Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market
Date: 2006-12-12
Institutions: Council of the European Union, European Parliament
Subjects: administrative cooperation, administrative formalities, approximation of laws, freedom to provide services, right of establishment, service, services contract, single market

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DIRECTIVE 2006/123/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 12 December 2006

on services in the internal market

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EURO-
PEAN UNION,

(2)

Having regard to the Treaty establishing the European Commu-
nity, and in particular the first and third sentence of Article 47(2)
and Article 55 thereof,

Having regard to the proposal from the Commission,

Having regard to the Opinion of the European Economic and
Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the procedure laid down in Article 251
of the Treaty (3),

(3)

Whereas:

(1)

The European Community is seeking to forge ever closer
links between the States and peoples of Europe and to
ensure economic and social progress. In accordance with
Article 14(2) of the Treaty, the internal market comprises
an area without internal frontiers in which the free move-
ment of services is ensured. In accordance with Article 43
of the Treaty the freedom of establishment is ensured.
Article 49 of the Treaty establishes the right to provide
services within the Community. The elimination of barri-
ers to the development of service activities between Mem-
ber States is essential in order to strengthen the integration
of the peoples of Europe and to promote balanced and
sustainable economic and social progress. In eliminating
such barriers it is essential to ensure that the development
of service activities contributes to the fulfilment of the task
laid down in Article 2 of the Treaty of promoting through-
out the Community a harmonious, balanced and sustain-
able development of economic activities, a high level of
employment and of social protection, equality between
men and women, sustainable and non-inflationary growth,
a high degree of competitiveness and convergence of
economic performance, a high level of protection
and improvement of the quality of the environment, the
raising of the standard of living and quality of life and
economic and social cohesion and solidarity among Mem-
ber States.

(1) OJ C 221, 8.9.2005, p. 113.
(2) OJ C 43, 18.2.2005, p. 18.
(3) Opinion of the European Parliament of 16 February 2006 (not yet
published in the Official Journal), Council Common Position of
24 July 2006 (OJ C 270 E, 7.11.2006, p. 1) and Position of the
European Parliament of 15 November 2006. Council Decision of
11 December 2006.

A competitive market in services is essential in order to
promote economic growth and create jobs in the Euro-
pean Union. At present numerous barriers within the
internal market prevent providers, particularly small and
medium-sized enterprises (SMEs), from extending their
operations beyond their national borders and from taking
full advantage of the internal market. This weakens the
worldwide competitiveness of European Union providers.
A free market which compels the Member States to elimi-
nate restrictions on cross-border provision of services
while at the same time increasing transparency and infor-
mation for consumers would give consumers wider choice
and better services at lower prices.

The report from the Commission on ‘The State of the
Internal Market for Services’ drew up an inventory of a
large number of barriers which are preventing or slowing
down the development of services between Member States,
in particular those provided by SMEs, which are predomi-
nant in the field of services. The report concludes that a
decade after the envisaged completion of the internal mar-
ket, there is still a huge gap between the vision of an inte-
grated European Union economy and the reality as
experienced by European citizens and providers. The bar-
riers affect a wide variety of service activities across all
stages of the provider’s activity and have a number of
common features, including the fact that they often arise
from administrative burdens, the legal uncertainty associ-
ated with cross-border activity and the lack of mutual trust
between Member States.

(4)

Since services constitute the engine of economic growth
and account for 70 % of GDP and employment in most
Member States, this fragmentation of the internal market
has a negative impact on the entire European economy,
in particular on the competitiveness of SMEs and the
movement of workers, and prevents consumers from gain-
ing access to a greater variety of competitively priced ser-
vices. It is important to point out that the services sector
is a key employment sector for women in particular, and
that they therefore stand to benefit greatly from new
opportunities offered by the completion of the internal
market for services. The European Parliament and the
Council have emphasised that the removal of legal barri-
ers to the establishment of a genuine internal market is a
matter of priority for achieving the goal set by the Euro-
in Lisbon of 23 and 24 March 2000
pean Council

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of improving employment and social cohesion and achiev-
ing sustainable economic growth so as to make the
European Union the most competitive and dynamic
knowledge-based economy in the world by 2010, with
more and better jobs. Removing those barriers, while
ensuring an advanced European social model, is thus a
basic condition for overcoming the difficulties encoun-
tered in implementing the Lisbon Strategy and for reviv-
ing the European economy, particularly in terms of
employment and investment. It is therefore important to
achieve an internal market for services, with the right bal-
ance between market opening and preserving public ser-
vices and social and consumer rights.

It is therefore necessary to remove barriers to the free-
dom of establishment for providers in Member States and
barriers to the free movement of services as between Mem-
ber States and to guarantee recipients and providers the
legal certainty necessary for the exercise in practice of
those two fundamental freedoms of the Treaty. Since the
barriers in the internal market for services affect opera-
tors who wish to become established in other Mem-
ber States as well as those who provide a service in another
Member State without being established there, it is neces-
sary to enable providers to develop their service activities
within the internal market either by becoming established
in a Member State or by making use of the free move-
ment of services. Providers should be able to choose
between those two freedoms, depending on their strategy
for growth in each Member State.

Those barriers cannot be removed solely by relying on
direct application of Articles 43 and 49 of the Treaty,
since, on the one hand, addressing them on a case-by-
case basis through infringement procedures against the
Member States concerned would, especially following
enlargement, be extremely complicated for national
and Community institutions, and, on the other hand, the
lifting of many barriers requires prior coordination of
national legal schemes, including the setting up of admin-
istrative cooperation. As the European Parliament and the
Council have recognised, a Community legislative instru-
ment makes it possible to achieve a genuine internal mar-
ket for services.

This Directive establishes a general legal framework which
benefits a wide variety of services while taking into
account the distinctive features of each type of activity or
profession and its system of regulation. That framework
is based on a dynamic and selective approach consisting
in the removal, as a matter of priority, of barriers which
may be dismantled quickly and, for the others, the launch-
ing of a process of evaluation, consultation and comple-
mentary harmonisation of specific issues, which will make
possible the progressive and coordinated modernisation of
national regulatory systems for service activities which is
vital in order to achieve a genuine internal market for ser-
vices by 2010. Provision should be made for a balanced

(5)

(6)

(7)

mix of measures involving targeted harmonisation, admin-
istrative cooperation, the provision on the freedom to pro-
vide services and encouragement of the development of
codes of conduct on certain issues. That coordination of
national legislative regimes should ensure a high degree
of Community legal integration and a high level of pro-
tection of general interest objectives, especially protection
of consumers, which is vital in order to establish trust
between Member States. This Directive also takes into
account other general interest objectives, including the
protection of the environment, public security and public
health as well as the need to comply with labour law.

It is appropriate that the provisions of this Directive con-
cerning the freedom of establishment and the free move-
ment of services should apply only to the extent that the
activities in question are open to competition, so that they
do not oblige Member States either to liberalise services
of general economic interest or to privatise public entities
which provide such services or
to abolish existing
monopolies for other activities or certain distribution
services.

This Directive applies only to requirements which affect
the access to, or the exercise of, a service activity. There-
fore, it does not apply to requirements, such as road traf-
fic rules, rules concerning the development or use of land,
town and country planning, building standards as well as
administrative penalties imposed for non-compliance with
such rules which do not specifically regulate or specifi-
cally affect the service activity but have to be respected by
providers in the course of carrying out their economic
activity in the same way as by individuals acting in their
private capacity.

This Directive does not concern requirements governing
access to public funds for certain providers. Such require-
ments include notably those laying down conditions under
which providers are entitled to receive public funding,
including specific contractual conditions, and in particu-
lar quality standards which need to be observed as a con-
dition for receiving public funds, for example for social
services.

This Directive does not interfere with measures taken by
Member States, in accordance with Community law, in
relation to the protection or promotion of cultural and
linguistic diversity and media pluralism,
including the
funding thereof. This Directive does not prevent Member
States from applying their fundamental rules and prin-
ciples relating to the freedom of press and freedom of
expression. This Directive does not affect Member State
laws prohibiting discrimination on grounds of nationality
or on grounds such as those set out in Article 13 of the
Treaty.

(8)

(9)

(10)

(11)

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(12)

This Directive aims at creating a legal framework to ensure
the freedom of establishment and the free movement of
services between the Member States and does not harmo-
nise or prejudice criminal law. However, Member States
should not be able to restrict the freedom to provide ser-
vices by applying criminal law provisions which specifi-
cally affect the access to or the exercise of a service activity
in circumvention of the rules laid down in this Directive.

(13)

It is equally important that this Directive fully respect
Community initiatives based on Article 137 of the Treaty
with a view to achieving the objectives of Article 136
thereof concerning the promotion of employment
and improved living and working conditions.

(14)

This Directive does not affect terms and conditions of
employment, including maximum work periods and mini-
mum rest periods, minimum paid annual holidays, mini-
mum rates of pay as well as health, safety and hygiene at
work, which Member States apply in compliance with
Community law, nor does it affect relations between social
partners, including the right to negotiate and conclude col-
lective agreements, the right to strike and to take indus-
trial action in accordance with national law and practices
which respect Community law, nor does it apply to ser-
vices provided by temporary work agencies. This Direc-
tive does not affect Member States’ social security
legislation.

(15)

This Directive respects the exercise of fundamental rights
applicable in the Member States and as recognised in the
Charter of fundamental Rights of the European Union and
the accompanying explanations, reconciling them with the
fundamental freedoms laid down in Articles 43 and 49 of
the Treaty. Those fundamental rights include the right to
take industrial action in accordance with national law and
practices which respect Community law.

(16)

This Directive concerns only providers established in a
Member State and does not cover external aspects. It does
not concern negotiations within international organisa-
tions on trade in services, in particular in the framework
of the General Agreement on Trade in Services (GATS).

(17)

This Directive covers only services which are performed
for an economic consideration. Services of general inter-
est are not covered by the definition in Article 50 of the
Treaty and therefore do not fall within the scope of this
Directive. Services of general economic interest are ser-
vices that are performed for an economic consideration
and therefore do fall within the scope of this Directive.

However, certain services of general economic interest,
such as those that may exist in the field of transport, are
excluded from the scope of this Directive and certain other
services of general economic interest, for example, those
that may exist in the area of postal services, are the sub-
ject of a derogation from the provision on the freedom to
provide services set out in this Directive. This Directive
does not deal with the funding of services of general eco-
nomic interest and does not apply to systems of aids
granted by Member States, in particular in the social field,
in accordance with Community rules on competition. This
Directive does not deal with the follow-up to the Com-
mission White Paper on Services of General Interest.

Financial services should be excluded from the scope of
this Directive since these activities are the subject of spe-
cific Community legislation aimed, as is this Directive, at
achieving a genuine internal market for services. Conse-
quently, t his exclusion should cover all financial services
such as banking, credit, insurance, including reinsurance,
occupational or personal pensions, securities, investment
funds, payments and investment advice, including the ser-
vices listed in Annex I to Directive 2006/48/EC of the
European Parliament and of the Council of 14 June 2006
relating to the taking up and pursuit of the business of
credit institutions (1).

In view of the adoption in 2002 of a package of legisla-
tive instruments relating to electronic communications
networks and services, as well as to associated resources
and services, which has established a regulatory frame-
work facilitating access to those activities within the inter-
nal market, notably through the elimination of most
individual authorisation schemes, it is necessary to exclude
issues dealt with by those instruments from the scope of
this Directive.

The exclusion from the scope of this Directive as regards
matters of electronic communications services as covered
by Directives 2002/19/EC of the European Parliament and
of the Council of 7 March 2002 on access to, and inter-
connection of, electronic communications networks and
associated facilities (Access Directive) (2), 2002/20/EC of
the Council of
the European Parliament
7 March 2002 on the authorisation of electronic commu-
nications networks and services (Authorisation Direc-
tive) (3), 2002/21/EC of the European Parliament and of
the Council of 7 March 2002 on a common regulatory
framework for electronic communications networks and

and of

(18)

(19)

(20)

(1) OJ L 177, 30.6.2006, p. 1.
(2) OJ L 108, 24.4.2002, p. 7.
(3) OJ L 108, 24.4.2002, p. 21.

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services (Framework Directive) (1), 2002/22/EC of the
European Parliament and of the Council of 7 March 2002
on universal service and users’ rights relating to electronic
communications networks and services (Universal Service
Directive) (2) and 2002/58/EC of the European Parliament
and of the Council of 12 July 2002 concerning the pro-
cessing of personal data and the protection of privacy in
the electronic communications sector (Directive on pri-
vacy and electronic communications) (3) should apply not
only to questions specifically dealt with in these Direc-
tives but also to matters for which the Directives explic-
itly leave to Member States the possibility of adopting
certain measures at national level.

(25) Gambling activities, including lottery and betting transac-
tions, should be excluded from the scope of this Directive
in view of the specific nature of these activities, which
entail implementation by Member States of policies relat-
ing to public policy and consumer protection.

(26)

This Directive is without prejudice to the application of
Article 45 of the Treaty.

(21)

Transport services, including urban transport, taxis and
ambulances as well as port services, should be excluded
from the scope of this Directive.

(22)

(23)

The exclusion of healthcare from the scope of this Direc-
tive should cover healthcare and pharmaceutical services
provided by health professionals to patients to assess,
maintain or restore their state of health where those activi-
ties are reserved to a regulated health profession in the
Member State in which the services are provided.

This Directive does not affect the reimbursement of
healthcare provided in a Member State other than that in
which the recipient of the care is resident. This issue has
been addressed by the Court of Justice on numerous occa-
sions, and the Court has recognised patients’ rights. It is
important to address this issue in another Community
legal instrument in order to achieve greater legal certainty
and clarity to the extent that this issue is not already
addressed in Council Regulation (EEC) No 1408/71 of
14 June 1971 on the application of social security
schemes to employed persons, to self-employed persons
and to members of their families moving within the
Community (4).

(27)

This Directive should not cover those social services in the
areas of housing, childcare and support to families and
persons in need which are provided by the State at
national, regional or local level by providers m andated
by the State or by charities recognised as such by the State
with the objective of ensuring support for those who are
permanently or temporarily in a particular state of need
because of their insufficient family income or total or par-
tial lack of independence and for those who risk being
marginalised. These services are essential in order to guar-
antee the fundamental right to human dignity and integ-
rity and are a manifestation of the principles of social
cohesion and solidarity and should not be affected by this
Directive.

(28)

This Directive does not deal with the funding of, or the
system of aids linked to, social services. Nor does it affect
the criteria or conditions set by Member States to ensure
that social services effectively carry out a function to the
benefit of the public interest and social cohesion. In addi-
tion, this Directive should not affect the principle of uni-
versal service in Member States’ social services.

(29) Given that the Treaty provides specific legal bases for taxa-
tion matters and given the Community instruments
already adopted in that field, it is necessary to exclude the
field of taxation from the scope of this Directive.

