Report from the Commission to the European Parliament and the Council on the safety of services for consumers [SEC(2003) 625]
Date: 2003-06-06
Institutions: European Commission
Subjects: consumer information, consumer protection, product safety, provision of services, public health

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 6.6.2003
COM(2003) 313 final

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND
THE COUNCIL

on the safety of services for consumers

[SEC(2003) 625]

EXECUTIVE SUMMARY

I.

General

This report responds to the invitation addressed to the Commission by the European
Parliament and the Council in Article 20 of Directive 2001/95/EC (General Product
Safety)  to  “identify  the  needs,  possibilities  and  priorities  for  Community  action  on
the safety  of services”.  It  has  been prepared  in  the  light  of  wide  consultations with
the Member States and stakeholders and is based on a preliminary identification and
qualitative assessment of  the  most  relevant  policy  options.  The  main  finding  of the
report is that there is a substantial lack of data and information on the factual aspects
of risks  and safety  aspects  of services.  The  conclusion  of  the  present  report  is  thus
that the priority for Community action is the improvement of the knowledge base in
this area.

This report focuses on the health and physical safety aspects of services provided to
consumers and on services that  are  relevant in  this  respect.  Protection  of  economic
and  financial interests  of  consumers  is  already  considered  within  the  framework  of
initiatives related to the EU consumer policy and the internal market and is not dealt
with in this report.

II.

Regulatory situation on service safety at EU level

At EU level there is no horizontal legislation on service safety. However, a number
of existing instruments in various policy areas  contribute  indirectly  to  the  safety  of
certain services. In particular, Community legislation harmonising the technical rules
for  certain  professional  products  is  very  relevant  for  the  safety  of  the  service  in
which  those  products  are  used.  On  the  specific  important  issue  of  fire  safety  in
hotels,  a  Council  Recommendation  was  adopted  in  1986.  Comprehensive  specific
Community  legislation  has  been  established  for  transport  safety  (air,  sea  and
terrestrial), within the framework of the Treaty provisions on transport policy.

III. Policy and regulatory situation in the Member States

All  Member  States  have  adopted  policies,  legislation  and  administrative  measures
concerning  service  safety,  but  the  approaches  vary  significantly.  Certain  Member
States  (Finland,  France,  Portugal,  Spain  and  Sweden)  have  introduced  general
legislation  specifically  on  the  safety  of  consumer  services,  which  supplements
sectoral  policies  and  legislation.  A  few  Member  States  (United  Kingdom  and
Ireland) cover the horizontal aspects of consumer, user and public safety of services
via their occupational health and safety legislation. All Member States have sector-
specific approaches, with a variety of provisions directly or indirectly relevant for the
safety  of  various  categories  of  services.  Codes  of  practice  and  voluntary  measures
have also been established in some Member States, but on an ad-hoc basis and just
for  a  few  specific  service  sectors.  In  addition  to  the  specific  direct  measures,
regulation  in  other  areas  like  safety  of  buildings  and  occupational  safety  is  of
significant indirect importance.

Due  to  the  complexity  and  variety  of  the  relevant  measures,  it  is  very  difficult  to
make a comparative assessment of the regulatory situation in the Member States and

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to  identify  specific  gaps  and  weaknesses  in  the  approaches  in  place  or  in  their
practical application and enforcement.

IV.

Issues emerging from the assessment of the situation in the Member States

So  far,  no  factual  evidence  has  been  found  of  specific  barriers  to  intra-EU  cross-
border  supply  of  services  due  to  different  safety  requirements.  No  indication  or
complaint  in  that  respect  has  resulted  from  the  consultations.  A  Eurobarometer
survey has indicated that European consumers may perceive that the safety level of
products and services is less well protected abroad. That could depend, among other
things, on their perception of a lower level of safety of services provided in countries
other  than  their  own.  Improving  consumer  confidence  in  the  safety  of  services
through the EU is an important objective for the internal market, particularly in areas
like tourism, leisure and sports activities.

Very  substantial  gaps  have  appeared  in  the  available  knowledge  base  on  service
safety and risks. Systematic monitoring and data collection on accidents and injuries
is limited to a few sectors like transport and health. Data for other sectors are scarce.
Moreover,  the  available  information  is  in  general  not  reliable  and  detailed  enough
and  not  comparable.  Therefore,  it  cannot  be  used  for  conducting  a  systematic  and
comparative  assessment  of  risks.  Extrapolations  at  Community  level  from  the  few
data available lead to meaningless or contradictory results.

V.

Indications and expectations emerging from the consultations

In  preparation  of  this  report  the  Commission  consulted  national  consumer
associations on the functioning of national legislation as well as a broader European
audience (public authorities, business, industry, trade and professional organisations,
European consumer associations and standardisation bodies) on possible options for
Community actions. The consultation indicated that consumer associations perceive
a safety risk in some services sectors, such as sports and leisure, tourism and health
care  services.  Consulted  parties  generally  see  a  role  for  the  Commission  in
developing  actions  to  support  national  policies  for  consumer  protection,  such  as
enhancing  the  knowledge  on  safety  risks  and  promoting  various  kinds  of  non-
regulatory  instruments.  Expectations  of  consulted  parties  on  the  need  for  legally
binding safety requirements at EU level diverged. The consumer side sees such legal
requirements  as  essential  in  order  to  guarantee  an  adequate  level  of  consumer
protection in all Member States, whereas businesses and most  public  authorities  do
not see an added value for such requirements at this stage.

VI. Action at EU level

In line with the outcome of the consultation the Commission is of the opinion that the
aim of Community action on service safety could be:

(cid:1)  To  support  the  national  policies  and  measures  in  order  to  contribute  to  their

effectiveness and efficiency.

(cid:1)  To  ensure  that  consumers  can  rely  upon  a  consistent,  high  level  of  safety

protection throughout the EU ;

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(cid:1)  To  facilitate  the  information  on  the  cross-border  provision  of  services  or  the

establishment of subsidiaries of service providers.

A number of options for substantive action on safety of services have, therefore, been
considered in order to assess the extent to which they might be justified in the light
of these objectives.

However,  the  inadequacy  of  (a)  the  available  data  and  (b)  the  lack  of  evidence  of
specific internal market difficulties make it difficult to justify any specific option for
substantive  Community  action  at  this  stage.  The  importance  of  services  in  the  EU
economy, the cross-border relevance of safety aspects of services related to tourism
and  sports  and  leisure  activities  as  well  as  the  expectations  often  expressed  by  EU
citizens  for  a  high  level  of  safety  throughout  the  EU,  lead  to  the  conclusion  that
initiatives at Community level should be considered in order to support the policies
and measures of the Member States.

It  therefore  seems  that  the  immediate  priority  should  be  to  improve  the  present
knowledge  base  and  to  monitor  systematically  the  policies  and  measures  of  the
Member States. European standards for specific service sectors or risks may also be
necessary in order to support national measures.

In order to improve the knowledge base and to be in a position to set up, if necessary,
European standards supporting national policies, a suitable framework should be put
in place.

Such  a  legislative  framework  would  aim  at  monitoring  and  supporting  national
policies and measures by:

(1) 

(2) 

(3) 

Establishing  a  procedure  for  exchange  of  information  on  policy  and
regulatory  developments  and  the  results  achieved  and  administrative  co-
operation  between  the  authorities,  taking  into  account  the  scope  of  relevant
existing  and  forthcoming  Community  legislation  on  the  provision  of
information  in  the  field  of  technical  standards  and  regulations  related  to
services,

Setting  provisions  for  the  systematic  collection  and  assessment  of  data  on
risks of services and the establishment of an EU database,

Aiming at the establishment of procedures for setting European standards, if
and when the evidence indicates a need, to work in conjunction with broadly
defined objectives related to the safety of services.

The  framework  will  be  designed  in  the  light  of  careful  assessment  of  potential
benefits  and  burdens,  with  particular  focus  on  the  situation  of  small  and  medium-
sized  enterprises,  and  in  close  co-operation  with  the  Member  States.  The  objective
will be to define the optimal scope and methods for monitoring and data collection,
in order to ensure a genuine added value in a cost-effective manner.

It  would  be  appropriate  to  focus  on  the  sectors  most  relevant  for  consumers  in  a
cross-border  perspective,  for  example  mass-accommodation  services  like  hotels,
camping or other tourist facilities as well as related sports and leisure activities.

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1.

