Report from the Commission to the Council and the European Parliament on the state of the internal market for services presented under the first stage of the Internal Market Strategy for Services
Date: 2002-07-30
Institutions: European Commission
Subjects: competitiveness, cross-border cooperation, economy, frontier, provision of services, report, services contract, single market

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 30.07.2002
COM(2002) 441 final

REPORT FROM THE COMMISSION TO THE COUNCIL AND THE
EUROPEAN PARLIAMENT ON

THE STATE OF THE INTERNAL MARKET FOR SERVICES

presented under the first stage of the Internal Market Strategy for Services

TABLE OF CONTENTS

EXECUTIVE SUMMARY .................................................................................................... 5

INTRODUCTION ............................................................................................................... 10

I.

A.

1.

2.

3.

4.

5.

6.

B.

1.

2.

II.

A.

1.

2.

3.

4.

5.

B.

1.

2.

3.

C.

1.

2.

3.

BARRIERS TO THE INTERNAL MARKET FOR SERVICES ........................................... 14

Legal barriers ......................................................................................................... 14

Difficulties relating to the establishment of service providers ................................. 15

Difficulties relating to the use of inputs necessary for the provision of services ...... 22

Difficulties relating to the promotion of services .................................................... 27

Difficulties relating to the distribution of services................................................... 30

Difficulties relating to the sale of services .............................................................. 35

Difficulties relating to after-sales aspects of services .............................................. 40

Non-legal barriers................................................................................................... 42

Lack of information................................................................................................ 42

Cultural/language barriers ...................................................................................... 44

THE COMMON FEATURES OF THE LEGAL BARRIERS............................................... 45

The changing nature of the barriers......................................................................... 45

Administrative practice .......................................................................................... 45

Regionalisation of the barriers ................................................................................ 47

Implementation of Community instruments............................................................ 48

Collective non-government rules ............................................................................ 50

The conduct of operators ........................................................................................ 51

The horizontal nature of the barriers ....................................................................... 51

Application of a single system to establishment and the provision of services......... 51

Legal uncertainty surrounding freedom of establishment and the free provision
of services .............................................................................................................. 52

Application of the same type of requirements in different fields ............................. 53

The common origin of barriers ............................................................................... 53

Lack of mutual trust between Member States ......................................................... 53

Resistance to modernisation of the national legal frameworks ................................ 54

Protection of national economic interests................................................................ 55

2

III.

A.

1.

2.

3.

4.

5.

B.

1.

2.

C.

1.

2.

3.

THE IMPACT OF THE BARRIERS.............................................................................. 55

The knock-on effects on the entire economy and on European competitiveness ...... 55

The key role of services in the economy ................................................................. 55

The interdependence of services ............................................................................. 58

The demand for cross-border services..................................................................... 60

The costs of barriers to services.............................................................................. 61

The lost growth and performance of the European economy................................... 63

The principal victims.............................................................................................. 65

Small and medium-sized companies ....................................................................... 65

The users of services, in particular consumers ........................................................ 66

The weak credibility of the internal market in services ........................................... 67

Perception of the internal market as a danger zone.................................................. 67

"Arrangement" strategies........................................................................................ 68

"Black market" strategies ....................................................................................... 68

CONCLUSIONS ................................................................................................................. 70

ANNEX............................................................................................................................... 72

3

NOTICE TO THE READER

This report is intended to present the difficulties affecting the provision of services
between Member States as perceived by interested parties according to the consultations
carried out by the Commission and Member States, or which arise from complaints,
written and oral Parliamentary questions, petitions or studies and surveys. These
consultations, accompanied by specific studies, will be continued in order to obtain
further information, in particular on the situation of consumers in the Internal Market for
services.

The report does not set out:

• to make a judgement on whether measures causing difficulties are compatible or not
with Community law, and in particular with the principles of the freedom to provide
services and/or the freedom of establishment, or with secondary Community law.
Indeed, these measures could be justified by objectives of overriding public interest
such as protection of health, consumers, workers or the environment. The report does
not prejudice the position that the Commission may take with regard to current or
future complaints. Certain difficulties listed may already have been pronounced as
justified by the Court or, on the other hand, condemned by it. Others may be covered
by existing Community instruments but arise from the unsatisfactory application of
these, while other problems may be addressed by further Commission initiatives.

• to determine the type of measures necessary to resolve these difficulties, in particular
the need for harmonisation or adaptation of existing rules or any infringement
procedures which it might be necessary to begin against certain Member States

In the course of the second stage of the implementation of the Internal Market Strategy
for Services, the Commission will undertake a legal and economic evaluation in order to
determine what initiatives should be proposed at the Community level to resolve the
problems encountered both by providers and recipients of services. This evaluation will
including consumer
be carried out
organisations.

in consultation with all

interested parties,

4

EXECUTIVE SUMMARY

The Lisbon European Council adopted an economic reform programme with the aim of
making the EU the most competitive and dynamic knowledge-based economy in the
world by 2010. A key part of this programme is to make the Internal Market work for
services. With this aim the Commission adopted its two-stage Internal Market Strategy
for Services. This report, which completes the first stage, attempts to draw up a
comprehensive inventory of the Internal Market barriers that continue to inhibit services.
This report analyses the common features of the barriers and makes a preliminary
assessment of their economic impact.

The large-scale consultation which forms the basis of this report involved the European
Parliament, the Economic and Social Committee, the Committee of Regions, Member
States and interested parties, and was carried out throughout 2001 and early 2002. This
report provides a basis for actions that will be launched as a second stage in 2003.
Because of the interdependence of different service activities, this report, in line with the
Internal Market Strategy for Services, is based on a horizontal rather than a sectoral
approach. The report covers a large variety of activities, such as consultancy services,
certification services, estate agents, engineering, construction, distribution,
tourism,
leisure and transport. Furthermore, since a barrier affecting a consumer or service
provider at any one stage of the business process, may undermine the entire cross-border
service, this report covers barriers encountered at each of the six stages of the business
process ranging from establishment of the service provider, use of inputs necessary for
the provision of the service, promotion, distribution and selling of services, to the after-
sales phase. The report covers the whole range of difficulties perceived as obstacles by
the providers and users of services, but does not at present seek to assess whether they are
compatible with Community law; this question will form part of the second stage of the
strategy which will propose solutions.

A key element of the state of the Internal Market for services is consumption. The report
emphasises that the recipients of services, and particularly consumers, are the principal
victims of the dysfunctioning of the Internal Market. Consumers can be prevented from
having easy access to services from other Member States, or have to pay a high price, or
lack the confidence to buy from other Member States. A more fundamental analysis of
the nature and impact of these difficulties on consumers will be carried out during the
second stage of the Internal Market Strategy for Services, with a view to bringing
forward appropriate solutions.

Services are the engine of economic growth

Growth in the economy is essentially driven by services. They account for 70% of GDP
and employment in the majority of Member States. Services are to be found in all areas
of modern economies, including traditional manufacturing sectors, where, for instance,
car manufacturers offer financial, consulting, training and rental services. A number of
demand-based factors have contributed to an ever-growing number of different services,
ranging from more traditional service sectors such as transport, retail distribution,
telecommunications, tourism and the regulated professions, to more recently developed
services such as waste management, energy conservation, business services (including
management consulting), data processing and technical analysis and testing.

5

However, the potential for growth in services cannot be fully realised while expansion of
services activities across national borders in Europe is hampered by a wide range of
Internal Market barriers.

Internal Market barriers hit services harder than goods…

Services are much more prone to Internal Market barriers than goods and are harder hit.
Because of the complex and intangible nature of services and the importance of the
know-how and the qualifications of the service provider, the provision of services is often
subject to much more complex rules covering the entire service activity than is the case
for goods. Furthermore, while some services can be provided at a distance, many still
require the permanent or temporary presence of the service provider in the Member State
where the service is delivered. Whereas with goods only the goods themselves are
exported, in the case of service provision it is often the provider himself, his staff, his
equipment and material that cross national borders. As a result, some or all of the stages
of the business process may take place in the Member State where the service is provided
and be subject to requirements differing from those in the Member State of origin. This
also means that barriers at a single stage of the business process cannot be looked at in
isolation; their cumulative impact throughout the service activity must be considered.

…and occur at every stage of the business process…

in another Member State may result from, for example,
Barriers to establishment
requirements relating to authorisation or professional qualifications, restrictions on the
use of a certain legal form for the service provider or on the partnerships between
different professions. The number of authorisations required, the length and complexity
of the procedures, discretionary powers of local authorities and duplication of conditions
already fulfilled in the Member State of origin of the service provider have all emerged as
key themes in the consultation. The next problem service providers meet when engaging
in cross-border activities concerns the use of inputs necessary for the provision of the
service. A variety of restrictions affect, for example, the posting of workers, the use of
equipment or material by the service provider or the use of cross-border business
services. The promotion of services is rendered particularly difficult because of very
restrictive and detailed rules for commercial communications ranging from outright bans
on advertising for certain professions to strict control on content in other cases. The large
divergence of legislation between Member States impedes pan-European promotional
activities for many services.

The distribution of services across borders is hampered by a variety of restrictions,
including requirements for the service provider to be established or resident
in the
Member State where the service is provided, which precludes service provision from the
provider’s home base. In addition, there are authorisation, registration and declaration
requirements which are
professional
combined with requirements
qualifications or other conditions for exercising an activity which differ significantly
from those of the service provider’s country of origin. Problems directly or indirectly
linked to the selling of services across borders result from differences in contract law,
fixed or recommended prices for certain services, requirements relating to payment and
reimbursement of VAT subject
rates,
classification systems and procedures. Finally, in the after-sales phase a service provider
can also face particular difficulties resulting from divergences between Member States
concerning professional liability and insurance, or financial guarantees, or problems with

in different Member States to different

concerning

6

repair or maintenance services if they involve the posting of workers across borders. At
the very least, all service providers encounter barriers at one stage of the business
process; often they encounter them at several or even at all stages. Since many barriers
in Candidate Countries, problems will multiply with
have been reported to exist
enlargement.

….as well as affecting consumers

Lack of transparency,
lack of confidence, divergent rules between various Member
States: these factors prevent consumers, who account for a large part of the demand for
services, from enjoying the full benefits of the Internal Market and from playing their full
the difficulty in obtaining
role in the market. From the perspective of consumers,
information, problems of access to cross-border services and the weak protection against,
for example, abusive behaviour, contribute to the fragmentation of the Internal Market for
services.

Lack of information as well as cultural and language barriers add to the burden

Business and consumers have considerable difficulty in obtaining precise information on
the regulatory framework, the competent authorities and the procedures in other Member
States. Furthermore, companies and consumers are often not aware of the principles of
the Internal Market which allow them to challenge unjustified or disproportionate
measures or to enforce their right to supply or receive services. In addition, the question
of cultural and language barriers, and the tendency of a large number of companies still to
think only in terms of their domestic market, which can make life particularly difficult for
consumers, were both raised in the consultation.

Barriers have common features across service activities

Although barriers are widespread, they have a number of common traits in both their
origins and effects. It is apparent that while the previous Internal Market programmes
were effective in removing physical and technical barriers, these have been replaced by
“legal barriers” arising from national, regional and local regulation. In addition, new
barriers arise from the behaviour of administrations, including the use of discretionary
powers or heavy and non-transparent procedures, which favours domestic operators. A
number of difficulties result from unsatisfactory application of certain EU instruments. It
seems obvious that Member States lack the necessary confidence in the quality of each
other’s legal regimes and are reluctant to adapt their own regimes where necessary to
facilitate cross-border activities.

Many barriers are horizontal and affect a range of service activities. One common feature
is that Member States apply a single regime both to service providers who want to
establish themselves on their territory and to those who want to provide services from
their home base. For the latter, which are already subject to legal requirements and
control by national authorities in the country where they are established, this may result
in duplication of requirements and disproportionate burdens. Another common trait is the
legal uncertainty resulting from unclear requirements applied on a case-by-case basis by
national authorities, the result of which is often unpredictable.

7

The impact of barriers to services hits the entire economy …

The impact of the barriers identified in this report is on all sectors of the economy.
Barriers to one service will trigger knock-on effects for other services and also for the
wider industrial economy, given the integration of services into manufacturing. Services
are intricately intertwined. They are often provided and used in combination and feature
as inputs at each stage of the service provider’s business process. For example, an
operator of retail stores established in one Member State and wanting to establish in a
number of other Member States might wish to use the services of the real estate agents,
shop designers, architects, engineers, construction companies, banks and insurance
companies with whom he works in his Member State of origin. In most cases this is
impossible because of barriers affecting those service providers who may not have, say,
the authorisations or qualifications required in the other Member States. As a result, the
establishment of the retailer may be delayed or rendered more costly and difficult, which
in turn affects the services he provides to manufacturers and consumers. This
interdependence of services means that it will be necessary at the second stage of the
strategy to develop further the economic assessment of the problems identified so that it
covers the effects on the entire economy and is not limited to the impact on one service
activity.

Barriers result in considerable costs for companies engaging in activities doing business
between Member States. A service provider seeking to enter a market, whether through
establishment or cross-border service provision, will have to bear the significant costs
associated with complex legal assistance. Such assistance is required to examine whether
he can export his business model or whether parts of it, such as his promotional strategy,
will have to be altered. These costs are additional to costs resulting, in particular, from
different languages or cultural differences in commercial and consumption habits. Since
barriers may occur at each stage of the business process, these costs will multiply
throughout the provision of the service. Furthermore, in addition to the legal assistance
costs, a company bears significant further costs resulting from necessary changes to its
business model. The impossibility of using the same business model throughout the
Internal Market prevents companies from taking advantage of economies of scale. The
consequence of these negative effects is a general misallocation of resources within the
companies concerned, limiting investment in innovation and differentiation of services.
Given the key role of services, this in turn affects the performance of the entire economy.

… but SMEs and ultimately all consumers are particularly affected

Small and medium-sized enterprises (SMEs) are prominent in the services industry, but
their prospects for cross-border growth are severely hampered. They are hit much harder
than their larger rivals, since the legal assistance costs are fixed and not proportionate to
firm size. As a result, SMEs will either be dissuaded from cross-border activities
altogether or will be put at a clear competitive disadvantage compared to domestic
operators. SMEs in small and peripheral Member States seem to be particularly
disadvantaged. Furthermore, SMEs may become an attractive target for acquisition by
larger companies because of their significant local knowledge, experience and innovation
potential.

However, it is the service users and in particular consumers who pay the price for these
restrictions through not being able to benefit from a greater variety of better quality and

8

competitively priced services. Ultimately this affects their quality of life. They suffer
directly when administrative and legal requirements prevent them from using services
offered from other Member States, or they suffer indirectly when existing barriers
dissuade companies from offering their services to customers in other Member States or
result in higher prices, less differentiation and lower quality. Finally European citizens
suffer from the lost job creation potential of the services industry as a whole.

Barriers need to be removed urgently to meet the objective of economic reform

A decade after the envisaged completion of the Internal Market, there is a still huge gap
between the vision of an integrated EU economy and the reality as experienced by
European citizens and European service providers. The range of barriers perceived as
affecting service provision and use, which are far more wide-ranging than was expected,
amounts to a considerable drag on the EU economy and its potential for growth,
competitiveness and job creation.

It is clear that the goal set by the Lisbon Council to make the European economy the
most competitive in the world cannot be met unless sweeping changes are made to
remove barriers to cross-border services in the near future. The nature and the scope of
the problems to be addressed require a major effort and a clear political commitment by
all European institutions and Member States finally to make the Internal Market work for
services. This report provides a framework for actions to be launched in 2003 as a second
stage of the Services Strategy on the basis of further discussions with the European
Parliament, Member States and interested parties.

This report, and the reactions to it, forms the basis of work for the next stage of the
services strategy. It will involve both legislative and non-legislative actions whose scope
and content require further analysis. In respect of possible legislative proposals, a careful
balance has to be found between the need to avoid too detailed and wide-ranging
interest objectives
regulation at Union level and the need to protect
concerned. In respect of non-regulatory initiatives, the Commission will in the first
instance consider what measures could provide to consumers and business the
information and assistance necessary to allow them to benefit fully from the EU’s
Internal Market.

the general

9

INTRODUCTION

Services are everywhere in the modern economy. In the EU they account for almost
70% of GDP and employment and offer prospects for further growth and more jobs.
Realising this potential, and ensuring that services deliver better quality and value to
European citizens and business,
is a major aim of the EU’s economic reform
programme. Much more progress is required in order to make the Internal Market
work for services.

This challenge has been recognised by European leaders. The Lisbon European
Council in March 2000 asked the Commission and Member States to devise a strategy
for the removal of barriers to services1. The need for further action was also
highlighted by the Stockholm and Barcelona summits in 2001 and 2002, while the
Internal Market, Tourism and Consumer Affairs Council, in reviewing the EU’s
priorities for economic reform, concluded that
in
services remained “a crucial strategic challenge for the Community”2.

improving the Internal Market

In response to the call from the Lisbon summit, the Commission set out a broad-
ranging strategy in December 20003. The strategy recognises the impact of the
information society on methods of supplying and using services. As more and more
businesses use a mixture of techniques to meet customer needs and provide both on-
line and off-line services, it is increasingly necessary to ensure that the Internal
Market for off-line services can develop in a way which complements the Internal
Market for services delivered on-line4.

The objective of the strategy is to allow services to move across national borders in
the EU as easily as within a single Member State. It takes in the first instance a
horizontal approach across all economic sectors involving services and proposes two
stages. The first stage of the strategy, which is completed by this report, involves
identification and analysis of existing barriers to the cross-border movement of
services whilst at
the same time accelerating a number of ongoing initiatives.
Amongst these, flanking measures have been initiated with the aim of gaining a

1

2

3

4

Presidency conclusions, Lisbon European Council, 24.3.2000, § 17. More recently,
the
ECOFIN Council, in its recommendation 10093/02 of 21 June 2002 concerning the Broad
Guidelines of the Economic Policy of the Member States and the Community, considered that
it was necessary to re-launch structural reform, which should include creating “an effectively
functioning Internal Market in services by the removal of barriers to cross-border trade and
market entry”.
2412th meeting of the Council (Internal Market/Consumer Protection/ Tourism), Brussels 1
March 2002, document 6496/02 MI 35.
Communication from the Commission to the Council and the European Parliament, An
Internal Market Strategy for Services, COM (2000) 888 final, 29.12.2000.
It should be noted that in the context of the e-Europe 2005 action plan the Commission, in co-
operation with the Member States, will re-examine applicable legislation in order to identify,
and, as the case may be, to remove those problems which prevent business from taking up e-
business and consumers from benefiting from the Internal Market. This examination will in
particular consider how to ensure that the provision of goods and services off-line can, as with
services provided on-line, benefit from a true internal market. An e-summit to be organised in
2003 will mark the launch of this examination involving all interested parties, and will provide
high-level representatives of economic operators the opportunity to describe the difficulties
encountered in the context of e-business.

10

comprehensive view of employment in, and the added-value created by, the sector.
The gathering of data and economic analysis are being completed by studies on
productivity in services and on the “virtual economy”. The second stage, based on this
analysis, will bring forward appropriate solutions to the problems identified. This
approach has been endorsed by the European Parliament5, the Economic and Social
Committee6 and the Committee of Regions7.

The Services Strategy is consistent with, and complements, a range of other initiatives
designed to facilitate the operation of the Internal Market in services. The “2002
Review of the Internal Market Strategy”8 provides an overview. It shows that progress
has been made in many fields, for instance in implementing the Financial Services
Action Plan, the adoption of the regulation on cross-border payments in euro, the
adoption of the new regulatory package on electronic communication networks and
services and the directive on postal services,
the forthcoming adoption of the
regulatory package for public procurement and the presentation of the Commission’s
proposals to harmonise the legal regime for sales promotions and to provide a
uniform, transparent and flexible regime for recognition of professional qualifications.

In the area of consumer protection, the development of consumer policy at the EU
level has been the essential corollary of the progressive establishment of the Internal
Market. The free circulation of goods and services has necessitated the adoption of
Community rules aimed at providing sufficient protection for consumers while
eliminating regulatory obstacles as well as distortions of competition. The strategy
adopted by the Commission on 12 May 2002, and in particular the Community
approach envisaging a high common level of consumer protection9, aims to remedy
those aspects linked to consumers’ lack of confidence in cross-border transactions.
Moreover, the consultation launched by the Green Paper on consumer protection10
recognised that existing EU rules in the area of consumer protection did not match up
to the challenges posed by a market in constant evolution and so had to be reformed.
the disparities between national rules,
A number of
particularly in the area of commercial practices,
led to significant distortions of
competition. The majority of responses to the consultation expressing a preference
wished for reform to proceed on the basis of a framework directive on fair
commercial practices in relations between business and consumers. In order to reduce
legal fragmentation as well as to improve consumer confidence,
the framework
directive should be accompanied by the revision in due course of consumer protection

responses indicated that

5

6

7

8

9

10

European Parliament resolution on the Commission communication “An Internal Market
Strategy for Services”, A5-0310/2001, 4.10.2001
Opinion of the Economic and Social Committee on the Communication from the Commission
“An Internal Market Strategy for Services” (Additional Opinion) CES 1472/2001, INT/105,
28.11.2001
Opinion of the Committee of the Regions on the Communication from the Commission “An
Internal Market Strategy for Services”, 134/2001 fin, 27.06.2001
Communication from the Commission to the Council, the European Parliament, the Economic
and Social Committee and the Committee of the Regions, 2002 Review of the Internal Market
Strategy: Delivering the promise, COM (2002) 171 final, 11.4.2002.
Consumer policy strategy COM (2002) 208. See also the Communication on the follow up to
the Green Paper on consumer protection COM (2002) 289 and notably the proposal currently
under consultation on a framework directive on commercial practices.
COM(2001)531 final.