(24) Audiovisual services, whatever their mode of transmis-
sion, including within cinemas, should also be excluded
from the scope of this Directive. Furthermore, this Direc-
tive should not apply to aids granted by Member States in
the audiovisual sector which are covered by Community
rules on competition.

(30)

(1) OJ L 108, 24.4.2002, p. 33.
(2) OJ L 108, 24.4.2002, p. 51.
(3) OJ L 201, 31.7.2002, p. 37. Directive as amended by Directive

2006/24/EC (OJ L 105, 13.4.2006, p. 54).

(4) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by Regulation
(EC) No 629/2006 of the European Parliament and of the Council
(OJ L 114, 27.4.2006, p. 1).

There is already a considerable body of Community law
on service activities. This Directive builds on, and thus
complements, the Community acquis. Conflicts between
this Directive and other Community instruments have
been identified and are addressed by this Directive, includ-
ing by means of derogations. However, it is necessary to
provide a rule for any residual and exceptional cases where
there is a conflict between a provision of this Directive
and a provision of another Community instrument. The
existence of such a conflict should be determined in com-
pliance with the rules of the Treaty on the right of estab-
lishment and the free movement of services.

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(31)

(32)

(33)

This Directive is consistent with and does not affect Direc-
tive 2005/36/EC of the European Parliament and of the
Council of 7 September 2005 on the recognition of pro-
fessional qualifications (1). It deals with questions other
than those relating to professional qualifications,
for
example professional liability insurance, commercial com-
munications, multidisciplinary activities and administra-
tive simplification. With regard to temporary cross-border
service provision, a derogation from the provision on
the freedom to provide services in this Directive ensures
that Title II on the free provision of services of Directive
2005/36/EC is not affected. Therefore, none of the mea-
sures applicable under that Directive in the Member State
where the service is provided is affected by the provision
on the freedom to provide services.

the European Parliament and of

This Directive is consistent with Community legislation
on consumer protection, such as Directive 2005/29/EC
of
the Council of
11 May 2005 concerning unfair business-to-consumer
commercial practices in the internal market (the Unfair
Commercial Practices Directive) (2) and Regulation (EC)
No 2006/2004 of the European Parliament and of the
Council of 27 October 2004 on cooperation between
national authorities responsible for the enforcement of
consumer protection laws (the Regulation on consumer
protection cooperation) (3).

The services covered by this Directive concern a wide vari-
ety of ever-changing activities, including business services
such as management consultancy, certification and test-
ing; facilities management, including office maintenance;
advertising; recruitment services; and the services of com-
mercial agents. The services covered are also services pro-
vided both to businesses and to consumers, such as legal
or fiscal advice; real estate services such as estate agen-
cies; construction, including the services of architects; dis-
tributive trades; the organisation of trade fairs; car rental;
and travel agencies. Consumer services are also covered,
such as those in the field of tourism, including tour guides;
leisure services, sports centres and amusement parks; and,
to the extent that they are not excluded from the scope of
application of the Directive, household support services,
such as help for the elderly. Those activities may involve
services requiring the proximity of provider and recipient,
services requiring travel by the recipient or the provider
and services which may be provided at a distance, includ-
ing via the Internet.

(1) OJ L 255, 30.9.2005, p. 22.
(2) OJ L 149, 11.6.2005, p. 22.
(3) OJ L 364, 9.12.2004, p. 1. Regulation as amended by Directive

(34) According to the case-law of the Court of Justice, the
assessment of whether certain activities,
in particular
activities which are publicly funded or provided by public
entities, constitute a ‘service’ has to be carried out on a
case by case basis in the light of all their characteristics,
in particular the way they are provided, organised and
financed in the Member State concerned. The Court of
Justice has held that the essential characteristic of remu-
neration lies in the fact that it constitutes consideration
for the services in question and has recognised that the
characteristic of remuneration is absent in the case of
activities performed, for no consideration, by the State or
on behalf of the State in the context of its duties in the
social, cultural, educational and judicial fields, such as
courses provided under the national education system, or
the management of social security schemes which do not
engage in economic activity. The payment of a fee by
recipients, for example, a tuition or enrolment fee paid by
students in order to make a certain contribution to the
operating expenses of a system, does not in itself consti-
tute remuneration because the service is still essentially
financed by public funds. These activities are, therefore,
not covered by the definition of service in Article 50 of
the Treaty and do not therefore fall within the scope of
this Directive.

(35) Non-profit making amateur sporting activities are of con-
siderable social importance. They often pursue wholly
social or recreational objectives. Thus, they might not con-
stitute economic activities within the meaning of Commu-
nity law and should fall outside the scope of this Directive.

(36)

The concept of ‘provider’ should cover any natural per-
son who is a national of a Member State or any legal per-
son engaged in a service activity in a Member State, in
exercise either of the freedom of establishment or of the
free movement of services. The concept of provider should
thus not be limited solely to cross-border service provi-
sion within the framework of the free movement of ser-
vices but should also cover cases in which an operator
establishes itself in a Member State in order to develop its
service activities there. On the other hand, the concept of
a provider should not cover the case of branches in a
Member State of companies from third countries because,
under Article 48 of the Treaty, the freedom of establish-
ment and free movement of services may benefit only
companies constituted in accordance with the laws of
a Member State and having their registered office, central
administration or principal place of business within the
Community. The concept of ‘recipient’ should also cover
third country nationals who already benefit from rights
conferred upon them by Community acts such as Regula-
tion (EEC) No 1408/71, Council Directive 2003/109/EC
of 25 November 2003 concerning the status of third-
country nationals who are long-term residents (4), Coun-
cil Regulation (EC) No 859/2003 of 14 May 2003

2005/29/EC.

(4) OJ L 16, 23.1.2004, p. 44.

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extending the provisions of Regulation (EEC) No 1408/71
and Regulation (EEC) No 574/72 to nationals of third
countries who are not already covered by those provisions
solely on the ground of their nationality (1) and Directive
2004/38/ECof the European Parliament and of the Coun-
cil of 29 April 2004 on the right of citizens of the Union
and their family members to move and reside freely within
the territory of the Member States (2). Furthermore, Mem-
ber States may extend the concept of recipient to other
third country nationals that are present within their
territory.

be registered as a member of a profession or entered in a
register, roll or database, to be officially appointed to a
body or to obtain a card attesting to membership of a par-
ticular profession. Authorisation may be granted not only
by a formal decision but also by an implicit decision aris-
ing, for example, from the silence of the competent
authority or from the fact that the interested party must
await acknowledgement of receipt of a declaration in order
to commence the activity in question or for the latter to
become lawful.

(37)

The place at which a provider is established should be
determined in accordance with the case law of the Court
of Justice according to which the concept of establishment
involves the actual pursuit of an economic activity through
a fixed establishment for an indefinite period. This require-
ment may also be fulfilled where a company is consti-
tuted for a given period or where it rents the building
or installation through which it pursues its activity. It may
also be fulfilled where a Member State grants authorisa-
tions for a limited duration only in relation to particular
services. An establishment does not need to take the form
of a subsidiary, branch or agency, but may consist of an
office managed by a provider’s own staff or by a person
who is independent but authorised to act on a permanent
basis for the undertaking, as would be the case with an
agency. According to this definition, which requires the
actual pursuit of an economic activity at the place of estab-
lishment of the provider, a mere letter box does not con-
stitute an establishment. Where a provider has several
places of establishment, it is important to determine the
place of establishment from which the actual service con-
cerned is provided. Where it is difficult to determine from
which of several places of establishment a given service is
provided, the location of the provider’s centre of activities
relating to this particular service should be that place of
establishment.

(40)

The concept of ‘overriding reasons relating to the public
interest’ to which reference is made in certain provisions
of this Directive has been developed by the Court of Jus-
tice in its case law in relation to Articles 43 and 49 of the
Treaty and may continue to evolve. The notion as recog-
nised in the case law of the Court of Justice covers at least
the following grounds: public policy, public security and
public health, within the meaning of Articles 46 and 55
of the Treaty; the maintenance of order in society; social
policy objectives; the protection of the recipients of ser-
vices; consumer protection; the protection of workers,
including the social protection of workers; animal wel-
fare; the preservation of the financial balance of the social
security system; the prevention of fraud; the prevention
of unfair competition; the protection of the environment
and the urban environment, including town and country
planning; the protection of creditors; safeguarding the
sound administration of justice; road safety; the protec-
tion of intellectual property; cultural policy objectives,
including safeguarding the freedom of expression of vari-
ous elements, in particular social, cultural, religious and
philosophical values of society; the need to ensure a high
level of education, the maintenance of press diversity and
the promotion of the national language; the preservation
of national historical and artistic heritage; and veterinary
policy.

(38)

The concept of ‘legal persons’, according to the Treaty pro-
visions on establishment, leaves operators free to choose
the legal form which they deem suitable for carrying out
their activity. Accordingly,
‘legal persons’, within the
meaning of the Treaty, means all entities constituted
under, or governed by, the law of a Member State, irre-
spective of their legal form.

(41)

The concept of ‘public policy’, as interpreted by the Court
of Justice, covers the protection against a genuine and suf-
ficiently serious threat affecting one of the fundamental
interests of society and may include, in particular, issues
relating to human dignity,
the protection of minors
and vulnerable adults and animal welfare. Similarly, the
concept of public security includes issues of public safety.

(39)

The concept of ‘authorisation scheme’ should cover, inter
alia, the administrative procedures for granting authorisa-
tions, licences, approvals or concessions, and also the obli-
gation, in order to be eligible to exercise the activity, to

(1) OJ L 124, 20.5.2003, p. 1.
(2) OJ L 158, 30.4.2004, p. 77.

(42)

The rules relating to administrative procedures should not
aim at harmonising administrative procedures but at
removing overly burdensome authorisation schemes, pro-
cedures and formalities that hinder the freedom of estab-
lishment and the creation of new service undertakings
therefrom.

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(43) One of the fundamental difficulties faced, in particular by
SMEs, in accessing service activities and exercising them
is the complexity, length and legal uncertainty of admin-
istrative procedures. For this reason, following the example
of certain modernising and good administrative practice
initiatives undertaken at Community and national level, it
is necessary to establish principles of administrative sim-
plification, inter alia through the limitation of the obliga-
tion of prior authorisation to cases in which it is essential
and the introduction of the principle of tacit authorisa-
tion by the competent authorities after a certain period of
time elapsed. Such modernising action, while maintaining
the requirements on transparency and the updating of
information relating to operators, is intended to eliminate
the delays, costs and dissuasive effects which arise, for
example, from unnecessary or excessively complex and
burdensome procedures, the duplication of procedures,
the ‘red tape’ involved in submitting documents, the arbi-
trary use of powers by the competent authorities, indeter-
minate or excessively long periods before a response is
given, the limited duration of validity of authorisations
granted and disproportionate fees and penalties. Such
practices have particularly significant dissuasive effects on
providers wishing to develop their activities in other Mem-
ber States and require coordinated modernisation within
an enlarged internal market of twenty-five Member States.

(44) Member States should introduce, where appropriate, forms
harmonised at Community level, as established by the
Commission, which will serve as an equivalent to certifi-
cates, attestations or any other document in relation to
establishment.

(45)

(46)

In order to examine the need for simplifying procedures
and formalities, Member States should be able, in particu-
lar, to take into account their necessity, number, possible
duplication, cost, clarity and accessibility, as well as the
delay and practical difficulties to which they could give
rise for the provider concerned.

In order to facilitate access to service activities and the
exercise thereof in the internal market, it is necessary to
establish an objective, common to all Member States, of
administrative simplification and to lay down provisions
concerning, inter alia, the right to information, procedures
by electronic means and the establishment of a framework
for authorisation schemes. Other measures adopted at
national level to meet that objective could involve reduc-
tion of the number of procedures and formalities appli-
cable to service activities and the restriction of such
procedures and formalities to those which are essential in
order to achieve a general interest objective and which do
not duplicate each other in terms of content or purpose.

(47) With the aim of administrative simplification, general for-
mal requirements, such as presentation of original docu-
ments, certified copies or a certified translation, should

not be imposed, except where objectively justified by an
overriding reason relating to the public interest, such as
the protection of workers, public health, the protection of
the environment or the protection of consumers. It is also
necessary to ensure that an authorisation as a general rule
permits access to, or exercise of, a service activity through-
out the national territory, unless a new authorisation for
each establishment, for example for each new hypermar-
ket, or an authorisation that is restricted to a specific part
of the national territory is objectively justified by an over-
riding reason relating to the public interest.

(48)

In order to further simplify administrative procedures, it
is appropriate to ensure that each provider has a single
point through which he can complete all procedures and
formalities (hereinafter referred to as ‘points of single con-
tact’). The number of points of single contact per Member
State may vary according to regional or local competen-
cies or according to the activities concerned. The creation
of points of single contact should not interfere with the
allocation of
functions among competent authorities
within each national system. Where several authorities at
regional or local level are competent, one of them may
assume the role of point of single contact and coordina-
tor. Points of single contact may be set up not only by
administrative authorities but also by chambers of com-
merce or crafts, or by the professional organisations or
private bodies to which a Member State decides to entrust
that function. Points of single contact have an important
role to play in providing assistance to providers either as
the authority directly competent to issue the documents
necessary to access a service activity or as an intermedi-
ary between the provider and the authorities which are
directly competent.

(49)

The fee which may be charged by points of single contact
should be proportionate to the cost of the procedures and
formalities with which they deal. This should not prevent
Member States from entrusting the points of single con-
tact with the collection of other administrative fees, such
as the fee of supervisory bodies.

(50)

It is necessary for providers and recipients of services to
have easy access to certain types of information It should
be for each Member State to determine, within the frame-
work of this Directive, the way in which providers and
recipients are provided with information. In particular, the
obligation on Member States to ensure that relevant infor-
mation is easily accessible to providers and recipients and
that it can be accessed by the public without obstacle
could be fulfilled by making this information accessible
through a website. Any information given should be pro-
vided in a clear and unambiguous manner.

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(51)

(52)

The information provided to providers and recipients of
services should include, in particular, information on pro-
cedures and formalities, contact details of the competent
authorities, conditions for access to public registers and
data bases and information concerning available remedies
and the contact details of associations and organisations
from which providers or recipients can obtain practical
assistance. The obligation on competent authorities to
assist providers and recipients should not include the pro-
vision of legal advice in individual cases. Nevertheless, gen-
eral information on the way in which requirements are
usually interpreted or applied should be given. Issues such
as liability for providing incorrect or misleading informa-
tion should be determined by Member States.

The setting up, in the reasonably near future, of electronic
means of completing procedures and formalities will be
vital for administrative simplification in the field of ser-
vice activities, for the benefit of providers, recipients
and competent authorities. In order to meet that obliga-
tion as to results, national laws and other rules applicable
to services may need to be adapted. This obligation should
not prevent Member States from providing other means
of completing such procedures and formalities, in addi-
tion to electronic means. The fact that it must be possible
to complete those procedures and formalities at a distance
means, in particular, that Member States must ensure that
they may be completed across borders. The obligation as
to results does not cover procedures or formalities which
by their very nature are impossible to complete at a dis-
tance. Furthermore, this does not interfere with Member
States’ legislation on the use of languages.

