the Member State

issuing the EC service
provision card should take account of public policy
factors aimed at combating clandestine immigration, 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-employed person is pursued in the Member State in
which he is established. Whereas that document should be
safeguarded against falsification. Whereas it is therefore no
longer necessary to require an entry visa.

(9) Whereas the EC service provision card issued by the
Member State in which the self-employed person is estab-
lished should thus afford the necessary guarantee that any
other Member State in which services are provided will
permit 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-
employed activity, and in particular not, under any
the person
circumstances,
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-employed activity.

readmission of

to refuse

(7) 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 service is provided. In the
absence of uniform national documents covering the
various aspects of movement, a document known as an
(cid:145)EC service provision card(cid:146) should be the instrument facili-
tating the provision of cross-border services with a view
to current or potential movements in connection with
normal activities. It should be for the service provider
to decide whether to apply for the EC service provision
card. This Directive, similarly, does not affect the under-
takings of the Community and its Member States given in
the General Agreement on Trade in
the context of
(GATS) (1). The EC service provision card
Services
should include only the data required under Directive
95/46/EC of
the
the European Parliament
Council of 24 October 1995 on the protection of indi-
viduals with regard to the processing of personal data and
on the free movement of such data (2).

and of

(8) The Member State issuing the EC service provision card
should take account of public policy factors aimed at
combating clandestine immigration, by certifying the
lawfulness of
the situation in the Member State in
which the service provider is established. This document
should ensure that the main activity of a self-employed
person is pursued in the Member State in which he is
document
established. That
safeguarded
should be
It is therefore no longer necessary
against falsification.
to require an entry visa.

(9) The EC service provision card issued by the Member State
in which the self-employed person is established should
thus afford the necessary guarantee that any other
Member State in which services are provided will permit
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. 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-employed activity, and in particular not,
under any circumstances,
the
person concerned. 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-employed activity.

to refuse readmission of

___________
(1) OJ L 336, 23.12.1994, p. 190.
(2) OJ L 281, 23.11.1995, p. 31.

___________
(1) OJ L 336, 23.12.1994, p. 190.
(2) OJ L 281, 23.11.1995, p. 31.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(10) 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 measures in specific cases on
grounds of public order, public
security or public
health, within the limits set by this Directive. Whereas
each Member State in which a service is provided
should also be able to make it obligatory to obtain,
the time
after entry, a temporary residence permit
required for the services for which the self-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.

if

(10) 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. An obligation to make a prior declaration
should enable the Member State in question to take
measures in specific cases on grounds of public order,
public security or public health, within the limits set by
this Directive. Each 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 for the services for which the self-employed
person is moving exceeds six months out of a period of
twelve months. 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.

(11) Whereas for this extension to be effective there must be
equality of treatment between third-country 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 Community.
Whereas this equality of treatment should be restricted
to the provision of
should not
it
cover diplomas,
and other qualifications
acquired in a third country and only recognised in a
Member State.

services. Whereas

certificates

(12) Whereas the Member States should not be able to confer
more favourable treatment on self-employed persons
established outside the Community than on those estab-
lished 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 the third-country national service providers
concerned on the basis of the coordination provided for
in Council Directive 64/221/EEC of 25 February 1964 on
special measures concerning the
the coordination of
movement and residence of foreign nationals which are
justified on grounds of public policy, public security or
by Directive
public
75/35/EEC (2);

health (1),

amended

last

as

(11) For this extension to be effective there must be equality of
treatment between third-country nationals and citizens of
the Union in their capacity as service providers as regards
the recognition of diplomas, certificates and other qualifi-
cations acquired within the Community. This equality of
treatment should be restricted to the provision of services.
It should not cover diplomas, certificates and other qualifi-
cations acquired in a third country and only recognised in
a Member State.

(12) The Member States should not be able to confer more
favourable treatment on self-employed persons established
outside the Community than on those established within
the Community. The Member States should be able to
derogate from this Directive on grounds of public order,
public security or public health. The limits of such dero-
gation should be determined with respect to the third-
service providers concerned on the
country national
basis of
in Council
coordination provided for
Directive 64/221/EEC of 25 February 1964 on the coor-
dination of special measures concerning the movement
and residence of foreign nationals which are justified on
grounds of public policy, public security or public
health (1), as last amended by Directive 75/35/EEC (2);

the

___________
(1) OJ 56, 4.4.1964, p. 850.
(2) OJ L 14, 20.1.1975, p. 14.

___________
(1) OJ 56, 4.4.1964, p. 850.
(2) OJ L 14, 20.1.1975, p. 14.

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INITIAL PROPOSAL

AMENDED PROPOSAL

(13) Whereas it is vital to ensure close cooperation between
the competent authorities of the Member States. Whereas
it would be useful for the competent authorities of the
Member States to adopt a standard format for the EC
service provision card. Whereas the Commission should
be empowered to lay down this
format and other
procedures in connection with the EC service provision
card in accordance with the committee procedures set out
in Council Regulation (EC) No 1683/95 of 29 May 1995
laying down a uniform format for visas (1).