11

directives and by the replacing of minimum harmonisation clauses with maximum
harmonisation rules.

It should be noted that consumer protection may involve obligations to services of
general interest such as transport, energy (electricity and gas), telecommunications
and postal services. In this respect, the Commission Communication “Services of
General Interest in Europe” emphasises the importance of these services and the role
of public service obligations or other obligations relating to consumer protection to
which certain activities might be subject.

In the area of contract law, future initiatives11 should be mentioned which follow up
the consultation launched by the Communication on European contract law12 in order
to resolve legal problems affecting the functioning of the Internal Market.

In the context of the European social dialogue, initiatives in skills, qualifications and
the promotion of quality have been launched or completed in several areas such as
personal, cleaning, private security and construction services.

In the area of the free circulation of persons, the abolition of internal border controls,
which has become a reality due to the Schengen acquis being integrated in the EU by
the Treaty of Amsterdam13, will also facilitate contact between service providers and
their potential clients14. This removal of controls will also gradually contribute to
citizens and economic operators becoming more aware of all the dimensions of the
internal space without frontiers.

As far as the international dimension is concerned, there is a synergy between
internal market policy and external trade policy, including the services negotiations in
the GATS (General Agreement on Trade in Services). More
the context of
specifically,
it will be necessary to take account of the results of the current
discussions on domestic regulation in the context of article VI:4 of GATS.

This report forms an important step in the process of creating a true Internal Market
for services by presenting an overview of the reality of the Internal Market today. For
the first time since the presentation of the “General Programmes” for the suppression
of restrictions to the freedom of establishment and the free provision of services in
196215, the Commission has undertaken a comprehensive analysis of the existing
barriers in the Internal Market for services. Since then, progress has been limited. The

11

12

13

14

15

Following the request of the Council and the European Parliament, the Commission will
present these initiatives by the end of 2002.
Communication from the Commission to the Council and European Parliament on European
Contract Law COM(2002) 398 final, 11 July 2001.
OJ L 239, 22 September 2000
The free movement of persons without controls at borders between Member States benefits
EU citizens and members of their family, but it also allows foreigners holding a residence
permit from a Member State to circulate freely without a visa on the territory of Member
States for up to 3 months (article 21 of the Convention applying the Schengen agreement of
14 June 1985, signed at Schengen on 19 June 1990). However, this legal principle does not
allow service providers who are third country nationals to supply their service in a Member
States other than one in which they are established.
Programmes généraux pour la suppression des restrictions à la liberté d’établissement et à la
libre prestation des services, OJ C 2, 15.1.1962.

12

Commission’s 1985 White Paper on completing the Internal Market16 stated that
“progress on the freedom to provide services has been much slower than the progress
achieved on the free movement of goods”. And the 1992 Cecchini report17 concluded
that the potential of services sectors “for much more significant growth is being
artificially pinned back by regulations and practices which significantly inhibit the
free flow of services and thus the free play of competition between companies
supplying them”.

Some measures have already been adopted in order to suppress the most obvious
difficulties which limit the development of the Internal Market in services. These
measures are the result of the application by the Commission of its role as guardian of
the Treaty and of exercising its power of initiative to bring forward harmonisation
proposals aimed at making the Internal Market work. These measures have enabled
the Internal Market to reach a higher level of economic integration than regional
trading arrangements elsewhere in the world. Nevertheless, in spite of progress so far,
contributors to the consultation were able to identify a wide range of difficulties
which remain and which are the object of this report.

This report is based primarily on a large-scale consultation with interested parties, but
also draws on information from other sources such as European Parliament petitions
and questions, complaints to the Commission, economic and statistical studies and
Member States’ contributions. The consultation, which lasted throughout 2001 and
early 2002, was launched in order to gather first-hand information on the barriers
which hinder the development of cross-border services in the EU. It covered any and
all problems encountered in the context of the provision and use of services, and of
cross-border establishment in the EU. It is clear from the jurisprudence of the Court
that any measure liable to prohibit, impede or render less advantageous the supply or
use of cross-border services or cross-border establishment within the EU could
constitute a barrier. This report therefore includes examples of barriers which are not
simply prohibitions, discriminations or conditions which are impossible to meet, but
various types of requirements which, if applied to companies from other Member
States, would undermine the freedoms to establish or provide services. Some barriers
are due to complex, burdensome or non-transparent regulation or practices; most are
just due to the wide divergence of national rules.

The overall aim of the report is to describe the realities of the Internal Market as seen
by providers and users of services. It does not at this stage seek to assess whether any
individual barrier is justifiable or not.

The report covers areas which are subject to Community instruments or proposals.
Furthermore, the report reflects comments made in the consultation on barriers faced
by EU companies in the Candidate Countries. In these countries the companies are
confronted with the same obstacles as in the Member States. However, additional
barriers may result from nationality requirements, restrictions on ownership of
companies in certain sectors by non-nationals or restrictions on access to real estate.

16

17

Completing the Internal Market : White Paper from the Commission to the European Council
(Milan, 28-29 June 1985), COM (85) 310, 14.6.1985.
“The European Challenge, 1992: The Benefits of a Single Market”, Paolo Cecchini,
Wildwood House, for the European Commission, 1988.

13

In line with the Services Strategy, this report covers barriers throughout the entire
business process, starting from establishment and the use of inputs necessary for the
service provision, to promotion, distribution, sales and after-sales activities. It is clear
that service providers are far more exposed than producers of goods to barriers in each
of these stages of their business activity. This is because the provision of services
often requires the permanent or temporary presence of the service provider in the
Member State where the service is delivered. As a result, some or all of the stages of
the business process may take place in the Member State where the service is
provided and be subject to requirements differing from those in the Member State of
origin. For instance, a company wanting to establish in, or provide services to, another
Member State might face obstacles in gaining authorisation,
including mutual
recognition of qualifications, posting its employees or using its equipment, promoting
its services, distributing its services, concluding contracts with customers and
providing guarantees or after-sales services. Obstacles at any of these stages may
render the entire cross-border activity less attractive.

Furthermore, in accordance with the horizontal approach of the Services Strategy, this
report covers barriers affecting a large variety of different economic activities. The
reason is not only that a number of barriers, such as authorisation procedures, affect
different sectors in a similar way, but that services are intricately intertwined and
barriers affecting one service have knock-on effects on a number of different other
services. A comprehensive approach is required to evaluate barriers to services in the
Internal Market and their overall impact.

Services play a key role in the economy and in the life of every citizen. Barriers to
services therefore not only affect the competitiveness of service providers themselves,
they also deprive the recipients of services, which includes every business and every
consumer in the EU, of the increase in innovation, price competition and quality,
which greater access to services would bring.

I.

BARRIERS TO THE INTERNAL MARKET FOR SERVICES

With regard to the definition of the "Internal Market" in the EC Treaty ("an area
without internal frontiers”) and the objective, set out in the "Internal Market Strategy
for Services", of making the provision of services between Member States as easy as
within a Member State, it has to be said that the Internal Market for services is far
from being a reality. Two broad categories of problems can be singled out: those
deriving directly or indirectly from legal constraints and those deriving from non-
legal factors.

A.

Legal barriers

The term "legal barriers" covers all obstacles to the development of service activities
between Member States deriving directly or indirectly from a legal constraint and
which are liable to prohibit, impede or otherwise render less advantageous such
activities. Such barriers also stem from difficulties caused by divergent national
regulations, as well as from problems relating to the behaviour of national authorities,
or from the legal uncertainty caused by the complexity of some cross-border
situations. In all cases, the result is the same: consumers and businesses alike are

14

discouraged from using services from other Member States, and service providers are
discouraged from offering their services in other Member States18.

The inventory of barriers set out below highlights the difficulties which service
providers are liable to encounter when seeking to exercise freedom of establishment
or freedom to provide services in order to develop their activities in other Member
States. These are difficulties which were identified by interested parties and Member
States in the course of the consultation or which have emerged from complaints made
to the Commission, from European Parliament petitions and written question, from
recent cases filed with the European Court of Justice or from studies and surveys
which have come to the notice of the Commission. This method, aimed at taking stock
of how the Internal Market for services is operating in reality, has three major
consequences

–

–

–

This report does not take a position on the compatibility with Community
law of the barriers identified, this question being the subject of the second
phase of the Strategy, which will focus on solutions, particularly in terms of
harmonisation needs. It is not the object of the inventory to call into question
the need for, or content of, national rules as such, but merely to highlight
problems to which they may have given rise when applied to cross-border
activities;

The difficulties identified may already be the subject of ongoing Community
infringement

initiatives, existing Community instruments or measures,
proceedings or Court judgments;

Some difficulties may not have been identified, even though this risk has been

minimised by drawing on numerous sources of information.

In order to draw up as broad an inventory as possible of all difficulties hindering the
development of service activities between Member States19, the method employed
was to identify the problems which a service provider is liable to encounter at any
stage in his activity, whether it be during the process of establishment in another
Member State (stage 1), when posting staff to or using equipment in another Member
State (stage 2), when promoting the particular service in another Member State (stage
4), when selling the service (stage 5) or, finally, after having provided the service in
another Member State (stage 6). The inventory set out below presents all
the
difficulties identified as affecting cross-border activities in relation to each link in the
business process.

1.

Difficulties relating to the establishment of service providers

The consultation showed that a national of a Member State, or a company already
established in a Member State, wishing to become established in another Member

18

19

These "barrier effects" and the fact that they largely replace the technical, physical and tax
barriers referred to in the 1985 White Paper on the completion of the Internal Market, already
cited above, explains the use of the term "legal barriers".
The inventory also includes difficulties identified in candidate countries. It should be borne in
mind that very many of the difficulties cited in Member States are also encountered in
candidate countries.

15

State in order to engage in a service activity there, may face a large number of
difficulties. These have a particularly severe impact in the case of services: whereas
goods can circulate among Member States (via distribution networks) without the
manufacturer having to cross a border, the provision of services depends on know-
how that requires a direct relationship between service provider and client. Even
though the temporary relocation of the service provider or the provision of the service
from a distance may enable such a relationship to come about (and is the preferred
approach of SMEs) establishment in the target market remains a key commercial
strategy20. This is particularly the case where the operator intends to maintain a long-
term presence in the country concerned or where he wishes to adapt to the specific
conditions of the market or boost customer confidence. Moreover, the complexity of
regulating services, coupled with the fact that the quality of a service is directly
dependent on the characteristics of the provider, engenders a number of requirements
which are not to be found in regulations governing goods, e.g. specific rules on the
legal form of the service provider and restrictions imposed on multidisciplinary
activities.

(i) Monopolies and other quantitative restrictions on access to activities

Monopolies in some Member States were singled out, as they have the effect of
preventing the establishment of service providers from other Member States in which
no such monopoly exists. The monopoly concerned may be one that is entrusted to a
specific body, such as those in partially liberalised sectors (such as postal services or
energy utilities), a monopoly on the distribution of certain products21, which could
affect distribution services in particular, or activities reserved exclusively for certain
operators22.

Quantitative restrictions which some Member States impose on access to service
activities, e.g. quotas or numerus-clausus rules governing the number of service
providers23, rules on maximum surface area24, or on geographical distance25 limit the
number of service providers and could place established national operators at an
advantage over new entrants.

20

21

22

23

24

25

the services sector is more dependent

See in particular a study entitled "Service internationalisation characteristics, Potential,
Barriers", A. Henten, T. Vad, CRIC workshop, Manchester 1-3.10.2001, section 3, which
stresses that
than manufacturing on cross-border
establishment.
For example, alcoholic beverages and tobacco products.
For example, gambling activities or the distribution of pharmaceutical products. See also a
OECD study entitled "Regulatory reform in road freight and retail distribution", Economic
Department working papers No 255, 10.08.2000, section 39 et seq., and a study carried out for
the Commission entitled "Barriers to Trade in Business Services", Centre for Strategy and
Evaluation Services, January 2001, page 15.
For example, national regulations stipulating there may be only one provider of chimney-
sweeping services per district or per commune.
For retail services, for example.
For example, in one Member State medical laboratories may only analyse specimens collected
at least 60 km away, while in another the mimimum distance between opticians is fixed at 350
metres, and in another shopping centres must be in city-centre locations, which prevents the
establishment of new entrants.

16

Difficulties identified include, for example, rules in one Member State imposing a
limit of 1 optician per 10 000 inhabitants and one driving school per 15 000
inhabitants.

Territorial restrictions applying in some Member States may confine authorisation to
engage in service activities26 to a specific region or locality, so that service providers
wishing to cover the entire national territory are obliged to become established in
several regions.

(ii)

Nationality or residence requirements

Nationality requirements exist in several Member States in respect of shareholders,
management and staff of service enterprises27 and in respect of some regulated
professions28.

service
Residence requirements, particularly those relating to managers of
enterprises29, give rise to problems. For example, depending on the particular country,
two thirds, one half or at least one of the members of the management board must be
resident.

A single-establishment requirement, whereby a service provider wishing to become
established in a particular Member State is directly or indirectly obliged to give up an
establishment in another Member State, was pointed out by medical laboratories, for
example. Such a requirement effectively prohibits the exportation of a business model
by means of becoming established in several Member States.

(iii) Authorisation and registration procedures

Access to a large number of service activities30 is subject to a prior authorisation
requirement which often entails difficulties for operators from other Member States.

The failure to take into account requirements already met by a service provider in a
Member State in which he is established, e.g. securities or guarantees already
deposited31, may have the effect of duplicating and compounding the constraints
facing operators who are present in more than one Member State.

26

27

28

29

30

31

For example, private security services. Concerning the difficulties encountered in connection
with services of this type, see a study conducted by CoESS/UNI-Europa and financed by the
Commission entitled "A comparative overview of legislation concerning the private security
industry in the European Union". ECOTEC, May 2002. In the context of the social dialogue,
the European social partners in the private security sector (the CoESS for the employers and
UNI-Europa for the unions) signed on 13 December 2001 a joint declaration on European
harmonisation of legislation governing the private security sector.
For example, engineering enterprises, aero-clubs and NGOs.
For example, chartered surveyors.
One such requirement may be that an applicant for a telecommunications service licence must
be resident in the particular country (even before he or she has obtained the licence).
For example, financial services, regulated professions, craftspersons, private security services,
organisers,
testing
certification
telecommunications services providers, employment agencies and performers' agents,
transport and processing of waste.
For employment agencies or private security services, for example.

drinking water

laboratories,

bodies,

trade

fair

17

The number of authorisations required for some activities considerably amplifies the
restrictive effects for an operator from another Member State, even if it just means
having to contact more administrative bodies, fill in more forms and provide more
certificates32.

For example, in one particular Member State, seven different local and national
licences are needed in order to open a hotel or restaurant33; while in another a
company wishing to open a retail outlet needs a building permit, an environmental
permit and a socio-economic permit, as well as having to comply with zoning
regulations which can sometimes be highly complex.

The procedures and conditions associated with such regulations may have
restrictive or even discriminatory effects on operators from other Member States,
particularly where the procedures involve bodies made up of competitors34 or where
the applicant has to prove that the application for authorisation is justified by a
genuine need35.

A registration requirement applying to some service providers, whereby they are
obliged to register with an administrative authority, a professional body, a chamber of
craft trades or a trade association, is frequently encountered and could prove very
expensive for operators who have a presence in several countries, particularly on
account of the annual contributions to be paid, and where, moreover, membership of a
specific sickness insurance scheme is involved.

The bureaucratic nature of authorisation and registration procedures, the long time
they take to complete, the onus of proof, the certification of translations, the prices or
fees to be paid, the less than constructive attitude taken by some authorities and the
difficulties involved in lodging administrative appeals were very often singled out on
account of their discouraging effect on service providers from other Member States36,
particularly SMEs and start-ups37.

32

33

34

35

36

In one contribution it was even stated that one had to be a "collector of licences" in order to
set up a bakery business in one particular country, as the requisite authorisations varied
depending on the types of products and activities of one and the same bakery. Given these
difficulties,
the operator in question abandoned the plan of becoming established. The
multiplicity and duplication of authorisations had also been identified as a problem in the
“Report from the Commission to the Council, the European Parliament, the Economic and
Social Committee and the Committee of the Regions on concerted action with the Member
States in the field of enterprise policy” COM (1999) 569 final, section 2.1.1.
See, for example, a study entitled "Tackling the impact of increasing regulation - A case study
of hotels and restaurants". Better Regulation Task force (UK), June 2000.
Those applicable to distribution services, for example.
In one Member State, for example, this relates to a genuine need on the part of consumers
with regard to existing shops; in another, the criterion is that there must be no negative impact
on existing town-centre shops; and in another the granting of a licence is subject to a condition
relating to the need for a performer's agent's activity "in terms for the demand for the
placement of performance artists".
For example, the difficulties encountered in opening retail outlets because of authorisation or
registration requirements and the associated administrative formalities were identified in the
OECD study cited above (section 39 et seq.) as being one of the chief restrictions on market
access in the distributive trades sector. An Anglo-French study on the services sector in the
United Kingdom and France underscores the negative effects on employment at the local level
which are caused by licensing and numerus clausus systems applicable to some activities:

18

(iv) Restrictions on multi-disciplinary activities

A certain number of service activities are subject
to rules designed to ensure
independence and autonomy between different activities, preventing them from being
exercised jointly. The disparity between national rules in this domain may have a
particularly pronounced restrictive effect by preventing the exportation to another
Member State of know-how consisting precisely of addressing in a multi-disciplinary,
innovative and less expensive manner the different requirements of a customer. These
restrictions may take several forms:

–

–

requirements

concerning the

service
enterprises, preventing for example the formation of associations between
different professions38 ;

structure or management of

restrictions on the exercise of multi-disciplinary activities - these lay down
that the exercise of different activities is incompatible39, oblige a service
provider to exercise exclusively one particular activity40, or stipulate that
different activities may only be pursued in different locations41.

In one Member State, for example, estate agencies are prohibited from engaging in
other professional activities such as property management, financial consultancy or
cleaning.

(v)

Legal form and internal structure of economic operators

administrative

"The service sector in the UK and France. Addressing barriers to the Growth of Output and
Employment. An Anglo-French Report.", Department of Trade and Industry and Ministère de
l’économie, des finances et de l’industrie (Ministry of Economic Affairs, Finance and
Industry), 2000, page 89.
A business survey attached as an annex to the November 2000 Internal Market Scoreboard
shows that 91% of the companies interviewed attached the highest priority to a simplification
of
procedures
http://europa.eu.int/comm/internal_market/en/update/score/business.htm. See also "Report on
the implementation of the European Charter for small enterprises", COM (2002) 68 final,
which stresses in particular that “the total number of procedures for starting a business could
be an important target for simplification”(section 4: Conclusions); "Report of the Business
Environment Simplification Task Force- Best" volume 1, OPOCE 1998 ; "Etude comparative
internationale des dispositions légales et administratives nécessaires pour la formation des
PME dans six pays de l'Union européenne" (comparative international study of the legal and
administrative provisions governing the creation of SMEs in six countries of the European
Union, Logotech, European Innovation Monitoring System, EIMS Publication No 27, March
1996.
For example, in numerous Member States lawyers are not allowed to enter into partnerships
forms of
with non-lawyers, e.g. accountants,
restrictions may also exist. In one Member State, for example, only tax advisers,
tax
consultants or tax agents may be shareholders or executives of companies providing tax
consultancy services, Concerning the rules applicable in the United Kingdom, see for example
a report entitled “Competition in professions”, Office of Fair Trading, March 2001, section 30.
See, for example, studies on cases concerning incompatibilities between the activity of an
auditor and that of an accountant in the above-cited survey carried out for the Commission
entitled "Barriers to Trade in Business Services", appendices, case studies 6. See also the
judgement of 9 February 2002 Wouters C-309/99, on the prohibition of multi-disciplinary
partnerships between members of the Bar and accountants.
In one Member State, for example, such a requirement applies to employment agencies.
For example, in one Member State real estate services and insurance activities.

tax consultants or patent agents. Other

37

38

39

40

41

19

The obstacles concerned are particularly restrictive for operators who are already
established in one Member State and are not subject to this type of requirement in
their country of origin. The divergence between the rules in question means that
operators may be obliged to create a legal entity that is "made to measure".

Requirements regarding legal form may impose a particular type of company on a
service provider or, conversely, prohibit him from having such a legal form42. The
situation can become highly complex for some activities for which different legal
forms are mandatory in different Member States.

For example, a lawyer who wishes to become established in a different Member State
must dissolve his or her one-person company in the Member State in which he or she
is already established because in the other Member State lawyers are allowed to
operate limited-liability companies only43.