(53)

The granting of licences for certain service activities may
require an interview with the applicant by the competent
authority in order to assess the applicant’s personal integ-
rity and suitability for carrying out the service in ques-
tion. In such cases, the completion of formalities by
electronic means may not be appropriate.

the absence of a prior inspection. However, the provision
to that effect made by this Directive cannot be relied upon
in order to justify authorisation schemes which are pro-
hibited by other Community instruments
such as
Directive 1999/93/EC of the European Parliament and the
Council of 13 December 1999 on a Community frame-
work for electronic signatures (1), or Directive 2000/31/EC
of
the Council of
8 June 2000 on certain legal aspects of information soci-
in the
ety services,
internal market (Directive on electronic commerce) (2). The
results of the process of mutual evaluation will make it
possible to determine, at Community level, the types of
activity for which authorisation schemes should be
eliminated.

in particular electronic commerce,

the European Parliament and of

(55)

This Directive should be without prejudice to the possibil-
ity for Member States to withdraw authorisations after
they have been issued, if the conditions for the granting
of the authorisation are no longer fulfilled.

(56) According to the case law of the Court of Justice, public
health, consumer protection, animal health and the pro-
tection of the urban environment constitute overriding
reasons relating to the public interest. Such overriding rea-
sons may justify the application of authorisation schemes
and other restrictions. However, no such authorisation
scheme or restriction should discriminate on grounds of
nationality. Further, the principles of necessity and pro-
portionality should always be respected.

(57)

The provisions of this Directive relating to authorisation
schemes should concern cases where the access to or exer-
cise of a service activity by operators requires a decision
by a competent authority. This concerns neither decisions
by competent authorities to set up a public or private
entity for the provision of a particular service nor the con-
clusion of contracts by competent authorities for the pro-
vision of a particular service which is governed by rules
on public procurement, since this Directive does not deal
with rules on public procurement.

(54)

The possibility of gaining access to a service activity should
be made subject
to authorisation by the competent
authorities only if that decision satisfies the criteria of non-
discrimination, necessity and proportionality. That means,
in particular, that authorisation schemes should be per-
missible only where an a posteriori inspection would not
be effective because of the impossibility of ascertaining the
defects of the services concerned a posteriori, due account
being taken of the risks and dangers which could arise in

(58)

In order to facilitate access to and exercise of service activi-
ties, it is important to evaluate and report on authorisa-
tion schemes and their
justification. This reporting
obligation concerns only the existence of authorisation
schemes and not the criteria and conditions for the grant-
ing of an authorisation.

(1) OJ L 13, 19.1.2000, p. 12.
(2) OJ L 178, 17.7.2000, p. 1.

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(59)

(60)

(61)

The authorisation should as a general rule enable the pro-
vider to have access to the service activity, or to exercise
that activity, throughout the national territory, unless a
territorial limit is justified by an overriding reason relat-
ing to the public interest. For example, environmental pro-
tection may justify the requirement to obtain an individual
authorisation for each installation on the national terri-
tory. This provision should not affect regional or local
competences for the granting of authorisations within the
Member States.

This Directive, and in particular the provisions concern-
ing authorisation schemes and the territorial scope of an
authorisation, should not interfere with the division of
regional or local competences within the Member States,
including regional and local self-government and the use
of official languages.

The provision relating to the non-duplication of condi-
tions for the granting of an authorisation should not pre-
vent Member States from applying their own conditions
as specified in the authorisation scheme. It should only
require that competent authorities, when considering
whether these conditions are met by the applicant, take
into account the equivalent conditions which have already
been satisfied by the applicant in another Member State.
This provision should not require the application of the
conditions for the granting of an authorisation provided
for in the authorisation scheme of another Member State.

(62) Where the number of authorisations available for an activ-
ity is limited because of scarcity of natural resources or
technical capacity, a procedure for selection from among
several potential candidates should be adopted with the
aim of developing through open competition the quality
and conditions for supply of services available to users.
Such a procedure should provide guarantees of transpar-
ency and impartiality and the authorisation thus granted
should not have an excessive duration, be subject to auto-
matic renewal or confer any advantage on the provider
whose authorisation has just expired. In particular, the
duration of the authorisation granted should be fixed in
such a way that it does not restrict or limit free competi-
tion beyond what is necessary in order to enable the pro-
vider to recoup the cost of investment and to make a fair
return on the capital invested. This provision should not
prevent Member States from limiting the number of
authorisations for reasons other than scarcity of natural
resources or technical capacity. These authorisationss-
hould remain in any case subject to the other provisions
of this Directive relating to authorisation schemes.

(63)

In the absence of different arrangements, failing a response
within a time period, an authorisation should be deemed
to have been granted. However, different arrangements
may be put in place in respect of certain activities, where

(64)

(65)

objectively justified by overriding reasons relating to the
public interest, including a legitimate interest of third par-
ties. Such different arrangements could include national
rules according to which, in the absence of a response of
the competent authority, the application is deemed to have
been rejected, this rejection being open to challenge before
the courts.

In order to establish a genuine internal market for ser-
vices, it is necessary to abolish any restrictions on the free-
dom of establishment and the free movement of services
which are still enshrined in the laws of certain Member
States and which are incompatible with Articles 43 and 49
of the Treaty respectively. The restrictions to be prohib-
ited particularly affect the internal market for services and
should be systematically dismantled as soon as possible.

Freedom of establishment is predicated, in particular, upon
the principle of equal treatment, which entails the prohi-
bition not only of any discrimination on grounds of
nationality but also of any indirect discrimination based
on other grounds but capable of producing the same
result. Thus, access to a service activity or the exercise
thereof in a Member State, either as a principal or second-
ary activity, should not be made subject to criteria such
as place of establishment, residence, domicile or principal
provision of the service activity. However, these criteria
should not include requirements according to which a
provider or one of his employees or a representative must
be present during the exercise of the activity when this is
justified by an overriding reason relating to the public
interest. Furthermore, a Member State should not restrict
the legal capacity or the right of companies, incorporated
in accordance with the law of another Member State on
whose territory they have their primary establishment, to
bring legal proceedings. Moreover, a Member State should
not be able to confer any advantages on providers having
a particular national or local socio-economic link; nor
should it be able to restrict, on grounds of place of estab-
lishment, the provider’s freedom to acquire, exploit or dis-
pose of rights and goods or to access different forms of
credit or accommodation in so far as those choices are
useful for access to his activity or for the effective exer-
cise thereof.

(66) Access to or the exercise of a service activity in the terri-
tory of a Member State should not be subject to an eco-
nomic test. The prohibition of economic tests as a
prerequisite for the grant of authorisation should cover
economic tests as such, but not requirements which are
objectively justified by overriding reasons relating to the
public interest, such as the protection of the urban envi-
ronment, social policy or public health. The prohibition
should not affect the exercise of the powers of the authori-
ties responsible for applying competition law.

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L 376/45

(67) With respect to financial guarantees or insurance, the pro-
hibition of requirements should concern only the obliga-
tion that the requested financial guarantees or insurance
must be obtained from a financial institution established
in the Member State concerned.

in order to exercise certain services in the social field, the
Court of Justice has already recognised that it may be jus-
tified to subject the provider to a requirement to be non-
profit making.

(68) With respect to pre-registration, the prohibition of require-
ments should concern only the obligation that the pro-
vider, prior to the establishment, be pre-registered for a
given period in a register held in the Member State
concerned.

(69)

(70)

(71)

In order to coordinate the modernisation of national rules
and regulations in a manner consistent with the require-
ments of the internal market, it is necessary to evaluate
certain non-discriminatory national requirements which,
by their very nature, could severely restrict or even pre-
vent access to an activity or the exercise thereof under the
freedom of establishment. This evaluation process should
be limited to the compatibility of these requirements with
the criteria already established by the Court of Justice on
the freedom of establishment. It should not concern the
application of Community competition law. Where such
requirements are discriminatory or not objectively justi-
fied by an overriding reason relating to the public inter-
est, or where they are disproportionate, they must be
abolished or amended. The outcome of this assessment
will be different according to the nature of the activity and
the public interest concerned. In particular, such require-
ments could be fully justified when they pursue social
policy objectives.

For the purposes of this Directive, and without prejudice
to Article 16 of the Treaty, services may be considered to
be services of general economic interest only if they are
provided in application of a special task in the public inter-
est entrusted to the provider by the Member State con-
cerned. This assignment should be made by way of one
or more acts, the form of which is determined by the
Member State concerned, and should specify the precise
nature of the special task.

The mutual evaluation process provided for in this Direc-
tive should not affect the freedom of Member States to set
in their legislation a high level of protection of the public
interest, in particular in relation to social policy objectives.
Furthermore, it is necessary that the mutual evaluation
process take fully into account the specificity of services
of general economic interest and of the particular tasks
assigned to them. This may justify certain restrictions on
the freedom of establishment, in particular where such
restrictions pursue the protection of public health and
social policy objectives and where they satisfy the condi-
tions set out in Article 15(3)(a), (b) and (c). For example,
with regard to the obligation to take a specific legal form

(72)

(73)

(74)

Services of a general economic interest are entrusted with
important tasks relating to social and territorial cohesion.
The performance of these tasks should not be obstructed
as a result of the evaluation process provided for in this
Directive. Requirements which are necessary for the fulfil-
ment of such tasks should not be affected by this process
while, at the same time, unjustified restrictions on the free-
dom of establishment should be addressed.

The requirements to be examined include national rules
which, on grounds other than those relating to profes-
sional qualifications, reserve access to certain activities to
particular providers. These requirements also include obli-
gations on a provider to take a specific legal form, in par-
ticular to be a legal person, to be a company with
individual ownership, to be a non-profit making organi-
sation or a company owned exclusively by natural per-
sons, and requirements which relate to the shareholding
of a company, in particular obligations to hold a mini-
mum amount of capital for certain service activities or to
have a specific qualification in order to hold share capital
in or to manage certain companies. The evaluation of the
compatibility of fixed minimum and/or maximum tariffs
with the freedom of establishment concerns only tariffs
imposed by competent authorities specifically for the pro-
vision of certain services and not, for example, general
rules on price determination, such as for the renting of
houses.

The mutual evaluation process means that during the
transposition period Member States will first have to con-
duct a screening of their legislation in order to ascertain
whether any of the above mentioned requirements exists
in their legal systems. At the latest by the end of the trans-
position period, Member States should draw up a report
on the results of this screening. Each report will be sub-
mitted to all other Member States and interested parties.
Member States will then have six months in which to sub-
mit their observations on these reports. At the latest by
one year after the date of transposition of this Directive,
the Commission should draw up a summary report,
accompanied where appropriate by proposals for further
initiatives. If necessary the Commission, in cooperation
with the Member States, could assist them to design a
common method.

(75)

The fact that this Directive specifies a number of require-
ments to be abolished or evaluated by the Member States
during the transposition period is without prejudice to any
infringement proceedings against a Member State for fail-
ure to fulfil its obligations under Articles 43 or 49 of the
Treaty.

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(76)

This Directive does not concern the application of
Articles 28 to 30 of the Treaty relating to the free move-
ment of goods. The restrictions prohibited pursuant to the
provision on the freedom to provide services cover the
requirements applicable to access to service activities or
to the exercise thereof and not those applicable to goods
as such.

(77) Where an operator travels to another Member State to
exercise a service activity there, a distinction should be
made between situations covered by the freedom of estab-
lishment and those covered, due to the temporary nature
of the activities concerned, by the free movement of ser-
vices. As regards the distinction between the freedom of
establishment and the free movement of services, accord-
ing to the case law of the Court of Justice the key element
is whether or not the operator is established in the Mem-
ber State where it provides the service concerned. If the
operator is established in the Member State where it pro-
vides its services, it should come under the scope of appli-
cation of the freedom of establishment. If, by contrast, the
operator is not established in the Member State where the
service is provided, its activities should be covered by the
free movement of services. The Court of Justice has con-
sistently held that the temporary nature of the activities
in question should be determined in the light not only of
the duration of the provision of the service, but also of its
regularity, periodical nature or continuity. The fact that
the activity is temporary should not mean that the pro-
vider may not equip itself with some forms of infrastruc-
ture in the Member State where the service is provided,
such as an office, chambers or consulting rooms, in so far
as such infrastructure is necessary for the purposes of pro-
viding the service in question.

(78)

In order to secure effective implementation of the free
movement of services and to ensure that recipients and
providers can benefit from and supply services through-
out the Community regardless of borders, it is necessary
to clarify the extent to which requirements of the Mem-
ber State where the service is provided can be imposed. It
is indispensable to provide that the provision on the free-
dom to provide services does not prevent the Member
State where the service is provided from imposing, in
compliance with the principles set out in Article 16(1)(a)
to (c), its specific requirements for reasons of public policy
or public security or for the protection of public health
or the environment.

(80)

(81)

(82)

(83)

It is necessary to ensure that providers are able to take
equipment which is integral to the provision of their ser-
vice with them when they travel to provide services in
another Member State. In particular, it is important to
avoid cases in which the service could not be provided
without the equipment or situations in which providers
incur additional costs, for example, by hiring or purchas-
ing different equipment to that which they habitually use
or by needing to deviate significantly from the way they
habitually carry out their activity.

The concept of equipment does not refer to physical
objects which are either supplied by the provider to the
client or become part of a physical object as a result of
the service activity, such as building materials or spare
parts, or which are consumed or left in situ in the course
of the service provision, such as combustible fuels, explo-
sives, fireworks, pesticides, poisons or medicines.

The provisions of this Directive should not preclude the
application by a Member State of rules on employment
conditions. Rules laid down by law, regulation or admin-
istrative provisions should, in accordance with the Treaty,
be justified for reasons relating to the protection of work-
ers and be non-discriminatory, necessary, and proportion-
ate, as interpreted by the Court of Justice, and comply with
other relevant Community law.

It is necessary to ensure that the provision on the free-
dom to provide services may be departed from only in the
areas covered by derogations. Those derogations are nec-
essary in order to take into account the level of integra-
tion of
the internal market or certain Community
instruments relating to services pursuant to which a pro-
vider is subject to the application of a law other than that
of the Member State of establishment. Moreover, by way
of exception, measures against a given provider should
also be adopted in certain individual cases and under cer-
tain strict procedural and substantive conditions. In addi-
tion, any restriction of the free movement of services
should be permitted, by way of exception, only if it is con-
sistent with fundamental rights which form an integral
part of the general principles of law enshrined in the Com-
munity legal order.

(79)

The Court of Justice has consistently held that Member
States retain the right to take measures in order to pre-
vent providers from abusively taking advantage of the
internal market principles. Abuse by a provider should be
established on a case by case basis.

(84)

The derogation from the provision on the freedom to pro-
vide services concerning postal services should cover both
activities reserved to the universal service provider and
other postal services.

