COMMISSION STAFF WORKING PAPER On the process of mutual evaluation of the Services Directive  Accompanying document to the  COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS  Towards a better functioning Single Market for services – building on the results of the mutual evaluation process of the Services Directive {COM(2011)20 final}
Date: 2011-01-27
Institutions: European Commission
Subjects: administrative cooperation, administrative formalities, freedom to provide services, right of establishment, service, services contract, single market

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EUROPEAN COMMISSION 

Brussels, 27.1.2011 
SEC(2011) 102 final 

COMMISSION STAFF WORKING PAPER 

On the process of mutual evaluation of the Services Directive 

Accompanying document to the 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT, THE COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL 
COMMITTEE AND THE COMMITTEE OF THE REGIONS 

Towards a better functioning Single Market for services – building on the results of the 
mutual evaluation process of the Services Directive 

{COM(2011)20 final} 

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1. 

2. 

2.1. 

2.2. 

Introduction .................................................................................................................. 5 

The process of mutual evaluation ................................................................................ 5 

Background: review of national legislation and reporting by Member States............. 5 

Organisation of the mutual evaluation process ............................................................ 6 

2.2.1.  Preparation of the process: challenges, development of a methodology and its 

political endorsement ................................................................................................... 6 

2.2.2.  The three-step approach ............................................................................................... 7 

2.2.3.  Stakeholder consultation .............................................................................................. 9 

3. 

4. 

General remarks ........................................................................................................... 9 

Establishment-related requirements ........................................................................... 10 

4.1. 

Horizontal/cross-cutting authorisations (Article 9).................................................... 10 

4.1.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?10 

4.1.2.  The situation in Member States — what have we seen so far as a result of 

implementation?......................................................................................................... 11 

4.2. 

Quantitative/territorial restrictions (Article 15(2) (a)) ............................................... 14 

4.2.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?14 

4.2.2.  The situation in Member States — what have we seen so far as a result of 

implementation?......................................................................................................... 14 

4.3. 

Legal form requirements (Article 15(2)(b))............................................................... 18 

4.3.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?18 

4.3.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 18 

4.4. 

Shareholding requirements (Article 15(2)(c))............................................................ 23 

4.4.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?23 

4.4.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 23 

4.5. 

Bans on having more than one establishment (Article 15(2)(e) of the Services 
Directive) ................................................................................................................... 27 

4.5.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?27 

4.5.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 27 

4.6. 

Requirement to have a minimum number of employees (Article 15(2)(f) of the 
Services Directive) ..................................................................................................... 29 

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4.6.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?29 

4.6.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 29 

4.7. 

Fixed minimum and/or maximum tariffs (Article 15(2)(g) of the Services Directive)33 

4.7.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?33 

4.7.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 34 

4.8. 

Requirements obliging providers to supply other specific services jointly with their 
services (Article 15(2)(h) of the Services Directive) ................................................. 38 

4.8.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?38 

4.8.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 38 

4.9. 

Restrictions on multidisciplinary activities (Article 25 of the Services Directive) ... 40 

4.9.1.  What is the legal backdrop? What are the relevant aspects for the Services Directive?40 

4.9.2.  The situation in Member States — What have we seen so far as a result of 

implementation?......................................................................................................... 40 

5. 

Requirements related to cross-border services........................................................... 45 

5.1. 

The implementation of Article 16 — different approaches ....................................... 45 

5.1.1.  Member States introducing a clause on freedom to provide services in their 

‘horizontal law’ .......................................................................................................... 45 

5.1.2.  Member States without a horizontal law or a clause on freedom to provide services in 
the horizontal law, i.e. which rely (solely) on sector-specific changes...................... 47 

5.2. 

Overview of the most relevant requirements reported by Member States................. 48 

5.2.1.  Obligation on the provider to have an establishment in the territory of the Member 

State where it provides services (Article 16 (2) (a)) .................................................. 48 

5.2.2.  Obligation on the provider to obtain authorisation, including entry in a register or 

registration with a professional body or association (Article 16(2)(b))..................... 50 

5.2.3.  Notification/declaration requirements (Article 16(1)) ............................................... 55 

5.2.4.  Other requirements (Article 16(1)) ............................................................................ 57 

6. 

The situation in specific services sectors ................................................................... 62 

6.1.  Wholesale and retail................................................................................................... 62 

6.1.1.  Wholesale and retail in general .................................................................................. 62 

6.1.2.  Ambulant sales ........................................................................................................... 66 

6.1.3.  Other types of sales .................................................................................................... 68 

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6.2. 

Services in the tourism sector .................................................................................... 69 

6.2.1.  Services of travel agencies (including tour operators)............................................... 69 

6.2.2.  Services of tourist guides and similar services .......................................................... 71 

6.2.3.  Accommodation (including hotels, hostels, apartments, camping etc.)..................... 73 

6.2.4.  Car rental services ...................................................................................................... 73 

6.2.5.  Food and beverage (including catering services and bars) ........................................ 74 

6.3. 