In addition to the (above-mentioned) discriminatory rules affecting shareholders, the
capital of service enterprises is subject in some Member States to restrictions such as
a minimum amount of capital for companies providing private-security services and
employment agencies44.

A minimum number of employees may be required for some service companies 45.

(vi)

Professional qualifications

between

different

Disparities
professional
qualifications may give rise to various kinds of difficulty for service providers
wishing to become established in another Member State, particularly where
qualifications for the profession concerned are not automatically recognised46.

regulations

governing

countries'

Differences between Member States regarding activities considered to be "regulated
professions" may cause difficulties, as there are many services47 which are not
regulated in all Member States, while some may be regulated in one Member State
only48. For example, a service provider from a Member State with no requirement for

42

43

44

45

46

47

48

In one Member State, for example, trade fair organisers must be non-profit-making.
Other activities are also affected by this type of problem, e.g. auditors.
Restrictions may also include a maximum investment, as in the media sector, or an obligation
to find other shareholders or co-investors for certain areas of activity. It should be noted that
the Anglo-French report cited above also identified (page 36) minimum-capital requirements
as being one of the main obstacles to service activities.
In one Member State, for example, employment agencies must have at least 12 employees per
100 contracts concluded in the previous year. In other Member States, companies providing
private security services must employ a minimum number of staff depending on the activities
and territory covered.
It should be noted that, quite apart from problems concerning the recognition of professional
qualifications, differences in rules governing the professional training of employees may
cause certain difficulties, as in the case of companies providing private-security services,
which are subject to specific requirements in some Member States.
For example, engineers and consulting engineers, tax advisers, estate agents, surveyors,
landscape architects, managing agents of blocks of flats, consultants, craftspersons.
For example, one Member State has established a specific vocational
title for services
consisting of drafting labour law documents which does not exist in any other Member State

20

a professional diploma wishing to become established in another Member State that
does have such a requirement will not find it easy to have professional qualifications
recognised.

Aptitude tests required by some Member States for activities not covered by
arrangements for automatic recognition of qualifications could be are a source of
difficulties, particularly for SMEs49 owing to a lack of transparency and predictability.

Differences regarding the fields of activity covered by a particular professional
qualification may give rise to difficulties, and it may also happen that different
professional qualifications are required for one and the same activity if different
designations are used50.

For example, chartered building surveyors may be allowed to draw up plans for a
building in one Member State, while only architects are allowed to do so in another.

(vii) Conditions governing the exercise of service activities

A decision as to whether or not to become established in a particular Member State
may be influenced by differences not only between the respective conditions
governing access to the service activities concerned but also between conditions
liability insurance
relating to the way they are exercised, such as professional
the
strategies
rules on shop opening hours - which affect
regulations,
establishment of retail outlets51 - and rules on taxation and use of infrastructures,
which may affect the establishment of telecommunications operators52.

for

The different company tax regimes result in obstacles which penalise cross-border
establishment of service providers53. Although business would like to consider the
Internal Market as just one market, numerous problems result from the fact that
companies must conform with 15 different fiscal regimes. This situation undermines
the economic efficiency of business strategies and structures. The multiplicity of
fiscal laws, conventions and practices leads to significant compliance costs and
constitutes a barrier to establishment which particularly affects SMEs.

49

50

51

52

53

and which is subject to authorisation and an obligation to be entered in a national registry
specific to this new profession.
See the already cited "Report of the Business Environment Simplification Task Force", page
65, which states that, in some fields, the aptitude-test requirement “has tended to become the
rule rather than the exception”.
For example, a carpentry diploma obtained in one Member State does not authorise the holder
to exercise the profession of a "carpenter/joiner" in another.
This type of restrictive effect was also identified in the OECD study already cited, sections
49-51.
For example, taxation in respect of GSM transmission masts, or the setting of electromagnetic
emission thresholds.
See the study “Taxation of companies in the Internal Market” SEC(2001)1681, which, inter
alia, examines in detail
the principal fiscal provisions likely to constrain cross-border
economic activity in the Internal Market. On the basis of this analysis the Commission
presented a strategy to remove such obstacles. Communication from the Commission:
“Towards an Internal Market without tax obstacles - a strategy for providing companies with a
consolidated corporate tax base for their EU-wide activities” (COM(2001)582 final).

21

In particular, it seems that service providers are especially affected by problems
linked to the fiscal treatment of intra-group transfer pricing, cross-border flows of
income, cross-border loss relief and cross-border restructuring operations. These
difficulties present a risk of double taxation and increased compliance costs.

2.

Difficulties relating to the use of inputs necessary for the provision of
services

The cross-border use of inputs by service providers can take two forms. In order to
offer its services, an enterprise already established in one Member State may have to
move to another Member State and mobilise its own inputs there: i.e.
its staff,
equipment or the business services of which it usually avails itself on its domestic
market. On the other hand, an enterprise may need inputs from other Member States.
In both cases, the contributions to the consultation revealed difficulties. In particular,
the cross-border recruitment or posting of staff could be problematical54, which runs
counter to the aim of facilitating the mobility of workers55.

(i)

Posting of workers (employees or temporary staff) to another Member State

the service
The provision of services between Member States often means that
provider has to post staff temporarily to another Member State. Some difficulties may
be encountered in this context. It should be noted that Directive 96/71/EC56 sets out a
common list of rules providing for minimum protection which must be observed in
the country where the service is supplied by the employer which posts the worker in
the framework of the provision of services.

The requirement to make a prior declaration, applying in several Member States to
the cross-border posting of staff (permanent employees or temporary personnel),
particularly in the construction sector57, may result in difficulties for operators from
other Member States on account of the administrative burdens which they may
impose58. Compounding these in some Member States is the obligation, on expiry of a

54

55

56

57

58

the Economic and Social Council and the Committee of

While human resources are one of the most important inputs for the provision of services,
contributions also showed the cross-border deployment and posting of staff continue to cause
service providers major difficulties which are hardly encountered at all by manufacturers of
goods. Concerning the low level of worker mobility in border areas, see a study carried out for
the Commission entitled "Scientific Report on the Mobility of Cross-border Workers within
the EEA", MKW Wirtschaftsforschung GmbH, November 2001, section 1.3.
Concerning this, see the Communication from the Commission to the Council, the European
Parliament,
the Regions -
Commission' Action Plan for skills and mobility, COM (2002) 72 of 13 February 2002.
Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services (OJ L 18, 21
January 1997 p1). This Directive aims to guarantee observance of the fundamental freedoms
of the Treaty while at the same time protecting workers. The Directive also obliges Member
States to establish co-operation between national administrations and to designate liaison
offices.
These formalities have to be completed for each individual site. A service provider who
regularly posts personnel for short periods cannot obtain an authorisation valid, for example,
for one year. In one Member State, the obligation to make a prior declaration has to be met,
before work on each individual site commences, for each temporary worker provided by an
employment agency established in another Member State.
For example, the costs of translating certain employment documents into the language of the
host country.

22

certain period (generally three months),
authorities, administrative bodies or the police59.

to register posted workers with labour

The burden and complexity of administrative formalities60, the stringent and quasi-
systematic checks which some posted workers may have to undergo, excessive
paperwork and the associated delays (stoppage of work), could result in difficulties in
the case of regular and short-term postings.

For example it was indicated that, for the installation of a lift by two workers on a ten-
day posting, a company had to complete a series of administrative formalities (in
particular the submission to the labour inspectorate of data on the posted workers and
safety measures, and an obligation to keep documentation in the language of the host
country) although the company considered that
similar
requirements in its country of establishment.

it had already met

The application to posted workers61 of the host country's labour-law provisions,
without account being taken of the obligations and charges already met by the
employer in the country of establishment, could lead to amounts being levied twice
and to additional administrative costs and burdens having to be borne by service
providers from other Member States. Such cases of duplication, notably as regards the
minimum wage62 or paid leave63 could have particularly restrictive effects in the case
of short-term service provision and with regard to SMEs and service providers
established in border areas who would like to post workers to several Member States
on a regular basis in order to provide their services there.

For example it was highlighted that it proved economically unattractive for a small
craft enterprise to carry out work in another Member State on account of an obligation
to make a quarterly provision for all social security contributions for its posted
workers. Even though the amount would later have been reimbursed to the company
concerned, this would have tied up too much cash64.

59

60

61

62

63

64

For example, the obligation to apply for a residence permit.
For example, the obligation to draw up certain social and employment documents and make
them available for the inspection authorities, or to keep such documents on file with a social
representative in the host country for a certain period of time, and to translate these documents
in their entirety into the language of the host country.
Whether they are nationals of a Member State or a non-EU country.
As regards wages in particular several contributions show that restrictions result from
disparities in the methods of calculating wages. Some contributions, for example, highlight
difficulties linked to a failure by the host country to take account of all the components
making up remuneration in the country of establishment (e.g. 13th or 14th month’s salary)
which may mean that remuneration is higher than that imposed by law in the host country.
For example, the obligation to contribute to a third party institution (such as a paid leave fund)
despite the fact that the posted workers already enjoy a comparable benefit by virtue of
national provisions guaranteeing holiday pay. In one such instance, payment for the contract
was withheld until the matter had gone through the courts.
See “Artisanat, Petites entreprises et zones frontalières – Analyse de cas particuliers
d’entreprises travaillant en pays limitrophes (seconde action expérimentale)” (The crafts
sector, small enterprises and border areas - Analyses of specific cases of enterprises working
in neighbouring countries [second experimental scheme], Inter-regional Council of the Saar-
Lor-Lux Chambers of Craft Trades, 1996.

23

These restrictive effects are exacerbated by the existence of severe sanctions65,
including criminal penalties, the application of which is sometimes perceived as being
discriminatory by service providers who do not meet obligations to make a prior
declaration or fail to observe labour-law provisions.

Procedures and conditions applying to the posting of third-country nationals in
several Member States are tantamount to authorisation requirements66. This fact and
the slowness and cumbersome nature of the procedures concerned were also
highlighted67 as being liable to render the provision of services difficult or even
impossible in some cases.68 Such difficulties could primarily affect high-tech sectors
in which operators seek the skills they need by using staff, e.g. software designers,
from non-EU countries.

In several Member States, the posting of personnel from third countries is subject to
the condition that the staff concerned have been employed by the posting enterprise
for at least a year. In some cases they must even have a contract of indefinite duration.
Moreover, it can take a long time for the document(s) required for a posting to be
issued (up to six months in some cases).

Use of employment agencies or temporary workers from other Member

(ii)
States

Enterprises which may need to use an employment agency established in another
Member State or to deploy temporary workers in another Member State69, could face
a series of difficulties.

Prior-authorisation rules70
to
employment agencies could prevent operators from availing themselves of an agency

requirements71

establishment

applying

and

65

66

67

68

69

70

€

26,000.

1,000, including for simple material

In one Member State, for example, the minimum fine is
€
errors, and can range up to
These range from an obligation to obtain a work permit in the host country, the granting of
which depends on an assessment of the labour market there, to a "work visa" or residence
permit, without which no posting can take place.
Concerning this, see in particular a study entitled "Managing mobility matters – a European
perspective", PriceWaterhouseCoopers, 2002, section 2.5, as well as the "Report of the High
Level Panel on free movement of persons" chaired by Mrs Simone Veil and presented to the
Commission on 18 September 1997, “(the Veil Report), chapter 6.
Moreover, the fact that third-country nationals who are insured in one Member State are not,
in principle, covered by the provisions of Regulation (EEC) No 1408/71 of the Council of 14
June 1971 on the application of social security schemes to employed persons and their
families moving within the Community, is also liable to make it more difficult and costly to
post them to another Member State. A proposal from the Commission seeking to extend the
field of application of regulation 1408/71 to third country nationals was agreed by Ministers at
the Council of 3 June 2002.
For example, in order to make up skills shortages, cope with a heavy workload, particularly on
account of seasonal factors, or manage their resources with a degree of flexibility.
The conditions and procedures for authorisation, the length of time they take, as well as the
associated guarantees and deposits, can likewise exacerbate the restrictive effects of these
authorisation rules. The granting of an authorisation may be linked to the quality or the
structure of the service provider or to the agency having a minimum capital stock. It may also
be conditional on guarantees or securities being deposited or on the payment of duties. In one
Member State, a user enterprise that had to cope with a temporary rise in its workload was
unable to use an agency established in a Member State on account of the time it would have

24

that is established in another Member State and does not have such authorisation. This
has the effect of limiting operators' access to temporary workers from other Member
States72. This could also prevent a company from calling on workers provided by an
agency in its home state to supply a service in another Member State where such an
authorisation is required. Such regulations could moreover delay the performance of a
contract or make it impossible to meet a deadline73.

The prohibitions imposed on certain sectors and restrictions on the use of
temporary staff74 (such as the requirement to prove a specific need to use temporary
workers) vary from one Member State to another. In the context of cross-border
service provision, this is liable to hamper the posting of temporary staff employed by
an enterprise75.

(iii) Other difficulties relating to the cross-border deployment of workers

Some contributions showed that operators encounter difficulties76 when seeking to
recruit or employ staff in one or more Member States particularly with a view to
making up skills shortages77. This is especially the case for enterprises which are
established in several Member States or which employ cross-border workers. These
difficulties derive from obstacles to the cross-border mobility of workers within the
Internal Market.

Disparities between national regulations governing remuneration, taxation78 and
social protection are perceived as a source of major difficulties79 for enterprises

71

72

73

74

75

76

77

78

taken for the requisite licence to be granted (four months). Moreover, the obligation imposed
in some Member States to first consult trade union organisations, even in urgent cases, is also
liable to slow down the procedure appreciably.
An agency may be required to have a local representative, or to be "active" in several regions
of one and the same Member State.
Particular mention was made of "niche" sectors (such as high-tech activities and civil
aviation), but also the building and construction sectors, as well as the tourism, hotels and
health sectors.
For example, an air transport company was unable to use the services of an employment
agency specialising in providing airline transport pilots because the agency in question was
not established in the same Member State as the air transport company.
Such prohibitions affect several sectors (construction, the merchant navy, the public sector,
removals and low-skill activities) but may also be limited by particular considerations
tasks,
(increased workload at an enterprise, performance of specific and exceptional
replacement of seasonal employees or activities, launching of a new activity).
This is compounded by tax and social provisions specific to temporary employment which
have the effect of making staff provided by an employment agency established in another
Member State more expensive. For example, the user enterprise may be subject to double
taxation from the first day of providing its service or to higher social security contributions. In
some Member States, it may also be required to pay end-of-contract compensation.
It should be noted that the difficulties relating to nationality, residence and professional-
qualification requirements which were raised in the section concerning the establishment of
service providers are likewise a restriction on worker mobility.
Particularly in the information-technology, communications, construction, health and tourism
sectors.
Disparities concerning taxation (level and structure of
taxes) were cited in several
contributions as being a major obstacle to the mobility of labour, as migrant and cross-border
workers are often more heavily taxed in spite of bilateral agreements on double taxation (see
the Veil Report as well as the study entitled "Managing mobility matters – a European
perspective" both op cit.).

25

employing or seeking to recruit migrant or cross-border workers80, and could give rise
to additional administrative costs and paperwork.

For example, pension contributions paid by migrant workers to pension schemes in
the Member State of residence are not necessarily deductible from taxes payable in
the Member State in which they exercise their activities.

The complexity of social security regulations in all Member States may discourage
enterprises from employing migrant or cross-border workers81 and also cause
additional administrative burdens.

Diversities between pension schemes and obstacles to the transfer of supplementary
pensions82, may have a restrictive effect on the mobility of cross-border and migrant
workers and give rise to high administrative and financial costs, preventing for
example operators who are established in several Member States from centralising
their pension management systems.

(iv) Cross-border use of business services

In order to engage in its particular activities, an enterprise normally requires the input
not only of manpower but also of a variety of "business services". These may range
from legal assistance and accounting services, through marketing services, website
design, equipment leasing or hire, to transport and after-sales services.

The use of cross-border business services may be affected by difficulties which can
prevent an enterprise from using providers from other Member States whose services
are more attractive in terms of quality or price. They may also prevent a company,
when supplying services in another Member State, from using service providers with
which it has long had dealings.

For example, a waste-transport enterprise may be prevented, in the context of its
cross-border activities, from drawing on the assistance of its environmental consultant
because the latter is not entitled to provide services in other Member States.

79

80

81

82

Disparities relating in particular to income tax and pension rights were identified in the above-
cited studies entitled "Barriers to trade in Business services" (section 4) and "Managing
mobility matters – a European perspective", as having a negative impact on an operator's
ability to exercise its activities in several Member States and, in particular, to recruit personnel
locally in another Member State.
For example, an enterprise that wishes to recruit qualified personnel will not always be able to
inform candidates of the exact amount of taxes and contributions which they will have to pay,
even though matters have been simplified by the introduction of the euro.
Contributions highlighted, above all, problems encountered in the application of
the
Regulation (EEC) No 1408/71 relating to the co-ordination of social security schemes
(difficulties in determining the applicable scheme, in particular to border workers, non-
application of the provisions of the regulation to benefits under collective agreements, e.g. in
the case of occupational pensions. Moreover, some problems of double deduction of
contributions have occurred in spite of the implementation of forms E101 and E128 used in
case of a posting. The Commission has made a proposal to simplify this regulation.
The difficulties concerning the transferability of supplementary pension rights acquired by
migrant workers are highlighted in particular by the above-cited Commission Action Plan on
Skills and Mobility.

26

Where such difficulties affect providers of business services, they will be dealt with
from the perspective of the distribution of services.

(v)

Cross-border use of equipment and material

Problems relating to the use of technical equipment in the cross-border provision of
services were highlighted by contributors to the consultation. 83. Service providers are
liable to be seriously hindered, and their ability to benefit from the freedom of service
provision compromised, by measures imposing restrictions on the use of equipment or
material specifically required for the exercise of their particular activities. Such
difficulties may relate in particular to the technical equipment of laboratories, the use
road-mending machinery,
of
construction-site equipment, security vans or technical standards for electronic
signatures. In some cases, Member States require the use of infrastructure and
materials which cannot be transported into the country in which the service is
provided84.

exhibition-stand materials,

vehicles,

business

For example, the introduction of the euro has led to a sharp rise in demand for the
cross-border transport of notes and coins, with central banks having an increasing
proportion of their cash produced in other Member States in the euro-zone.
Commercial banks as well as retailers may also find it worthwhile to have cash
transported to and from other Member States. However, differences between national
including technical requirements in relation to
rules on the transport of cash,
equipment and vehicles, are a hindrance to the provision of this type of service
between Member States.

3.

Difficulties relating to the promotion of services

This is a key stage, particularly for the cross-border provision of services, it being
imperative that operators promote their services if they are to penetrate a new market
in another Member State. It
to advertise know-how and specialist
capability, as these are the chief factors that differentiate operators in this field.
However, communication of numerous service activities85 is governed by strict and
complex rules whose variations between Member States may make it difficult for
service providers to promote their know-how across borders and virtually impossible
for them to undertake a pan-European promotional campaign.

is essential

(i)

Authorisation, registration and declaration procedures

83

84

85

For example, equipment used by analysis laboratories,
trade-fair exhibitors, certifying
veterinary officers, opticians, chiropodists and construction enterprises (who have to cope
with divergent legislation regarding construction equipment and undergo multiple inspections
of hired cranes, with serious consequences in terms of additional costs and delays).
Difficulties may also include the requirement for SMS companies to connect up with each
operator involved in the cross-border transmission of messages.
For example, requiring a chiropodist who is established in another Member State to have non-
transportable equipment and a permanent infrastructure in the country of service provision is
tantamount to imposing an establishment requirement in order for services to be provided.
A wide range of sectors (the regulated professions, distribution, telecommunications, press,
publishing, cinema and financial services) are affected by bans or limitations on the use of
commercial communications.

27

Prior authorisation may be required for communications concerning certain services.
Such authorisation mechanisms may cause delays and additional administrative
burdens in the context of cross-border promotional efforts.

In the case of financial services, prior approval is required in some Member States for
some or all forms of advertising of some or all types of financial services.

In the distribution sector, authorisation is required for the promotion of certain
products86, for certain forms of promotion87, and for the use of certain media88.

A declaration may also have to be made to a specified body in respect of certain types
of sales promotion or advertising for certain services89, which may cause delays and
additional administrative burdens for cross-border activities.

(ii)

Bans on commercial communications

Bans on commercial communications for certain types of services, certain categories
of recipients or certain media affect service providers from other Member States as
they, unlike national operators, have hardly any other means at their disposal for
making their products and services known.

Some regulated professions are subject to a total advertising ban, imposed either by
law or by codes of good conduct, limiting the opportunities for developing their client
base beyond the borders of their Member State of residence.

Some Member States prohibit all forms of advertising for certain professions, such as
physicians, accountants and engineers, preventing the communication even of factual
information.

With regard to other services, such bans may be imposed in respect of specific
communication media90 and recipients91.