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L 376/47

(85)

The derogation from the provision on the freedom to pro-
vide services relating to the judicial recovery of debts and
the reference to a possible future harmonisation instru-
ment should concern only the access to and the exercise
of activities which consist, notably, in bringing actions
before a court relating to the recovery of debts.

person in return for which he receives remuneration. Any
activity which a person performs outside a relationship of
subordination must be classified as an activity pursued in
a self-employed capacity for the purposes of Articles 43
and 49 of the Treaty.

(86)

This Directive should not affect terms and conditions of
employment which, pursuant to Directive 96/71/ECof the
European Parliament and of the Council of 16 Decem-
ber 1996 concerning the posting of workers in the frame-
work of the provision of services (1), apply to workers
posted to provide a service in the territory of another
Member State. In such cases, Directive 96/71/EC stipu-
lates that providers have to comply with terms and con-
ditions of employment
in a listed number of areas
applicable in the Member State where the service is pro-
vided. These are: maximum work periods and minimum
rest periods, minimum paid annual holidays, minimum
rates of pay, including overtime rates, the conditions of
hiring out of workers, in particular the protection of work-
ers hired out by temporary employment undertakings,
health, safety and hygiene at work, protective measures
with regard to the terms and conditions of employment
of pregnant women or women who have recently given
birth and of children and young people and equality of
treatment between men and women and other provisions
on non-discrimination. This not only concerns terms
and conditions of employment which are laid down by
law but also those laid down in collective agreements or
arbitration awards that are officially declared or de facto
universally applicable within the meaning of Directive
96/71/EC. Moreover, this Directive should not prevent
Member States from applying terms and conditions of
employment on matters other
than those listed in
Article 3(1) of Directive 96/71/EC on the grounds of pub-
lic policy.

(87) Neither should this Directive affect terms and conditions
of employment in cases where the worker employed for
the provision of a cross-border service is recruited in the
Member State where the service is provided. Furthermore,
this Directive should not affect the right for the Member
State where the service is provided to determine the exist-
ence of an employment relationship and the distinction
between self-employed persons and employed persons,
including ‘false self-employed persons’. In that respect the
essential characteristic of an employment relationship
within the meaning of Article 39 of the Treaty should be
the fact that for a certain period of time a person pro-
vides services for and under the direction of another

(1) OJ L 18, 21.1.1997, p. 1.

(88)

(89)

(90)

(91)

(92)

The provision on the freedom to provide services should
not apply in cases where, in conformity with Community
law, an activity is reserved in a Member State to a particu-
lar profession, for example requirements which reserve the
provision of legal advice to lawyers.

The derogation from the provision on the freedom to pro-
vide services concerning matters relating to the registra-
tion of vehicles leased in a Member State other than that
in which they are used follows from the case law of the
Court of Justice, which has recognised that a Member State
may impose such an obligation, in accordance with pro-
portionate conditions, in the case of vehicles used on its
territory. That exclusion does not cover occasional or tem-
porary rental.

Contractual relations between the provider and the client
as well as between an employer and employee should not
be subject to this Directive. The applicable law regarding
the contractual or non contractual obligations of the pro-
vider should be determined by the rules of private inter-
national law.

It is necessary to afford Member States the possibility,
exceptionally and on a case-by-case basis, of taking mea-
sures which derogate from the provision on the freedom
to provide services in respect of a provider established in
another Member State on grounds of the safety of ser-
vices. However, it should be possible to take such mea-
sures only in the absence of harmonisation at Community
level.

Restrictions on the free movement of services, contrary to
this Directive, may arise not only from measures applied
to providers, but also from the many barriers to the use
of services by recipients, especially consumers. This Direc-
tive mentions, by way of illustration, certain types of
restriction applied to a recipient wishing to use a service
performed by a provider established in another Member
State. This also includes cases where recipients of a ser-
vice are under an obligation to obtain authorisation from
or to make a declaration to their competent authorities in
order to receive a service from a provider established in
another Member State. This does not concern general
authorisation schemes which also apply to the use of a
service supplied by a provider established in the same
Member State.

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Official Journal of the European Union

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(93)

(94)

(95)

The concept of financial assistance provided for the use
of a particular service should not apply to systems of aids
granted by Member States, in particular in the social field
or in the cultural sector, which are covered by Commu-
nity rules on competition, nor to general financial assis-
tance not linked to the use of a particular service, for
example grants or loans to students.

In accordance with the Treaty rules on the free movement
of services, discrimination on grounds of the nationality
of the recipient or national or local residence is prohib-
ited. Such discrimination could take the form of an obli-
gation, imposed only on nationals of another Member
State, to supply original documents, certified copies, a cer-
tificate of nationality or official translations of documents
in order to benefit from a service or from more advanta-
geous terms or prices. However, the prohibition of dis-
criminatory requirements
the
reservation of advantages, especially as regards tariffs,
to certain recipients, if such reservation is based on legiti-
mate and objective criteria.

should not preclude

It does not

The principle of non-discrimination within the internal
market means that access by a recipient, and especially by
a consumer, to a service on offer to the public may not
be denied or restricted by application of a criterion,
included in general conditions made available to the pub-
lic, relating to the recipient’s nationality or place of resi-
it will be unlawful
follow that
dence.
discrimination if provision were made in such general con-
ditions for different tariffs and conditions to apply to the
provision of a service, where those tariffs, prices and con-
ditions are justified for objective reasons that can vary
from country to country, such as additional costs incurred
because of the distance involved or the technical charac-
teristics of the provision of the service, or different mar-
ket conditions, such as higher or lower demand influenced
by seasonality, different vacation periods in the Member
States and pricing by different competitors, or extra risks
linked to rules differing from those of the Member State
of establishment. Neither does it follow that the non-
provision of a service to a consumer for lack of the
required intellectual property rights in a particular terri-
tory would constitute unlawful discrimination.

rather documents giving a detailed
advertising, but
description of the services proposed, including documents
on a website.

(97)

It is necessary to provide in this Directive for certain rules
on high quality of services, ensuring in particular informa-
tion and transparency requirements. These rules should
apply both in cases of cross border provision of services
between Member States and in cases of services provided
in a Member State by a provider established there, with-
out imposing unnecessary burdens on SMEs. They should
not in any way prevent Member States from applying, in
conformity with this Directive and other Community law,
additional or different quality requirements.

(98) Any operator providing services involving a direct and
particular health, safety or financial risk for the recipient
or a third person should,
in principle, be covered by
appropriate professional liability insurance, or by another
form of guarantee which is equivalent or comparable,
which means, in particular, that such an operator should
as a general rule have adequate insurance cover for ser-
vices provided in one or more Member States other than
the Member State of establishment.

(99)

The insurance or guarantee should be appropriate to the
nature and extent of the risk. Therefore it should be nec-
essary for the provider to have cross-border cover only if
that provider actually provides services in other Member
States. Member States should not lay down more detailed
rules concerning the insurance cover and fix for example
minimum thresholds for the insured sum or limits on
exclusions from the insurance cover. Providers and insur-
ance companies should maintain the necessary flexibility
to negotiate insurance policies precisely targeted to the
nature and extent of the risk. Furthermore, it is not neces-
sary for an obligation of appropriate insurance to be laid
down by law. It should be sufficient if an insurance obli-
gation is part of the ethical rules laid down by profes-
sional bodies. Finally, there should be no obligation for
insurance companies to provide insurance cover.

(96)

It is appropriate to provide that, as one of the means by
which the provider may make the information which he
is obliged to supply easily accessible to the recipient, he
supply his electronic address, including that of his web-
site. Furthermore, the obligation to make available certain
information in the provider’s information documents
which present his services in detail should not cover com-
mercial communications of a general nature, such as

(100)

It is necessary to put an end to total prohibitions on com-
mercial communications by the regulated professions, not
by removing bans on the content of a commercial com-
munication but rather by removing those bans which, in
a general way and for a given profession, forbid one or
more forms of commercial communication, such as a ban
on all advertising in one or more given media. As regards
the content and methods of commercial communication,
it is necessary to encourage professionals to draw up, in
accordance with Community law, codes of conduct at
Community level.

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(101)

It is necessary and in the interest of recipients, in particu-
lar consumers, to ensure that it is possible for providers
to offer multidisciplinary services and that restrictions in
this regard be limited to what is necessary to ensure the
impartiality, independence and integrity of the regulated
professions. This does not affect restrictions or prohibi-
tions on carrying out particular activities which aim at
ensuring independence in cases in which a Member State
entrusts a provider with a particular task, notably in the
area of urban development, nor should it affect the appli-
cation of competition rules.

(102)

In order to increase transparency and promote assess-
ments based on comparable criteria with regard to the
quality of the services offered and supplied to recipients,
it is important that information on the meaning of qual-
ity labels and other distinctive marks relating to these ser-
vices be easily accessible. That obligation of transparency
is particularly important in areas such as tourism, espe-
cially the hotel business, in which the use of a system of
classification is widespread. Moreover, it is appropriate to
examine the extent to which European standardisation
could facilitate compatibility and quality of services.
European standards are drawn up by the European
standards-setting bodies, the European Committee for
Standardisation (CEN), the European Committee for Elec-
trotechnical Standardisation (CENELEC) and the European
Telecommunications Standards Institute (ETSI). Where
appropriate, the Commission may, in accordance with the
procedures laid down in Directive 98/34/EC of the Euro-
pean Parliament and of the Council of 22 June 1998 lay-
ing down a procedure for the provision of information in
the field of technical standards and regulations (1) and of
rules on Information Society services, issue a mandate for
the drawing up of specific European standards.

(103)

In order to solve potential problems with compliance with
judicial decisions, it is appropriate to provide that Mem-
ber States recognise equivalent guarantees lodged with
institutions or bodies such as banks, insurance providers
or other financial services providers established in another
Member State.

(104) The development of a network of Member States’ con-
sumer protection authorities, which is the subject of Regu-
lation (EC) No 2006/2004, complements the cooperation
provided for in this Directive. The application of con-
sumer protection legislation in cross-border cases, in par-
ticular with regard to new marketing and selling practices,
as well as the need to remove certain specific obstacles
to cooperation in this field, necessitates a greater degree
of cooperation between Member States. In particular, it is

(1) OJ L 204, 21.7.1998, p. 37. Directive as last amended by the 2003

Act of Accession.

necessary in this area to ensure that Member States require
the cessation of illegal practices by operators in their ter-
ritory who target consumers in another Member State.

(105) Administrative cooperation is essential to make the inter-
nal market in services function properly. Lack of coopera-
tion between Member States results in proliferation of
rules applicable to providers or duplication of controls for
cross-border activities, and can also be used by rogue trad-
ers to avoid supervision or to circumvent applicable
national rules on services. It is, therefore, essential to pro-
vide for clear,
legally binding obligations for Member
States to cooperate effectively.

(106) For the purposes of the Chapter on administrative coop-
eration, ‘supervision’ should cover activities such as moni-
toring and fact finding, problem solving, enforcement
and imposition of sanctions and subsequent follow-up
activities.

(107)

In normal circumstances mutual assistance should take
place directly between competent authorities. The liaison
points designated by Member States should be required to
facilitate this process only in the event of difficulties being
encountered, for instance if assistance is required to iden-
tify the relevant competent authority.

(108) Certain obligations of mutual assistance should apply to
all matters covered by this Directive, including those relat-
ing to cases where a provider establishes in another Mem-
ber State. Other obligations of mutual assistance should
apply only in cases of cross-border provision of services,
where the provision on the freedom to provide services
applies. A further set of obligations should apply in all
cases of cross-border provision of services, including areas
not covered by the provision on the freedom to provide
services. Cross-border provision of services should include
cases where services are provided at a distance and where
the recipient travels to the Member State of establishment
of the provider in order to receive services.

(109)

In cases where a provider moves temporarily to a Mem-
ber State other than the Member State of establishment, it
is necessary to provide for mutual assistance between
those two Member States so that the former can carry out
checks, inspections and enquiries at the request of the
Member State of establishment or carry out such checks
on its own initiative if these are merely factual checks.

(110)

It should not be possible for Member States to circum-
vent the rules laid down in this Directive, including the
provision on the freedom to provide services, by conduct-
ing checks, inspections or investigations which are dis-
criminatory or disproportionate.

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(111) The provisions of this Directive concerning exchange of
information regarding the good repute of providers should
not pre-empt initiatives in the area of police and judicial
cooperation in criminal matters,
in particular on the
exchange of
information between law enforcement
authorities of the Member States and on criminal records.

in accordance with the principle of subsidiarity as set out
in Article 5 of the Treaty. In accordance with the prin-
ciple of proportionality, as set out in that Article, this
Directive does not go beyond what is necessary in order
to achieve those objectives.

(112) Cooperation between Member States requires a well-
functioning electronic information system in order to
allow competent authorities easily to identify their rel-
evant interlocutors in other Member States and to com-
municate in an efficient way.

(113)

It is necessary to provide that the Member States, in coop-
eration with the Commission, are to encourage interested
parties to draw up codes of conduct at Community level,
aimed, in particular, at promoting the quality of services
and taking into account the specific nature of each profes-
sion. Those codes of conduct should comply with Com-
munity law, especially competition law. They should be
compatible with legally binding rules governing profes-
sional ethics and conduct in the Member States.

(114) Member States should encourage the setting up of codes
of conduct, in particular, by professional bodies, organi-
sations and associations at Community level. These codes
of conduct should include, as appropriate to the specific
nature of each profession, rules for commercial commu-
nications relating to the regulated professions and rules of
professional ethics and conduct of the regulated profes-
sions which aim, in particular, at ensuring independence,
impartiality and professional secrecy. In addition, the con-
ditions to which the activities of estate agents are subject
should be included in such codes of conduct. Member
States should take accompanying measures to encourage
professional bodies, organisations
and associations
to implement at national
level the codes of conduct
adopted at Community level.

(115) Codes of conduct at Community level are intended to set
minimum standards of conduct and are complementary
to Member States’ legal requirements. They do not pre-
clude Member States, in accordance with Community law,
from taking more stringent measures in law or national
professional bodies from providing for greater protection
in their national codes of conduct.

(116) Since the objectives of this Directive, namely the elimina-
tion of barriers to the freedom of establishment for pro-
viders in the Member States and to the free provision of
services between Member States, cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale of the action, be better achieved at
Community level, the Community may adopt measures,

(117) The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down the
procedures for the exercise of implementing powers con-
ferred on the Commission (1).

(118)

In accordance with paragraph 34 of the Interinstitutional
Agreement on better law-making (2), Member States are
encouraged to draw up, for themselves and in the interest
of the Community, their own tables, which will, as far as
possible, illustrate the correlation between the Directive
and the transposition measures, and to make them public,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter

1.
This Directive establishes general provisions facilitating the
exercise of the freedom of establishment for service providers
and the free movement of services, while maintaining a high
quality of services.

2.
This Directive does not deal with the liberalisation of ser-
vices of general economic interest, reserved to public or private
entities, nor with the privatisation of public entities providing
services.