1.

2.

3.

4.

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REPORT

INTRODUCTION AND SCOPE

As  economies  develop,  the  relative  share  of  the  agricultural  sector  and  the
manufacturing industry tends to decrease rapidly whilst the services sector becomes
increasingly important. Therefore, a post-industrial economy is commonly qualified
as  a  “service”  economy.  This  is  not  different  for  the  EU  economy,  which  is
dominated  by  the  services  sector  both  in  terms  of  wealth  created  and  employment.
This sector covers branches such as trade, transport, travel, communication, financial
services, business activities, health and social work, public services. In order to work
towards  the  progressive  removal  of  barriers  to  trade  in  services,  the  Commission
presented its two-stage internal market strategy for services in December 2000.1 The
first  stage  of  this  strategy  was  completed  in  July  2002  with  a  Commission  report2,
which draws up an inventory of the internal market barriers that continue to inhibit
services. In the context of this strategy the Commission recognised that, in addition
to  a  horizontal  harmonisation  instrument  to  tackle  barriers  of  a  horizontal  nature,
specific harmonisation measures might be appropriate in areas with significant health
and consumer protection considerations.

According to EUROSTAT data for 2000 the services sector in the EU accounted for
69.6%3 of Gross Value Added and for 68.6%4 of those employed. For the same year
intra-EU trade in commercial services (i.e. services excluding government services)
was  estimated  at  710.8  billion  €.  In  te rms  of  private  household,  consumer
expenditure  services  accounted  in  1999  for  59.4%5  (including  housing,  water,
electricity, gas) of total expenditure.

These macro-economic figures clearly demonstrate the importance of services for the
European  economy,  the  internal  market  and  consumer  expenditure.  Given  the
significant share of consumer income spent on services, there is a legitimate interest
for the consumer that services put on the market, in the same way as products, do not
represent a physical safety or health hazard. Transport, health and leisure services are
examples of consumer services with potential risks to the health and physical safety
of private individuals.

A large body of Community legislation regarding product safety has been established
over  the  last  decades.  This  legislation  includes  both  sector  directives,  applicable  to
particular categories of products and/or risks, and general measures, in particular the
recently  revised  Directive  2001/95/EC  of  the  European  Parliament  and  of  the
Council on General Product Safety 6 and Council Directive 85/374/EEC on Liability

COM(2000)888final of 29 December 2000
COM(2002)441final of 30 July 2002
Of  which  27.2%  for  financial  services,  business  activities;  21.0%  for  trade,  transport  and
communication;  21.4%  for  public  services.  Since  the  available  statistical  data  do  not  allow  for  a
distinction  between  products  and  services,  there  is  a  risk  of  over-estimating  the  services  related
expenditure.
Of  which  13.9%  for  financial  services,  business  activities,  25.4%  for  trade,  transport  and
communication; 29.3% for public services.
Of which 3.2% for health, 14.1% for transport, 2.3% for communication, 1% for education and 8.1%
for restaurants and hotels and 21.3% for housing, water and electricity.
European Parliament and Council Directive 2001/95/EC, OJ No L 11 of 15.01.2002 p. 4

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for Defective Products7. The objective of this legislation was to harmonise national
rules on safety and liability with a view to facilitating free movement of goods in the
EEA area, whilst ensuring a high level of consumer health and safety protection.

With regard to the safety of services, there is currently neither a general Community
regulatory  framework,  nor  sector-specific  legislation,  except  for  transport  services.
However,  some  elements  of  Community  legislation  in  other  areas  may  be  relevant
for the safety of certain services. For example, Community requirements for specific
products  may  have  an  influence  on  the  safety  of  services  where  these  products  are
used. With a  view  to  establishing  a more  global approach  to  the safety  of  services,
the European Parliament and the Council called upon the Commission in Article 20
of  Directive  2001/95/EC  to  “identify  the  needs,  possibilities  and  priorities  for
Community  action  on  the  safety  of  services  and  to  submit  to  the  European
Parliament  and  the  Council,  before  1  January  2003,  a  report,  accompanied  by
proposals on the subject as appropriate”.

This report is limited to consumer services, i.e. services provided to physical persons
acting in their personal capacity. Professionals are usually better equipped to assess
risks and have different needs compared to consumers.

The safety of food offered by service providers to consumers, e.g. in restaurants, is
covered  by  the  initiatives  related  to  the  revision  of  the  Community  food  safety
hygiene rules adopted in the framework of the “from farm to table” approach to food
safety.

Non-food products supplied to or used by consumers as part of a service are covered
by  Directive  2001/95/EC.  However,  the  safety  of  the  equipment  used  by  service
providers themselves in order to supply a service to consumers is excluded from the
scope of Directive 2001/95/EC and should, therefore, be considered within the scope
of  Community  action  on  the  safety  of  services.  This  is  in  particular  relevant  for
equipment  on  which  consumers  travel  or  ride,  but  which  is  operated  by  a  service
provider.

Services of public interest related to public security and protection, such as defence,
police or civil protection are left outside the scope of this report given their particular
objectives,  the nature  of  the  “service  provider”  and  the  conditions  under  which  the
relevant activities are operated.

For  the  purpose  of  this  report  safety  relates  to  health  and  physical  integrity  of
consumers.  In  line  with  this  definition  consumer  services,  such  as  financial  or
electronic  communication  services  that  do  not  represent  a  health  or  physical  safety
risk are excluded from the scope of this report. It does not consider risks for damages
to  property  and  financial  risks.  They  are  more  directly  related  to  commercial
practices,  which  are  governed  by  contract  law.  Moreover,  these  risks  are  already
addressed  within  the  framework  of  Community  initiatives  related  to  the  internal
market and the EU consumer protection policy8.

OJ L 210, 07.08.1985, p. 29
See,  for  example,  Green  paper  on  European  Union  Consumer  Protection,  COM(2001)531  final  of  2
October  2001  and  Follow-up  Communication  to  the  Green  Paper  on  EU  Consumer  Protection,
COM(2002)289 final of 11 June 2002.

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The safety of consumer services is mainly influenced by preventive “command and
control”  type of measures  on the  one hand  and  liability systems on the  other hand.
Rules  establishing  a  framework  for  the  safe  provision  of  services  have  a  direct
beneficial impact on safety levels by preventing damage. Liability schemes, although
very  important  for  repairing  the  negative  impact  caused  by  defective  services  on
consumers,  have  mainly  an  ex-post  compensating  function  and  a  more  indirect,
preventive function with regard to service safety.

8.

In 1990 the Commission addressed the  liability for defective services in a  proposal
for  a  Directive9  on  the  liability  of  suppliers  of  services.  The  main  purpose  of  this
legislative initiative was

(cid:1)  to provide better protection for consumers suffering damage from services which
injure  the  physical  integrity  of  their  person  or  their  private  property;  this  was
achieved  through  the  establishment  of  the  principle  of  subjective  liability  of  the
supplier with reversal of the burden of proof in favour of the injured person, and

(cid:1)  to eliminate  discrepancies  between national  legal  systems  which  could  prejudice

the efficient operation of the internal market for services.

After  extensive  discussions  in  the  European  Parliament  and  the  Council  the
Commission  decided  to  withdraw  its  proposal  in  June  1994.  In  the  light  of  the
discussions  the  Commission  took  the  view  that  the  approach  to  the  liability  issue
should  be  reviewed  following,  amongst  others,  an  in-depth  examination  of  the
functioning  of  civil  liability  systems  for  remedying  damage  caused  by  defective
services currently applicable in the Member States and a careful consideration of the
specificity of the different categories of services.

The  Commission  is  currently  analysing  Member  States’  legal  systems  governing
liability  for  defective  services.  It  will  assess  again  the  need  and  possibility  for
Community action in this area once the outcome of this analysis is available.

9.

The actual safety level of a service is basically determined by the aggregate effects of
the following main components:

(cid:1)  The  safety  of  the  premises,  structures  and  equipment  used  for  providing  the

service;

(cid:1)  The qualifications of the service provider;

(cid:1)  The availability and quality of the information on the safety aspects of the service

provided to the user/consumer of the service;

(cid:1)  The way in which the service is carried out by the service provider;

(cid:1)  The general abilities and behaviour of the consumer;

(cid:1)  The  availability  of  emergency  procedures  and  equipment  to  reduce  damage  in

case of accidents.