(iii) Content of commercial communications

86

87

88

89

90

91

For example, the advertising of medicines available without a medical prescription may
require prior authorisation, and the advertising of fruit and vegetable prices outside the point
of sale may be subject to the existence of a multi-sector agreement. See OECD study entitled
“Assessing barriers to trade in services: retail trade services”, 2 October 2000.
For example, some Member States stipulate that prior approval is required for promotional
lotteries and games.
For example, for mobile poster campaigns, particularly for the deployment of vehicles
carrying commercial messages for each district of a city.
In some Member States, for example, organisers of a promotional lottery or game have to
make a declaration to the public authorities. In other Member States, any advertising on the
part of a teaching establishment has to be notified in advance to the national ministry of
education.
For example, television advertising may be completely prohibited for certain sectors, as is the
case in one particular Member State in respect of the distribution, press, publishing and
cinema sectors.
Some communication bans are often designed to protect minors. In some Member States, for
example, television advertising aimed at children is completely banned at certain times. In
other Member States, television advertising for toys is prohibited between 7 a.m. and 10 p.m.

28

The type of message which operators are allowed to communicate may also be
subject to restrictions, causing difficulties in a cross-border context. In some Member
States, not only are commercial communications by regulated professions limited to
factual information, but this information itself is subject to restrictions92. For example,
in some Member States, certain types of information, such as prices or a comparison
between services rendered and their prices must not the subject of a commercial
communication.

In some Member States professionals such as lawyers are not allowed to mention their
particular specialisation in their communications to the public, which limits their
scope for attracting new custom from other Member States.

Content restrictions in respect of the target audience, which vary markedly from one
Member State to another, may also exist
for certain services, particularly for
communications aimed at minors93.

Restrictions in respect of the arguments used may, in some Member States, prohibit
for example the use of certain arguments, such as those of an "ecological" nature94 or
those extolling the virtues of a product or service in terms of its positive effects on
health.

Restrictions on the language used in commercial communications exist in some
Member States, e.g. in the form of an obligation to use the official language(s) of the
Member State concerned95.

(iv)

Form of commercial communications

Some regulations restricting scope for sending commercial communications without
prior consent may make it difficult to canvass for business if they also apply to
messages addressed to professionals96. Regulations may relate to specific forms of
canvassing, such as telephone97 postal or door-to-door canvassing.

(v)

Non-commercial communications

92

93

94

95

96

97

€

0.7.

Numerous professions are affected by these kinds of restrictions: auditors, physicians,
pharmacists, architects, accountants, notaries, lawyers.
In one Member State, for example, a regulation on sales promotions provides that the value of
prizes offered in promotional lotteries and games must not exceed
In one Member State, for example, it is prohibited to refer to a solarium as "biolarium".
These restrictions may cover all advertising or just advertising messages relating to certain
services (such as investment services) and may even apply in cases where the advertising
concerned is aimed specifically at nationals of other Member States, such as foreign tourists.
Where regulated professions such as auditors are concerned, for example, some Member
States prohibit the unsolicited promotion of services, which may prevent such professionals
from sending newsletters or brochures. For instance, a gravestone distributor was formally
threatened with prosecution in another Member State for having faxed to undertakers in that
country unsolicited (price) information about its activities.
In some Member States, for example, the making of telephone calls to potential customers
with a view to offering financial services is authorised only if the canvasser has obtained the
prior consent of the client. In others, telephone canvassing is prohibited even if the persons
targeted have been informed in advance in writing.

29

The compilation and circulation between Member States of independent information
on the quality of services, based in particular on trials and comparative testing, are an
essential means of enabling users of services to become aware of quality services in
other Member States. In this regard, the application of certain rules relating to unfair
competition98, parasitic behaviour , disparagement, counterfeiting, defamation, the
right of reply and the citing of comparative tests99 could give rise to legal uncertainty
which may be detrimental
this type of
information.

to the cross-border dissemination of

4.

Difficulties relating to the distribution of services

The difficulties set out below are not those affecting the distributive trades sector
proper but those encountered in the cross-border provision of all services. The
distribution of services can come up against a much more complex set of barriers than
does that of products. In contrast to products, the quality of a service is gauged not
only by the inherent quality of the service itself but also by the provider, particularly
the professional qualifications of staff, capacity, capital and the internal structure of
the enterprise. Numerous requirements, varying considerably from one Member State
to another, are therefore imposed on the cross-border provision of services.

More particularly, Member States tend to subject services supplied by providers
established in other Member States to some or all of the requirements applicable to
operators established on their territory. This explains why the inventory of difficulties
affecting this stage often includes those identified as affecting the first stage, the
establishment of the service provider.

(i) Monopolies and other quantitative restrictions on access to activities

The monopolies and other quantitative restrictions listed in relation to the first stage
(establishment of the provider) can represent an insurmountable barrier when applied
to providers of cross-border services established in other Member States. The
application of a monopoly system has the effect of depriving these providers of any
opportunity to supply their particular service, even on a temporary or occasional basis.
It is clear that the existence and application of monopolies can have severe effects on
consumers.

(ii)

Nationality or establishment requirement

In addition to instances of discrimination based on nationality100, the requirement
that a provider be established101 in the Member State or region in which the service is
delivered is one of the main difficulties faced in a large number of economic

98

99

100

101

For example, consumer associations have been taken to court for violation of honest trade
practices following the publication of comparative tests.
In one Member State, for example, it is forbidden to cite comparative tests in advertising.
These still exist
surveyors.
This requirements comes in various guises: an operator may be required to have its head
office, a secondary establishment, a residence or a permanent presence etc. in a particular
country.

in some Member States for certain professions, such as notaries and

30

activities102 in several Member States. This type of requirement represents the very
negation of the freedom of provision of services which enables operators to pursue
their activities in a Member State other than the one in which they are established.

For example, in some Member States certification bodies for biological products are
not allowed to provide their services unless they are established in the particular
country concerned. This prevents the cross-border provision of a highly specialised
service and also has the knock-on effect of hindering the sale of biological products.

The obligation to have a local representative almost amounts to an establishment
requirement103.

(iii) Authorisation, registration and declaration procedures

Some Member States try to subject cross-border service providers who are established
in other Member States to the authorisation, registration or declaration procedures
applicable to operators established on their own territory (see stage 1).

Prior authorisation in various forms (such as having to obtain a permit, licence, or
other approval) is required104 in numerous Member States, even in cases where a
service is rendered on an occasional basis only. The application of such requirements
to cross-border services can have particularly restrictive and discouraging effects,
especially as severe sanctions, even criminal penalties, are frequently applied to those
who do not have the requisite authorisation105.

The failure of authorisation regimes to take account of requirements already met in
the Member State of establishment can, moreover, exacerbate the restrictive effects
and leads to a duplication of the rules to be complied with and of the burdens to be
borne.

Entry (or enrolment or accreditation) in a register (which might be kept by the
national professional bodies or tax or social authorities) in the country in which the
services are provided is also very often required and may cause not only a great deal
of paperwork but also major costs106.

102

103

104

105

106

for example,

For example, wine transport and storage enterprises, building construction enterprises, patent
agents, employment agencies, private security services, clinical analysis laboratories, boiler
inspectors, enterprises handling the transport of deceased persons.
A local representative is sometimes compulsory for the purpose of completing administrative
formalities or for tax reasons.
including tourist guides, mountain guides,
regulated professions,
For
craftspersons, trade-fair organisers, providers of telecommunications services, certification
bodies, drinking water testing laboratories, patent agents, employment agencies, performers'
agents, private security services, waste transport,
importation and treatment companies,
ambulance companies,
leasing enterprises, enterprises providing cross-border electronic
installation services. Several cases were also identified where national approval is regarded as
being a de facto prerequisite for participation in public contracts. See study entitled "Barriers
to Trade in Business Services" cited above.
For example, this was identified by estate agents and by tourist guides of certain nationalities.
In some Member States, for example, construction enterprises have to register with a
professional body,
association;
craftspersons have to be entered in the national register of artisans (including for activities of
an exceptional nature and of limited duration), and numerous regulated professions are subject

landscape architects with that profession's national

31

For example, a general requirement for electricians in a particular Member State to
register with a national trade association means that one particular professional who
occasionally provides services there has to pay an annual contribution of around
776
in that country (three times the contribution he pays in his country of establishment).

€

A declaration is sometimes required107. While imposing less of a constraint than the
requirement to obtain an authorisation or to register with a chamber of trade, this
obligation may nevertheless give rise to a considerable amount of paperwork and
significant costs, given the difficulties involved in obtaining the requisite certification
and the obligation to have documents translated and certified.

Providers of cross-border services have to meet a whole series of requirements
associated with authorisation procedures: e.g.
the obligation to register with a
professional body, provide proof of a minimum amount of capital, deposit a guarantee
108 or to keep special accounts109. The overall result of these requirements and
formalities may be to cause complications, delays and administrative costs, including
in the case of occasional services of very short duration110.

(iv) Requirements regarding the internal structure and legal form of the service
provider

A specific legal form and specific internal structure are often required not only for
in a particular country but also for the cross-border provision of
establishment
services. Operators111 from other Member States thus have to meet very different or
even contradictory requirements.

In one Member State, surveying activities may be exercised only by public limited-
liability companies which have a minimum amount of capital, provide a guarantee
and have a minimum number of staff. This excludes any service providers who are
established in other Member States where they are not subject to such requirements
and pursue their activities as sole traders.

Rules stating that various activities are incompatible with one another are also
sometimes applied not only to operators established in the country in question (see
first stage) but also to cross-border service providers established in another Member
State. The application of these incompatibility rules to cross-border services can have
particularly severe restrictive effects, given that they often relate to the very structure
of enterprises.

to a requirement to register with a professional body or trade association. What is more, cross-
sectoral obligations may exist, such as the regulation in one particular Member State which
requires any foreign enterprise whose activity exceeds 30 working days to register with the
chamber of commerce.
In one Member State, for example, a separate declaration has to be made for every
construction site.
For example, for employment agencies, private security services or architects.
For example, wine transport enterprises.
For example, circus artists are sometimes confronted with long and complex procedures which
are irreconcilable with the high level of mobility and frequency of travel which characterise
this type of activity.
For example, auditors,
security services (which in one country are required to have legal personality).

telecommunications operators, employment agencies, and private

107

108

109

110

111

32

(v)

Requirements in respect of professional qualifications and experience

Disparities between national requirements concerning professional qualifications
and experience (to which, moreover,
the above-mentioned authorisation and
registration procedures are often linked) are one of the problem areas often
highlighted in the consultation112. Service providers experience difficulties in
providing their services in another Member State on the basis of their original
professional title. Generally speaking, they are treated in the same way as those
wishing to be become established in the Member State concerned and are obliged to
pursue no less arduous a procedure in seeking to have their professional qualifications
recognised.

Different professional titles are in some cases required for one and the same activity,
where national designations do not tally113. Sometimes, a profession is regulated in
some Member States only114, or even in just one Member State; in such cases, the
country requiring a specific qualification for the exercise of a particular activity thus
excludes the cross-border provision of
the services in question by operators
established in other Member States where no such qualification is required.

Imposition on service providers of conditions governing the exercise of an

(vi)
activity

Differences between some rules laying down the conditions governing the exercise of
service activities, in conjunction, as the case may be, with the problems just outlined,
can cause numerous difficulties115. Differences between the conditions imposed by
the Member State in which the services are provided and those imposed by the
country of establishment may also cause serious problems for operators and
sometimes prove to be discriminatory.

In one Member State, all performers' agents, including those from other Member
States, are subject to a rule providing for a presumption of employed status for all

112

113

114

115

For example, for engineers, patent agents, electricians, and taxi drivers in some border
regions. Difficulties in obtaining the qualification required in the country of destination were
also highlighted by service providers carrying out electrical and sanitary installation work.
Sport physiotherapists pointed out certain problems stemming from a lack of precise details as
to the qualifications required by another Member State in which they were merely
accompanying athletes visiting that country. See also studies entitled "Principen om
ömsesidigt rekännande på tjänsteområdet " (The principle of mutual recognition in the
services sector), Kommerskollegium, 26.October 2000; and "Rapport om barrierer
for
integration i Øresundsregionen" (Report on barriers to integration in the Öresund region)
Öresund Chamber of Trade and Industry, December 2001.
For example, equivalence problems may affect the activities of dentists or cardiologists.
For example, craftspersons, estate agents, or labour consultants.
This may concern, for example, rules governing a professional code of good conduct or the
protection of a general interest, but also more specific rules, such as an obligation for private
security services to ensure that their staff wear a different uniform from that worn in their
country of establishment; an obligation for construction companies to pay 15% of the value of
the work in question to the tax authorities before the work has been completed, the inability of
designers of games of chance to offer their services in some Member States which impose
restrictions in respects of games which can be played in casinos; the application to certain
activities in candidate countries of strict language requirements, including for the conclusion
of contracts.

33

performers with whom they conclude contracts and stipulating that they must keep a
specific record of their activities in that country.

Territorial
limits applying to a licence may cause difficulties not only for
establishment (see stage 1) but also for the provision of services by providers
established in another Member State.116

(vii) Transport and postal services

Transport services are subject to divergent requirements in the various Member
States, particularly as regards the characteristics of the vehicles used117, such as lorries
and tourist coaches. Differences also exist with regard to arrangements for the
provision of transport services118, particularly in the case of the transport of deceased
persons. Equally,
the diversity of national rail systems (different gauge widths,
different systems for supplying electricity or different maximum axle loads for
wagons and locomotives) account for significant delays at border crossings and
therefore extra costs119; moreover, national rules on access to networks vary and make
it impossible to supply certain services120.

Some Member States prohibit, for example, the hiring of heavy goods vehicles
(HGVs) registered in a Member State other than the one in which the transport
operator is established, which hinders the use of hired HGVs transporting goods from
one Member State to another.

Air traffic suffers from the existence of several different and incompatible
management systems, which is the source of congestion, extra expense and safety
risks121.

For example, a flight from Rome to Brussels flies over nine different control centres.

Furthermore, the bilateral agreements between Member States and third countries
may sometimes contain provisions incompatible with the Internal Market, which
disadvantages Community airlines while profiting airlines form third countries
operating in the EU.

116

117

118

119

120

121

For example, in relation to debt collection, transport and private security services.
This relates to requirements (particularly as to weight and dimensions) concerning vehicles
used for transporting certain types of goods, such as wine or chemical products, and vehicles
which are leased or hired, as well as to restrictions on the use of tourist coaches in certain
areas.
For example, restrictions on driving on public holidays, obligations regarding specific
documents/certificates relating to scheduled and actual driving times for a vehicle (and the
translation of documents into the local language), VAT registration even where a vehicle is
simply passing through the particular country, statistical declarations (which are a cause of
delays at borders), the translation of documents into the local language, restrictions due to
monopolies in port services, restrictions on cabotage concerning the islands of some Member
States, airport taxes.
The Commission presented several propositions to complete the legislative framework in
January 2002.
Some directives in this area are in the course of being transposed.
The Commission launched an initiative at the end of 1999 to reform air traffic control in
Europe. The European Council in Barcelona in March 2002 set 2004 as the date for the
completion of the Single European Sky.

34

Postal services are also the subject of complaints, with regard for example to the
slowness of deliveries, the knock-on effects of postage-rate differences on cross-
border
partial
the
harmonisation. This is liable to make the development of pan-European express
delivery services particularly difficult.

consequences

distribution

economic

activities,

and

of

(viii) Restrictions on the receipt of services

Service recipients, and particularly consumers, as well as providers, are the direct
victims of obstacles to the distribution of services, facing difficulties which may even
make it impossible to receive certain services122.

Preferential treatment for residents of a particular Member State or of a particular
part of its national territory, such as rules reserving the provision of services
exclusively for nationals or residents of a particular Member State (or region or
locality), may prevent recipients of services from other Member States from having
the same access to services as nationals or residents of the Member State in which the
services are provided. Such cases were highlighted in particular with regard to
tourism, leisure activities, sport, distribution, transport and mobile telephony123.

For example, numerous consumers complain that they cannot have free-to-air access
to both private and public-service television channels broadcast by satellite.
Programmes on these channels are encrypted solely in order to prevent their reception
outside the Member State in which the broadcaster is established.

5.

Difficulties relating to the sale of services

The difficulties encountered at this stage are linked directly or indirectly to the
transaction in question. They stem from rules or practices, differing markedly from
one Member State to the other, relating to contracts, prices and payments, invoicing,
accounting and VAT, but also to access to public contracts or to rules governing the
reimbursement of costs to service recipients. These difficulties have a greater bearing

122

123

This relates, for example, to obstacles to receiving pay-TV channels broadcast from other
Member States, to concluding a mobile telephone contract in another Member State, to
benefiting from advantageous transport tariffs or from promotional offers by large-scale
distributors which are sometimes restricted to the national territory of a particular country and
are inaccessible for potential users from other Member States. Other barriers may affect users
of equipment needed for the receipt of services from other Member States, e.g. parabolic dish
antennas (the installation of which for individual or communal use may be subject to prior
authorisation, monitoring costs, a fee or restrictive internal rules governing the building
concerned) or winners of a contest/lottery who have to pay a tax both to the Member State in
which they took part in the contest or lottery and in their Member State of origin when
repatriating their winnings, and mobile telephone users who cannot receive calls in certain
locations owing to the use of scrambling systems (prohibited in the majority of Member
States).
For example, cases were pointed out where service recipients are subject
to additional
conditions and guarantees when taking out a subscription with a mobile telephony operator, or
are subject to higher charges in other Member States when taking part in a cultural or sporting
event (such as a marathon), visiting a museum or tourist site, buying a ferry ticket, taking out
an insurance contract, using sports facilities, hiring a car etc. Finally, there are also situations
where, conversely, residents of another Member State enjoy preferential treatment, e.g. free
parking at an airport.

35

on the sale of services than on that of products, especially as contracts play a more
important role for services. This is because they determine the nature of the service
concerned or because the drawing up of the contract is the service itself. Moreover,
price calculation is often more complex in the case of services and may be subject to
fixed or recommended prices varying from one Member State to the next.

(i)

Formation and content of contracts

The formation and content of contracts can give rise to specific issues regarding
services. The consultation launched by the “Commission Communication on
European contract law”124 has resulted in the identification of numerous problems
with the functioning of the Internal Market, resulting from the legal regimes of
Member States relating to contract law125. These difficulties also affect services and
especially financial services (such as the insurance sector in particular). For example,
the results of the consultation confirm that the existence of different national regimes
of contract law results in additional transaction costs, in particular possible expense
on information and litigation which weighs particularly heavily on SMEs and
consumers. Moreover, the diversity of rules governing contract content, and the
uncertainties surrounding the identification of mandatory or public policy rules from
which the contracting parties may not derogate, make it impossible to use standard
the Internal Market126. These problems make themselves
contracts throughout
particularly felt in the financial services sector.

Some Member States still require operators who are established in other Member
States to give prior notification of the general and specific terms and conditions of
insurance policies, in order to carry out checks and prohibit the use of certain clauses.

Other specific issues may affect certain cross-border services. For example,
employment agencies may be confronted with rules which are specific to each
Member State regarding the duration and renewal of contracts in the posting of
workers. Even in domains for which minimum harmonisation has been introduced,
such as doorstep sales, problems persist.

(ii)

Price setting, payments, invoicing and accounting

Price regulations applicable to a certain number of services127, whether providing for
maximum prices, minimum prices or prices set or recommended by Member States or
professional bodies, can result in very different calculation methods and price levels
for one and the same service, depending on the Member State in which it is rendered,
and are liable to cause problems in the case of cross-border service provision.

124

125

126

127

the results of

COM(2001)398 final.
See the summary by the Commission services of
http://europa.eu.int/comm/consumers/policy/developments/contract_law/index_en.html
For example, the impossibility of drawing up a standard contract of employment for an
enterprise which is active in all Member States was underscored in the study entitled
"Managing mobility matters – A European perspective" already cited above, section 4.3.1.
For example, the regulated professions, private security services, debt recovery services, hotel
services and road safety consultancy activities. Difficulties caused by regulations governing
prices for tourism services were also identified as a problem by a report prepared for the
Commission entitled: "Yield management in small and medium-sized enterprises in the
tourism industry", Arthur Andersen, Frankfurt am Main, OPOCE, 1997.

the consultation at

36

Rules and practices in relation to invoicing and payment are perceived as being
particularly complex in the various Member States and cause problems in cross-
border transactions128. As far as invoicing is concerned, the rules relating to the law of
VAT (notably obligatory indications, electronic invoicing and retention of invoices)
have been recently harmonised129 but other conditions (for example indications
imposed by commercial law or linguistic rules) remains governed by national law.
Means of payment do not have the same legal status in all Member States, and
enterprises wishing to pay by credit card may have to establish contractual relations
with the local bodies responsible for the administration of payments. Bank transfer
costs are always too high, which affects both service providers and recipients130.

Opening a bank account in the Member State in which a particular service is provided
is often necessary in order to facilitate payments, but is difficult as it involves making
a declaration of residence or of non-residence, which in turn gives rise to tax
declarations and causes administrative delays and costs.

Accounting rules131 are designed amongst other things to meet tax inspection needs;
for this reason in particular, they differ markedly from one Member State to another.
For example, accounting documents have to be itemised in accordance with
classifications drawn up by each of the Member States in which an enterprise files a
VAT return. An enterprise which is active in several Member States is therefore
obliged to maintain parallel accounting systems while at the same time ensuring
consistency in the accounting of the enterprise as a whole.