This Directive does not deal with the abolition of monopo-
3.
lies providing services nor with aids granted by Member States
which are covered by Community rules on competition.

This Directive does not affect the freedom of Member States to
define, in conformity with Community law, what they consider
to be services of general economic interest, how those services
should be organised and financed,
in compliance with the
State aid rules, and what specific obligations they should be
subject to.

4.
This Directive does not affect measures taken at Commu-
nity level or at national level, in conformity with Community
law, to protect or promote cultural or linguistic diversity or media
pluralism.

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

(2) OJ C 321, 31.12.2003, p. 1.

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This Directive does not affect Member States’ rules of crimi-
5.
nal law. However, Member States may not restrict the freedom
to provide services by applying criminal law provisions which
specifically regulate or affect access to or exercise of a service
activity in circumvention of the rules laid down in this Directive.

6.
This Directive does not affect labour law, that is any legal
or contractual provision concerning employment conditions,
working conditions, including health and safety at work and the
relationship between employers and workers, which Member
States apply in accordance with national law which respects
Community law. Equally, this Directive does not affect the social
security legislation of the Member States.

7.
This Directive does not affect the exercise of fundamental
rights as recognised in the Member States and by Community
law. Nor does it affect the right to negotiate, conclude and
enforce collective agreements and to take industrial action in
accordance with national law and practices which respect Com-
munity law.

Article 2

Scope

(g) audiovisual services,

including cinematographic services,
whatever their mode of production, distribution and trans-
mission, and radio broadcasting;

(h) gambling activities which involve wagering a stake with
pecuniary value in games of chance, including lotteries, gam-
bling in casinos and betting transactions;

(i)

(j)

activities which are connected with the exercise of official
authority as set out in Article 45 of the Treaty;

social services relating to social housing, childcare and sup-
port of families and persons permanently or temporarily in
need which are provided by the State, by providers man-
dated by the State or by charities recognised as such by the
State;

(k) private security services;

(l)

services provided by notaries and bailiffs, who are appointed
by an official act of government.

3.

This Directive shall not apply to the field of taxation.

This Directive shall apply to services supplied by providers

1.
established in a Member State.

Article 3

Relationship with other provisions of Community law

2.

This Directive shall not apply to the following activities:

(a) non-economic services of general interest;

1.
If the provisions of this Directive conflict with a provision
of another Community act governing specific aspects of access
to or exercise of a service activity in specific sectors or for spe-
cific professions, the provision of the other Community act shall
prevail and shall apply to those specific sectors or professions.
These include:

(b)

(c)

financial services, such as banking, credit, insurance and
re-insurance, occupational or personal pensions, securities,
investment funds, payment and investment advice, includ-
ing the services listed in Annex I to Directive 2006/48/EC;

(a) Directive 96/71/EC;

(b) Regulation (EEC) No 1408/71;

electronic communications services and networks, and
associated facilities and services, with respect to matters cov-
ered by Directives 2002/19/EC, 2002/20/EC, 2002/21/EC,
2002/22/EC and 2002/58/EC;

(c) Council Directive 89/552/EEC of 3 October 1989 on the
coordination of certain provisions laid down by law, regula-
tion or administrative action in Member States concerning
the pursuit of television broadcasting activities (1);

(d)

services in the field of transport, including port services, fall-
ing within the scope of Title V of the Treaty;

(e)

services of temporary work agencies;

(f) healthcare services whether or not they are provided via
healthcare facilities, and regardless of the ways in which they
are organised and financed at national level or whether they
are public or private;

(d) Directive 2005/36/EC.

2.
This Directive does not concern rules of private interna-
tional law, in particular rules governing the law applicable to con-
tractual and non contractual obligations, including those which
guarantee that consumers benefit from the protection granted to
them by the consumer protection rules laid down in the con-
sumer legislation in force in their Member State.

(1) OJ L 298, 17.10.1989, p. 23. Directive as amended by Directive
97/36/EC of the European Parliament and of the Council (OJ L 202,
30.7.1997, p. 60).

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3. Member States shall apply the provisions of this Directive
in compliance with the rules of the Treaty on the right of estab-
lishment and the free movement of services.

Article 4

Definitions

For the purposes of this Directive, the following definitions shall
apply:

1)

2)

3)

4)

5)

6)

7)

‘service’ means any self-employed economic activity, nor-
mally provided for remuneration, as referred to in Article 50
of the Treaty;

‘provider’ means any natural person who is a national of a
Member State, or any legal person as referred to in Article 48
of the Treaty and established in a Member State, who offers
or provides a service;

‘recipient’ means any natural person who is a national of a
Member State or who benefits from rights conferred upon
him by Community acts, or any legal person as referred to in
Article 48 of the Treaty and established in a Member State,
who, for professional or non-professional purposes, uses, or
wishes to use, a service;

‘Member State of establishment’ means the Member State in
whose territory the provider of the service concerned is
established;

‘establishment’ means the actual pursuit of an economic
activity, as referred to in Article 43 of the Treaty, by the pro-
vider for an indefinite period and through a stable infrastruc-
ture from where the business of providing services is actually
carried out;

‘authorisation scheme’ means any procedure under which a
provider or recipient is in effect required to take steps in
order to obtain from a competent authority a formal deci-
sion, or an implied decision, concerning access to a service
activity or the exercise thereof;

‘requirement’ means any obligation, prohibition, condition
or limit provided for in the laws, regulations or administra-
tive provisions of the Member States or in consequence of
case-law, administrative practice, the rules of professional
bodies, or the collective rules of professional associations or
other professional organisations, adopted in the exercise of
their legal autonomy; rules laid down in collective agree-
ments negotiated by the social partners shall not as such be
seen as requirements within the meaning of this Directive;

of consumers, recipients of services and workers; fairness of
trade transactions; combating fraud; the protection of the
environment and the urban environment; the health of ani-
mals; intellectual property; the conservation of the national
historic and artistic heritage; social policy objectives and cul-
tural policy objectives;

9)

‘competent authority’ means any body or authority which
has a supervisory or regulatory role in a Member State in
relation to service activities, including, in particular, admin-
istrative authorities, including courts acting as such, profes-
sional bodies, and those professional associations or other
professional organisations which, in the exercise of their
legal autonomy, regulate in a collective manner access to
service activities or the exercise thereof;

10) ‘Member State where the service is provided’ means the
Member State where the service is supplied by a provider
established in another Member State;

11) ‘regulated profession’ means a professional activity or a
referred to in

as
group of professional
Article 3(1)(a) of Directive 2005/36/EC;

activities

12) ‘commercial communication’ means any form of communi-
cation designed to promote, directly or indirectly, the goods,
services or image of an undertaking, organisation or person
engaged in commercial, industrial or craft activity or prac-
tising a regulated profession. The following do not in them-
selves constitute commercial communications:

(a)

information enabling direct access to the activity of the
undertaking, organisation or person, including in par-
ticular a domain name or an electronic-mailing address;

(b) communications relating to the goods, services or image
of the undertaking, organisation or person, compiled in
an independent manner, particularly when provided for
no financial consideration.

CHAPTER II

ADMINISTRATIVE SIMPLIFICATION

Article 5

Simplification of procedures

1. Member States shall examine the procedures and formali-
ties applicable to access to a service activity and to the exercise
thereof. Where procedures and formalities examined under this
paragraph are not sufficiently simple, Member States shall sim-
plify them.

8)

‘overriding reasons relating to the public interest’ means rea-
sons recognised as such in the case law of the Court of Jus-
tice, including the following grounds: public policy; public
security; public safety; public health; preserving the finan-
cial equilibrium of the social security system; the protection

2.
The Commission may introduce harmonised forms at Com-
munity level, in accordance with the procedure referred to in
Article 40(2). These forms shall be equivalent to certificates, attes-
tations and any other documents required of a provider.

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3. Where Member States require a provider or recipient to
supply a certificate, attestation or any other document proving
that a requirement has been satisfied, they shall accept any docu-
ment from another Member State which serves an equivalent pur-
pose or from which it is clear that the requirement in question
has been satisfied. They may not require a document from
another Member State to be produced in its original form, or as
a certified copy or as a certified translation, save in the cases pro-
vided for in other Community instruments or where such a
requirement is justified by an overriding reason relating to the
public interest, including public order and security.

The first subparagraph shall not affect the right of Member States
to require non-certified translations of documents in one of their
official languages.

Paragraph 3 shall not apply to the documents referred to in
4.
Article 7(2) and 50 of Directive 2005/36/EC, in Articles 45(3),
46, 49 and 50 of Directive 2004/18/EC of the European Parlia-
ment and of the Council of 31 March 2004 on the coordination
of procedures for the award of public works contracts, public
supply contracts and public service contracts (1), in Article 3(2)
of Directive 98/5/EC of the European Parliament and of the
Council of 16 February 1998 to facilitate practice of the profes-
sion of lawyer on a permanent basis in a Member State other
than that in which the qualification was obtained (2), in the First
Council Directive 68/151/EEC of 9 March 1968 on coordina-
tion of safeguards which, for the protection of the interests of
members and others, are required by Member States of compa-
nies within the meaning of the second paragraph of Article 58
of the Treaty, with a view to making such safeguards equivalent
throughout the Community (3) and in the Eleventh Council
Directive 89/666/EECof 21 December 1989 concerning disclo-
sure requirements in respect of branches opened in a Member
State by certain types of company governed by the law of another
State (4).

(b) any applications for authorisation needed to exercise his ser-

vice activities.

2.
The establishment of points of single contact shall be with-
out prejudice to the allocation of functions and powers among
the authorities within national systems.

Article 7

Right to information

1. Member States shall ensure that the following information
is easily accessible to providers and recipients through the points
of single contact:

(a)

(b)

requirements applicable to providers established in their ter-
ritory, in particular those requirements concerning the pro-
cedures and formalities to be completed in order to access
and to exercise service activities;

the contact details of the competent authorities enabling the
latter to be contacted directly, including the details of those
authorities responsible for matters concerning the exercise
of service activities;

(c)

the means of, and conditions for, accessing public registers
and databases on providers and services;

(d)

the means of redress which are generally available in the
event of dispute between the competent authorities and the
provider or the recipient, or between a provider and a recipi-
ent or between providers;

Article 6

Points of single contact

(e)

the contact details of the associations or organisations, other
than the competent authorities, from which providers or
recipients may obtain practical assistance.

1. Member States shall ensure that it is possible for providers
to complete the following procedures and formalities through
points of single contact:

(a) all procedures and formalities needed for access to his service
activities, in particular, all declarations, notifications or appli-
cations necessary for authorisation from the competent
authorities, including applications for inclusion in a regis-
ter, a roll or a database, or for registration with a profes-
sional body or association;

(1) OJ L 134, 30.4.2004, p. 114. Directive as last amended by Commis-
sion Regulation (EC) No 2083/2005 (OJ L 333, 20.12.2005, p. 28).
(2) OJ L 77, 14.3.1998, p. 36. Directive as amended by the 2003 Act of

Accession.

(3) OJ L 65, 14.3.1968, p. 8. Directive as last amended by Directive
2003/58/EC of the European Parliament and of the Council (OJ L 221,
4.9.2003, p. 13).

(4) OJ L 395, 30.12.1989, p. 36.

2. Member States shall ensure that it is possible for providers
and recipients to receive, at their request, assistance from the
competent authorities, consisting in information on the way in
which the requirements referred to in point
(a) of para-
graph 1 are generally interpreted and applied. Where appropri-
ate, such advice shall include a simple step-by-step guide. The
information shall be provided in plain and intelligible language.

3. Member States shall ensure that the information and assis-
tance referred to in paragraphs 1 and 2 are provided in a clear
and unambiguous manner, that they are easily accessible at a dis-
tance and by electronic means and that they are kept up to date.

4. Member States shall ensure that the points of single con-
tact and the competent authorities respond as quickly as pos-
sible to any request for information or assistance as referred to in
paragraphs 1 and 2 and, in cases where the request is faulty or
unfounded, inform the applicant accordingly without delay.

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5. Member States and the Commission shall take accompany-
ing measures in order to encourage points of single contact to
make the information provided for in this Article available in
other Community languages. This does not interfere with Mem-
ber States’ legislation on the use of languages.

(c)

the objective pursued cannot be attained by means of a less
restrictive measure, in particular because an a posteriori
inspection would take place too late to be genuinely
effective.

6.
The obligation for competent authorities to assist provid-
ers and recipients does not require those authorities to provide
legal advice in individual cases but concerns only general infor-
mation on the way in which requirements are usually interpreted
or applied.

Article 8

Procedures by electronic means

1. Member States shall ensure that all procedures and formali-
ties relating to access to a service activity and to the exercise
thereof may be easily completed, at a distance and by electronic
means, through the relevant point of single contact and with the
relevant competent authorities.

2.
Paragraph 1 shall not apply to the inspection of premises
on which the service is provided or of equipment used by the
provider or to physical examination of the capability or of the
personal integrity of the provider or of his responsible staff.

3.
The Commission shall, in accordance with the procedure
referred to in Article 40(2), adopt detailed rules for the imple-
mentation of paragraph 1 of this Article with a view to facilitat-
ing the interoperability of
information systems and use of
procedures by electronic means between Member States, taking
into account common standards developed at Community level.

2.
In the report referred to in Article 39(1), Member States
shall identify their authorisation schemes and give reasons show-
ing their compatibility with paragraph 1 of this Article.

3.
This section shall not apply to those aspects of authorisa-
tion schemes which are governed directly or indirectly by other
Community instruments.

Article 10

Condiations for the granting of authorisation

1.
Authorisation schemes shall be based on criteria which pre-
clude the competent authorities from exercising their power of
assessment in an arbitrary manner.

2.

The criteria referred to in paragraph 1 shall be:

(a) non-discriminatory;

(b)

justified by an overriding reason relating to the public
interest;

(c) proportionate to that public interest objective;

(d) clear and unambiguous;

(e) objective;

CHAPTER III

(f) made public in advance;

FREEDOM OF ESTABLISHMENT FOR PROVIDERS

(g)

transparent and accessible.

SECTION 1

Authorisations

Article 9

Authorisation schemes

1. Member States shall not make access to a service activity
or the exercise thereof subject to an authorisation scheme unless
the following conditions are satisfied:

(a)

the authorisation scheme does not discriminate against the
provider in question;

3.
The conditions for granting authorisation for a new estab-
lishment shall not duplicate requirements and controls which are
equivalent or essentially comparable as regards their purpose to
which the provider is already subject in another Member State
or in the same Member State. The liaison points referred to in
Article 28(2) and the provider shall assist the competent author-
ity by providing any necessary information regarding those
requirements.

The authorisation shall enable the provider to have access
4.
to the service activity, or to exercise that activity, throughout the
national territory, including by means of setting up agencies, sub-
sidiaries, branches or offices, except where an authorisation for
each individual establishment or a limitation of the authorisa-
tion to a certain part of the territory is justified by an overriding
reason relating to the public interest.