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COM(90)482final – SYN 308 of 20 December 1990, OJ C 12, 18/01/1991, p. 8

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11.

When  looking  into  Community  measures  to  address  the  safety  risks  of  specific
sectors  of  consumer  services,  transport  and  health  constitute  particular  categories.
Measures  to  improve  the  safety  of  the  different  modes  of  transport  are  an  integral
part of the common transport policy as enshrined in Article 71 of the Treaty. As set
out below, a wide range of measures have been enacted under this Article to regulate
the safety of the various modes of transport. In relation to health, Article 152 of the
Treaty aims at a high level of human health protection and foresees that the Council
shall  contribute  to  the  achievement  of  the  objectives  referred  to  in  this  Article
through adopting incentive measures designed to protect and improve human health,
excluding  any  harmonisation  of  the  laws  and  regulations  of  the  Member  States
concerning health services. In the light of such specific provisions and the nature and
organisation  of  the  relevant  activities,  Community  measures  to  contribute  to  the
safety of health services are best examined within the framework of the Community
programmes and activities in that specific area. This report does not seek to identify
and  assess  priorities  for  Community  action  on  the  safety  of  transport  and  health
services.

In preparation of this report the Commission has carried out a wide consultation of
Member  States  and  stakeholders,  including  extensive  discussions  with  Member
States’ experts in the Consumer Safety Working Party. In May 2002 a questionnaire
was  submitted  to  national  consumer  associations  in  Member  States  and  EEA
countries.  The  replies  to  this  questionnaire  provided  a  useful  indication  on  how
consumers  perceive  the  functioning  of  existing  national  legislation  on  safety  of
services. In order to collect further input for this report, a large-scale consultation of
stakeholders  with  a  legitimate  interest  in  the  safety  of  consumer  services  and  of
public authorities was carried out in August – October 2002. Interested parties were
invited  to  comment  on  the  potential  contribution  to  enhanced  safety  of  consumer
services  of  a  number  of  policy  options,  taking  into  account  existing  policies  and
legislation  in  Member  States  and  the  Community.  This  consultation  process
delivered  more  than  70,  often  very  detailed  and  relevant  reactions,  from  various
societal  groups  representing  consumers,  service  providers,  industry  and  commerce,
standardisation bodies and public authorities.

12.

The  purpose  of  the  present  report  is  to  assess  the  needs  and  possibilities  for
Community  action  related  to  the  safety  of  certain  categories  of  services.  Due
consideration has been given to the input received during the consultation process for
the prioritisation of the different options for Community action.

2.

THE SAFETY OF SERVICES IN THE EUROPEAN UNION

Existing Community policies and legislation impacting on the safety of services

13.

At Community level the safety of services is at present directly regulated only in the
area  of  transport.  In  addition,  various  Community  legislative  provisions  and
initiatives  take  into  consideration,  more  or  less  directly,  safety  aspects  of  certain
services. In most cases the main objective of such provisions is to ensure the proper
functioning  of  the  internal  market.  Four  principal  areas  are  particularly  important:
recognition of diplomas, certificates and other qualifications for the objective of the
internal market, environment, energy and tourism.

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15.

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17.

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The transnational character of the transport sector and the fact that Article 71 c) of
the  Treaty  explicitly  opens  up  the  possibility  for  adopting  measures  aimed  at
enhancing transport safety, has made the sector a priority area for Community action.

Transport safety is mainly regulated through technical harmonisation with a view to
maintaining a  high  level  of  safety or by harmonisation  in  the  social  and  vocational
training  spheres  aimed  at  ensuring  sufficient  safety  at  the  level  of  the  carrier
providing the transport service. These provisions have a direct impact on the safety
of  the  service.  Road  and  maritime  passenger  transport  offer  numerous  examples  of
provisions with a direct impact on safety; such as Council Directives 92/6/EEC10 and
92/24/EEC11  on  speed  limitation  devices  on  heavy  goods  and  passenger  vehicles,
Council  Regulation  (EC)  No  3820/8512  on  equipment  installed  on  vehicles
transporting  passengers  or  goods  to  record  the  distances  travelled,  speeds,  driving
and rest periods, Council Regulation (EC) N° 3051/9513 on the safety management of
roll-on/roll-off passenger ferries. For railways essential requirements on safety of the
various  subsystems  (infrastructure,  rolling  stock,  signalling,  etc.)  are  laid  down  in
Council  Directive  96/48/EC14  on  the  interoperability  of  the  trans-European  high-
speed rail system and in Directive 2001/16/EC15 of the European Parliament and of
the  Council  on  the  interoperability  of  the  trans-European  conventional  rail  system.
For  aviation,  an  obligation  to  investigate  accidents  and  incidents  with  a  view  to
improving safety follows directly from the provisions of Annex 13 to the Convention
on International Civil Aviation and Council Directive 94/56/EC16. This Directive is
to be complemented by a Directive17 on the reporting of occurrence. Harmonisation
of civil aviation safety is dealt with through Council Regulation (EC) N° 3922/9118
and Regulation (EC) N° 1592/200219 of the European Parliament and the Council.

Improving transport safety remains a key objective in the reflections on the future of
the common transport policy20, together with efficiency, quality and reduced pressure
on the environment.

The implementation of the principles established by the Treaty related to the freedom
of  establishment  and  the  freedom  to  provide  services  has  indirectly  addressed  the
issue  of  safety  of  services  in  setting  provisions  on  the  mutual  recognition  of
professional qualifications as well as on the harmonisation or mutual recognition of
national rules on access to regulated professions. The impact is particularly important
for certain professions in the medical sector such as nurses21 and doctors22.

OJ L 57, 02.03.1992, p. 27
OJ L 129, 14.05.1992, p. 154
OJ L 370, 31.12.1985, p. 1
OJ L 320, 30.12.1995, p. 14
OJ L 235, 17.09.1996, p. 6
OJ L 110, 20.04.2001, p. 1
OJ L 319, 12.12.1994, p. 14
Proposal dor a Directive of the European Parliament and of the Council on occurrence reporting in civil
aviation, OJ C 120, 24.04.2001, p. 148
OJ L 373, 31.12.1991, p.4
OJ L 240, 07.09.2002, p. 1
White  paper  on  European  transport  policy  for  2010:  time  to  decide,  COM(2001)370  final  of  12
September 2001
Council Directives 77/452/EEC, OJ L 176, 15.07.1977, p. 1 and 77/453/EEC, ibid. p. 8
Council Directive 93/16/EEC, OJ L 165, 07.07.1993, p. 1

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18.

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20.

21.

Also, other internal market measures influence the safety of consumer services. For
instance,  the  provisions  concerning  medical  devices23  and  legislation  on  foodstuffs
have a positive indirect impact on safety levels of the services associated with them.

The  protection  of  human  health  is  one  of  the  objectives  of  the  Community
environmental  policy.  The  close  link  between  the  environment  and  human  health
provides the basis for various provisions which, although they do not have consumer
safety  as  their  direct  objective,  in  practice  lead  to  improved  health  and  safety  for
consumers,  also  with  regard  to  consumer  services.  For  example,  Community
legislation  on  waste  management,  such  as  incineration,  landfill  and  transport,
contributes  to  improved  safety  of  the  service,  by  limiting  the  different  types  of
pollution  that  might  endanger  human  health.  In  other  cases  the  link  between
environmental protection and safety of consumer services is of a more direct nature,
for example in the case of Council Directive 98/83/EC24 on the quality of water for
human consumption.

The common provisions on energy have a limited and indirect impact on the safety of
services.  Energy  policy  contributes  to  the  general  objectives  of  Community
economic  policy,  focusing  on  the  integration  and  opening  up  of  markets  and  the
prevention  of  obstacles.  Going  beyond  these  general  objectives,  energy  policy
pursues  specific  objectives  with  a  view  to  reconciling  competitiveness,  security  of
supply  and  protection  of  the  environment.  The  European  Parliament  and  Council
Directive 94/63/EC25 on the control of volatile organic compound (VOC) emissions
resulting  from  the  storage  and  distribution  of  petrol  has  a  more  direct  impact  on
safety levels.