(iii) Taxation

The payment and reimbursement of VAT is one of the problems most frequently
cited in relation to the cross-border provision of services. Indeed, the rule according to
which services are subject to VAT in the country of establishment of the provider is
accompanied by numerous exceptions which give rise to complex situations in the
context of cross-border sales. This results in numerous service providers being subject
to VAT obligations in Member States other than the one in which they are
established.

128

129

130

131

For example, in one Member State an invoice for professional services in the legal field must
contain a specific reference to rules governing complaints.
Council Directive 2001/115/EC of 20 December 2001 amending Directive 77/388/EEC with a
view to simplifying, modernising and harmonising the conditions laid down for invoicing in
respect of value added tax. OJ L 015 , 17/01/2002 P. 0024 - 0028
For example, in one Member States, banks make the recipient pay a fee even where the
transferor has indicated that he wishes to bear all charges. In other cases, banks have refused
to credit clients' accounts with amounts corresponding to winnings which the latter have
lawfully gained in another Member State on the grounds that the bets concerned were not
authorised in their own Member State. See also a report prepared for the Commission entitled:
“Bank charges in Europe”, IEIC, April 2000.
In the insurance field, supervisory authorities impose different rules on accounting and
statistics, which excludes the use of high-performance computerised accounting systems.

37

The burden of VAT obligations132 as well as the very significant differences
between Member States (for example in terms of rates, obligations, procedures or
forms) result
in considerable difficulties. Furniture removers, for example, are
obliged to deal with the competent authorities in each of the Member States in which
they offer their taxable services, and ask for a VAT number133 in each of these
Member States and settle their affairs according to the different rules.

Where a travel agency sells hotel accommodation to other agencies in another
Member State, it is subject to VAT obligations in that Member State, which is a
significant source of practical difficulties.

Similar problems were also identified in relation to passenger transport, conference-
organisation and business services134.

An excessively pedantic approach by tax administrations was underlined in numerous
contributions as regards both the form and number of declarations135 and the means of
payment136.

The reimbursement of VAT is a particularly long and complex procedure in the case
of cross-border transactions and is liable in some Member States to take several
months or even years137.

(iv) Reimbursement, subsidy or aid to the service recipient

Authorisation for the reimbursement of medical costs incurred in another Member
State is only granted by national authorities under certain conditions and this may
therefore discourage persons insured under social security schemes from turning to
service providers established in another Member State. Persons who decide for
various reasons (waiting times, change of residence for private or professional
reasons138) to travel to a Member State other than his or her country of social security
affiliation in order to receive medical treatment there, will not often be reimbursed139.

132

133

134

135

136

137

138

These obligations are the subject of a study by the Commission in preparation for
simplification and modernisation proposals. The study is due to be completed at the beginning
of 2003.
The time it takes to issue a VAT number ranges from one week to six months, depending on
the Member State.
For example, where a service enterprise charges management fees to an enterprise established
in another Member State for services which it has rendered, according to the classification
used for this type of service the Member State of taxation will be the country of establishment
either of the provider or of the client, so that there is a risk of double taxation if both of these
criteria are applied to the same provision of services.
For example, some Member States do not allow periodic VAT declarations to be submitted
electronically. As far as summary declarations are concerned, one Member State accepts only
hard-copy declarations handed over personally.
Payments are generally effected by means of bank transfer. Some Member States stipulate that
an account must be held with a local bank.
This problem could be addressed by the Commission’s proposal aiming to allow cross-border
deduction (COM(1998)377), but this has still not been agreed by the Member States in the
Council.
For example, two persons residing in another Member State returned to their Member State of
origin in order to undergo a surgical operation there without having received the authorisation

38

A large number of patients face difficulties when they apply for the direct billing to
national insurance schemes of medical costs incurred in another Member State,
whether these relate to consultations with physicians, dental
treatment, hospital
treatment, detoxification treatment or thermal cures in another Member State.

Reimbursement of costs below the level granted in the country of social insurance
affiliation for treatment in another Member State also represents an obstacle to
freedom to provide and use services.

More favourable tax treatment for services received from local providers is a major,
and indeed discriminatory, hindrance to the provision of services. In some Member
States, for example, the costs of professional training are tax-deductible only if the
courses take place in the particular country concerned. Similarly, life insurance and
additional insurance policies, as well as pension fund and investment fund contracts
can be offset against tax only if concluded with local insurance companies.

(v)

Public contracts and concessions

The objective of most public contracts140 is the performance of services, e.g.
architectural services, construction work, waste management or public transport. In
the context of the award and execution of public contracts and other forms of
partnership, however, enterprises may face a whole series of obstacles.

Restrictive practices such as single-tendering or preferential treatment during a direct
award,
and negotiated
approval procedures or qualification systems
procedures141, could lead to the reservation of certain contracts to enterprises
established in the Member State of the purchaser.

some

For example, local authorities decide to outsource their domestic-refuse collection and
treatment or waste-water treatment activities by contracting these services out to a
third party in the private or public sector without a prior call for competition or by
granting long-term concessions which are afterwards renewed.

Procedures for the award of public contracts, the complexity and the lack of
transparency of certain national rules for the award of contracts below the thresholds
at which Community directives would apply, and certain practices of public

139

140

141

of the competent authorities in their Member State of residence, who refuse to reimburse the
costs of the operations.
See the analysis developed in this respect in a study prepared for the Commission entitled:
"Implications of recent case law on the co-ordination of healthcare systems", International
Association for Mutual Assistance, May 2000, and in the report by the High Level Committee
on Health entitled: "The Internal Market and Health services", 17 December 2001.
This term is understood to cover all contracts in the wider sense which may be concluded by a
public sector purchaser (whether in the traditional form of a public contract or a works or
services concession), by which the latter purchases a service or entrusts a third party with the
overall or partial management of a service, for which the third party assumes the associated
risks.
For example, these may concern contracts awarded on the basis of mutual trust (intuitu
personae) to a local partner.

39

authorities142 were identified as hindering operators from other Member States
wishing to tender for public contracts.

Certain contractual clauses and conditions governing the performance of contracts
are prone to making the submission of tenders by foreign operators more difficult.143.

6.

Difficulties relating to after-sales aspects of services

The period after the sale of a service may give rise to difficulties both in the context
of relations between the client and the service provider and vis-à-vis third parties. The
distinctive characteristic of services compared with goods derives from their
intangible and complex nature. This gives rise, for example, to specific professional
liability insurance schemes and makes the provision of proof and expert evidence in
legal disputes a complex affair. Another feature of this stage is the absence of retailers
or resellers who could take care of after-sales services on behalf of the original service
provider.

(i)

Liability and professional indemnity insurance of service providers

Professional liability insurance schemes vary markedly between Member States
across a wide range of professions, such as auditors, tax advisers and architects144.
Civil liability systems are often specific to certain activities and are sometimes
in a high degree of legal
combined with general systems, which may result
complexity. Differences between Member States may relate in particular to the
possibility of limiting liability or the maximum period of liability.

to specific professional

liability insurance
Service activities are often subject
schemes laid down by legislation or governed by rules or recommendations issued by
professional bodies, relating in particular to compulsory insurance,
the field of
activities to be insured, the minimum amount of coverage, including the basis on
which it is calculated145, or the body with which the insurance must be taken out.
These schemes may vary markedly between Member States.

For example, the minimum insurance coverage for auditors varies, depending on the
Member State, between

4,090,385146.

70,000 and

€

€

These disparities may cause difficulties in the cross-border provision of services, as
Member States have an incentive either to impose their own insurance schemes on

142

143

144

145

146

For example, a lack of information for tenderers on the criteria according to which their
abilities and the quality of their tender will be evaluated and on purchasers' practices regarding
price.
For example, an execution clause imposing on a company an obligation to employ a certain
number people registered on national training programmes may make access more difficult for
companies from other Member States which would not be able to employ persons benefiting
from similar training in the Member State of their establishment.
For example,
legal professions, auditors, consultants, property
registrars, private security services, employment agencies, designers, estate agents, banking
and insurance services, stock brokering companies, hauliers.
For example, turnover or number of associates covered.
See study carried out for the Commission entitled: “Systems of civil liability of statutory
auditors in the context of a Single Market for auditing services in the European Union”, Price
Waterhouse Coopers, January 2001.

the health profession,

40

service providers from other Member States147 or to require proof of equivalent
insurance coverage in the country of origin, which is difficult if not impossible to
provide.

Specific financial guarantee schemes are mandatory for certain service activities
such as those of property registrars and estate agents. There is a very great disparity
between Member States, as a particular activity may be subject in some Member
States to an obligation to put up a guarantee or have a minimum amount of stock
capital, whereas in the other Member States no obligation of this type exists. What is
more, the amount concerned and the methods of calculation may differ markedly.

Reconciling these liability, professional-indemnity insurance and guarantee
systems is a particularly complex matter, especially in the context of cross-border
service provision, e.g. where coverage of a specific risk is provided in one Member
State under a financial guarantee scheme and in another under a mandatory
professional-indemnity insurance scheme.

(ii)

Debt collection

Difficulties encountered in the context of debt collection148 are a problem which was
the subject of complaints in numerous contributions and which is exacerbated by
excessive delays in cross-border payments149: a number of enterprises use the
payment delay as a kind of credit facility, as the interest charged on late payments is
low and redress procedures are slow. Also, some chambers of craft trades may offer to
intervene in the event of late payment, but this avenue is not open to service providers
established in other Member States. One particular difficulty relates to the use of debt
collection agencies and the protection of creditors' rights in the event of bankruptcy in
other Member States.

An enterprise cannot use its debt collection agency if the latter is not established in
other Member States: approval formalities for debt collection agencies differ between
Member States and sometimes even from one region to the next, the provision of legal
assistance may be the preserve of the legal professions and the costs of debt collection
are not always for the account of the debtor.

(iii)

Provision of after-sales services

147

148

149

In one Member State, for example, all construction sites, including those operated by service
providers from other Member States, must belong to an insurance scheme covering a specific
guarantee which does not exist in the other Member States.
In particular the essential need to take legal advice locally.
See Communication from the Commission: "Report on late payments in commercial
transactions", OJ C 216, 17.7.1997, and the Report from the Commission entitled "Creating an
entrepreneurial Europe - The activities of the European Union for small and medium-sized
enterprises (SMEs)", COM/2001/0098 final; the latter report states that: "Late payments are
the cause of one in four bankruptcies […]. Surveys show that over 20% of European
businesses would export more if they could obtain shorter payment periods from their foreign
customers. SMEs are particularly affected by late payments", section 3.7.

41

The organisation of a cross-border after-sales service could be more difficult as it is
liable to come up against specific technical problems150, or legal ones, particularly as
it often requires personal intervention on the part of the service provider and/or the
posting of his workers. In this case, after-sales services are hampered by problems
which mean that the service provider or his staff have to travel to another Member
State. For example, a boiler fitter who has installed a boiler in another Member State
and wishes to carry out a repair on it faces the posting difficulties already described
above151.

Disparities between rules on guarantees are liable to constitute another barrier to the
cross-border provision of certain services. Some contributions highlighted difficulties
in the construction sector stemming from the application of a mandatory guarantee
system in the Member State in which services were provided.

(iv)

Legal redress

Legal uncertainty, the costs and slowness of procedures, and the difficulty of using
services or experts from other Member States in the context of cross-border legal
proceedings were highlighted. It emerged from contributions that enterprises which
were a party to legal proceedings outside their Member State of origin felt they were
placed at a disadvantage compared with the opposing party, whose case was viewed
more favourably by the national courts.

B.

1.

Non-legal barriers

Lack of information

A strong theme of the responses to the consultation was the difficulty in accessing
information about the regulatory framework in other Member States. This was a
concern for both service providers and consumers and was considered a major
disincentive to cross-border activities. A second issue that became apparent from the
consultation is the low level of awareness of the opportunities of the Internal Market
and the rights of citizens and business under the principles of the freedom of
establishment and the free provision of services set out in the EC Treaty.

(i)

Lack of regulatory information

Lack of information about applicable national rules and their interpretation takes
various forms and occurs at all stages of the business process. Numerous examples of
such problems were given in the contributions to the consultation including lack of
information on necessary authorisations
requirements),
qualifications requirements and other conditions attached to them, employment law,
technical standards for the equipment and material to be used by the service provider,
rules on commercial communications, selling over the internet, taxation and contract
law. Particular problems occur in areas where there are questions of interpretation of

(including

planning

150

151

For example, a toll-free after-sales service number is not accessible outside the country of
origin.
For example, for the maintenance servicing of a lift, a whole series of administrative
formalities have to be completed in relation to the workers posted (data on the workers,
working hours, proof of payment of wages, translations, membership of a sickness insurance
scheme, site plan and safety register etc.).

42

national
jurisprudence.152

laws

resulting from unclear,

inconsistent or unpredictable national

Lack of knowledge of competent authorities, procedures and formalities hinders the
cross-border provision of services. Lack of information and transparency are a
particular problem in relation to identifying the appropriate competent authorities in
another Member State, obtaining all the necessary forms and understanding the
procedures. Some respondents complained that on occasion public authorities
provided contradictory information and it was suggested that there was little co-
operation between government bodies in the various Member States. The lack of
availability of necessary forms on-line was also emphasised.

(ii)

Lack of awareness of the principles of the Internal Market

The replies to the consultation suggest that business and consumers are often unaware
of their rights in relation to the provision and use of services and that more
information is needed on the principles of the free provision of services and the
freedom of establishment as well as on the Internal Market in general. This situation,
at least for SMEs, is explained by a lack of available resource to monitor and interpret
legal information. At the most basic level, this lack of awareness restricts the ambition
of individuals and companies, especially SMEs, to take advantage of the opportunities
which the Internal Market offers and “to think European”.

The right to challenge non-discriminatory measures seems to be largely unknown
and many service providers still believe that the Internal Market only prohibits
discrimination (or applies so-called “national treatment”). They seem to be unaware
of the jurisprudence of the Court of Justice, according to which free movement
principles preclude not only discriminatory measures but also non-discriminatory
measures which are liable to prohibit, impede or otherwise render less advantageous
cross-border activities. Replies to the consultation indicated that while there were
some areas where companies experienced inconvenience or complications, domestic
and foreign companies were subject to the same rules. They therefore considered
these as business-related conditions which applied in a given country and which had
to be accepted.

The right to question proportionality is also not well understood. Even where
respondents identified barriers, they rarely questioned whether the relevant measure
was proportionate. This suggests lack of awareness that, even where a measure is
motivated by the protection of an overriding objective of general interest (for instance
public security), it must not duplicate requirements already fulfilled in the Member
State of origin, and must be proportionate, i.e. appropriate to achieve the relevant
objective, and not go beyond what is strictly required to achieve it.

The right to receive services seems to be virtually unknown as a principle and the
recipients of services, in particular consumers (for instance, tourists or patients), are
often unaware that the Treaty also gives them the right to receive services without
restriction. This includes the right to go to another Member State and use services

152

It was also stated that it was often impossible to obtain any clarification from one’s own
authorities regarding the application of legislation in the other Member States.

43

under the same conditions as nationals. The need for information for consumers was
also brought up in the context of the consultation. It was suggested that consumers
need to be informed about services in other Member States in terms of quality,
conditions and prices to enable them to take an informed view of services on offer and
their rights. This would increase their confidence to buy services across borders153.

2.

Cultural/language barriers

The question of cultural barriers, particularly concerning language, arose frequently
during the consultation. Numerous businesses, and particularly SMEs, see these as a
major constraint on selling into different markets and some consider this to affect
service providers much more heavily than manufacturers of goods. However, it is
essential to distinguish between those barriers which are often described as cultural,
but which in fact directly or indirectly result from different regulatory environments,
and others which arise as a result of customer preference and market conditions.

(i)

Barriers related to different regulatory environments

Language barriers in proceedings with authorities are sometimes described as
cultural although they also arise from legal and administrative requirements. A
number of replies to the consultation highlighted the difficulties arising from the use
of local language with the authorities and cited as a barrier the necessity to provide
translations of documents, often to be carried out by an official translator and certified
by a notary. It was perceived as especially frustrating when this procedure was
instituted in order to carry out checks which had already been made in one or more of
the other Member States.

Cultural barriers related to different administrative practices were highlighted in a
number of contributions. SMEs consider it particularly difficult to understand how to
deal with national authorities in other Member States and are often in the position of
beginning an authorisation process without knowing how and when it will end or how
much it will cost.

(ii)

Barriers related to different market conditions

Commercial and consumer habits including language cause difficulties which arise
from the need to know the language, values and habits of a specific country or region.
Although this type of difficulty was frequently mentioned in the contributions,
respondents to the consultation seemed to accept that these were part of the reality of
doing business, and that they would have to take into account such factors wherever
they carried out their activities, even within their home market.154 However, the costs
involved in overcoming language barriers can make cross-border services less
attractive.

Companies still think national and often do not consider growth across national
borders, even if their services are not specifically designed for the domestic market

153

154

See «Rapport franco-anglais», op cit.
Commercial habits vary within markets and consumers are rarely a homogeneous group
within a country or even within a region, though they can be identified as specific groups,
according to, for example, age, level of education or the language they speak.

44

and could potentially be exported. This applies especially to SMEs. A lack of trust
and a natural resistance to deal with habits in other Member States was highlighted in
some of the contributions as a cultural barrier. As some companies put it, there is still
a lack of “awareness of Europeanness” or of “thinking European”.

II.

THE COMMON FEATURES OF THE LEGAL BARRIERS

Despite their apparent diversity, the difficulties affecting the operation of the internal
market have many points in common.

A.

The changing nature of the barriers

The inventory of difficulties shows that the abolition of the discriminatory features
referred to in the 1962 general programmes and the elimination of the physical,
technical and fiscal barriers referred to in the White Paper of 1985 have, in the field of
services, been partly offset by the erection of new legal barriers or by the increasing
impact of those which were already there but whose effects became evident only
gradually as trade between the Member States developed.

This changing nature of the barriers appears in terms of the content of the regulations,
which has to adapt constantly to differentiation and innovation in service activities, as
explained in greater detail in the third part of the report.

However, the changes in the legal barriers are also apparent in terms of the form
which they may assume. One common feature of many of the difficulties reported is
that they derive not from national legislation but from other forms of intervention and
regulation whose impact on the internal market is becoming more and more evident.

1.

Administrative practice

A study of a large number of the difficulties reported shows that the restrictions are no
longer to be found in the body of the legal texts, but rather in the behaviour of certain
administrations or in the way in which the administrative procedures are perceived or
implemented, including through circulars or practical guides. Nevertheless, two types
of problem are worthy of particular emphasis.

The authorities' discretionary power of appreciation under the authorisation system
is behind many difficulties, as it makes the decision finally reached by the authority
concerned unpredictable and may make it possible, under a veneer of neutrality, to
take decisions which place providers from other Member States at a disadvantage.

For example:

–

Certain regulations on distributive services lay down that authorisation for
establishment is granted on the basis of general socio-economic criteria such
as the needs of
the authorisation
the existing businesses. Moreover,
procedure may involve bodies made up of competing operators already
present in the area concerned. Such criteria, which are to be found in other
sectors such as hotels and employment agencies, give the competent
authorities a wide margin of appreciation and have the effect of placing the

45

established operators at an advantage compared with newcomers, albeit in a
way which is less visible than a provision which is openly discriminatory;

–

Discriminatory
legislation
governing
and
following infringement proceedings by the
exhibitions was replaced,
Commission, by an authorisation system based on a set of general criteria
and regional implementing measures which, in practice, leave it open to the
authorities concerned to take decisions which discriminate against other
Community operators.

organising

services

fairs

The excessive formalism, length, procedural costs and lack of transparency were
emphasised in a large number of contributions. The accumulation of formalities and
procedures, combined with a lack of transparency and sometimes over-zealous
implementation, could have a particularly dissuasive effect on service providers from
other Member States, since they are not familiar with the administrative culture of the
other countries.

For example:

–

–

administrations sometimes demand certificates which do not exist in the
provider's country of origin, or else certified translations by an authorised
translator in the country where the service is to be provided; or else the head
of a building undertaking is required to go personally to the Chamber of
Trades of the country of provision to obtain a certificate. In practice, all these
requirements are clearly easier to fulfil for a national provider than for one
from another Member State;

in the field of customs, contributions have shown that
the benefits of
abolishing customs duties appear to have been somewhat mitigated by the
complexity of certain remaining customs formalities affecting transport
services155.

As an indication of how widespread this type of problem is, the Court has had to
pronounce several times in recent years on these new practices, as well as on the
discretionary interpretation156 and the extremely cumbersome and costly nature of
certain authorisation procedures157. In addition, moves to simplify administrative
procedures are under way at national and Community level, particularly subsequent to
the report by the Mandelkern Group158.

155

156

157

158

In particular, for instance, the problems deriving from the differing interpretations of the
Customs Code by the Member States, and even between the authorities of one and the same
country, leading to additional procedures and costs for hauliers and their customers.
Judgments of 20 February 2001, Analir, Case C-205/99; of 12 July 2001, Smits and
Peerbooms, Case C-157/99; of 15 January 2002, Commission v. Italy, Case C-439/99; of 22
January 2002, Canal Satélite Digital SL, Case C-390/99.
See, in particular, the judgment of 3 October 2000, Corsten, Case C-58/98.
Final report of the high-level advisory group, chaired by Mr Mandelkern, presented on 13
November 2001.