(b)

the need for an authorisation scheme is justified by an over-
riding reason relating to the public interest;

5.
The authorisation shall be granted as soon as it is estab-
lished, in the light of an appropriate examination, that the con-
ditions for authorisation have been met.

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Except in the case of the granting of an authorisation, any
6.
decision from the competent authorities, including refusal or
withdrawal of an authorisation, shall be fully reasoned and shall
be open to challenge before the courts or other instances of
appeal.

In the cases referred to in paragraph 1, authorisation shall
2.
be granted for an appropriate limited period and may not be
open to automatic renewal nor confer any other advantage on
the provider whose authorisation has just expired or on any per-
son having any particular links with that provider.

7.
This Article shall not call into question the allocation of
the competences, at local or regional level, of the Member States’
authorities granting authorisations.

Article 11

Duration of authorisation

An authorisation granted to a provider shall not be for a

1.
limited period, except where:

(a)

the authorisation is being automatically renewed or is sub-
ject only to the continued fulfilment of requirements;

(b)

the number of available authorisations is limited by an over-
riding reason relating to the public interest;

or

(c) a limited authorisation period can be justified by an overrid-

ing reason relating to the public interest.

2.
Paragraph 1 shall not concern the maximum period before
the end of which the provider must actually commence his activ-
ity after receiving authorisation.

3. Member States shall require a provider to inform the rel-
evant point of single contact provided for in Article 6 of the fol-
lowing changes:

(a)

the creation of subsidiaries whose activities fall within the
scope of the authorisation scheme;

(b) changes in his situation which result in the conditions for

authorisation no longer being met.

4.
This Article shall be without prejudice to the Member
States’ ability to revoke authorisations, when the conditions for
authorisation are no longer met.

Article 12

Selection from among several candidates

1. Where the number of authorisations available for a given
activity is limited because of the scarcity of available natural
resources or technical capacity, Member States shall apply a selec-
tion procedure to potential candidates which provides full guar-
antees of impartiality and transparency, including, in particular,
adequate publicity about the launch, conduct and completion of
the procedure.

3.
Subject to paragraph 1 and to Articles 9 and 10, Member
States may take into account, in establishing the rules for the
selection procedure, considerations of public health, social policy
objectives, the health and safety of employees or self-employed
persons, the protection of the environment, the preservation of
cultural heritage and other overriding reasons relating to the pub-
lic interest, in conformity with Community law.

Article 13

Authorisation procedures

1.
Authorisation procedures and formalities shall be clear,
made public in advance and be such as to provide the applicants
with a guarantee that their application will be dealt with objec-
tively and impartially.

2.
Authorisation procedures and formalities shall not be dis-
suasive and shall not unduly complicate or delay the provision
of the service. They shall be easily accessible and any charges
which the applicants may incur from their application shall be
reasonable and proportionate to the cost of the authorisation
procedures in question and shall not exceed the cost of the
procedures.

3.
Authorisation procedures and formalities shall provide
applicants with a guarantee that their application will be pro-
cessed as quickly as possible and, in any event, within a reason-
able period which is fixed and made public in advance. The
period shall run only from the time when all documentation has
been submitted. When justified by the complexity of the issue,
the time period may be extended once, by the competent author-
ity, for a limited time. The extension and its duration shall be
duly motivated and shall be notified to the applicant before the
original period has expired.

4.
Failing a response within the time period set or extended
in accordance with paragraph 3, authorisation shall be deemed
to have been granted. Different arrangements may nevertheless
be put in place, where justified by overriding reasons relating to
the public interest, including a legitimate interest of third parties.

5.
All applications for authorisation shall be acknowledged as
quickly as possible. The acknowledgement must specify the
following:

(a)

the period referred to in paragraph 3;

(b)

the available means of redress;

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(c) where applicable, a statement that in the absence of a
response within the period specified, the authorisation shall
be deemed to have been granted.

In the case of an incomplete application, the applicant shall
6.
be informed as quickly as possible of the need to supply any
additional documentation, as well as of any possible effects on
the period referred to in paragraph 3.

7. When a request is rejected because it fails to comply with
the required procedures or formalities, the applicant shall be
informed of the rejection as quickly as possible.

SECTION 2

Requirements prohibited or subject to evaluation

Article 14

Prohibited requirements

Member States shall not make access to, or the exercise of, a ser-
vice activity in their territory subject to compliance with any of
the following:

5)

6)

7)

the case-by-case application of an economic test making the
granting of authorisation subject to proof of the existence
of an economic need or market demand, an assessment of
the potential or current economic effects of the activity or
an assessment of the appropriateness of the activity in rela-
tion to the economic planning objectives set by the compe-
tent authority; this prohibition shall not concern planning
requirements which do not pursue economic aims but serve
overriding reasons relating to the public interest;

the direct or indirect involvement of competing operators,
including within consultative bodies,
in the granting of
authorisations or in the adoption of other decisions of the
competent authorities, with the exception of professional
bodies and associations or other organisations acting as the
competent authority; this prohibition shall not concern the
consultation of organisations, such as chambers of com-
merce or social partners, on matters other than individual
applications for authorisation, or a consultation of the pub-
lic at large;

an obligation to provide or participate in a financial guaran-
tee or to take out insurance from a provider or body estab-
lished in their territory. This shall not affect the possibility
for Member States to require insurance or financial guaran-
tees as such, nor shall it affect requirements relating to the
participation in a collective compensation fund, for instance
for members of professional bodies or organisations;

1) discriminatory requirements based directly or indirectly on
nationality or, in the case of companies, the location of the
registered office, including in particular:

8)

an obligation to have been pre-registered, for a given period,
in the registers held in their territory or to have previously
exercised the activity for a given period in their territory.

(a) nationality requirements for the provider, his staff, per-
sons holding the share capital or members of the pro-
vider’s management or supervisory bodies;

Article 15

Requirements to be evaluated

(b) a requirement that the provider, his staff, persons hold-
ing the share capital or members of the provider’s man-
agement or supervisory bodies be resident within the
territory;

a prohibition on having an establishment in more than one
Member State or on being entered in the registers or enrolled
with professional bodies or associations of more than one
Member State;

restrictions on the freedom of a provider to choose between
a principal or a secondary establishment, in particular an
obligation on the provider to have its principal establish-
ment in their territory, or restrictions on the freedom
to choose between establishment in the form of an agency,
branch or subsidiary;

conditions of reciprocity with the Member State in which
the provider already has an establishment, save in the case
of conditions of reciprocity provided for in Community
instruments concerning energy;

2)

3)

4)

1. Member States shall examine whether, under their legal sys-
tem, any of the requirements listed in paragraph 2 are imposed
and shall ensure that any such requirements are compatible with
the conditions laid down in paragraph 3. Member States shall
adapt their laws, regulations or administrative provisions so as
to make them compatible with those conditions.

2. Member States shall examine whether their legal system
makes access to a service activity or the exercise of it subject
to compliance with any of the following non-discriminatory
requirements:

(a) quantitative or territorial restrictions, in particular in the
form of limits fixed according to population or of a mini-
mum geographical distance between providers;

(b) an obligation on a provider to take a specific legal form;

(c)

requirements which relate to the shareholding of a company;

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(d)

requirements, other than those concerning matters covered
by Directive 2005/36/EC or provided for in other Commu-
nity instruments, which reserve access to the service activity
in question to particular providers by virtue of the specific
nature of the activity;

(e) a ban on having more than one establishment in the terri-

tory of the same State;

(f)

requirements fixing a minimum number of employees;

(g)

fixed minimum and/or maximum tariffs with which the pro-
vider must comply;

(h) an obligation on the provider to supply other specific ser-

vices jointly with his service.

7. Member States shall notify the Commission of any new
laws, regulations or administrative provisions which set require-
ments as referred to in paragraph 6, together with the reasons
for those requirements. The Commission shall communicate the
provisions concerned to the other Member States. Such notifica-
tion shall not prevent Member States from adopting the provi-
sions in question.

Within a period of 3 months from the date of receipt of the noti-
fication, the Commission shall examine the compatibility of any
new requirements with Community law and, where appropriate,
shall adopt a decision requesting the Member State in question
to refrain from adopting them or to abolish them.

The notification of a draft national law in accordance with Direc-
tive 98/34/EC shall fulfil the obligation of notification provided
for in this Directive.

3. Member States shall verify that the requirements referred
to in paragraph 2 satisfy the following conditions:

CHAPTER IV

FREE MOVEMENT OF SERVICES

(a) non-discrimination: requirements must be neither directly
nor indirectly discriminatory according to nationality nor,
with regard to companies, according to the location of the
registered office;

SECTION 1

Freedom to provide services and related derogations

(b) necessity: requirements must be justified by an overriding

reason relating to the public interest;

Article 16

Freedom to provide services

(c) proportionality: requirements must be suitable for securing
the attainment of the objective pursued; they must not go
beyond what is necessary to attain that objective and it must
not be possible to replace those requirements with other,
less restrictive measures which attain the same result.

4.
Paragraphs 1, 2 and 3 shall apply to legislation in the field
of services of general economic interest only insofar as the appli-
cation of these paragraphs does not obstruct the performance,
in law or in fact, of the particular task assigned to them.

1. Member States shall respect the right of providers to pro-
vide services in a Member State other than that in which they
are established.

The Member State in which the service is provided shall ensure
free access to and free exercise of a service activity within its
territory.

In the mutual

5.
Article 39(1), Member States shall specify the following:

evaluation report provided for

Member States shall not make access to or exercise of a service
activity in their territory subject to compliance with any require-
ments which do not respect the following principles:

in

(a)

the requirements that they intend to maintain and the rea-
sons why they consider that those requirements comply with
the conditions set out in paragraph 3;

(a) non-discrimination: the requirement may be neither directly
nor indirectly discriminatory with regard to nationality or,
in the case of legal persons, with regard to the Member State
in which they are established;

(b)

the requirements which have been abolished or made less
stringent.

(b) necessity: the requirement must be justified for reasons of
public policy, public security, public health or the protec-
tion of the environment;

6.
From 28 December 2006 Member States shall not intro-
duce any new requirement of a kind listed in paragraph 2, unless
laid down in
the
that
paragraph 3.

requirement

conditions

satisfies

(c) proportionality: the requirement must be suitable for attain-
ing the objective pursued, and must not go beyond what is
necessary to attain that objective.

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2. Member States may not restrict the freedom to provide ser-
vices in the case of a provider established in another Member
State by imposing any of the following requirements:

Article 17

Additional derogations from the freedom to provide
services

(a) an obligation on the provider to have an establishment in

Article 16 shall not apply to:

their territory;

(b) an obligation on the provider to obtain an authorisation
from their competent authorities including entry in a regis-
ter or registration with a professional body or association in
their territory, except where provided for in this Directive
or other instruments of Community law;

(c) a ban on the provider setting up a certain form or type of
infrastructure in their territory, including an office or cham-
bers, which the provider needs in order to supply the ser-
vices in question;

(d)

the application of specific contractual arrangements between
the provider and the recipient which prevent or restrict ser-
vice provision by the self-employed;

1)

services of general economic interest which are provided in
another Member State, inter alia:

(a)

(b)

(c)

in the postal sector, services covered by Directive
97/67/EC of the European Parliament and of the Coun-
cil of 15 December 1997 on common rules for the
development of the internal market of Community
postal services and the improvement of quality of
service (1);

in the electricity sector, services covered by Directive
2003/54/EC (2) of the European Parliament and of the
Council of 26 June 2003 concerning common rules for
the internal market in electricity;

sector,

services covered by Directive
in the gas
2003/55/EC of the European Parliament and of the
Council of 26 June 2003 concerning common rules for
the internal market in natural gas (3);

(e) an obligation on the provider to possess an identity docu-
ment issued by its competent authorities specific to the exer-
cise of a service activity;

(d) water distribution and supply services and waste water

services;

(f)

requirements, except for those necessary for health and
safety at work, which affect the use of equipment and mate-
rial which are an integral part of the service provided;

(e)

treatment of waste;

2) matters covered by Directive 96/71/EC;

(g)

restrictions on the freedom to provide the services referred
to in Article 19.

3.
The Member State to which the provider moves shall not
be prevented from imposing requirements with regard to the pro-
vision of a service activity, where they are justified for reasons of
public policy, public security, public health or the protection of
the environment and in accordance with paragraph 1. Nor shall
that Member State be prevented from applying, in accordance
its rules on employment conditions,
with Community law,
including those laid down in collective agreements.

By 28 December 2011 the Commission shall, after consul-
4.
tation of the Member States and the social partners at Commu-
nity level, submit to the European Parliament and the Council a
report on the application of this Article, in which it shall con-
sider the need to propose harmonisation measures regarding ser-
vice activities covered by this Directive.

3) matters covered by Directive 95/46/EC of the European Par-
liament and of the Council of 24 October 1995 on the pro-
tection of individuals with regard to the processing of
personal data and on the free movement of such data (4);

4) matters covered by Council Directive 77/249/EEC of
22 March 1977to facilitate the effective exercise by lawyers
of freedom to provide services (5);

5)

the activity of judicial recovery of debts;

(1) OJ L 15, 21.1.1998, p. 14. Directive as last amended by Regulation

(EC) No 1882/2003 (OJ L 284, 31.10.2003, p. 1).

(2) OJ L 176, 15.7.2003, p. 37. Directive as last amended by Commis-

sion Decision 2006/653/EC (OJ L 270, 29.9.2006, p. 72).

(3) OJ L 176, 15.7.2003, p. 57.
(4) OJ L 281, 23.11.1995, p. 31. Directive as amended by Regulation

(EC) No 1882/2003.

(5) OJ L 78, 26.3.1977, p. 17. Directive as last amended by the 2003

Act of Accession.

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6) matters covered by Title II of Directive 2005/36/EC, as well
as requirements in the Member State where the service is
provided which reserve an activity to a particular profession;

15) provisions regarding contractual and non-contractual obli-
gations, including the form of contracts, determined pursu-
ant to the rules of private international law.

7) matters covered by Regulation (EEC) No 1408/71;

Article 18

Case-by-case derogations

8)

9)

as regards administrative formalities concerning the free
movement of persons and their residence, matters covered
by the provisions of Directive 2004/38/EC that lay down
administrative formalities of the competent authorities of
the Member Statewhere the service is provided with which
beneficiaries must comply;

as regards third country nationals who move to another
Member State in the context of the provision of a service,
the possibility for Member States to require visa or residence
permits for third country nationals who are not covered by
the mutual recognition regime provided for in Article 21 of
the Convention implementing the Schengen Agreement of
14 June 1985 on the gradual abolition of checks at the com-
mon borders (1) or the possibility to oblige third country
nationals to report to the competent authorities of the Mem-
ber State in which the service is provided on or after their
entry;

1.
By way of derogation from Article 16, and in exceptional
circumstances only, a Member State may, in respect of a pro-
vider established in another Member State, take measures relat-
ing to the safety of services.