The  Treaty  does  not  provide  for  a  specific  legal  basis  for  common  actions  in  the
tourism  sector.  The  role  of  the  Commission  is  mainly  one  of  co-ordinator  and
catalyst.  Consequently,  there  are  few  Community  provisions  with  a  direct  and
principal impact on the safety of services in the tourism sector. Where they do exist,
they  are  dependent  on  other  policy  areas,  and  their  primary  objective  is  often  the
proper functioning of the internal market. This is the case, for example, with Council
Directive  90/314/EEC26  on  package  travel  based  on  the  former  Article  100a  (now
Article 95) of the Treaty, which makes the organiser and/or retailer liable for damage
suffered by the consumer as a result of non-performance or improper performance of
the contract  and with  Council Recommendation 86/666/EEC27 on a minimum level
of  fire  safety  in  Community  hotels.  The  Community’s  current  policy  on  tourism  is
primarily  concerned  with  the  development  and  competitiveness  of  businesses.  The
safety of consumer services is not referred  to  in  this  context  as a  goal  in  itself, but
rather  as  an  indirect  consequence  of  promoting  the  quality  of  the  services  offered
with a view to the development of tourist activities.

23

24

25

26

27

Council Directives 93/42/EEC, OJ L 169, 12.07.1993, p. 1 and 90/385/EEC, OJ L 189, 20.07.199O, p.
17
OJ L 330, 05.12.1998, p. 32
OJ L 365, 31.12.1994, p. 24
OJ L 158, 23.06.1990, p. 59
OJ L 384, 31.12.1986, p. 60

10

                                                
22.

23.

24.

25.

Member  States’  approaches,  policies  and  legislation  related  to  the  safety  of
services28

Several  policies  and  regulatory  measures  in  Member  States  indirectly  contribute
significantly to the safety of services. Examples include requirements related to the
construction  and  operation  of  buildings  and  sites  where  services  are  provided,
technical  measures  related  to  equipment  and  products,  rules  on  qualification  and
authorisation of service providers and provisions regarding health and safety at work.
A further  analysis  of  these  policies  and  areas of legislation would be  extremely  far
reaching and falls outside the scope of this report. The focus in the following is on
national  policies  and  legislation  where  the  measure  directly  addresses 
the
performance  of  the  service  and  where  the  main  objective  is  the  protection  of  the
health and physical safety of the consumer.

There is no coherent or typical overall approach in this area in the Member States.
Half of the Member States have established “safety of services” as a specific policy
area, whilst the others deal with safety of services on an ad hoc basis or in connection
with other policies. Three different national approaches can be identified. There are
Member  States  with  horizontal  legislation  on  the  safety  of  services  supplementing
sector-specific  measures.  This  group  includes  Finland,  France,  Portugal,  Spain  and
Sweden. Ireland and the United Kingdom have an extended scope for their horizontal
legislation on safety  at work with a view to covering also safety of consumers as a
supplement to  their  sectoral  policies  and  legislation.  The  remaining  Member  States
have sector policies and legislation in place but no overarching, general structure.

The Member States that have adopted general legislation have chosen different legal
frameworks and different legislative techniques. Finland and Sweden have integrated
safety  of  services  in  their  legislation  on  product  safety.  Hence,  the  general
requirements  for  consumer  services  are  more  or  less  parallel  to  those  for  products.
Authorities  have  the  necessary  competencies  to  monitor,  control  and  take  action
against  unsafe  services.  France,  Portugal  and  Spain  have  chosen  to  include
provisions regarding services in their  general  consumer legislation. As  an  example,
Spain has a provision in its general Law for the Protection of Consumers and Users,
which states that service providers shall only put safe services on the market. In the
United Kingdom, the Health and Safety at Work Act makes it clear that the objective
is to protect also the general public, including consumers, against the risks to health
and  safety  arising  from  the  activities  of  persons  at  work.  The  legislation  includes
provisions  on  the  obligation  to  secure  safety  at  premises  made  available  to  the
general public, including premises where consumer services are offered. Ireland has
a similar concept in place.

law, 

All  Member  States  have  adopted  significant  sectoral  legislation.  In  addition  to
legislation on transport services, which to a large extent implements international and
Community 
four  sectors:  health,
accommodation largely related to tourism, sports and leisure and services of general
interest  such  as  installation  of  gas  and  electricity.  Some  Member  States  have  also
specifically  targeted  repair  services,  installation  of  products  as  well  as  personal
services like hairdressers, suncentres etc.

relates  mainly 

legislation 

the 

to 

28

This part of the report is supported by a Commission Staff working paper {SEC(2003)625} providing
for a factual summary of Member States’ policies and legislation on safety of services

11

                                                
26.

27.

28.

29.

30.

31.

32.

In  the  health  sector  all  Member  States  have  focused  on  legislation  regarding
qualifications  of  medical  staff.  In  addition,  there  are  significant  regulations  on  the
performance  of  health  services  and  on  the  physical  premises,  including  design,
construction, maintenance and operation. In general terms, the health area is an area
with significant legal obligations for the service providers with the main purpose to
protect  patients.  It  is  noted  that  the  clinical  part  of  health  services,  in  particular
medical  misadventure,  is  followed  up  by  different  institutions  and  authorities  than
those in charge of non-clinical issues, including safety of premises, design of floors
to avoid slipping and falling etc.

Accommodation  services  are  regulated  in  all  Member  States,  mainly  in  connection
with design and construction of buildings and mandatory safety equipment typically
in  relation  to  fire.  The  regulations  vary  significantly,  not  only  nationally,  but  also
regionally and locally according to local needs and specificity.

Sports  and  leisure  services  include  a  wide  variety  of  activities  ranging  from  pop
concerts  and  discotheques  to  playgrounds,  diving  courses  and  skiing  centres.  The
sector is increasingly being regulated by Member States, mainly on an ad-hoc basis
according  to  concrete  incidents  or  indications  of  higher  than  acceptable  risks.  A
significant  part  of  the  legislation  focuses  on  premises  and  buildings  used  for  such
services.  In  Sweden,  for  example,  the  legislation  on  technical  requirements  for
buildings  also  covers  development  of  ski  centres  and  sport  grounds.  In  addition,
some  Member  States  have  introduced  requirements  for  the  service  providers  with
regard to qualifications of staff or the performance of the service itself. In Denmark,
for  example,  pyrotechnic  operators  must  obtain  an  authorisation,  whilst  the
legislation  on  public  entertainment  facilities  provides  for  rules  on  training  of  staff
and supervision of services, such as shooting ranges and slides.

Certain services of general interest, such as installation of gas and electricity have a
significant  risk  potential,  and  are  heavily  regulated  in  all  Member  States.  The
regulation  focuses  on  the  qualification  of  the  service  provider,  but  also  to  some
extent on the actual performance of the service. Waste services, waste water and the
supply of water is also regulated, but mainly with the aim of reducing risks to public
health  and  environmental  risks,  not  primarily  protecting  the  physical  safety  of
consumers.  For  example,  national  regulation  on  incineration  of  waste,  based  on
Community legislation, is aimed at reducing emissions of hazardous substances.

Repair services, rental services and services relating to the installation of products
are  services  that  are  closely  linked  with  product  safety,  but  still  the  safety  of  the
service  is  regulated  specifically  by  certain  Member  States.  In  addition,  personal
services  such  as  hairdressing  and  solariums  have  also  been  subject  to  specific
regulation in a few Member States.

When  looking  into  the  concrete  requirements  of  Member  States  for  the  various
consumer services, some key provisions of a general nature can be identified both in
horizontal and in sector-specific legislation.

First,  there  are  examples  of  an  obligation  to  provide  “safe  services”.  In  Finnish,
French,  Portuguese,  Spanish  and  Swedish  legislation  there  are  general  legal
provisions  that  require  service  providers  to  market  only  “safe  services”.  Different
definitions  and  criteria  on  what  is  considered  to  be  a  “safe”  service  support  this
obligation. Moreover, in areas of particular interest regulations are adopted in order

12

33.

34.

35.

to  specify  this  general  requirement.  Other  safety  obligations  exist  in  sectoral
legislation. The direct application of such general safety obligations seems to be very
limited in practice in cases where there is no standard or clear point of reference.