(14) Whereas this Directive does not affect the competence of
the Member State to decide which third-country nationals
are to be admitted for the purposes of a self-employed
activity, the conditions on which such admission should
be extended or which professional activities are regulated
on national territory, and which are not.

(13) It

is vital

to ensure close cooperation between the
competent authorities of the Member States. It would be
useful for the competent authorities of the Member States
to adopt a standard format for the EC service provision
card. The Commission should be empowered to lay down
this format and other procedures in connection with the
EC service provision card in accordance with the
committee procedures set out in Council Regulation (EC)
No 1683/95 of 29 May 1995 laying down a uniform
format for visas (1).

(13a) Since the measures needed to implement this Directive
are measures of general scope within the meaning of
Article 2 of Council Decision 1999/468/EC of 28 June
1999 laying down the procedures for the exercise of
implementing powers conferred on the Commission (2),
these measures should be adopted according to the regu-
latory procedure set out in Article 5 of that Decision.

(14) This Directive does not affect

the competence of

the
Member State to decide which third-country nationals
are to be admitted for the purposes of a self-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) Whereas in accordance with the principle of propor-
tionality as set out in the third paragraph of Article 3b
of the EC Treaty, this Directive does not go beyond what
the free
is necessary for achieving the objective of
movement of services. Whereas it allows Member States
to make their checks to determine whether a third-
country national is providing cross-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,
recognition of
diplomas, certificates and other qualifications acquired
within the Community.

and to the

(15) In accordance with the principle of proportionality as set
out in the third paragraph of Article 5 of the EC Treaty,
this Directive does not go beyond what is necessary for
achieving the objective of the free movement of services.
It allows Member States to make their checks to determine
whether a third-country national is providing cross-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. 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.

(16) Whereas for the purpose of implementing this Directive,
Member States should lay down an appropriate system of
sanctions.

(16) For the purpose of implementing this Directive, Member
system of
should lay down an appropriate

States
sanctions.

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

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

examine

___________
(1) OJ L 164, 14.7.1995, p. 1.

___________
(1) OJ L 164, 14.7.1995, p. 1.
(2) OJ L 184, 17.7.1999, p. 23.

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INITIAL PROPOSAL

AMENDED PROPOSAL

HAS ADOPTED THIS DIRECTIVE:

Unchanged

Article 1

1. 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.
This Directive shall not cover nationals of a third country
as recipients of cross-border services and provisions of services
in the transport sector.

For

the purposes of

3.
(cid:145)service provider(cid:146)
means any natural person who is a third-country national
and who, in the Member State of establishment,

this Directive,

(a) has lawfully set up his main establishment from which he
link as a self-
that Member

has maintained an actual, continuous
employed person with the economy of
State; for at least twelve months.

(a) has lawfully set up his main establishment from which he
has maintained an actual, continuous
link as a self-
employed person with the economy of that Member State;

An actual and continuous link shall be deemed to be main-
tained if services have been provided for at least twelve
months, against remuneration from at least
two service
recipients operating in that Member State;

(b) resides, in accordance with the legislation of that State, for
a period of 12 months or more, excepting persons
possessing documents which confirm that their presence
is only accepted pending expulsion.

(c) is not also an employee.

Unchanged

Article 2

1. When a provider of services proposes,
in the ordinary
course of his business, to move to, and to reside in, 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 (cid:145)EC service provision
card(cid:146).

1. When a provider of services proposes,
in the ordinary
course of his business, to move to, and to reside in, one or
more or all of the 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 (cid:145)EC
service provision card(cid:146).

For the purposes of the first paragraph, confirmation shall be
given

The card may be issued only if the service provider in

1a.
question provides evidence

the service provider is affiliated to the social security
that
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

(a) that he meets the conditions set out in Article 1(3);

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INITIAL PROPOSAL

AMENDED PROPOSAL

2.

The EC service provision card shall be valid for the.

(b) that he is insured against the risk of sickness and industrial
accident at the time of his posting to the other Member
State(s) concerned by the social security institution of the
Member State in which the service provider is established,
or by a private insurance scheme.