46

2.

Regionalisation of the barriers

The inventory of difficulties shows that the legal barriers tend to appear more
frequently at the level of local or regional rules and practices. They may involve new
regionalisation
barriers introduced under
measures taken in several Member States over the last
few decades, or else
restrictions which had already existed for a long time but whose impact became
evident as and when the other barriers at national level (discriminatory measures,
physical, technical and fiscal barriers) were abolished.

the decentralisation,

federalisation or

Local or regional authorities play an important role in regulating service activities
either through legislative power of their own or through local implementation of
national rules. The interest of the regions and their active role in developing the
service economy is confirmed by the clear support given by the Committee of the
Regions to the "Internal Market Strategy for Services", which emphasises in particular
the need to allow regional SMEs to operate in the internal market using the new
technologies to the maximum159. The inventory of difficulties showed, however, that
in some cases the requirements of the operation of the internal market are not
sufficiently well-known at regional level, and this can lead to difficulties for providers
from other Member States. Moreover, when a provider from another Member State
wishes to develop his activities not just in a given region but throughout the national
territory, the multiplication of procedures, specific provisions and contacts with the
regional or local authorities could make such an operation more complex and costly
than for national operators, who can adapt to them more easily.

For example:

–

–

–

–

in one Member State, service activities such as debt collection are subject to
an authorisation system for each province, which means that coverage of the
entire national territory requires more than one hundred authorisations from
different authorities;

in some Member States, the lists of tourist sites which can be visited only if
accompanied by a locally approved guide are drawn up by the local
authorities according to differing criteria. In the absence of a list covering all
the national territory, tourist guides and travel agencies in other Member
States are confronted with a multitude of local lists which may cover specific
museums or archaeological sites as well as entire cities or tourist zones;

establishing distributive undertakings, hotels and restaurants is particularly
affected by this regionalisation of the legal barriers, as in several Member
States the authorisation criteria (including for town planning) are laid down
and/or applied at local or regional level;

in one Member State, many municipalities have introduced a tax on satellite
aerials, which has had the effect of penalising consumers in particular as

159

Opinion of the Committee of the Regions already quoted, see in particular, § 10, 14, 16 and
27.

47

regards the reception of television channels from other Member States, and
in particular by residents of foreign origin.

This trend towards the regionalisation of restrictions is illustrated by a recent
judgment of the Court160 in which it examined the compatibility with the principles of
the free movement of services and the freedom of establishment of 14 different
regional regulations in one Member State originating in six regions and dating mostly
from the 1980s.

3.

Implementation of Community instruments

Because of the gradual development of secondary Community law over the last
twenty years, a number of difficulties reported are directly related to the acquis
communautaire.

The problems of unsatisfactory application of the directives lie behind a number of
the difficulties reported. These problems may derive, in particular, from the presence
in certain directives of provisions giving too much leeway to the Member States, or
laying down derogations or optional requirements, or else minimum harmonisation
clauses which allow stricter national rules to be adopted161. The Commission has
already had occasion to note the negative effects of this latter type of clause162, and
the Court has been obliged to limit its abuse by certain Member States163 .

160

161

162

163

Judgment of 15 January 2002, Commission v. Italy, Case C-439/99.
See also the "Report of the Business Environment Simplification task force Best", already
quoted, page 61.
Contained in certain directives on consumer protection; see the Green Paper on "European
Union Consumer Protection", COM (2001) 531 final, paragraph 2.3.
Judgment of 1 December 1998, Ambry, Case C-410/96.

48

The following were cited as examples in contributions:

–

–

–

the directives on insurance, and in particular the widely differing application
of the possibility given to the host Member States to take measures to protect
the general good164;

the directives on tax issues, and in particular the 6th Directive on VAT165;

the directive on the transport of waste, for which the registration and
authorisation system has been applied differently, making cross-border waste
transport activities particularly complex in practice between four adjoining
countries166.

Issues relating to the implementation of the principle of the free movement of
services by means of instruments of secondary law were also sometimes reported167.
It should be noted that, to tackle this kind of situation, the Court has in recent years,
and notably in the field of health services, had to refer to the principle of the freedom
to provide services laid down in the Treaty, rather than to an instrument of secondary
law168.

interpretation of the conditions under which Member States apply
For instance,
Regulation 1408/71169 caused problems for recipients of health services wishing to
obtain reimbursement of treatment provided in another Member State170.

164

165

166

167

168

169

170

These difficulties are explained in the Commission Communication "Freedom to provide
services and the general good in the insurance sector", C(1999)5046.
See the "Communication from the Commission to the Council and the European Parliament -
A Strategy to Improve the Operation of the VAT System Within the Context of the Internal
Market", COM(2000)348 final.
See the analysis of the Chamber of Commerce of the Grand Duchy of Luxembourg "Les
autorisations de transport et de négoce de déchets en Saar-Lor-Lux", T. Theves.
For example in the context of the implementation of Directive 96/71/EC of the European
Parliament and of the Council of 16 December 1996 concerning the posting of workers in the
framework of the provision of services (OJ L 18 of 21.1.1997, page 1), in particular in the
case of postings of very short duration.
In a series of judgments of principle (of 28 April 1998, Kohll, C-158/96, of 12 July 2001,
Smits and Peerbooms, C-157/99, of the same day, Vanbraekel, C-368/98) the Court ensured,
regardless of Regulation 1408/71 (already cited), the right of patients to obtain reimbursement
of the cost of health services provided in another Member State. In the field of posting of
workers, the Court was led, on the basis of application of Article 49 EC, to reiterate the need
to assess to what extent the application of a national rule imposing a minimum wage on a
service undertaking from another Member State employing cross-border workers is necessary
judgments of 15 March 2001, Mazzoleni, Case C-165/98 ; see also
and proportionate;
judgments of 25 October 2001, Finalarte, Case C-49/98 and of 24 January 2002, Portugaia
Construções, Case C-164/99.
Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social
security schemes to employed persons and their families moving within the Community,
already cited.
See the study carried out for the Commission "Implications of recent case on the co-ordination
of health care systems", already cited.

49

In the area of contract law, problems of coherence and of the uniform application of
secondary Community law were emphasised by the Commission171 and by those
parties consulted172. Problems of coherence concern, for example,
the different
treatment of similar situations in several Community acts. The absence of coherence
in the definitions used in secondary Community acts concerning such terms as
"damages" or "contract", may create problems for the uniform application of such acts
in Member States. Such problems may also result from transposition by Member
States who make reference to different pre-existing rules of a general nature which
form part of their legal systems.

Certain directives contain, for example, different definitions of the term "damages";
other directives use this term without defining it173.

4.

Collective non-government rules

A number of the difficulties reported come not from regulations issued by the public
authorities, but from the disparity between standards adopted by non-public bodies in
a Member State, such as professional associations, sports federations, the social
partners drawing up collective agreements, or interested parties or groups drawing up
codes of conduct or collective rules174.

Service activities are particularly affected by this kind of disparity, since the regulated
professions are traditionally regulated by professional bodies at national level. The
use of codes of conduct is tending to spread to other fields such as information society
services, and the current debates on new forms of governance may lead to more
frequent use of such codes, as well as co-regulation and other ways of putting
economic regulation on a contractual basis.

–

171

172

173

174

For example, codes of conduct adopted by certain professional bodies which
prescribe quantitative limits on access to the profession or impose limitations
on the types of services which can be offered, may cause difficulties for
professionals of other Member States wishing to establish in the country in
question or to offer their services there.

See Communication from the Commission to the Council and European Parliament on
European contract law, COM (2001) 398 final, 11.7.2001, p11 and 12.
See the summary by the Commission services of the results of the consultation on
http://europa.eu.int/comm/consumers/policy/developments/contract_law/index_en.html
For example, the concept of "damages" in the 'Package travel Directive', (which contains no
definition of this term), has been interpreted by the Court of Justice in the light of this
directive only, whereas, the Advocate General suggested interpreting it by taking into account
other Community Acts.
The Court has already had to pronounce on collective rules. The first judgment dates from
1974 (Walrave, Case 36-74, point 18), but the Court has been called upon to apply this case
law in several cases in recent years: judgments of 15 December 1995, Bosman, Case C-
415/93, point 83, and of 11 April 2000, Deliège, Case C-51/96 and C-191/97, point 47,
including a regulation of a professional association of lawyers (judgment of 19 February 2002,
Wouters, Case C-309/99).

50

5.

The conduct of operators

This concerns the practices of individual operators which have the effect of making
their activities or selling prices and conditions territorial. In particular, it may involve
the refusal to sell to customers from other Member States for the sole reason that they
are not resident in the country of the operator. Such practices penalise service users
who wish to buy from providers in other Member States, and in particular consumers.
Such behaviour can only be the result of legal barriers which make certain cross-
border activities extremely risky. In certain cases, however, where such risks are
fewer, it is more a reflection of a commercial resolve to break the internal market
down into several national markets175.

One Member State, for instance, made a specific contribution stressing that it was
impossible for its citizens to obtain access to encrypted television channels available
in other Member States, because the channel operators refuse to sell or rent decoders
to persons not resident in the countries where those channels are on offer.

B.

The horizontal nature of the barriers

An analysis of the wide range of legal barriers reported shows that many of them are
common to a large number of widely varying sectors of activity. Three types of
horizontal problems can be distinguished.

1.

Application of a single system to establishment and the provision of
services

the Member State of
A large number of services encounter the same problem:
destination treats the service provider as if he were established on its territory, and
hence subjects him fully to its legal system.

For example:

a patent agent who occasionally provides a service in another Member State is subject
to an obligation to obtain authorisation from the latter, to meet the professional
qualifications required there, and to enrol in a specific register; or a landscaping
architect who is temporarily providing a service in another Member State is subject to
the obligation to be a member of the national association and to comply with all the
professional rules of that country.

The inventory of difficulties, in particular those relating to the distributive stage of
services (stage 4 in the economic chain), shows that this kind of problem may assume
various forms such as the following:

175

Although this kind of conduct must be examined in the light of the rules of competition, the
Court has already opened up the possibility of examining the compatibility of such conduct
with the freedoms of the internal market; judgment of 8 June 2000, Angonese, Case C-281/98,
on Article 39 EC; see also the judgment of 13 December 1984, Haug-Adrion, Case C-251/83
on the compatibility with Article 59 of the EC Treaty of contractual clauses laid down in the
general conditions of an insurance contract.

51

–

–

–

an obligation to become established in the country in which the service is
provided, whereby such establishment
involves the operator becoming
subject to all the rules of that country;

a system of authorisation (or registration) by the authority in the country in
which the service is provided, such authorisation being subject to compliance
with all or some of the rules of that country;

systematic subjection of operators to the rules of the country in which the
service is provided (regardless of
the existence of an establishment
requirement or an authorisation system).

The objective is the same in all cases: to put the situation of a provider established in
another Member State on the same footing as that of an operator in the Member State
in question, so that he can be systematically made subject to the latter's regulations.
Contrary to the case law of the Court176, this approach amounts to reducing the
principle of the free movement of services to a simple obligation not to discriminate.

2.

Legal uncertainty surrounding freedom of establishment and the free
provision of services

A wide range of cross-border services are affected by a high degree of legal
uncertainty as to the their legality, since this will depend on a case-by-case assessment
by the national authorities of the country in which the operator wishes to exercise his
activity. This legal uncertainty becomes evident in two ways:

–

national regulations are often unclear or ambiguous as to whether they might
be applicable to providers established in another Member State. In many
cases, the rules imposing obligations on service providers do not explicitly
circumscribe their territorial scope, and in particular whether they apply only
to providers established on the territory of the Member State in question.
Such a situation leaves a margin of interpretation to the national authorities
and will cause the provider to seek specific legal assistance or clarifications
from the national authorities, or even their "green light";

For instance, a significant number of the draft national laws on information society
services notified177 to the Commission in 2001 revealed this type of problem.

–

176

177

Certain national rules subject
the provision of services or freedom of
establishment to systematic compliance with a criterion or test to be assessed
case by case by the authorities, with the outcome being difficult to predict.

"A Member State may not make the provision of services in its territory subject to compliance
with all
the conditions required for establishment and thereby deprive of all practical
effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the freedom
to provide services", judgment of 25 July 1991, Säger, Case C-76/90, point 13.
Pursuant to Directive 98/48/EC of the European Parliament and of the Council of 20 July
1998 amending Directive 98/34/EC laying down a procedure for the provision of information
in the field of technical standards and regulations, OJ L 217 of 5.8.1998, page 18.

52

In one Member State, for instance, the use of an analytical laboratory in another
Member State is possible only if that type of analysis "cannot be carried out" on its
territory.
It may involve criteria such as "the impact on existing businesses"
(distributive services), "the need for placement" (agency services for the placing of
artists), "the general good" (financial services), or "aptitude" or "equivalence"
(regulated professions).

In practice, the effect of this legal uncertainty is to reverse the roles, since an operator
who wishes to provide his services in another Member State finds himself in the
paradoxical situation of having to invoke and justify the principles of the free
movement of services and freedom of establishment, whereas normally, in line with
the case law of the Court, it would in fact be for the national authority to justify any
exceptions to those principles, whereby such exceptions may not at any event be
applied in a general and systematic fashion178.

3.

Application of the same type of requirements in different fields

the following: systems of authorisation, declaration,

An analysis of the inventory reveals that certain types of restriction recur in a large
number of sectors or service activities (even though the details may vary), and in
particular
registration and
inscription with a professional body or a chamber of trades, quantitative limits
(numerus clausus, quotas, surface areas, etc.), territorial limits to the provision of
services, rules applicable to the posting of workers in the framework of the provision
of services in another Member State, the rules governing multidisciplinary activities,
bans or limits to commercial communications, rules governing the fixing of prices,
rules on professional
insurance and financial sureties or
guarantees; certain aspects of the rules on contracts; the collection of debts; the rules
on taxation.

liability, professional

C.

The common origin of barriers

Despite the apparent variety of the legal barriers, the reasons behind them are very
often the same and can be explained by three factors.

1.

Lack of mutual trust between Member States

Many of the difficulties reported can be attributed primarily to a lack of trust of
certain authorities in the quality of the legal systems of the other Member States.

Systematic application of the rules of the country in which the service is provided, the
simple evocation of "general good" objectives to justify obstacles, without verifying
the equivalence of the protection offered in the country of origin or the proportionality
of the restriction, the subjection of operators from the EU to the same system as that

178

The consultation showed that this reversal of roles also appears in the application of the
directives on insurance: whereas these provide the possibility, in certain cases, for the host
Member State to apply its rules only when they are necessary for reasons of the general good,
some Member States notify to the authorities of the country of origin an entire general list of
rules which must be systematically complied with by a provider established on the territory of
the latter. See the Communication "Freedom to provide services and the general good in the
insurance sector" already cited.

53

from third countries,

the presumption of
applied to "foreign" undertakings
circumvention of national rules by any cross-border service, more frequent checks on
providers from other Member States - all these reveal a degree of automatic suspicion
of services from other Member States and amount to considering that the protection of
the general good and the regulation of service activities are not objectives shared by
all the Member States of the European Union.

This lack of mutual trust may derive from ignorance of the implications of the
principles of freedom of establishment and the free provision of services, but also
from a lack of transparency and administrative co-operation between the Member
States or, in certain fields, from a lack of harmonisation of the national rules, reflected
in an excessive disparity between the levels of protection of the general good
guaranteed by the national systems.

2.

Resistance to modernisation of the national legal frameworks

A number of legal barriers can be attributed to the fact that the Member States have
not really taken into account the requirements of the internal market in services. The
fundamental principles of the Treaty, the importance attached to them by the Court,
and the follow-up to the ambitious programmes of 1962 and 1985, have not always
resulted in the adjustment of national legislation which might have been expected. On
the contrary, as explained above, when the legal systems evolve it may be in the
direction of confirming legal barriers or establishing new ones, rather than of
abolishing them.

A survey179 reveals that 42% of heads of undertakings active in the field of services
consider that the regulations applicable to them are not in line with the facts on the
market, or are slightly outdated, or even totally outdated180, with the rate being higher
for the services sector than for all sectors of activity together (36.6%)181.

There may be several explanations for this reluctance to modernise:

–

179

180

181

182

The weak monitoring of the judgments of the Court by the national
authorities does not always allow them to identify the need to modify their
national legislation. The existing mechanisms in the national administrations
appear to concentrate on cases affecting their own country or, upstream, on
the need to draw up written observations on a case concerning another
Member State. Downstream, however, it seems that few Member States
engage in any real active and systematic monitoring of all the judgments
concerning other Member States in order to assess the needs in terms of
adjusting their own legislation182. This explains why many of the problems

"Services Sector in Flash Eurobarometer 106", Flash Eurobarometer 106 (Special Targets),
survey to monitor the single market, September 2001, conducted on behalf of the European
Commission, attached to Scoreboard No 9, 19.11.2001,
http://europa.eu.int/comm/internal_market/en/update/score/busisum9.htm
The percentage being highest in France (60%) and lowest in Ireland (23%).
Flash Eurobarometer 106 already cited.
The monitoring is sometimes limited to informing the departments of the administration likely
to be concerned.

54

reported have in fact already been the subject of judgments of the Court of
Justice condemning similar measures or practices;

–

Treatment on a case-by-case basis and the relative effectiveness of
penalties for infringements of the law of the internal market help to give
some national authorities the impression that an adjustment of
their
regulations is not indispensable as long as they are not directly and explicitly
questioned by the Commission or the Court.

3.

Protection of national economic interests

Despite the established case law of the Court, according to which "measures
constituting a restriction of the free provision of services cannot be justified by
objectives of an economic nature such as the protection of national undertakings183",
it has to be pointed out that, notably with regard to certain preparatory Parliamentary
work, a number of the difficulties reported show that the defence of purely national
interests still remains fairly firmly anchored in certain Member States.

III.

A.

THE IMPACT OF THE BARRIERS

The knock-on effects on the entire economy and on European
competitiveness

Barriers will affect all services directly or indirectly. Part 1 of this report has shown
that Internal Market barriers impact on each of the six stages of a service providers’
business process, which is also referred to as the “economic chain”. Every service
provider considering expansion into another Member State is likely to face one or
several obstacles and will also be affected by barriers that his service suppliers
encounter. This is because, in order to create, promote and distribute his service, the
provider relies on a multitude of other services. This interdependence of services
means that a comprehensive approach is necessary to evaluate the overall impact of
barriers. This part of the report will examine the role of services in the economy, the
the potential for cross-border growth in services if
interdependence of services,
barriers were removed and make a first evaluation of the impact on the economy as a
whole that will be further developed during the course of the second phase of the
strategy. The Commission will carry out work in 2002-2003 to develop the economic
impact analysis with the aid of economic experts.

1.

The key role of services in the economy

Services play a key role in the EU economy, accounting for almost 70% of jobs184
and GDP in most EU countries185. The growth of services has exceeded overall

183

184

Portugaia Construções judgment already cited.
This share is even higher if the number of employees in the manufacturing-industry engaged in
services activities is taken into account. For example, a study from the Confederation of Swedish
Enterprises indicates that estimates go up to 85% of persons employed. “Svensk Internationell
inom projektet Internationaliseringen av
Tjänstehandel – nuläge och möjligheter”, Rapport
Svenskt Tjänsteföretagande, Svenskt Näringsliv, O. Erixon, 2001. Another study carried out for
the European Commission, indicates that this share is also increasing in privatised utilities (e.g.
electricity companies) which are shifting from traditional industrial activities to being flexible

55

economic performance for decades, and so they account for an increasing share of the
EU economy. It is clear that the major part of the potential for future job creation will
come from the service sector as job creation in services is exceeding overall job
growth186.

However, notwithstanding that manufacturing industry statistics are probably
overestimated, due to the integration of services in manufacturing,
the relative
difficulty in classifying services, and practical difficulties in identifying basic flows in
services, the importance of services in transactions does not bear relation to their
importance in the economy. In 1999 services still only represented 21.6% of all
commercial transactions in the EU, of which 11.9% was within the EU 15. Moreover,
the statistical trend is towards a decrease in this share of services (they constituted
22.8% in 1992187). This gap can be partially explained by the existence of a
functioning Internal Market in the field of goods but not in that of services. In the area
of services, market participants have a tendency to rely on direct investment overseas
and mergers, rather than cross-border trade; more than 40% of foreign direct
investment derives from the area of services, of which 20.59% is intra-community, as
opposed to 44% and 27.6% respectively for goods, with 15% unattributed188.

The potential for growth in services transactions is consequently significant. Even if
the contribution of services to growth in productivity remains difficult to measure, it
is probable that greater competition between operators from different Member States
would lead to an increase in productivity.