Second,  there  are  provisions,  which  oblige  the  service  provider  to  introduce  safety
management procedures within business operations. Usually such provisions include
obligations  to  identify  and  assess  risks,  to  take  reasonable  measures  in  order  to
prevent damages to health and safety, to establish internal control systems to ensure
systematic  and  safe  organisation  of  the  activities  and  to  establish  emergency
procedures.  In  order  to  avoid  disproportionate  obligations  for  SMEs  it  is  usually
foreseen that internal control be adapted to the nature, activities, risks and size of the
enterprise  to  the  extent  required  to  comply  with  requirements  set  out  in  safety
legislation. In France, for example, in the regulations regarding public playgrounds,
the  responsible  person  is  obliged  to  keep  up-to-date  the  maintenance  plan  of  the
playground and records of the work carried out. The documents must be available to
the authorities upon request. In the United Kingdom a general regulation obliges all
service  providers  to  conduct  a  risk  assessment.  Businesses  with  less  than  five
employees are subject to less formal requirements than larger operators. Norway has
a similar concept called “internal control” regulations.

Third, it is  a  common  feature,  at  least  in  sectoral  legislation,  that  service  providers
are  obliged  to  inform  consumers  about  serious  risks  connected  with  the  service
provided or to request information about consumers’ abilities and experiences. One
example  is  the  regional  legislation  in  Austria  on  mountain  guides,  which  stipulates
that the guide must inform and be informed about possible risk factors. In the Finnish
general legislation, the obligation follows somewhat indirectly  from paragraph 4 of
the  Act,  where  it  is  stipulated  that  a  service  is  deemed  to  be  unsafe  and  therefore
prohibited if “…any untrue, misleading or inadequate information supplied in respect
of the service can produce an injury, poisoning, illness or any other hazard to health”.
Thus there is an indirect obligation to provide adequate and sufficient information on
risks.  In  addition,  the  Finnish  Supervisory  Authority  may  require  the  operator  to
inform  the  consumer  of  particular  risks  associated  with  a  service.  This  option  has
never  been  used  in  practice,  because  the  Finnish  Consumer  Authorities  in  concrete
cases have chosen to inform consumers directly through the media etc.

Fourth,  provisions  on  competencies  for  public  authorities  to  conduct  market
surveillance and  control  service providers is an  essential  part of general as  well as
sectoral legislation. Competencies for the monitoring of consumer services is usually
carried out in close connection with the monitoring of product safety and/or safety at
work,  either  by  consumer  authorities  or  authorities  responsible  for  safety  at  work.
Finland, for example, has placed the competence in the Finnish Consumer Agency,
whilst  the  United  Kingdom  has  competencies  within  the  Health  and  Safety
Commission  (HSC)  and  the  Health  and  Safety  Executive  (HSE).  The  general
competencies  are  to  a  large  degree  delegated  to  regional  and  local  levels,  and  they
are subsidiary to the competencies of sectoral authorities. In the United Kingdom, the
HSE seeks to agree demarcation lines based on an assessment of expertise, economy,
efficiency and suitability. On this basis fire safety is left to the fire safety authorities,
most  transport  issues  to  the  relevant  transport  authorities  etc.  The  competent
authorities usually have a wide range of measures available to them based on results
of monitoring and inspections. In France and in Finland for example the competent
authorities may order the service-provider to take measures to address the risk posed
or  they  can  prohibit  the  provision  of  the  service  temporarily  or  permanently.  Fines

13

36.

37.

38.

and  criminal  proceedings  are  considered  in  serious  cases.  In  some  instances  the
competent  authorities  also  have  the  possibility  of  introducing  pre-licensing
requirements for  certain  services that involve significant risks.  Member States  with
no  general  legislation  or  policy  rely  exclusively  on  sectoral  authorities  to  control
service providers.

Fifth,  some  key  sectors  such  as  transport  and  health  services  have  a  sophisticated
system for  notification of accidents  and incidents  with  the  aim  of  informing  public
authorities, limiting the damage of unsafe services and monitoring risk. Finland has
introduced  general  notification  requirements  for  service  providers  where  a  non-
acceptable  hazard  is  discovered  and  measures  have  been  taken  by  the  service
provider.

In  addition  to  the  legislative  measures  taken  in  all  Member  States,  in  some  cases
voluntary or non-regulatory measures have been introduced, typically in the form of
codes of conduct, guidelines, best practices and voluntary standards. In general with
the  exception  of  Finland,  the  development  of  such  measures  is  done  on  an  ad-hoc
basis,  although  it  seems  that  the  sports  and  leisure  sector  is  the  main  target  area.
Examples include standards for ski-rental services in France, pop-concerts and sport
arenas  in  Ireland,  equestrian  centres  in  the  Netherlands  and  diving  courses  in
Sweden.  In  most  instances  service  providers  develop  the  codes  of  practice  in  co-
operation  with  public  authorities  and/or  consumer  organisations.  In  Ireland  and  the
United Kingdom some sectors with a significant risk potential, like the health sector
and installation of gas are covered by non-regulatory measures, but this approach is
being re-assessed at present.

Finland  has  a  more  systematic  scheme  for  development  of  guidelines  under  its
mandatory horizontal legislation. Guidelines are developed for key services by public
authorities in close co-operation with service providers based on results from market
surveillance, complaints etc.

From  the  above  description  it  can  be  concluded  that  consumer  services  with  a
significant risk potential, such as passenger transport, health services and installation
of gas and electricity have been extensively regulated and are monitored according to
local, regional and national priorities and resources in all Member States. For other
consumer  services,  typically  in  the  sports  and  leisure  sector,  the  approach  varies
more.  Some  countries  have  focused  on  sectoral  initiatives  with  a  different  mix  of
regulatory  and  non-regulatory  measures,  whilst  others  have  included  additional
horizontal provisions in their legislation as a “safety net” and a basis for responses to
new emerging risks. However, there is no evidence at this stage that the differences
in the policy and regulatory approaches of the Member States must necessarily imply
significant  differences  in  the  level  of  consumer  protection,  even  though  many
consumers  seem  to  have  a  lack  of  confidence  about  the  safety  of  products  and
services  in  Member  States  other  than  their  own29.  Administrative  capacity  and
priorities  with  regard  to  resources  used  for  market  surveillance  and  follow  up  of
service providers seem to be more crucial for the actual safety levels. There is also a
general  problem  of  lack  of  knowledge  and  transparency  as  regards  applicable
regulation  in  other  Member  States.  Both  consumers  and  service  providers  have
highlighted  the  lack  of  information  about  existing  rules  and  their  application  in

29

Gallup Europe, “study on consumers”, January 2002 and Eurobarometer survey EB 57.2/175

14

                                                
39.

40.

41.

42.

different  Member  States30  as  one  of  the  obstacles  to  the  creation  of  the  internal
market for services.

Factual situation of service safety in the Community

The tragic canyoning adventure tour in Interlaken, Switzerland in July 1999, where
19 people drowned in a heavy flooded river, the fire at a discotheque in Gothenburg,
Sweden on 29 October  1998 where 90 people died and the tragedy  at the Roskilde
Rock  festival  in  Denmark,  29  June  2000,  where  nine  people  died  after  panic  at  a
crowded  rock  concert  scene  are  among  the  well  documented  examples  of  recent
cases  where  safety  of  services  has  been  an  issue.  Several  passenger  transport
accidents  could  be  added.  However,  more  systematic  information  and  statistics
regarding  the  factual  situation  on  safety  of  services  in  the  Community  is  hardly
available,  apart  from  the  transport  sector.  Accident  data  that  have  been  collected
through the European Home and Leisure Accident Surveillance System (EHLASS),
and through projects under the Injury Prevention Programme (IPP) are accessible in
the database called Injury Surveillance System (ISS)). However, in the same way as
data 
from  EUROSTAT,  national  public  authorities,  European  consumer
organisations,  European  Insurance  companies,  academic  institutions  and  some
business  organisations  they  are  not  capable  of  providing  data  for  a  systematic
assessment of the safety of the most relevant service sectors.

The EHLASS data in the ISS database do not identify accidents caused by consumer
services as a separate category. The limited description of the cause of the accident
provided does not allow the identification of the precise cause of the accident. Of the
approximately  26  million  accidents  reported  in  1998,  excluding  road  transport  and
occupational  safety,  a  significant  part  are  home  accidents.  Many  of  the  remaining
number  occur  when  the  injured  persons  are  acting  on  their  own  initiative.  Finally,
many accidents are  related to  consumer products. There  are  no  means  available for
estimating  the  share  of  accidents  related  to  consumer  services,  although  one  might
expect the share to be significant.