2.
The measures provided for in paragraph 1 may be taken
only if the mutual assistance procedure laid down in Article 35
is complied with and the following conditions are fulfilled:

(a)

the national provisions in accordance with which the mea-
sure is taken have not been subject to Community harmoni-
sation in the field of the safety of services;

(b)

the measures provide for a higher level of protection of the
recipient than would be the case in a measure taken by the
Member State of establishment
in accordance with its
national provisions;

10) as regards the shipment of waste, matters covered by Coun-
cil Regulation (EEC) No 259/93 of 1 February 1993 on the
supervision and control of shipments of waste within, into
and out of the European Community (2);

(c)

the Member State of establishment has not taken any mea-
sures or has taken measures which are insufficient as com-
pared with those referred to in Article 35(2);

11) copyright, neighbouring rights and rights covered by Coun-
cil Directive 87/54/EEC of 16 December 1986 on the legal
protection of topographies of semiconductor products (3)
and by Directive 96/9/EC of the European Parliament and
of the Council of 11 March 1996 on the legal protection of
databases (4), as well as industrial property rights;

(d)

the measures are proportionate.

Paragraphs 1 and 2 shall be without prejudice to provi-
3.
sions, laid down in Community instruments, which guarantee
the freedom to provide services or which allow derogations
therefrom.

12) acts requiring by law the involvement of a notary;

13) matters covered by Directive 2006/43/EC of the European
Parliament and of the Council of 17 May 2006 on statutory
audit of annual accounts and consolidated accounts (5);

14) the registration of vehicles leased in another Member State;

(1) OJ L 239, 22.9.2000, p. 19. Convention as last amended by Regula-
tion (EC) No 1160/2005 of the European Parliament and of the Coun-
cil (OJ L 191, 22.7.2005, p. 18).

(2) OJ L 30, 6.2.1993, p. 1. Regulation as last amended by Commission

Regulation (EC) No 2557/2001 (OJ L 349, 31.12.2001, p. 1).

(3) OJ L 24, 27.1.1987, p. 36.
(4) OJ L 77, 27.3.1996, p. 20.
(5) OJ L 157, 9.6.2006, p. 87.

SECTION 2

Rights of recipients of services

Article 19

Prohibited restrictions

Member States may not impose on a recipient requirements
which restrict the use of a service supplied by a provider estab-
in particular the following
lished in another Member State,
requirements:

(a) an obligation to obtain authorisation from or to make a dec-

laration to their competent authorities;

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(b) discriminatory limits on the grant of financial assistance by
reason of the fact that the provider is established in another
Member State or by reason of the location of the place at
which the service is provided.

Article 20

Non-discrimination

1. Member States shall ensure that the recipient is not made
subject to discriminatory requirements based on his nationality
or place of residence.

2. Member States shall ensure that the general conditions of
access to a service, which are made available to the public at
large by the provider, do not contain discriminatory provisions
relating to the nationality or place of residence of the recipient,
but without precluding the possibility of providing for differ-
ences in the conditions of access where those differences are
directly justified by objective criteria.

Article 21

Assistance for recipients

1. Member States shall ensure that recipients can obtain, in
their Member State of residence, the following information:

(a) general information on the requirements applicable in other
Member States relating to access to, and exercise of, service
activities, in particular those relating to consumer protection;

(b) general information on the means of redress available in the
case of a dispute between a provider and a recipient;

In fulfilment of the requirements set out in paragraphs 1
3.
and 2, the body approached by the recipient shall, if necessary,
contact the relevant body for the Member State concerned. The
latter shall send the information requested as soon as possible to
the requesting body which shall forward the information to the
recipient. Member States shall ensure that those bodies give each
other mutual assistance and shall put in place all possible mea-
sures for effective cooperation. Together with the Commission,
Member States shall put in place practical arrangements neces-
sary for the implementation of paragraph 1.

4.
The Commission shall, in accordance with the procedure
referred to in Article 40(2), adopt measures for the implementa-
tion of paragraphs 1, 2 and 3 of this Article, specifying the tech-
nical mechanisms for the exchange of information between the
bodies of the various Member States and,
in particular, the
interoperability of information systems, taking into account com-
mon standards.

CHAPTER V

QUALITY OF SERVICES

Article 22

Information on providers and their services

1. Member States shall ensure that providers make the follow-
ing information available to the recipient:

(a)

the name of the provider, his legal status and form, the geo-
graphic address at which he is established and details
enabling him to be contacted rapidly and communicated
with directly and, as the case may be, by electronic means;

(c)

the contact details of associations or organisations, includ-
ing the centres of the European Consumer Centres Network,
from which providers or recipients may obtain practical
assistance.

(b) where the provider is registered in a trade or other similar
public register, the name of that register and the provider’s
registration number, or equivalent means of identification in
that register;

Where appropriate, advice from the competent authorities shall
include a simple step-by-step guide. Information and assistance
shall be provided in a clear and unambiguous manner, shall be
easily accessible at a distance, including by electronic means, and
shall be kept up to date.

2. Member States may confer responsibility for the task
referred to in paragraph 1 on points of single contact or on any
other body, such as the centres of the European Consumer Cen-
tres Network, consumer associations or Euro Info Centres.

(c) where the activity is subject to an authorisation scheme, the
particulars of the relevant competent authority or the single
point of contact;

(d) where the provider exercises an activity which is subject
to VAT, the identification number referred to in Article 22(1)
of Sixth Council Directive 77/388/EEC of 17 May 1977 on
the harmonisation of the laws of the Member States relating
to turnover taxes – Common system of value added tax: uni-
form basis of assessment (1);

Member States shall communicate to the Commission the names
and contact details of the designated bodies. The Commission
shall transmit them to all Member States.

(1) OJ L 145, 13.6.1977, p. 1. Directive as last amended by Directive

2006/18/EC (OJ L 51, 22.2.2006, p. 12).

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(e)

in the case of the regulated professions, any professional
body or similar institution with which the provider is regis-
tered, the professional title and the Member State in which
that title has been granted;

(b) as regards the regulated professions, a reference to the pro-
fessional rules applicable in the Member State of establish-
ment and how to access them;

(f)

the general conditions and clauses,
provider;

if any, used by the

(g)

the existence of contractual clauses, if any, used by the pro-
vider concerning the law applicable to the contract and/or
the competent courts;

(h)

the existence of an after-sales guarantee, if any, not imposed
by law;

(i)

the price of the service, where a price is pre-determined by
the provider for a given type of service;

(j)

the main features of the service, if not already apparent from
the context;

(k)

the insurance or guarantees referred to in Article 23(1),
and in particular the contact details of the insurer or guar-
antor and the territorial coverage.

2. Member States shall ensure that the information referred
to in paragraph 1, according to the provider’s preference:

(a)

is supplied by the provider on his own initiative;

(b)

is easily accessible to the recipient at the place where the ser-
vice is provided or the contract concluded;

(c)

can be easily accessed by the recipient electronically by
means of an address supplied by the provider;

(d) appears in any information documents supplied to the
recipient by the provider which set out a detailed descrip-
tion of the service he provides.

3. Member States shall ensure that, at the recipient’s request,
providers supply the following additional information:

(a) where the price is not pre-determined by the provider for a
given type of service, the price of the service or, if an exact
price cannot be given, the method for calculating the price
so that it can be checked by the recipient, or a sufficiently
detailed estimate;

(c)

information on their multidisciplinary activities and partner-
ships which are directly linked to the service in question and
on the measures taken to avoid conflicts of interest. That
information shall be included in any information document
in which providers give a detailed description of their
services;

(d) any codes of conduct to which the provider is subject and
the address at which these codes may be consulted by elec-
tronic means, specifying the language version available;

(e) where a provider is subject to a code of conduct, or mem-
ber of a trade association or professional body which pro-
vides for recourse to a non-judicial means of dispute
settlement, information in this respect. The provider shall
specify how to access detailed information on the character-
istics of, and conditions for, the use of non-judicial means
of dispute settlement.

4. Member States shall ensure that the information which a
provider must supply in accordance with this Chapter is made
available or communicated in a clear and unambiguous manner,
and in good time before conclusion of the contract or, where
there is no written contract, before the service is provided.

5.
The information requirements laid down in this Chapter
are in addition to requirements already provided for in Commu-
nity law and do not prevent Member States from imposing addi-
tional
to providers
established in their territory.

information requirements

applicable

6.
The Commission may, in accordance with the procedure
referred to in Article 40(2), specify the content of the informa-
tion provided for in paragraphs 1 and 3 of this Article according
to the specific nature of certain activities and may specify the
practical means of implementing paragraph 2 of this Article.

Article 23

Professional liability insurance and guarantees

1. Member States may ensure that providers whose services
present a direct and particular risk to the health or safety of the
recipient or a third person, or to the financial security of the
recipient, subscribe to professional liability insurance appropri-
ate to the nature and extent of the risk, or provide a guarantee
or similar arrangement which is equivalent or essentially compa-
rable as regards its purpose.

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2. When a provider establishes himself in their territory, Mem-
ber States may not require professional liability insurance or a
guarantee from the provider where he is already covered by a
guarantee which is equivalent, or essentially comparable as
regards its purpose and the cover it provides in terms of the
insured risk, the insured sum or a ceiling for the guarantee and
possible exclusions from the cover, in another Member State in
which the provider is already established. Where equivalence is
only partial, Member States may require a supplementary guar-
antee to cover those aspects not already covered.

When a Member State requires a provider established in its ter-
ritory to subscribe to professional liability insurance or to pro-
vide another guarantee,
that Member State shall accept as
sufficient evidence attestations of such insurance cover issued by
credit institutions and insurers established in other Member
States.

3.
Paragraphs 1 and 2 shall not affect professional insurance
or guarantee arrangements provided for in other Community
instruments.

4.
For the implementation of paragraph 1, the Commission
may, in accordance with the regulatory procedure referred to in
Article 40(2), establish a list of services which exhibit the char-
acteristics referred to in paragraph 1 of this Article. The Com-
mission may also, in accordance with the procedure referred to in
Article 40(3), adopt measures designed to amend non-essential
elements of this Directive by supplementing it by establishing
common criteria for defining, for the purposes of the insurance
or guarantees referred to in paragraph 1 of this Article, what is
appropriate to the nature and extent of the risk.

5.

For the purpose of this Article

Article 24

Commercial communications by the regulated professions

1. Member States shall remove all total prohibitions on com-
mercial communications by the regulated professions.

2. Member States shall ensure that commercial communica-
tions by the regulated professions comply with professional rules,
in conformity with Community law, which relate, in particular,
to the independence, dignity and integrity of the profession, as
well as to professional secrecy, in a manner consistent with the
specific nature of each profession. Professional rules on commer-
cial communications shall be non-discriminatory, justified by an
overriding
and
proportionate.

reason relating

to the public

interest

Article 25

Multidisciplinary activities

1. Member States shall ensure that providers are not made
subject to requirements which oblige them to exercise a given
specific activity exclusively or which restrict the exercise jointly
or in partnership of different activities.

However, the following providers may be made subject to such
requirements:

(a)

the regulated professions, in so far as is justified in order to
guarantee compliance with the rules governing professional
ethics and conduct, which vary according to the specific
nature of each profession, and is necessary in order to ensure
their independence and impartiality;

(b) providers of certification, accreditation, technical monitor-
ing, test or trial services, in so far as is justified in order to
ensure their independence and impartiality.

— ‘direct and particular risk’ means a risk arising directly from

the provision of the service,

2. Where multidisciplinary activities between providers
referred to in points (a) and (b) of paragraph 1 are authorised,
Member States shall ensure the following:

— ‘health and safety’ means, in relation to a recipient or a third
person, the prevention of death or serious personal injury,

(a)

that conflicts of interest and incompatibilities between cer-
tain activities are prevented;

(b)

that the independence and impartiality required for certain
activities is secured;

— ‘financial security’ means, in relation to a recipient, the pre-
losses of money or of value of

vention of substantial
property,

(c)

that the rules governing professional ethics and conduct for
different activities are compatible with one another, espe-
cially as regards matters of professional secrecy.

— ‘professional liability insurance’ means insurance taken out
by a provider in respect of potential liabilities to recipients
and, where applicable, third parties arising out of the provi-
sion of the service.

3.
In the report referred to in Article 39(1), Member States
shall indicate which providers are subject to the requirements
laid down in paragraph 1 of this Article, the content of those
requirements and the reasons for which they consider them to
be justified.

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Article 26

Policy on quality of services

Member States shall take the general measures necessary to
ensure that providers respond to the complaints referred to in
the first subparagraph in the shortest possible time and make
their best efforts to find a satisfactory solution.

1. Member States shall, in cooperation with the Commission,
take accompanying measures to encourage providers to take
action on a voluntary basis in order to ensure the quality of ser-
vice provision, in particular through use of one of the following
methods:

2. Member States shall take the general measures necessary to
ensure that providers are obliged to demonstrate compliance with
the obligations laid down in this Directive as to the provision of
information and to demonstrate that the information is accurate.

(a)

certification or assessment of their activities by independent
or accredited bodies;

(b) drawing up their own quality charter or participation in
quality charters or labels drawn up by professional bodies
at Community level.

2. Member States shall ensure that information on the signifi-
cance of certain labels and the criteria for applying labels and
other quality marks relating to services can be easily accessed by
providers and recipients.

3. Member States shall, in cooperation with the Commission,
take accompanying measures to encourage professional bodies,
as well as chambers of commerce and craft associationsand con-
sumer associations, in their territory to cooperate at Community
level in order to promote the quality of service provision, espe-
cially by making it easier to assess the competence of a provider.

4. Member States shall, in cooperation with the Commission,
take accompanying measures to encourage the development of
independent assessments, notably by consumer associations, in
relation to the quality and defects of service provision, and, in
particular, the development at Community level of comparative
trials or testing and the communication of the results.

5. Member States, in cooperation with the Commission, shall
encourage the development of voluntary European standards
with the aim of facilitating compatibility between services sup-
plied by providers in different Member States, information to the
recipient and the quality of service provision.

Article 27

Settlement of disputes

1. Member States shall take the general measures necessary to
ensure that providers supply contact details, in particular a postal
address, fax number or e-mail addressand telephone number to
which all recipients, including those resident in another Member
State, can send a complaint or a request for information about
the service provided. Providers shall supply their legal address if
this is not their usual address for correspondence.

3. Where a financial guarantee is required for compliance with
a judicial decision, Member States shall recognise equivalent guar-
antees lodged with a credit institution or insurer established in
another Member State. Such credit institutions must be autho-
rised in a Member State in accordance with Directive 2006/48/EC
and such insurers in accordance, as appropriate, with First Coun-
cil Directive 73/239/EEC of 24 July 1973 on the coordination
of laws, regulations and administrative provisions relating to the
taking-up and pursuit of the business of direct insurance other
than life assurance (1) and Directive 2002/83/EC of the European
Parliament and of the Council of 5 November 2002 concerning
life assurance (2).