Services are to be found in all areas of the modern economy, including in what
might be regarded as “traditional” manufacturing sectors. For example, some car
manufacturers now offer financial, leasing and rental services, consulting, training
and fleet management services, or road assistance and recovery services189; and
electronic hardware producers are increasingly offering custom-made software
services190 for their products191. At the production stage itself ,
the automobile

185

186

187

188

189

190

191

service-oriented companies. “The Effects of the Liberalisation of the Electricity and Gas Sectors
on Employment”, ECOTEC research and consulting, 2000.
The proportion of services in the US economy is still higher, accounting for about 74% GDP,
although the EU is catching up. See, for instance: Commission report of 2002 on competitiveness
(SEC (2002) 528 of 21 May 2002); Communication from the Commission on Productivity: The
Key to Competitiveness of European Economies and Enterprises (COM (2002) 262 final, 21 May
2002); “Dienstleistungsreport 2000”, Preussag AG, together with the Institut der Deutschen
Wirtschaft, Köln, 2000, “Croissance et emploi dans le secteur des services, une analyse
comparative”, Bureau Fédéral du Plan Belgique, working paper 6-00, 2000.
“The rise of the knowledge-based society will shift employment demand towards higher skill
levels”. Quote from “Innovation in the Service Sector – Selected Facts and Some Policy
Conclusions”, Zentrum für Europäische Wirtschaftsforschung, G. Licht, G. Ebling, N. Janz, H.
Niggemann, 1999, p. 5.
Source: “EU international transactions”, Eurostat edition 2001.
Source: “EU Foreign Direct Investment”, Eurostat 2000.
See “Job Revolution, Wie wir neue Arbeitsplätze gewinnen können”, P. Hartz, 2001 and
“Grundlagen der Automobilwirtschaft”, W. Diez, 2001
For example, consumer electronics companies are offering an increasing range of video-game
software or are investing in the entertainment (notably film) industries.
Further examples are manufacturers of health care products who are increasingly offering
consulting services to hospitals, producers of foodstuffs providing consulting on food safety and
telecommunications operators who are generating considerable revenue from offering telephone
assistance to software users.

56

industry uses IT, design services or quality control services, for instance. Industry is
thus very dependent on services and their quality. Many of these services are hidden
in the official statistics for manufacturing companies192. This “bundling” of goods and
services and efficient
integration of service inputs allows business to provide
differentiated products more adapted to customers’ needs193. This in turn improves the
productivity, competitiveness, sales and, ultimately, the profitability of firms.194

A recently published U.S. study illustrates the increasing importance of services for
the value-added of major corporations:

“What company is the world’s largest service business? Disney? Citibank? American
Express? Based on several measures the answer is actually IBM or General Electric
– two corporations far better known for their products than their services.” 195

For example, manufacturers of quality goods have always attached great importance
to the issue of client service. This is particularly true in the case of sophisticated
engineering products, where extensive consultation is often needed at the design
stage, in order to meet the exact customer requirements. Customer service continues
in the form of training, maintenance, “teleservice” via the internet, hotline support,
and may extend to financing and “build and operate” models for large infrastructure
projects.

Surveys undertaken in Germany in the engineering sector show that revenue derived
from service functions is growing. About 10% of engineering companies derive more
than 50% of their income from service activities. In the past these services were
usually included in the final price of the product, but there is an increasing tendency
to charge for them separately.

Leading edge goods manufacturers frequently derive their competitive advantage
from buying in advanced information technology services. Sometimes the know-how
for developing products with embedded intelligence is available in-house, but
frequently it
related and
is provided by specialist providers of computer
communications services. Examples can be found in the automotive sector, where
engine management systems, automatic braking systems and navigation systems are
increasingly common. Other traditional engineering products, like cranes and machine
tools, are also frequently equipped with systems for
remote monitoring and
in order to provide maximum availability, and reduce the cost of
diagnostics,
maintenance.

192

193

194

195

“Dienstleistungsreport 2000” op cit;

For example, an OECD report concluded that the distinction between manufacturers and service
providers is no longer feasible. Likewise a Danish study noted that 31% of those Danish
companies interviewed and officially listed as manufacturers considered themselves to be service
providers. “The service economy”, OECD, Science Technology Industry Forum, Paris, 2000;
“Svensk Internationell Tjänstehandel – nuläge och möjligheter”, op cit.
See
Dienstleistungen im Globalen Wettbewerb”, Institut für Wirtschaftsforschung, 1998.
See “Stratégies tertiaires des exportateurs industriels. Économies et sociéties. Les services de l’an
2000”, Tome XXXIII N°5, mai 1999: p. 17-43; “Trading Services in the Global Economy”, L.
Rubalcaba-Bermejo, J. Bryson, 2002.
“S-Business: Defining the services industry”, Association for Services Management, S.W. Brown,
B.A van Bennekom, K. Goffin, J.A. Alexander, 2001, p.4.

für Unternehmensbezogene

“Marktpotentiale

57

At the same time, manufacturers have been outsourcing the service functions which
they do not regard as part of their core activities to service providers who can provide
them more
inter-dependency between goods
manufacturers and the companies that supply services to them. This has not only had
consequences for the structure of the industrial sectors, but has also changed the way
in which manufacturing companies organise themselves internally.

efficiently. There

close

is

a

The extent to which service functions are provided by manufacturing companies is
often obscured by published statistics. Even though their primary business is
manufacturing, several leading companies in Europe employ tens of thousands of
people in their services divisions.

Demand-based factors contribute to the growing role of services in EU economy.196
There is increasing demand: for specialist business services due to outsourcing; for
services combined with goods; for knowledge-based and leisure-related services; and
for a variety of services as a consequence of demographic changes197 such as health
and personal support services198. This has resulted in an ever growing number of
different services ranging from more traditional service sectors such as transport,
retail distribution, telecommunications, tourism, health and financial services to more
recently developed
of
such as business
environmental/waste management, energy conservation, management consulting, data
processing and technical analysis and testing, to name but a few.

services

services

in the

areas

2.

The interdependence of services

Services are intricately intertwined since they are used often in combination in each
stage of the economic chain of a service provider’s business activity. For example, a
retailer provides services to manufacturers and a bundle of services to the final
consumer including in-store catering and after-sales services. The retailer relies in turn
on numerous other services at each stage of the business process ranging from
establishment, via the use of inputs, promotion, distribution and sales to the after-sales
stage. This is illustrated below.

196

197

198

See “Innovation and Productivity in Services: State of the Art, OECD, D. Pilat, 2001; “The
Service Sector in the UK and France: Addressing Barriers to the Growth of Output and
Employment” op cit.
Such as an ageing population and higher participation of women in the labour force.
See for example a report carried out for the European Commission “Services for Individuals and
Households in the European Union”, Institute for Employment and Research, 2001.

58

Establishment

Use of inputs

Promotional
activities

Distribution
activities

Sales activities

After sales activities

Economic chain for a retailing service

Legal
Advertising
Media sales
Sales promotion
Sponsorship
Printing
Web design
Market research

Services used

Legal
Transport/Delivery
Leasing
Rental
Logistics
Environmental/was
te management
Customer base
management
Franchise planning

Legal
Returns management
Guarantees
management
Customer relations
Debt recovery
Environmental/waste
management

Legal
Tax advising
Price management
Customer
Database-
management
Payment
Credit
Invoicing/
Accounting
Auditing
Rental and leasing

Legal
Management
consulting
Tax advising
Real-estate
brokering
Shop designing
Construction
Architectural
Engineering
Environmental and
planning

Legal
Insurance
Banking
Management
consulting
Purchasing
Logistics
Wholesaling
Transport
Leasing
Labour
Recruitment
Data processing
Inventory
management
Yield management
Security
Pricing management
Invoicing/
Accountancy

Barriers to one service will trigger knock-on effects on other services because of this
interdependence. For example, as has been highlighted in the consultation, a retailer
established in one Member State and wanting to establish in a number of other
Member States would normally wish to use in those other countries the services of the
real estate agents, shop designers, architects, engineers, construction companies,
banking and insurance companies with whom he works in his Member State of origin.
This would enable him to gain from the long-standing co-operation with his existing
service suppliers as well as to exploit efficiency gains and economies of scale.
However, there are numerous barriers to the provision of these services in other
Member States, which will in turn make the establishment of the retailer more costly
and onerous199.

Barriers will multiply throughout the economic chain. To take the same example of
a retailer, he may discover that he cannot use as an input the temporary employment
agency he used to work with, his promotions can no longer be provided for by his
usual sales promotion agency, his road haulage company cannot provide him
distribution services and his accountant cannot design and verify his sales activities.
All these services either cannot be offered across borders easily (or at all) because of
problems at one or several stages of their own economic chains200. As a result the

199

200

example,

architects

and engineers might

For
concerning professional
qualifications; construction companies concerning posting of their workers; insurance companies
concerning different contract and taxation legislation.
See the description of barriers in part 1. The temporary employment agency may not be able to
provide services without being established in the countries concerned, the sales promotion agency
may not be familiar with the detailed legal requirements for sales promotions, the road haulage

face problems

59

retailer will at each stage of his economic chain be obliged to use different services in
other Member States and will suffer significant efficiency losses as well as higher
costs.

Barriers to services in the Internal Market require a horizontal impact assessment
in order to take into account all the knock-on effects which they produce on a
multitude of activities,
in line with the Commission Communication on impact
analysis201 which foresees an integrated method of analysis of economic,
environmental and social consequences. The latter includes, amongst other things, the
impact on public health and safety and consumer rights202. As regards economic
consequences, an analysis which only deal with effects on one particular activity or a
given sector would be one-sided and misleading. It is necessary to use an evaluation
methodology which includes not only the impact of a difficulty listed in the economic
chain in relation to a particular service up to the final consumer, but also includes the
impact of that problem on the economic chain of other linked activities. Such a
dynamic and qualitative evaluation will be undertaken by the Commission services,
with the assistance of specialist economists, during the second phase of the Internal
Market Strategy for Services203.

3.

The demand for cross-border services

Demand for cross-border services is steadily increasing204. Demand for services is
not limited to national markets. However, despite the predominant role of services in
the economy, the absolute level of cross-border service provision is less than trade in
goods. Since, over the past decade, real (i.e. adjusted for inflation) turnover growth of
European enterprises has been export-led205, this suggests that there is considerable
potential for further economic growth driven by exports of services.

Globalisation and the linkage between service firms and their multinational clients
is one well-documented reason for such growing demand in the field of business
services. Multi-national service providers, as well as manufacturers which have
increased their international operations, have encouraged the service providers they
use to support these operations either by export or secondary establishment.206

firm may have difficulties using his vehicles, the accountant’s firm may not have the required
legal form etc.
201 COM(2002)276 final
202 COM(2002)276 final
203

It should be noted that the utility of such a horizontal and dynamic evaluation is also recognised
by the OECD: see “Quantification of Costs to National Welfare from Barriers to Services Trade, a
literature overview” OECD 2001
Service exports from EU countries increased by 7.3% between 1990 and 1999 although this was
not as rapid as the increase from the US and especially China and Japan. Since 1990 Western
Europe has lost some 8.6 percentage points of its world market share. See for example recent
Swedish and Danish studies: “Svensk Internationell Tjänstehandel – nuläge och möjligheter”, op
cit and “Internationalisering af Service – Potentialer og Barriere, Erhvervsministeriet, 2001.
See “SMEs in Europe”, Observatory of European SMEs, European Communities, No2 2002;
“Service Internationalisation – Characteristics, Potentials and Barriers” op cit.

204

205

206 A German study on technical services highlights that the increase in cross-border trade of services

is closely related to the emergence of multinational firms, which choose those service providers
with the best price/quality, offer, independent of
nationality.“Marktzugangsregelungen/Berufszugangsregelungen für Technische Dienstleistungen
und deren Auswirkungen auf die Internationale Wettbewerbsfähigkeit”, Institut für

60

Specialisation and differentiation in business services that may be scarce in certain
Member States is also contributing to cross-border demand. The increasing need to
look beyond national markets to recruit specialist and skilled labour, in particular in
hi-tech and knowledge-based services, is well documented207.

New information and communications technologies will further enhance the trend
towards internationalisation of services. New technologies allow knowledge-based
services to be provided at a distance and facilitate the import and export of services
without the need for foreign direct investment.208

Increased mobility and the higher disposable income of consumers combined with
thanks to new information technologies, have all resulted in
more information,
increasing cross-border demand for a range of consumer services including tourism,
health and leisure services.

The resulting potential for cross-border services cannot, however, be fully realised
because of Internal Market barriers209 and resulting costs and their chain effects
throughout the economy.

The liberalisation of electricity and gas markets is likely to result in an increase in
cross-border demand, not only in relation to energy, but also as regards ancillary
services, such as lighting, heating, cooling and energy-efficient power generating
systems. These services will be closely linked to the actual delivery of gas and
electricity and thus provide a further example of the complex interaction between
services. However, this potential will not be capable of full exploitation unless
barriers to the provision of the whole range of services are removed.

4.

The costs of barriers to services

Barriers result
in ex-ante compliance costs on cross-border service use and
provision. The barriers identified in Part I of this report give rise to a series of
compliance costs. A company seeking to enter a market, either through establishment
or via cross-border service provision, will have to rely on complex legal assistance to
examine whether it can roll out its operations into the new market or whether and how
parts of its business model will have to be altered.

Ex-ante compliance costs multiply throughout the economic chain. The examples in
the field of retailing below show that ex-ante compliance costs are considerable even
when they concern only one or two stages of a service provider’s economic chain.

Wirtschaftspolitik an der Universität zu Köln, M. Fredebeul-Krein, A. Schürfeld, Oktober 1998.
See also “Trading Services in the Global Economy”, op cit.
See for example “Employment in Europe 2001: Recent Trends and Prospects”, DG Employment
and Social Affairs, European Communities, 2001

207

208 According to the British Government, the increasing range of services that can be provided at a
distance is also bringing to light new barriers which potentially limit trade and competition in the
EU. See “Realising Europe’s Potential, Economic Reform in Europe”, HM Treasury, 2002.
209 An example of the lost potential can be found in a survey amongst business services providers
that was conducted on behalf of the European Commission, the majority of the respondents
replied that they would be likely to increase their sales of business services in other EU Member
States, if regulatory barriers were removed. “Barriers to Trade in Business Services”; op cit.

61

However, since barriers normally affect each of the stages of the business activity, the
overall level of ex-ante compliance costs is much higher.

Examples of ex-ante compliance costs210

€

A major fixed-store retailer had to allocate a senior manager full time for 8 months
(costing
200,000) to research necessary adjustments to the selling strategy (stage 5
of the economic chain) of the group to comply with legislation in another Member
State, whose market it wished to enter.

Prior to the adoption and transposition of the e-commerce directive a mail-order
25,000 by a
company, considering marketing and selling via a web-site, was charged
law-firm for advice on how to comply with the different rules throughout the EU
relating to advertising, including product specific rules (stage 3) and contracting
(stage 5).

€

A retail bank paid a law firm
advertising (stage 3) of a particular investment service in two other Member States.

19,500 to assess how it would need to alter its

€

A cosmetics distance-selling company had to place one of their full-time legal staff
for six months in another Member State to assess how the company’s retailing model
would need to be modified to comply with that Member State’s rules. The company
finally decided not to enter the market given the radical alteration to their business
model that would have been required.

Ex-ante compliance costs are not linked to the size of the enterprise: examining
national legal requirements and administrative practices and assessing the possibility
of offering or using a service normally requires almost the same up-front investment
the company is large or small211. Moreover, ex-ante
in legal advice whether
compliance costs are sunk costs which have to be paid before a company can even
decide whether or not to enter another Member State’s market.

Small firms will find ex-ante compliance costs prohibitive yet micro- or small
enterprises play a key role in the service sectors212. Average firm sizes in the
European retail sector suggest that ex-ante compliance costs are disproportionately
high compared to turnover and would, in all likelihood, dissuade an average sized
European retailer from even considering an Internal Market strategy.

Average firm size in the retail sector (EUR 13, 1998) 213

210

211

212

213

that external costs of

Examples were provided in the context of the consultation for the Services Strategy by service
providers and law firms advising them.
For example, a German study indicates
legislation hit SMEs
disproportionately. “Externe Kosten von Rechtsvorschriften, Möglichkeiten und Grenzen der
Ökonomischen Gesetzesanalyse, Institut für Weltwirtschaft an der Universität Kiel, H. Dicke, H.
Hartung, 1986. See also “Regulation and Small Firms”, progress report from the Better
Regulation Task Force, 1999.
This is common to all service sectors. See “Major Trends and Issues”, OECD, M. Edwards,
M.Croker, 2002.
The averages are based on information in 13 Member States. Germany and Greece are excluded
because relevant data was not available. “Distributive Trade Statistics: Retail Trade in Europe”,
Statistics in Focus: Industry, Trade and Services., Eurostat, J. Hubertus, Theme 4-40, 2001.

62

average number of employees: 3.2

average annual turnover:

€

582,207

In 1998, for those Member States providing data, around 90% of retailing firms
employed fewer than five people. This size class covered 73% of retail businesses in
Ireland (the lowest percentage) and as many as 94% of companies in Italy.

Organisational compliance costs are an additional burden over and above the ex-
ante compliance costs, that arises when a company is obliged to change its optimal
strategy in each stage of its economic chain. There are both static costs in each stage
of the economic chain and dynamic costs which result from the knock-on effects
throughout the economic chain as the company redesigns a new business model for
each market it enters. Organisational compliance costs are very broad ranging and can
be considerable as the following examples suggest.

Examples of organisational compliance costs

A major fixed-store retailer had an in-house architectural team. However, in order to
get approval for this team’s store design plans in certain Member States, the company
had to hire nationally registered architects, leading to considerable extra costs (stage 1
of the economic chain).

A clothes retailer explained that, unlike its home Member State where sales could be
organised according to fashion seasons214, regulations limiting sales to twice a year
required a major change in their operations. The store’s promotional campaigns had to
be totally readjusted (stage 3). Moreover, this also had further organisational effects
on other stages of the firm’s economic chain, such as changes to purchasing contracts
with suppliers - as fewer seasonal lines could be offered in such Member States (stage
2) - inventory management (stage 2) and pricing strategy (stage 5).

A retailer that was used to Sunday opening in its home Member State was not allowed
to do this in another Member State. Since 60% of its sales were achieved at weekends
this meant that sales were concentrated on Saturdays. This required the building of
much larger stores, bigger aisles, reduced stock on display and larger car parks (stages
1 and 4). These higher costs had to be borne even though lower levels of sales were
achieved compared with the home country.

5.

The lost growth and performance of the European economy

Compliance costs have implications for the entire economy. Examining compliance
costs for individual service providers gives only a partial assessment of the impact of
barriers identified in part 1, since they do not take account of the consequences of
these costs for the wider economy over time215. In particular, due account has to be
taken of the following:

214

215

For certain product lines there are eight fashion seasons per year which mean that the remaining
stocks for each line will need to be cleared through sales.
It is important to note that even the Cecchini report (op cit) took a “static” view of the EU
economy. To quote the HM Treasury paper “Realising Europe’s Potential: Economic Reform in
Europe” op cit p.16: “Cecchini himself was aware of this limitation, recognising that dynamic,

63

Reduced investment in research and development, innovation and training will
result as available resources are diverted to meet
the ex-ante and organisational
compliance costs and as there will be lower levels of revenue growth. Since service
growth depends on innovation, further specialisation and training of specialised staff
it follows that the service provider’s competitiveness and performance will suffer216.

Reduced investment in information gathering, differentiation and customisation of
services for clients will also result as a consequence of this misallocation of resources
within service companies. Given that services are heavily knowledge-intensive and
that they require detailed information to be tailored to their clients’ specific needs,
such reductions will be particularly harmful to the performance of service firms as
well as their clients.

Reduced economies of scale and scope result from the fact that a successful business
model cannot be exported because several or all of the stages of the business process
need to be changed to comply with differing legal and administrative requirements in
other Member States. Although services are differentiated or even personalised,
certain upstream or back-office tasks can be standardised or can benefit from
technology if sufficient demand levels are achieved.

Over-reliance on merger and acquisition strategies will increase costs of expansion.
Organisational compliance costs may persuade service providers to rely more on
cross-border growth by acquisition than by green-field investment217. Growth by
acquisition is generally considered to be more rapid to execute but also more costly to
organise in that two firms with two business models have to be combined and
managed.

Anti-competitive defensive strategies also arise from regulatory fragmentation. Given
the constraints on cross-border green-field investment and the risk of becoming
acquisition targets for larger suppliers, service firms seek to grow through acquisition
or agreements at national level to defend their markets218 rather than grow through
innovation or differentiation.219

216

217

non-price factors stemming from the removal of trade barriers and accompanying reforms, would,
over the longer term, have far greater consequences than any ‘static’ step change for EU
productivity, employment, growth, and economic and social stability.”
The fact that innovation is expected to be largest in those sectors which are most open to
international competition has been acknowledged in: “Innovation in the Service Sector – Selected
Facts and Some Policy Conclusions”, op cit, p. 5.
For example, according to the study on Trading Services in the Global Economy op cit
international growth in Europe by mergers and acquisitions has been increasing more rapidly than
growth by greenfield foreign direct investment. Regarding the retail sector, it was stated at a
seminar that: “…acquisitions have become the main means of growth to gain access to countries
with restrictive legislation – in particular, France, Italy and Germany.” Quote from E. Colla
“Commerce 99 – Proceedings of the Seminar on Distributive Trades in Europe”, Eurostat,
Brussels, 22 –23 November 1999.