At national level, the United Kingdom, through the Health and Safety Executive, has
one  of  the  most  advanced  systems  for  collection  of  accident  data  in  the  European
Union31.  However,  the  statistics  do  not  distinguish  between  accidents  occurring  to
consumers  and  accidents  occurring  to  bystanders.  Of  the  total  of  19,591  non-fatal
injuries registered in 2000/2001 in the services industry a significant number would
be  injuries  to  bystanders.  Again,  a  number  of  these  accidents  could  have  occurred
when the consumer was acting on  her/his  own  initiative and  not as  a recipient of  a
service provided by a third party or when a product rather than the service itself were
the cause of injuries. Thus this data cannot be used as a basis of an extrapolation to
European level.

The  United  Kingdom  statistics  also  contain  information  on  fatalities.  In  2000/2001
the  total  number  of  fatal  injuries  to  members  of  the  public,  both  bystanders  and
consumers, caused by work in the United Kingdom was 445. However, 333 of these
were  related  to  transport,  of  which  298  were  trespassers  and  suicides  on  transport
systems,  mainly  rail.  Of  the  remaining  112  fatalities  92  occurred  in  « the  service

30

31

COM(2002)441 final, op. cit.
Health and safety statistics 2000/01, Health and Safety Commission

15

                                                
industries »32  This  group  includes  the  categories  « hotels  and  restaurants »,
« education »,  « health  and  social  work »  (42  fatalities)  and  « other  community,
social  and  personal  service  activities »  (26  fatalities).  It  is  difficult  to  estimate  the
“consumer” share of this, and impossible to analyse the share of injuries  caused by
consumer  products.  In  addition,  several  of  the  fatalities  are  likely  to  have  been
caused  by  persons  acting  on  their  own  initiative  or  where  the  connection  with  a
service is remote.

Turning to sector-specific statistics, for the transport sector33, the rate of fatalities per
billion  passenger  kilometer  (pkm)  was  0.3  for  buses  and  coaches,  compared  to  6.7
for passenger cars in 1999, mainly non-service related, except for taxis etc. The total
number of road fatalities was 42,122, of which 24,599 were related to passenger cars.
The  total  railway  passenger  fatalities  was  16  in  1998  whilst  the  number  of  airline
passenger fatalities in the EU territory was 52 in 1999, leading to a rate of fatalities
per billion pkm of 0.7 and 0.1 respectively. 74 lives were lost in 1999 on passenger
ships  world-wide.  Some  of  these  figures  vary  significantly  from  year  to  year
following  single,  large  accidents.  The  number  of  accidents  with  personal  injury  in
road traffic in 1999 was 1.3 million. Again it must be noted that a significant part of
this is not connected to services, but to people driving their own car. In conclusion,
statistics  in  the  transport  sector  are  well  developed  and  sufficiently  detailed  to
indicate  risk  rates  and  to  make  policy  decisions  in  the  context  of  the  common
transport policy.

In the health sector specific aggregate European statistics are not available, but in the
ISS  database  there  is  an  entry  on  non-fatal  accidental  injuries  in  “medical/socio-
medical/health institutions”. It indicates approximately 100,000 accidents per year in
the  EU.  Few  of  these  accidents  are  likely  to  be  linked  to  consumer  products,  to
involve  bystanders  or  to  be  linked  to  people  acting  on  their  own  initiative.  The
statistics  are,  nevertheless,  not  sufficiently  detailed  to  determine  the  risk  level  in
terms of accidents per patient hour, for example. In addition to ISS/EHLASS, several
countries  register  all  incidents  in  health  institutions  according  to  national  legal
obligations, so that the statistical basis is solid in this area.

Similarly,  there  is  no  specific  aggregated  information  at  Community  or  at  national
level in the sports and leisure sector. In the ISS database, entries include accidents in
“sports  area”,  “leisure  area”  and  “natural  area”.  In  total  they  indicate  6  million
accidents per year, of which a significant part must be assumed to occur outside of a
“service” situation, i.e. where the consumer himself initiates the activity. There is no
simple means to draw a clear line between situations where the service is the major
cause of the accident and where the consumer himself causes the accident. Normally
accidents  are  caused  by  a  mix  of  factors.  For  example,  an  accident  to  a  child  at  a
fairground  could  be  caused  partly  by  lack  of  parental  supervision,  flaws  to  the
equipment and lack of training of staff.

Accidents in connection with some specific sports and leisure services with particular
risks  have  been  investigated  at  national  level  in  the  context  of  studies  or  ad  hoc
initiatives.  In  1999  the  French  authorities34  made  an  assessment  of  risks  and

ibid, p. 47
EU energy and transport in figures 2001, Directorate-General for Energy and Transport in co-operation
with Eurostat
Commission de la sécurité des consommateurs (CEC); opinion dated 11 April 2001

16

43.

44.

45.

46.

32

33

34

                                                
accidents  in equestrian  centres.  They noted that  “it has not been possible to  obtain
precise  and  exhaustive  accident  figures”.  However,  based  on  emergency  room
statistics, data from voluntary organisations and insurance businesses they estimated
that between 500  and 2,000 horse riding accidents with non-fatal injuries happened
per  year  in France35. More than half  of these were in  equestrian  centres,  whilst  the
rest were connected with riding in natural surroundings, where the service element is
less obvious. At least one or two fatal accidents were registered per year. No risk rate
in terms of risk of accident per hour riding was estimated. Dutch, Austrian and US
figures seem to indicate up to 100,000 accidents per year for a population the size of
the  EU.  Thus  it  does  not  seem  possible  to  extrapolate  the  French  figures  with  any
accuracy at Community level.

Accidents  and  fatalities  in  skiing  areas  are  well  documented  in  Austria,  Sweden,
France  and  other  countries.  In  Austria36  an  average  of  90  000  injuries  and  30
fatalities  were  recorded  per  season.  For  France  45,000  injuries  and  41  deaths  were
recorded  on the  slopes  during the skiing season  from  1  December 2000  to  31  May
200137.  Again  the  connection  with  the  provision  of  a  consumer  service  cannot  be
firmly established due to the lack of precise information. Although the skiing centres
with their lifts, marked trails etc are to be seen as services, accidents are often caused
by  skiers  themselves  overestimating  their  own  abilities,  not  by  lack  of  warnings,
signs etc. No risk rate in terms of risk of accident per hour skiing has been produced
from the statistics.

Attempts have been made to analyse  accidents in “new” high risk adventure sports
offered  to  consumers,  such  as  diving,  climbing,  bungee-jumping,  hang-gliding,
kayaking,  canoeing  and  white-water  rafting.  Although  the  number  of  fatalities  and
non-fatal incidents is quite limited in absolute terms, a British study conducted by the
University  of  Lancaster38  found  that  the  risk  of  a  fatality  when  climbing,  canoeing
and  hang-gliding  was  much  higher  than  the  risk  of  a  traffic  fatality.  The  risk  level
seems mainly influenced by the behaviour of people pursuing these activities on their
own,  not  necessarily  in  connection  with  a  service.  National  statistics  indicate  that
most diving accidents happen in connection with private diving. No overall risk rate
has been estimated for diving courses.

In the Netherlands statistics exist for accidents in swimming pools and waterslides39.
Between 1987 to 1996 there were about 9000 accidents per year in swimming pools,
including slides. Approximately seven drowning fatalities occur per year. The overall
number  of  accidents  has  been  reduced  to  7,100  in  1998,  whilst  the  number  of
accidents in water slides has been stable around 1,000 per year. No risk rate has been
established.

Other  examples  of  ad-hoc  statistical  data  include  Belgian  and  Danish  authorities’
statistics on accidents and fatalities at playgrounds and in fun parks, Irish authorities’
information  on  accidents  in  connection  with  gas  installations,  United  Kingdom

ibid, p. 3-6
Presentation  by  Dr.  Rupert  Kisser,  Austrian  Alpine  Forum,  15  April  1999  and  at  Montreal  Safety
Seminar, May 2002
Campagne national de prévention des accidents de ski et de snowboard, 2001-2002
Quoted  by  Mr  van  Woudenberg  at  3rd  European  Convention  on  Promotion  of  Safety  and  Injury
Prevention, Vienna, 15-16 March 2001
Consumer Safety Institute, CISE, N° 4, December 1999

17

47.

48.

49.

50.

35

36

37

38

39

                                                
51.

52.

53.

54.

40

41

authorities’  statistics  on  fire  safety  in  hotels,  and  French  and  Swedish  statistics  on
accidents in sun-centres. In the same way as for the other sources mentioned, these
data  are  not  directly  applicable  for  assessing  risks  in  connection  with  consumer
services.