2.
The EC service provision card shall be valid for the
period during which the service provider continues to have a
residence in the Member State in which he is established,
excepting persons possessing documents which confirm that
their presence is only accepted pending expulsion.

Elle shall be renewable only if the conditions as to its issue are
fulfilled once more.

2a.
The EC service provision card shall be renewable only if
the conditions as to its issue set out in paragraphs 1, 1a and 2
are fulfilled once more.

3.
The EC service provision card shall be a separate
document belonging to the service provider and shall contain
the following data:

The EC service provision card shall

2b.
lose its validity if
one of the conditions set out in paragraphs 1, 1a and 2 are no
longer fulfilled because of events occurring after the card was
issued.

3.
The EC service provision card shall be a separate
document belonging to the service provider. If the card is no
longer valid, the Member State in which the service provider is
established shall require him to return it immediately to the
competent authorities. The card shall contain the following
data:

(a) details of the service provider;

(a) details of the service provider, including the nature of his
activities in the Member State in which he is established;

(b) the period of validity;

Unchanged

(c) the issuing authority and issuing Member State;

(d) the Member State(s) for which the card is valid.

The precise details, a specimen of the document to be issued,
and the technical specifications designed to prevent falsification
shall be
laid down in an implementing regulation in
accordance with the procedure laid down in Article 6 of Regu-
lation (EC) No 1683/95.

The precise details, a specimen of the document to be issued,
and the technical specifications designed to prevent falsification
shall be laid down in accordance with the procedure laid down
in Article 5a(2).

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INITIAL PROPOSAL

AMENDED PROPOSAL

4.
The Member State issuing the EC service provision card
may not regard the movement for the provision of services as
the service provider’s period of
being an interruption of
residence or self-employed activity on its territory.

Unchanged

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

Article 3

Any Member State in which services are provided shall
1.
permit the entry into and residence on its territory of a self-
for the
employed person who is a third-country national
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.

Any Member State in which services are provided shall
1.
permit the entry into and residence on its territory of a self-
for the
employed person who is a third-country national
purposes of one or more provisions of services,
if such
person is in possession of the EC service provision card, an
identity card or passport valid for the period in which the
services are to be provided, and a statement from the service
recipient confirming the provision of a particular service,
showing the probable duration of the stay.

No Member State in which a service is provided may

2.
require from the service provider

Unchanged

(a) 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).

intended presence,

3.
Any Member State in which a service is provided may
require the service provider to declare, before he enters the
territory, his
the period of presence
provided for and the service provision or provisions for
the total period required for the
which he is moving.
service provision or provisions
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.

in question exceeds

If

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INITIAL PROPOSAL

AMENDED PROPOSAL

In order

4.
services, any
to facilitate the provision of
Member State in which a service is carried out shall ensure
treatment between third-country nationals and
equality of
citizens of the Union in their capacity as service providers as
regards the recognition of diplomas, certificates and other
qualifications acquired within the Community with a view to
performing the activity concerned and issued by a competent
authority of a Member State.

Article 4

1. Member States shall not give more favourable treatment
to self-employed persons established outside the Community
than to those established within the Community.

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

Article 5

the

shall designate

The Member States

1.
authorities
responsible for issuing the EC service provision card and the
temporary residence permit, and for receiving the information
referred to in Article 3(3). They shall 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 above-mentioned documents, which shall be issued free of
charge or on payment of a sum not exceeding the duties and
identity cards to national
taxes payable for the issuing of
citizens.

2. Member States shall provide for cooperation between the
public administrations responsible under national legislation for
matters connected with the implementation of this Directive.

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

Article 5a

The Commission shall be assisted by the committee set

1.
up by Article 6 of Regulation (EC) No 1683/95.

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INITIAL PROPOSAL

AMENDED PROPOSAL

2.
If reference is made to this paragraph, the procedure set
out in Article 5 of Decision 1999/468/EC shall apply, while
respecting the provisions of Article 7(3) of that Decision.

The period provided for in Article 5(6) of Decision

3.
1999/468/EC is fixed at three months.

Article 6

Unchanged

enforcement.

Member States shall
lay down the penalties applicable to
infringements of national rules adopted for the implementation
of this Directive and shall take all necessary measures to ensure
their
effective,
proportionate and deterrent. Member States shall notify the
Commission of
than the date
specified in Article 8, and as soon as possible in the event of
any subsequent changes.

these provisions not

penalties

shall

later

The

be

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

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

When Member States adopt those provisions, they shall contain
a reference to this Directive or shall be accompanied 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.

Article 10

This Directive is addressed to the Member States.