218 At the seminar on Distributive Trades in Europe op cit, it was stated that “The globalisation of
companies also encourages concentration at national level. Wal-Mart and Promodes-Carrefour are
examples: the acquisitions of Wal-Mart in Europe in 1998-1999 triggered a competitive reaction,
of which the merger between the two French giants only constitutes the most impressive event”.
See also “Cross-border acquisitions and Greenfield entry”, the Research Institute of Industrial
Economics, P-J. Norbäck, L. Persson, Working paper No 570, 2002.

219

64

High levels of inflation of service prices result from this unrealised potential for
cross-border growth in services in the Internal Market and the lack of cross-border
competition. Consumers in particular suffer from the negative impact of fragmented
markets, since they are denied the benefits of price competition220. Given the
interdependence of services, it is evident that this price inflation will further erode the
competitiveness of companies using services. That will in turn have a negative impact
on growth and employment in the European economy as a whole.

B.

1.

The principal victims

Small and medium-sized companies

than in manufacturing221. However,

SMEs’ may find the cost of cross-border expansion to be prohibitive. SMEs are
predominant in the services industry, accounting for a far greater proportion of total
output
they are more severely affected by
compliance costs than larger companies. In addition, for those that nevertheless do
enter new markets,
result
undermine the success of their cross-border strategies or put
them at a clear
competitive disadvantage compared with incumbents. 222 And since their scale of
operations does not justify the recruitment of specialist compliance staff, their skills
and capacity to work with different sets of regulations are very limited.223

the significant organisational compliance costs that

SMEs are exposed to mergers and acquisitions. Medium-sized firms constrained
from expanding abroad but often with significant local knowledge, experience and
innovation potential, will be attractive targets for larger companies. The latter may be
non-domestic entrants seeking to enter by acquisition or incumbents that wish to
undertake pre-emptive acquisitions to dissuade entry by non-domestic rivals224.

SMEs in small and peripheral Member States are particularly disadvantaged. On
the one hand, SMEs in such Member States need to grow across borders because their
home market has insufficient demand. On the other, they cannot benefit from the
cross-border use of attractive business services. This is because their relatively low
levels of potential demand make them the least attractive markets for providers of

220

221

222

223

“Realising Europe’s Potential, Economic Reform in Europe” op cit.
See “Innovation in Services and the Knowledge Economy; the Interface between Policy Makers
and Enterprise: a Business Perspective”, Irish Coalition of services industries, 2002 and “Major
trends and issues” op cit.
The dissuasive effects of compliance costs should not be underestimated and experience of
regulation at national level also deters companies from entering new markets. For example, a
recent UK report notes that in order to comply with national provisions small owner-managers
spend three to five working days per month dealing with government administration and that this
has increased by 35% over the past four years. This rise is partly due to complexity of regulation
resulting from increasing service differentiation. “Local shops: a Progress Report on Small Firms
Regulation” Better Regulation Taskforce (UK), July 2001.
See for example, “The Services Sector in the UK and France: Addressing Barriers to the Growth
of Output and Employment” op cit.

224 At the seminar on Distributive Trades in Europe (op cit) it was said that “The commercial fabric
of these countries [France, Italy and Germany] has always been made of a number of small and
medium-sized family-run or independent businesses, or those belonging to purchasing groups or
voluntary chains. These companies are the preferred targets of the large chains, which try to buy
them out…].”

65

business services since expected returns on investment are not sufficient to cover high
compliance costs.

2.

The users of services, in particular consumers

Service users, and in particular consumers, ultimately pay the price for the
existence of Internal Market barriers in the services field. Citizens suffer directly
when they are prevented from using services offered by suppliers in other Member
States, or when regulatory and administrative fragmentation dissuades companies
from offering their services to customers residing in other Member States. This
situation also contributes to the lack of consumer confidence in services form other
Member State. Moreover, companies are at times advised against selling to other
Member States by their own government authorities while, equally, citizens are
cautioned by their representative bodies not to risk buying from abroad.225 In the same
way as for SMEs, this particularly affects citizens in small Member States. Thus
consumers generally cannot benefit from a wide variety of competitively priced
services and thus the better quality of life that they might expect from a fully
integrated Internal Market.

The Commission’s “Cardiff report” on the functioning of the Internal Market226 has
revealed that significant price differences remain within the Internal Market. The
report has shown that certain retail prices can be up to 40% higher or lower compared
with the European average and that the average price difference is 30%. The report
concludes that these differences are due to “economic” rather than “geographic”
factors and that “economic reform and competition measures seem best to eliminate
residual price dispersion in these markets”227.

European employees do not benefit from the job creation potential of the services
industry. All businesses are affected by these barriers, since services are relied on by
every single enterprise in the European Union. It follows that the higher costs, lost
productivity gains and thus lower employment levels extend throughout the European
Union. Given that services account for the major part of employment across the Union
it is this lost potential that is the most concerning of all.

225

For example, in guidelines on the application a rule relating to civil jurisdiction, a national
authority explicitly advises e-commerce companies not to sell to consumers in other EU Member
States in order to avoid the risk of being sued for breach of contract in all these countries.

226 COM(2001)736 of 7 December 2001
227 The European Round Table on Financial Services has produced a report on “The benefits of a
working European retail market for Financial Services” F. Heinemann, M. Jopp 2002. It estimates
€
5bn and that the benefits could result in increased
that the potential cost savings could amount to
economic growth of between 0.5 and 0.7%. The report identifies the divergence between national
rules in the area of consumer protection as a significant obstacle which “makes a pan-European
marketing strategy and product standardisation impossible”. Moreover, a Eurobarometer study
carried out for the Commission (FLASH BE 117 “consumer study”, January 2002) has shown that
consumers have less confidence in purchases made in a Member State other than their own. 32%
of European consumers feel well protected in a dispute with a company established in another
Member State, compared with 56 % o, the case of a dispute with a domestic company.

66

C.

The weak credibility of the internal market in services

The multiplication of legal barriers may lead European citizens and operators to
consider that the internal market is a danger zone. For those who are not put off
providing services across internal frontiers and who cannot afford to pay the costs
generated by the latter228, there are two possible ways of tackling those risks: either to
come to an arrangement with the authorities or local partners, or else to conduct their
activity "on the sly".

1.

Perception of the internal market as a danger zone

As a consequence of the large number of difficulties reported, contacts with interested
parties show that the recipients and providers of services often consider cross-border
activities to be much more risky and costly than purely national activities. This is why
businesses often choose to pursue their activities in a national or local context and,
when they wish to extend their field of activity, they seem to favour direct investment
abroad, mergers or acquisitions, rather than providing cross-border services.

In the same way, consumers feel less confident about undertaking transactions in
another Member State. Indeed, the development of such transactions depends also on
consumers’ confidence and their perception of the market.

the internal market

in services is more of a risk than an
This perception that
opportunity might partly explain why only 29% of undertakings have made use of
cross-border professional services229, or why operators consider that they risk not
being treated equitably by the courts in another Member State which might find out
about a dispute involving them.

The credibility of the internal market
in services thus depends largely on the
effectiveness of the appeals and sanctions against a national authority which does not
comply with the law of the internal market. In this respect, a survey reveals a degree
of scepticism on the part of heads of undertakings: "Where they do try to solve
problems, businesses tend to use trade associations, chambers of commerce or their
own networks. Use of administrations, national or at European level, as a form of
recourse is not popular with most firms regardless of size. However, it is a means
which larger companies will use more often than smaller ones. The findings underline
the importance of making means of redress more accessible and effective, notably at
the national level"230. The European Parliament231 and the Economic and Social
Committee232, in their opinions on "An Internal Market Strategy for Services" placed

228 Analysed above in Part III, §A.
229

230

231

"Barriers to Trade in Business Services", already cited, page ii.
Study attached to Single Market Scoreboard No 3, 3.11.1998.
http://europa.eu.int/comm/internal_market/en/update/score/busien.htm
"a rigorous infringement policy vis-à-vis Member States which take measures incompatible with
Articles 43 and 49 of the Treaty", European Parliament Resolution on the Commission
Communication: "An Internal Market Strategy for Services", already cited, § 27.

232 The opinion states that "The Commission should perform in a more determined and effective way
its role as guardian of the Treaty, particularly by speeding up the procedures for dealing with
breaches of the principles of free movement of services and freedom of establishment, and by
examining carefully the question of the proportionality of the national measures underlying these
restrictions. At a time when an exceptional effort is required of the applicant countries in order to

67

particular emphasis on improving the effectiveness of infringement procedures in the
field of services.

2.

"Arrangement" strategies

The absence of legal certainty in the exercise of the freedoms, and the lack of
effective redress in the event of obstacles force providers to enter into negotiations
with the national authorities or local operators in order to arrive at an "arrangement".
Even if the obstacles are not legally justified and could be contested before a court or
the Commission, the need to find a pragmatic and rapid solution in order not to delay
access to the market in question leads many operators to embark on this type of
strategy.

Contacts with interested circles confirm these arrangement practices, and in particular
those involving the establishment of partnerships with local operators in order to "re-
nationalise" the situation and thereby circumvent the reluctance of certain authorities
to grant access to their national market233.

There are many drawbacks to this strategy:

–

–

It tends to enshrine the legal barriers because it prevents legal action to
abolish them and because the operator, once he has arrived at an
in seeing the barriers in question
arrangement, has no further interest
disappear, since they are a barrier to the entry of competitors into the
market (anti-competition effects);

It involves additional costs for negotiations with the local authorities or for
the partnership with a local operator (for example, the costs for using the
services of local consultants or interpreters or counterparts, etc.).

3.

"Black market" strategies

An alternative to arrangement strategies is to provide a service without bothering
about its legality, i.e. to start thinking in terms of the black market or the parallel
economy. These terms must be understood in the broad sense, i.e. as covering not just
activities which are illicit as regards the tax systems, but also those which are illegal
as regards any other legal requirement whatsoever, or any activity whose legality the
operator cannot ensure and deliberately does not bother about.

In the case of cross-border services, following the "black market" strategy may be less
the result of fraudulent intent than a consequence of the multiplication of legal
barriers which make it particularly complex to assess the legality of cross-border
services. As the Court recognised in a recent case234, a situation which a national

adopt
the entire Community acquis, the Member States should feel obliged to set a good
example", Opinion of the Economic and Social Committee on the Commission Communication:
"An Internal Market Strategy for Services", already cited, §7.5.

233 This strategy was also noted in the field of public contracts; see "Selling to the public sector in
Europe. A practical guide for small and medium-sized companies". OPOCE, 2000, page 17.
234 Corsten judgment already cited; this case concerned a German architect who had entrust a Dutch
undertaking with floor tiling work on a building in Germany. As the Dutch undertaking was not

68

authority might consider clandestine working might in fact be no more than the
legitimate exercise of the freedoms of the internal market.

Pursuing black market strategies is a lose-lose situation for all parties:

–

–

–

The recipient and the provider of the service expose themselves to the risk of
heavy penalties and deprive themselves of the means of defence and official
appeal in the event of a dispute;

The provider must keep a low profile, will lose opportunities because he can
never openly promote his services and, in the long term, will not be able to
ensure the competitiveness of his undertaking. Moreover, a black market
strategy may serve as an alibi for certain national authorities to strengthen the
legal barriers in the name of combating the black market,
instead of
abolishing them so as to promote the lawful exercise of cross-border
services235;

The public authorities are deprived of tax revenue and faced with the
complexity and cost of the fight against the black market because they are
not sufficiently able to distinguish between cases of legitimate activities
under Community law and cases of deliberate fraud.

In line with the Commission Communication "New European Labour Markets, Open
to All, with Access for All"236, the abolition of the legal barriers so as to promote the
assessment and monitoring of the legality of cross-border activities thus appears to be
one of the key instruments in combating the black market.

235

entered in the register of trades in Germany, the German administration of the labour inspectorate
imposed a fine for infringement of the German legislation on combating clandestine working.
Such behaviour was challenged by the Court in the light of the principle of the free provision of
services.
In this context, a number of contributions from the building sector which stress the multiplication
of labour inspectorate checks when the site is occupied by providers established in other Member
States.

236 Commission Communication "New European Labour Markets, Open to All, with Access for All",
COM (2001)116 final of 28.02.2001 "The Internal Market in services is still fragmented. Yet it
accounts for two-thirds of total employment, and for all new employment growth. Since, with
technological advances, many services can now be provided at a distance, this fragmentation is
causing distortions and may, indirectly, encourage movements of jobs outside the Union, or the
development of irregular work within."

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CONCLUSIONS

A decade after the envisaged completion of the Internal Market, there is a huge gap
between the vision of an integrated EU economy and the reality as experienced by
European citizens and European service providers. The complexity and severity of
legal barriers, which have replaced physical and technical ones for a large variety of
services, is far more wide-ranging than was expected when the new Strategy for
Services was launched.

The loss to the competitiveness of European economy as a whole cannot be
underestimated. At this point it is already obvious that the goal set by the Lisbon
Council to make the European economy the most competitive in the world cannot be
met unless sweeping changes are made to the functioning of the Internal Market for
services in the near future.

The nature and scope of the problems to be addressed require a major effort and a
clear political commitment by all European institutions and the Member States to give
high priority both to the removal of existing barriers and to the avoidance of new
ones, while taking care to maintain a high level of protection of objectives of general
interest. Candidate countries should as far as possible be involved in this process.

As already explained, this report does not seek to take a position either on the
compatibility with Community law of national measures which are at the root of the
difficulties described here, or on possible proposals to improve the functioning of the
Internal Market for services. This report will serve as the basis of work for actions to
be launched as a second stage of the Services Strategy in 2003 following discussions
with the European Parliament, Member States and interested parties. These
discussions need to cover the barriers to the cross-border provision and consumption
of services, as well as obstacles to cross-border establishment, encountered in a wide
variety of service activities.

Cross-border establishment, which plays an important role for service providers,
needs to be facilitated by removing unnecessary administrative burdens and reducing
red tape. However, SMEs are predominant in the services industry and for them cross-
border service provision, rather than establishment, remains the principal way to
exploit new markets, thanks in particular to the information technologies which
is therefore
overcome many of the reasons for permanent physical presence. It
important to encourage cross-border service provision and make this as easy as it
would be to provide services within a single Member State.

To achieve these objectives the Commission will, as outlined as part of the second
stage of the Internal Market Strategy for Services, propose the necessary legislative
actions, the scope and content of which require further analysis. In this respect a
careful balance will have to be found between the need to avoid too detailed and
wide-ranging regulation at the EU level and the need to protect the general interest
objectives concerned. This requires more detailed analysis of areas for additional
harmonisation that will be carried out
in close co-operation with the European
Parliament, Member States and other stakeholders. Particular attention will be given
to barriers directly affecting the freedom to receive services by European citizens. In
this context there will be close examination of demand-side issues, particularly the

70

situation of consumers in the Internal Market for services. Work in progress aiming to
ensure a high level of consumer protection237 will serve to reinforce the conditions
necessary for consumer confidence in cross-border transactions.

To address non-regulatory barriers, the Commission will, as outlined in the Strategy,
propose appropriate measures of a non-legislative nature.
the
Commission will in the first instance tackle the need for information and assistance
for citizens and companies wanting to use or provide cross-border services.

In this respect,

237

See the consultation in progress on a proposal for a framework directive on commercial practice;
Commission Communication on the follow up to the Green Paper on consumer protection
COM(2002)289.

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ANNEX

METHOD USED FOR THE CONSULTATION

Background

The Commission’s Communication on an Internal Market Strategy for Services was
issued in December 2000 and Member States, other Community Institutions and
interested parties were asked for their views. Given the complexity and the extremely
wide scope of the issue,
it was decided to extend the consultation and run it
throughout 2001 and early 2002 in order to give sufficient time for all the parties
concerned to provide their contributions.

Purpose of the consultation

The consultation was launched in order to gather first-hand information on the
barriers which may hinder the development of the Internal Market in services in the
EU. The existence of barriers to free movement of services and freedom of
establishment was already recognised, but the precise nature and scope of those
barriers was not well understood. For this reason, and for the first time since the
presentation of the “General Programmes” for the suppression of restrictions to the
freedom of establishment and the free provision of services in 1962238,
the
Commission has compiled an inventory of the existing barriers in the Internal Market
for services based largely on the contributions of providers and users of the services,
although information was also drawn from other sources, as is explained below.

What kind of services were covered?

The objective of the consultation was to collect information on problems encountered
by providers and users engaged in any sort of economic services activity in the EU.
The services did not need to be recognised in statistical terms or defined by any type
of regulation. For example, many services are provided by manufacturers of goods
(e.g. a furniture-maker might also carry out design, installation and maintenance
services). All different forms of cross-border services were covered as well as
establishment.

The consultation covered difficulties which service providers encounter throughout
the entire business process – establishment, use of inputs (factors of production)
necessary for the service provision, promotion, distribution, sales and after sales
services. At each stage obstacles might be encountered. It is clear that an obstacle in
one of the stages of the process might have an impact on the entire business process
and force the service provider to change its business model.

What kind of barriers were covered?

The starting point for the identification of the barriers was the jurisprudence of the
Court, from which it is clear that any measure which is liable to prohibit, impede or
less advantageous service provision between Member States
otherwise render

238 Op cit.

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constitutes a barrier. Barriers are thus not only discriminatory measures, i.e. where an
incoming service provider
faces restrictions on the grounds of nationality or
residence. Non-discriminatory measures, i.e. those which apply equally to service
providers established in the country of the service provision and those established in
other Member States, can also be barriers to trade.

Barriers arising from regulatory or administrative action i.e. those which are due to
requirements in legislation, self-regulation systems, or to the practices of public
authorities (administration or courts) and other regulatory bodies (such as professional
bodies or, regional chambers) were covered. This included, for example, rules or
procedures relating to authorisation, advertising, taxation and employment law in the
case of the posting of workers. It also included circumstances where delays, fees or
other problems made service provision unattractive or impossible. Some barriers
might be due to complex, burdensome or non-transparent regulation or practices; most
are just due to the wide divergence of national rules.

The Court has also made clear that there are circumstances where, subject to certain
conditions, it is possible to justify restrictions, for instance to protect public health or
consumers. However, the aim of the first stage of the strategy was to find out from the
viewpoint of business and citizens what barriers were faced, rather than to make a
judgement as to the whether or not they were justified. Therefore, areas which are
subject to Community instruments or proposals were covered. Furthermore, barriers
faced by EU service providers in the Candidate Countries were also taken into
account.

How was the consultation carried out?

First, an independent survey of over 6000 companies of all sizes in 14 EU Member
States was carried out on behalf of the Commission by a market research company239.
This survey provided a valuable overview of the scope of the problem as it confirmed
that more than one in three of the companies interviewed had direct experience of
problems in relation to the free provision of services or freedom of establishment. The
problems encountered were spread across all industry sectors, affected all sizes and
types of companies and occurred at all stages of the business process (from
establishment, use of inputs via promotion, distribution and sale of services, to after-
sales activities).

Second, an open consultation was carried out through a number of mechanisms and
channels in order to maximise participation. Several separate mailings were carried
out to European and national level associations. Individual service providers and users
were contacted either directly or through national associations. Bilateral meetings
were organised in order to follow up issues and participation in conferences and
workshops was ensured in order to raise awareness of the consultation process. Where
necessary, the Commission developed more detailed informal questionnaires aimed at
particular audiences (for instance, SMEs). All this resulted in responses from more
than 668 different sources, who provided a total of 698 separate contributions.

239 Germany was excluded because of complications arising from rules relating to market research,
but the Commission services gathered comparable information through a separate exercise.

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Other sources used

In order to complement the open consultation and the survey and provide as full a
picture as possible of the reality of the Internal Market in services today, information
was also drawn from other sources.

First, the Commission examined the questions and petitions put to the Commission by
the European Parliament. The Commission has received a significant number since
the launch of the strategy and they provide a very useful source of information about
the preoccupations of European businesses and consumers. Second,
formal
complaints to the Commission and infringement cases, of which a significant number
has also been received since the launch of the strategy, have provided an important
source of information. These sources were particularly helpful in identifying cases
where individual citizens were finding it difficult to use services because of Member
States practices.

Third, information received from consultation and problem solving mechanisms, such
as the Commission’s Dialogue with Citizens and Business and the Member States’
internal market co-ordination centres and contact points for citizens and business, was
examined.

Finally,
sources and its own services, from Member States and other bodies.

the Commission used economic and statistical studies from established

Member State contributions

In addition to the call for contributions made in the Communication of December
2000 on the Internal Market Strategy for Services, the Commission wrote to Member
States in September 2001 with a more detailed request for responses, including any
economic or statistical data on national and European services markets. A further
request was addressed to Member States in the first quarter of 2002 concerning the
organisation at the national level of the follow-up to the Court judgements. Most
Member States have replied to these requests and their contributions also reflect
consultations which they have held at national level with interested parties.

In November 2001, the Commission established an expert group of Member States to
advise it on the strategy. The group has met twice so far and it is anticipated that the
group will meet 3-4 times per year. A number of Member States organised workshops
on the strategy and the Commission services participated in some of these. The
workshops were particularly helpful
the strategy,
establishing a dialogue with service providers and users, and in comparing and
refining information already received on types of barriers.

in explaining the aims of

74