The  investigations  and  consultations  carried  out  by  the  Commission  as  well  as  the
outcome  of  a  recent  study40  suggests  that  the  perceived  overall  higher  risk  to  non-
nationals than to nationals in the service sector is largely unfound.

It results from the above that there is little systematic factual information on service
safety, apart from transport and health services. The reporting structures in place are
poor and few attempts have been made to streamline and utilise statistics on service-
related  consumer  risks  in  national  policy  making.  Structural  problems  in  existing
data  collection  schemes  prevent  any  substantial  improvement  of  the  situation.  For
example,  it  is  difficult  to  define  the  exact  borderline  between  product  and  service
related  risks  and  accidents.  In  addition,  many  of  the  incidents  registered  do  not
distinguish  between  situations  where  the  consumer  is  operating  on  his/her  own
initiative  and  where  there  is  a  service  provider  involved.  Finally,  many  accident
statistics  do  not  distinguish  between  consumers  and  other  members  of  the  general
public.  All  these  problems  make  it  impossible  to  interpret  such  data  as  does  exist
with  any  certainty.  It  is,  therefore,  not  possible  to  assess  risks  associated  with  the
various  services,  to  compare  risk  levels  in  different  countries,  to  monitor  risk  over
time  or  to  identify  in  a  documented  way  possible  weaknesses  and  gaps  in  the  risk
prevention and management systems in place in Member States. Moreover, any risk
assessment should also include a qualitative and  quantitative characterisation of the
probability, frequency and severity of the known health and safety effects. Here too,
figures  on  the  frequency  of  use  of  services  or  the  numbers  of  consumers  are  also
missing. The few data available can, thus, only give a very general, imprecise idea of
the level of the risk.

Possible options for Community action

On  the  basis  of  a  preliminary  identification  of  the  gaps  and  weaknesses  in  the
existing situation,  a number of possible options for Community  action  on  safety  of
services were identified. These were submitted for  consultation  to  stakeholders and
public  authorities.  Interested  parties  showed  great  interest  in  the  issue  of  service
safety and provided detailed comments, which are summarised below.

Taking  account  of  the  existing  knowledge  gap  a  first,  obvious  option  concerned
Community  action  to  collect  data  on  services  related  accidents  and  injuries.  In
addition,  such  action  would  be  fully  in  line  with  the  Commission’s  strategy  for
consumer  policy41,  which  highlights  the  need  to  back  consumer  policy  by  relevant
information and data in order to adjust policies and prioritise in the most appropriate
ways.  The  consultation  showed  broad  support  for  action  aimed  at  improving  the
knowledge base, provided that it would be organised in a cost-effective manner and
that the important methodological problems could be solved. Stakeholders felt that it

Planistat in association with Consumer Risk Limited and Middlesex University, December 2000, Study
of the needs and scope for Community action in the field of services safety and liability
Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  Economic  and
Social  Committee  and  the  Committee  of  the  Regions  on  Consumer  Policy  Strategy,  COM(2002)  208
final; OJ C 137, 08.06.2002, p. 137

18

                                                
55.

56.

57.

should  focus  on  a  limited  number  of  priority  sectors  and  build  upon  existing
experiences and instruments for data collection. In particular, it would be necessary
to ensure co-ordination with the New Public Health Programme that will incorporate
experiences and information gathered under EHLASS and IPP.

A  second  option  related  to  the  development  and  promotion  of  non-regulatory
measures, such as best practices for service providers or professional categories and
European  voluntary  standards  would  contribute  to  enhanced  service  safety  for
consumers through better  information on  the  safety  levels  that  they  can  expect  and
improved practices by service providers. The investigations undertaken have shown
that  there  are  such  measures  in  place  in  the  service  area  that  are  not  well  co-
ordinated.  The  consultation  showed  broad  support  for  the  development  and
promotion  of  non-regulatory  measures,  either  as  a  stand-alone  self-regulatory
instrument  or  as  a  flexible  supplement  to  a  legally  binding  framework.  However,
there  is  concern,  in  particular  on  the  consumer-side,  about  the  lack  of  enforcement
powers  for  this  type  of  soft  law  and  the  absence  of  sanctions  in  case  of  non-
compliance.

A third option concerned the establishment at EU level of a scheme for certification
of safety management systems, which would require common criteria against which
compliance can be certified by an accredited certification organism. The consultation
showed some support for such a scheme. It was stressed that the scheme should build
upon existing national or international standards rather than introducing new criteria.
There  was,  however,  a  general  feeling  that  the  attractiveness  of  the  scheme  for
businesses would be limited, since safety issues seem more difficult to be used as a
competitive tool than, for example, environmental ones.

the
Possible  more  far-reaching  harmonisation  measures  were  also  part  of 
consultation  process,  in  particular  the  introduction  of  legally  binding  safety
requirements  for  service  providers  as  well  as  the  obligatory  establishment  of
monitoring and market surveillance activities to be carried out by public authorities.
The exact improvement of legally binding safety requirements would largely depend
on  the  existence  of  European  standards  or  other  more  precise  common  safety
specifications for specific services.

The  consultation  showed  a  clear  divergence  of  opinion  on  such  requirements.
Consumers preferred this type of legally binding measure as it offers legal certainty
by  providing  the  generic  framework  for  preventive  action.  However,  consumer
associations  highlighted  a  general  problem  of  effective  enforcement  of  legally
binding  safety  provisions  and  a  need  for  adequate  sanctions  in  case  of  non-
compliance  with  legal  requirements.  Businesses  expressed  doubts  about  the  added
value  of  such  a  measure.  Member  States  expressed  different  preliminary
observations, but the majority did not at this stage see a need or possibility to adopt
such measures. On the obligatory establishment of market surveillance activities only
a  few  consulted  parties  took  position.  Some  interest  was  expressed  in  exchange  of
good practices. Most considered this action as a question of resources at national and
local level and not as a matter for legislation.

From a legal point of view harmonisation measures would have to rely on Article 95
of the Treaty, which provides a legal basis for harmonisation measures related to the
establishment of the internal market. In line with the relevant case law, the use of this
Article  would  require  an  assessment  of  the  actual  or  potential  barriers  to  trade  and

19

distortions  of  competition  motivating  Community  action.  This  would  again  require
knowledge about the cross border demand and supply of the most relevant consumer
services  and  about  the  potential  impact  of  proposed  legislation  both  with  regard  to
safety levels  and  with  regard to harmonised  safety  requirements.  However,  there  is
currently no evidence about distortions of competition or barriers to trade caused by
different  national  legislation.  In  addition,  at  this  stage  evidence  is  also  missing  to
justify  harmonisation  measures  related  to  safety  of  services  under  the  general
principles  of  Community  law,  in  particular  subsidiarity  and  proportionality.
Therefore,  it  is  impossible  to  draw  conclusions  on  the  need  for  legislative  action
aimed at harmonising safety requirements applied at national level in specific service
sectors at this stage.

Priority sectors

Although transport and health services as well as services with limited or no risk to
consumer  health  and  physical  safety  like  financial  or  electronic  communication
services  are  excluded  from  this  report,  a  significant  number  of  different  types  of
consumer  services  are  relevant.  When  designing  Community  policy  it  will  be
essential  to  concentrate  on  some  priority  consumer  services  in  order  to  gain
experience  and  to  ensure  that  action  is  focused.  Ideally,  the  focus  should  be  on
services  with  a  documented  significant  risk  for  consumers  and  with  a  significant
cross  border dimension.  However,  the  current knowledge  gap  both  in  terms  of  risk
assessment and cross-border impact makes it impossible to establish a prioritisation
based  on  firm  evidence.  Thus,  instead  of  a  quantitative  approach,  more  qualitative
criteria  were  used  to  tentatively  identify  priority  sectors  and  services  at  this  stage.
These  criteria  included  for  instance  the  type  and  seriousness  of  potential  risk,  the
cross  border  dimension,  and  the  relevance  for  consumers  with  particular  needs.
Priorities of the Member States and stakeholders were also taken into account.