Services in the construction sector............................................................................. 77 

6.3.1.  Requirements applying to establishment ................................................................... 77 

6.3.2.  Requirements applying to cross-border services........................................................ 82 

6.4. 

Real estate services .................................................................................................... 85 

6.4.1.  Requirements applying to establishment ................................................................... 85 

6.4.2.  Requirements applying to cross-border services........................................................ 87 

6.5. 

Business services........................................................................................................ 89 

6.5.1.  Services provided by employment agencies (including agents for specific 

professions, information for job seekers, etc.) ........................................................... 89 

6.5.2.  Advertising................................................................................................................. 91 

6.5.3.  Organisation of exhibitions and trade fairs ................................................................ 92 

6.5.4.  Debt collection services ............................................................................................. 92 

6.5.5.  Tax advisers ............................................................................................................... 93 

6.5.6. 

Insolvency practitioners ............................................................................................. 94 

6.5.7.  Patent/trademark agents ............................................................................................. 96 

6.5.8.  Translators and interpreters........................................................................................ 98 

6.6. 

Private education services ........................................................................................ 100 

6.6.1.  Higher education services ........................................................................................ 100 

6.6.2.  Vocational training................................................................................................... 103 

6.6.3.  Adult education and arts, language, dancing schools .............................................. 106 

6.6.4.  Driving courses ........................................................................................................ 108 

7. 

7.1. 

7.2. 

Stakeholder consultation .......................................................................................... 111 

Introduction .............................................................................................................. 111 

The results of the consultation in detail ................................................................... 111 

7.2.1.  Authorisations (Article 9) ........................................................................................ 111 

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7.2.2.  Requirements covered by Article 15........................................................................ 112 

7.2.3.  Restrictions on multidisciplinary activities (Article 25) .......................................... 112 

7.2.4.  Requirements for cross-border services (Article 16) ............................................... 112 

7.2.5.  Relationship between other EU legislation and the Services Directive................... 113 

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1. 

INTRODUCTION 

The  process  of  Mutual  evaluation  was  an  innovative  and  evidence-based  process  of  ‘peer 
review’  foreseen  in  Article  39  of  the  Services  Directive1  to  assess  the  state  of  the  internal 
market  for  services  after  implementation  of  the  Directive.  The  process  was  based  upon  the 
results  of  the  review  of  national  legislation undertaken  by  Member  States  to  implement  the 
Directive. It concerned specific types of requirements for which the Directive did not provide 
an  outright  prohibition  but  which  needed  to  be  assessed  by  Member  States  as  to  their 
justification and proportionality during the period for implementing the Directive.  

This  Commission  staff  working  document  presents  the  results  of  the  process  of  mutual 
evaluation. It first describes the process as such. It then sets out the detailed results as regards 
the  requirements  examined  as  well  as  the  specific  services  sectors  discussed.  It  ends  with  a 
description of the results of the  stakeholder consultation which  was also foreseen  as  part of 
the process.  

2. 

THE PROCESS OF MUTUAL EVALUATION  

2.1. 

Background: review of national legislation and reporting by Member States 

During the three years for implementation of the Services Directive (28 December 2006 to 29 
December 2009), Member States2 were required to review specific requirements imposed on 
service providers, i.e. they needed to identify the requirements in their legislation, assess their 
justification and proportionality, and, where necessary, abolish or amend them. By the end of 
the three-year period, Member States needed to report on the results of this review.  

The  review  of  legislation  concerned  requirements  governing  the  establishment  of  service 
providers and requirements governing the cross-border provisions of services.  

For establishment cases, it covered:  

•  Authorisation schemes (Article 9 of the Services Directive) 

•  Quantitative  or  territorial  restrictions;  obligations  on  a  provider  to  take  a  specific  legal 
form;  requirements  relating  to  company  shareholdings;  certain  requirements  reserving 
access  to  a  service  activity  to  particular  providers;  bans  on  having  more  than  one 
establishment in the territory of the same Member State; requirements fixing a minimum 
number of employees; fixed minimum and/or maximum tariffs; obligations on the provider 
to  supply  other  specific  services  jointly  with  its  service  (Article  15  of  the  Services 
Directive); and  

•  Restrictions on multidisciplinary activities (Article 25 of the Services Directive).  

For  the  cross-border  provision  of  services  (Article  16  of  the  Services  Directive),  all  rules 
applicable  to  services  provided  on  a  cross-border  basis  needed  to  be  reviewed  (unless  the 

1  

2  

Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12 December 2006  on 
services in the internal market, OJ L 376, 27.12.2006, pp. 36–68. 
The term ‘Member States’ is used in this document to refer to the 27 EU Member States and the three 
EFTA  countries  participating  in  the  European  Economic  Area  (EEA),  i.e.  Norway,  Iceland  and 
Liechtenstein. 