4. Member States shall take the general measures necessary to
ensure that providers who are subject to a code of conduct, or
are members of a trade association or professional body, which
provides for recourse to a non-judicial means of dispute settle-
ment inform the recipient thereof and mention that fact in any
document which presents their services in detail, specifying how
to access detailed information on the characteristics of, and con-
ditions for, the use of such a mechanism.

CHAPTER VI

ADMINISTRATIVE COOPERATION

Article 28

Mutual assistance – general obligations

1. Member States shall give each other mutual assistance, and
shall put in place measures for effective cooperation with one
another, in order to ensure the supervision of providers and the
services they provide.

For the purposes of this Chapter, Member States shall des-
2.
ignate one or more liaison points, the contact details of which
shall be communicated to the other Member States and the Com-
mission. The Commission shall publish and regularly update the
list of liaison points.

(1) OJ L 228, 16.8.1973, p. 3. Directive as last amended by Directive
2005/68/EC of the European Parliament and of the Council (OJ L 323,
9.12.2005, p. 1).

(2) OJ L 345, 19.12.2002, p. 1. Directive as last amended by Directive

2005/68/EC.

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Information requests and requests to carry out any checks,
3.
inspections and investigations under this Chapter shall be duly
motivated, in particular by specifying the reason for the request.
Information exchanged shall be used only in respect of the mat-
ter for which it was requested.

vested in them in their Member State. The competent authorities
can decide on the most appropriate measures to be taken in each
individual case in order to meet the request by another Member
State.

4.
In the event of receiving a request for assistance from com-
petent authorities in another Member State, Member States shall
ensure that providers established in their territory supply their
competent authorities with all the information necessary for
supervising their activities in compliance with their national laws.

3.
Upon gaining actual knowledge of any conduct or specific
acts by a provider established in its territory which provides ser-
vices in other Member States, that, to its knowledge, could cause
serious damage to the health or safety of persons or to the envi-
ronment, the Member State of establishment shall inform all
other Member States and the Commission within the shortest
possible period of time.

5.
In the event of difficulty in meeting a request for informa-
tion or in carrying out checks, inspections or investigations, the
Member State in question shall rapidly inform the requesting
Member State with a view to finding a solution.

6. Member States shall supply the information requested by
other Member States or the Commission by electronic means
and within the shortest possible period of time.

7. Member States shall ensure that registers in which provid-
ers have been entered, and which may be consulted by the com-
petent authorities in their territory, may also be consulted, in
accordance with the same conditions, by the equivalent compe-
tent authorities of the other Member States.

8. Member States shall communicate to the Commission
information on cases where other Member States do not fulfil
their obligation of mutual assistance. Where necessary, the Com-
mission shall take appropriate steps, including proceedings pro-
vided for in Article 226 of the Treaty, in order to ensure that the
Member States concerned comply with their obligation of mutual
assistance. The Commission shall periodically inform Member
States about the functioning of the mutual assistance provisions.

Article 29

Mutual assistance – general obligations for the Member
State of establishment

1. With respect to providers providing services in another
Member State, the Member State of establishment shall supply
information on providers established in its territory when
requested to do so by another Member State and, in particular,
confirmation that a provider is established in its territory and,
to its knowledge, is not exercising his activities in an unlawful
manner.

Article 30

Supervision by the Member State of establishment in the
event of the temporary movement of a provider to
another Member State

1. With respect to cases not covered by Article 31(1), the
Member State of establishment shall ensure that compliance with
its requirementsis supervised in conformity with the powers of
supervision provided for in its national law, in particular through
the
supervisory measures at
provider.

the place of establishment of

2.
The Member State of establishment shall not refrain from
taking supervisory or enforcement measures in its territory on
the grounds that the service has been provided or caused dam-
age in another Member State.

3.
The obligation laid down in paragraph 1 shall not entail a
duty on the part of the Member State of establishment to carry
out factual checks and controls in the territory of the Member
State where the service is provided. Such checks and controls
shall be carried out by the authorities of the Member State where
the provider is temporarily operating at the request of the
authorities of the Member State of establishment, in accordance
with Article 31.

Article 31

Supervision by the Member State where the service is
provided in the event of the temporary movement of the
provider

1. With respect to national requirements which may be
imposed pursuant to Articles 16 or 17, the Member State where
the service is provided is responsible for the supervision of the
activity of the provider in its territory. In conformity with Com-
munity law, the Member State where the service is provided:

The Member State of establishment shall undertake the
2.
checks,
inspections and investigations requested by another
Member State and shall inform the latter of the results and, as
the case may be, of the measures taken. In so doing, the compe-
tent authorities shall act to the extent permitted by the powers

(a)

shall take all measures necessary to ensure the provider com-
plies with those requirements as regards the access to and
the exercise of the activity;

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(b)

shall carry out the checks, inspections and investigations nec-
essary to supervise the service provided.

A request made pursuant to the first subparagraph must be duly
substantiated, in particular as regards the reasons for the request
for information.

2. With respect to requirements other than those referred to in
paragraph 1, where a provider moves temporarily to another
Member State in order to provide a service without being estab-
lished there, the competent authorities of that Member State shall
participate in the supervision of the provider in accordance with
paragraphs 3 and 4.

3.
At the request of the Member State of establishment, the
competent authorities of the Member State where the service is
provided shall carry out any checks, inspections and investiga-
tions necessary for ensuring the effective supervision by the
Member State of establishment. In so doing, the competent
authorities shall act to the extent permitted by the powers vested
in them in their Member State. The competent authorities may
decide on the most appropriate measures to be taken in each
individual case in order to meet the request by the Member State
of establishment.

4.
On their own initiative, the competent authorities of the
Member State where the service is provided may conduct checks,
inspections and investigations on the spot, provided that those
checks, inspections or investigations are not discriminatory, are
not motivated by the fact that the provider is established in
another Member State and are proportionate.

2.
Sanctions and actions referred to in paragraph 1 shall only
be communicated if a final decision has been taken. With regard
to other enforceable decisions referred to in paragraph 1, the
Member State which supplies the information shall specify
whether a particular decision is final or whether an appeal has
been lodged in respect of it, in which case the Member State in
question should provide an indication of the date when the deci-
sion on appeal is expected.

Moreover, that Member State shall specify the provisions of
national law pursuant to which the provider was found guilty or
penalised.

3.
Implementation of paragraphs 1and 2 must comply with
rules on the provision of personal dataand with rights guaran-
teed to persons found guilty or penalised in the Member States
concerned, including by professional bodies. Any information in
question which is public shall be accessible to consumers.

Article 32

Alert mechanism

Article 34

Accompanying measures

1. Where a Member State becomes aware of serious specific
acts or circumstances relating to a service activity that could cause
serious damage to the health or safety of persons or to the envi-
ronment in its territory or in the territory of other Member States,
that Member State shall inform the Member State of establish-
ment, the other Member States concerned and the Commission
within the shortest possible period of time.

2.
The Commission shall promote and take part in the opera-
tion of a European network of Member States’ authorities in order
to implement paragraph 1.

3.
The Commission shall adopt and regularly update, in accor-
dance with the procedure referred to in Article 40(2), detailed
rules concerning the management of the network referred to in
paragraph 2 of this Article.

1.
The Commission, in cooperation with Member States, shall
establish an electronic system for the exchange of information
between Member States, taking into account existing informa-
tion systems.

2. Member States shall, with the assistance of the Commis-
sion, take accompanying measures to facilitate the exchange of
officials in charge of the implementation of mutual assistance
and training of such officials, including language and computer
training.

3.
The Commission shall assess the need to establish a multi-
annual programme in order to organise relevant exchanges of
officials and training.

Article 33

Information on the good repute of providers

Article 35

1. Member States shall, at the request of a competent author-
ity in another Member State, supply information, in conformity
with their national law, on disciplinary or administrative actions
or criminal sanctions and decisions concerning insolvency or
bankruptcy involving fraud taken by their competent authorities
in respect of the provider which are directly relevant to the pro-
vider’s competence or professional reliability. The Member State
which supplies the information shall inform the provider thereof.

Mutual assistance in the event of case-by-case derogations

1. Where a Member State intends to take a measure pursuant
to Article 18, the procedure laid down in paragraphs 2 to 6 of
this Article shall apply without prejudice to court proceedings,
including preliminary proceedings and acts carried out in the
framework of a criminal investigation.

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The Member State referred to in paragraph 1 shall ask the
2.
Member State of establishment to take measures with regard to
the provider, supplying all relevant information on the service in
question and the circumstances of the case.

the procedure referred to in Article 40(2), the practical arrange-
ments for the exchange of information by electronic means
between Member States, and in particular the interoperability
provisions for information systems.

The Member State of establishment shall check, within the short-
est possible period of time, whether the provider is operating
lawfully and verify the facts underlying the request. It shall inform
the requesting Member State within the shortest possible period
of time of the measures taken or envisaged or, as the case may
be, the reasons why it has not taken any measures.

Following communication by the Member State of estab-
3.
lishment as provided for in the second subparagraph of para-
graph 2,
the requesting Member State shall notify the
Commission and the Member State of establishment of its inten-
tion to take measures, stating the following:

(a)

the reasons why it believes the measures taken or envisaged
by the Member State of establishment are inadequate;

CHAPTER VII

CONVERGENCE PROGRAMME

Article 37

Codes of conduct at Community level

1. Member States shall, in cooperation with the Commission,
take accompanying measures to encourage the drawing up at
Community level, particularly by professional bodies, organisa-
tions and associations, of codes of conduct aimed at facilitating
the provision of services or the establishment of a provider in
another Member State, in conformity with Community law.

(b)

the reasons why it believes the measures it intends to take
fulfil the conditions laid down in Article 18.

2. Member States shall ensure that the codes of conduct
referred to in paragraph 1 are accessible at a distance, by elec-
tronic means.

The measures may not be taken until fifteen working days

4.
after the date of notification provided for in paragraph 3.

5. Without prejudice to the possibility for the requesting
Member State to take the measures in question upon expiry of
the period specified in paragraph 4, the Commission shall, within
the shortest possible period of time, examine the compatibility
with Community law of the measures notified.

Where the Commission concludes that the measure is incompat-
ible with Community law, it shall adopt a decision asking the
Member State concerned to refrain from taking the proposed
measures or to put an end to the measures in question as a mat-
ter of urgency.

6.
In the case of urgency, a Member State which intends to
take a measure may derogate from paragraphs 2, 3 and 4. In
such cases, the measures shall be notified within the shortest pos-
sible period of time to the Commission and the Member State of
establishment, stating the reasons for which the Member State
considers that there is urgency.

Article 36

Implementing measures

Article 38

Additional harmonisation

The Commission shall assess, by 28 December 2010 the possi-
bility of presenting proposals for harmonisation instruments on
the following subjects:

(a) access to the activity of judicial recovery of debts;

(b) private security services and transport of cash and valuables.

Article 39

Mutual evaluation

1.
By 28 December 2009 at the latest, Member States shall
present a report to the Commission, containing the information
specified in the following provisions:

(a) Article 9(2), on authorisation schemes;

In accordance with the procedure referred to in Article 40(3), the
Commission shall adopt the implementing measures designed to
amend non-essential elements of this Chapter by supplementing
it by specifying the time-limits provided for in Articles 28
and 35. The Commission shall also adopt, in accordance with

(b) Article 15(5), on requirements to be evaluated;

(c) Article 25(3), on multidisciplinary activities.

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The Commission shall forward the reports provided for in
2.
paragraph 1 to the Member States, which shall submit their
observations on each of the reports within six months of receipt.
Within the same period, the Commission shall consult interested
parties on those reports.

the need for additional measures for matters excluded from the
scope of application of this Directive. It shall be accompanied,
where appropriate, by proposals for amendment of this Direc-
tive with a view to completing the Internal Market for services.

3.
The Commission shall present the reports and the Member
States’ observations to the Committee referred to in Article 40(1),
which may make observations.

Article 42

Amendment of Directive 98/27/EC

4.
In the light of the observations provided for in para-
graphs 2 and 3, the Commission shall, by 28 December 2010 at
the latest, present a summary report to the European Parliament
and to the Council, accompanied where appropriate by propos-
als for additional initiatives.

In the Annex to Directive 98/27/EC of the European Parliament
and of the Council of 19 May 1998 on injunctions for the pro-
tection of consumers’ interests (1), the following point shall be
added:

5.
By 28 December 2009 at the latest, Member States shall
present a report to the Commission on the national requirements
whose application could fall under the third subparagraph of
Article 16(1) and the first sentence of Article 16(3), providing
reasons why they consider that the application of those require-
ments fulfil the criteria referred to in the third subparagraph of
Article 16(1) and the first sentence of Article 16(3).

Thereafter, Member States shall transmit to the Commission any
changes in their requirements, including new requirements, as
referred to above, together with the reasons for them.

the adoption by Member States of

The Commission shall communicate the transmitted require-
ments to other Member States. Such transmission shall not pre-
vent
the provisions in
question. The Commission shall on an annual basis thereafter
provide analyses and orientations on the application of these pro-
visions in the context of this Directive.

Article 40

Committee procedure

1.

The Commission shall be assisted by a Committee.

2. Where reference is made to this paragraph, Articles 5 and 7
of Decision 1999/468/EC shall apply, having regard to the pro-
visions of Article 8 thereof. The period laid down in Article 5(6)
of Decision 1999/468/EC shall be set at three months.

3. Where reference is made to this paragraph, Article 5a(1)
to (4), and Article 7 of Decision 1999/468/EC shall apply, hav-
ing regard to the provisions of Article 8 thereof.

Article 41

Review clause

The Commission, by 28 December 2011 and every three years
thereafter, shall present to the European Parliament and to the
Council a comprehensive report on the application of this Direc-
tive. This report shall, in accordance with Article 16(4), address
in particular the application of Article 16. It shall also consider

‘13. Directive 2006/123/EC of the European Parliament and of
the Council of 12 December 2006 on services in the inter-
nal market (OJ L 376, 27.12.2006, p. 36)’.

Article 43

Protection of personal data

The implementation and application of this Directive and, in
particular, the provisions on supervision shall respect the rules
on the protection of personal data as provided for in Directives
95/46/EC and 2002/58/EC.

CHAPTER VIII

FINAL PROVISIONS

Article 44

Transposition

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive before 28 December 2009.

They shall forthwith communicate to the Commission the text
of those measures.

When Member States adopt these measures, they shall contain a
reference to this Directive or shall be accompanied by such a ref-
erence on the occasion of their official publication. The methods
of making such reference shall be laid down by Member States.

(1) OJ L 166, 11.6.1998, p. 51. Directive as last amended by Directive

2005/29/EC.

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2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 46

Addressees

Article 45

Entry into force

This Directive is addressed to the Member States.

Done at Strasbourg, 12 December 2006.

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

For the European Parliament
The President
J. BORRELL FONTELLES

For the Council
The President
M. PEKKARINEN