Based on these criteria, services related to tourism, especially those related to mass
accommodation, in particular hotels, camping and caravaning, and sports and leisure
services,  in  particular  playgrounds,  fairgrounds  and  amusement  parks,  swimming
pools  and  other  water  sport  services,  riding  schools,  skiing  an  “new”  adventure
sports  like  bungee  jumping  and  white  water  rafting,  could  be  identified  as  priority
sectors.  Both  sectors  and  the  related  services  involve  risks  of  fatalities  and  severe
injuries,  there  is  a  clear  cross  border  dimension,  they  often  involve  children  and
sometimes  elderly,  they  are  provided  throughout  the  Community  and  they  are
considered  to  be  a  priority  by  Member  States,  consumer  organisations  and  service
providers.  It  is  noted  that  the  two  sectors  are  often  inter-linked  as  tourism
increasingly involves organised sports and leisure activities.

POLICY  CONCLUSIONS  TO  BE  DRAWN  FROM  THE  REGULATORY  AND  FACTUAL
SITUATION ON THE SAFETY OF SERVICES IN THE EU

Conclusions to be drawn from the regulatory situation

At Community level there is currently no specific legislation to address the safety of
services, except for Community measures directly regulating the safety of the various
modes of transport as part of the common transport policy enshrined in Article 71 of
the  Treaty.  However,  Community  legislation  in  other  policy  areas  can  have  a
beneficial side-effect on the safety of services. Measures  on the mutual  recognition

20

58.

59.

3.

60.

61.

of  certain  professional  qualifications  aimed  at  facilitating  provision  of  professional
services throughout the Community, or those on the quality of bathing waters taken
under  the  Community  environmental  policy,  which  contribute  to  the  safety  of
tourism,  are  good  examples.  Moreover,  Community  legislation  harmonising  the
technical  rules  for  certain  professional  products  and  equipment  is  very  relevant  for
the safety of the services in which such products are used. In the specific case of fire
safety in hotels, Council Recommendation 86/666/EEC on a minimum level of fire
safety  in  Community  hotels  was  adopted  in  1986.  The  safety  of  services  will
continue to benefit indirectly from the provisions in other areas of common policies.

All the Member States have legal, administrative and technical measures in place in
the area of service safety. The approaches are different and involve a wide variety of
measures,  with  no  single  model  prevailing.  Consumer  associations  have  drawn
attention  to  a general  problem  of  enforcement  of  consumer  safety  provisions  and  a
lack of adequate sanctions in case of non-compliance by service-providers with legal
requirements. Nevertheless, due to the variety of sectors involved and the differences
in the national approaches it is not possible at this stage to identify specific gaps in
the  regulatory,  control  and  enforcement  systems.  It  is  equally  impossible  to
determine whether the actual level of protection in the various Member States differs
in  any  significant  way.  Consumer  associations  and  service  providers  have
highlighted  the  lack  of  information  about  existing  rules  and  their  application  in
different  Member  States  as  an  obstacle  to  increased  consumer  confidence  in  the
internal  market  for  services.  However,  it  has  so  far  not  been  possible  to  identify
evidence of barriers to trade or distortions deriving from the different requirements in
the  Member  states.  This  would  make  it  difficult  to  justify  at  this  stage  substantive
Community  action  that  would  aim  at  harmonising  Member  States’  service  related
safety rules.

Conclusions to be drawn from the factual situation

62.

The  analysis  of  the  factual  situation  has  shown  that  there  is  little  systematic
information  on  service  safety.  This  can  be  partly  explained  by  poor  reporting
structures and by the low priority given to the use of accidents and incidents statistics
as a basis for policy-making in the area of service safety.

Therefore,  improving  the  knowledge  base  on  service  safety  is  identified  as  a  clear
priority for Community action. The consultation itself confirmed that there is broad
support for this, provided that it can be organised in a cost-effective manner and that
the  methodological  challenges  can  be  overcome.  Focusing  on  a  limited  number  of
priority  sectors  or  services,  in  particular  services  related  to  tourism  and  sports  and
leisure  services,  and  building  upon  existing  experiences  and  instruments  for  data
collection can help to meet these conditions.

63.

The  improvement  of  the  knowledge  base  is  in  itself  a  substantial  objective  since  it
requires all Member States to adopt a more systematic approach towards monitoring
service  safety  in  the  most  important  sectors.  The  collection  and  assessment  of  the
relevant data involves  methodological and  organisational issues that require  careful
examination in order to identify practical and cost-effective solutions. Clearly, this is
an area where action at Community level might bring substantial benefits, provided
that  an  appropriate  approach  is  developed.  When  developing  this  approach  due
consideration  should  be  given  to  the  difficulties  for  small  and  medium  sized
enterprises to undertake additional administrative or cost burdens. This is particularly

21

64.

65.

66.

67.

68.

69.

relevant  for  individual  tourism  enterprises,  95%  of  which  are  small  or  micro  sized
entities.

Therefore,  Community  action  on  the  safety  of  consumer  services  should,  at  this
stage, focus on (a) improving available knowledge about risks and accident data and
(b) on monitoring systematically the policies and measures of the Member States.

Experience to date shows that the work of data collection and of monitoring will not
be  conducted  systematically  and  uniformly  across  the  EU  without  a  formal
framework for the exercise. The enlargement of the EU can only reinforce this need.

Aims and contents of the proposed legislative framework

In  the  light  of  the  above  it  is  proposed  to  introduce  a  legislative  framework  which
would establish procedures aimed at ensuring a systematic and consistent collection
and assessment of data and information on service related accidents and injuries. The
type  of information  expected  from  the  data  collection  system  would  be  determined
by policy-making objectives that would be set out in the legislative framework. For
reasons of cost effectiveness it would be appropriate to focus on the priority sectors
and related services identified in this report, namely  services related to tourism and
sports and leisure services

Given the wide variety of measures currently applied by Member States to enhance
safety  of  services,  it  would  be  mutually  beneficial  to  be  better  informed  about
relevant service safety legislation and policies. Therefore, the legislative framework
would  also  establish  procedures  for  administrative  co-operation  between  Member
States  authorities  in  order  to  systematically  exchange  information  on  policy  and
regulatory  developments  and  the  results  achieved.  This  would  be  important  for  the
identification  of  specific  gaps  in  the  regulatory,  control  and  enforcement  systems.
This is particularly relevant since consumers and service providers have highlighted
the lack of information about existing rules and their application in different Member
States as one of the obstacles to the creation of the internal market for services. It is
obvious that the procedures for the exchange of information should be conceived in
such  a  way  as  to  avoid  any  overlapping  of  relevant  existing  or  forthcoming
Community  legislation  laying  down  procedures  for  the  provision  of  information  in
the field of technical standards and regulations related to services.

The  framework  could  also  provide  for  procedures  aimed  at  setting  and  using
European standards. The better knowledge base on service safety would indeed allow
for the identification of specific sectors and risks where community standards may be
necessary  for  supporting  national  policies  and  measures  on  safety  of  services  for
consumers.

The  precise  contents  of  the  legislative  framework  will  be  designed  in  the  light  of
careful  cost-benefit  analysis,  pilot  projects,  surveys  and  further  work  to  be  carried
out  in  close  co-operation  with  Member  States.  The  objective  will  be  to  define  the
optimal  scope  and  methods  for  the  monitoring  and  data  collection,  to  ensure  the
added value of  Community action in a  cost-effective manner.  It is obvious  that  the
legislative  initiatives  envisaged  in  the  context  of  the  internal  market  for  services
should also be given due consideration when designing the legislative framework.

22

70.

71.

In  the  longer  term  the  Commission  would  be  in  a  better  position  to  assess  the
possible  need  for  more  far-reaching  Community  legislation  in  the  light  of  the
evidence  that  has  become  available  as  a  result  of  the  implementation  of  the
legislative  framework.  These  longer-term  legislative  initiatives  will  require  an
analysis  of  the  appropriate  legal  basis  and  of  the  economic  impact.  Recourse  to
Article  95  of  the  Treaty  will,  in  particular,  require  an  assessment  of  the  actual  and
potential  barriers  to  trade  and  distortions  of  competition  resulting  from  diverging
national regulation governing safety of services. Possible Community harmonisation
measures  related to safety  of  services  would  have  to  remain  in  line  with  initiatives
developed within the framework of the internal market strategy for services.

In  the  meantime  the  Commission  will  also  continue  its  assessment  of  the  liability
systems in the Member States. The outcome of this assessment will contribute to the
identification  of  possible  gaps  in  the  national  liability  systems.  It  should  make  it
possible  to  determine  whether  a  new  Community  initiative  in  this  area  would  be
useful and justified.

23