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rules  fell under  one of the  derogations to Article 16 contained in  Article  17  of  the Services 
Directive).  

The review covered the rules applicable to a large variety of service activities, i.e. all services 
falling  within  the  scope  of  the  Services  Directive.3  It  concerned  requirements  laid  down  at 
national, regional and local level as well as those imposed by professional associations in the 
exercise  of  their  regulatory  powers.  The  review  was  generally  carried  out  by  those 
departments in national administrations responsible for the specific laws being reviewed (for 
example  laws  affecting  tourism-related  services  were  generally  reviewed  by  the  ministry 
responsible for tourism). It was generally coordinated by a central unit.  

As said, Member States needed to report to the Commission on the results of the review. To 
deal with the amount of information involved in this reporting, the Commission services, in 
close  cooperation  with  the  Member  States,  set  up  an  electronic  system.  Through  the  use  of 
pre-formulated and pre-translated questions and answers, the system allowed Member States 
to  access  some  information  in  all  languages.  It  also  made  the  information  easily  accessible 
through a common structure. Last, it helped ensure that the main information on each of the 
reported  requirements  was  provided  through  the  use  of  obligatory  fields.  The  electronic 
reporting  system  was  used  by  all  Member  States  and  was  essential  for  the  Commission 
services  and  for  the  other  Member  States  to  understand  and  make  use  of  the  information 
provided.  During  the  implementation  period,  the  information  in  the  system  was  only 
accessible  to  the  Member  State  that  entered  it.  At  the  end  of  the  implementation  period,  all 
reports were made accessible to the other Member States and the Commission.  

2.2.  Organisation of the mutual evaluation process 

2.2.1. Preparation of the process: challenges, development of a methodology and 

its political endorsement 

While the Services Directive called for a process of mutual evaluation, it did not set out its 
organisation  in  detail.  The  organisation  of  the  process  needed  to  address  a  number  of 
important challenges, in particular:  

•  the high number of participants (27 EU Member States plus the 3 EEA-EFTA states);  

•  the vast amount of information to be dealt with;  

•  the limited amount of time available (about 10 months); 

•  the  fact  that  important  parts  of  the  information  reported  were  only  available  in  the 

respective national languages. 

To deal with these challenges, a methodology was developed in cooperation with the Member 
States. The aim was to ensure a good factual knowledge of the requirements to be mutually 
evaluated  and  to  encourage  the  active  engagement  of  all  Member  States.  The  latter  was 
crucial:  without  this  active  engagement,  the  process  of  peer  review  could  not  have  been 
successfully concluded.  

3  

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For  more  detailed  information  on  the  scope  of  the  Services  Directive,  see  page  10  et  seq.  of  the 
handbook 
Directive 
http://ec.europa.eu/internal_market/services/docs/services-dir/guides/handbook_en.pdf. 

implementation 

Services 

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on 

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The  proposed  methodology  consisted  of  three  stages:  individual  self-assessments,  work  in 
clusters of 5 Member States each, and plenary meetings with all Member States.  

The  discussions  followed  a  double  approach.  On  the  one  hand,  they  focused  on  the 
establishment  and  cross-border  requirements  as  such.  On  the  other  hand,  they  examined 
specific  service  sectors  identified  as  priorities  by  Member  States.  The  priority  sectors  were 
chosen  on  the  basis  of  their  economic  importance  as  well  as  the  level  of  regulation.  They 
comprised:  wholesale  and  retail  services,  construction  and  property-related  services,  real 
estate  activities,  tourism  and  related  services,  food  and  beverage  services,  services  of  the 
regulated professions, business services and private education services. Member States were 
of course free to discuss other sectors as well.  

The  proposed  methodology  was  developed  by  the  Commission  and  Member  States  and 
endorsed  by  the  High  Level  Group  of  the  Competitiveness  Council  (meeting  of  1  October 
2009).  The  High  Level  Group  confirmed  that  the  objective  of  the  process  was  to  obtain  a 
detailed picture of the internal market for services and to assess the needs for future steps. The 
Group  also  stressed  that  the  process  should  not  be  used  to  rank  or  ‘shame’  Member  States. 
Mutual trust was key. It was finally agreed that the High Level Group would have a steering 
role during the process.  

2.2.2. The three-step approach  

2.2.2.1.  First step: overview of the results of the review of legislation (‘self-

assessments’)  

In  a  first  step,  Member  States  agreed  to  give  basic  information  on  the  main  results  of  their 
review of legislation, i.e. the main changes in their regulatory framework, the main benefits 
expected, as well as the most important requirements maintained. This general overview was 
necessary  to  help  prepare  the  meetings  in  the  cluster  and  the  plenary,  where  the  detailed 
reports on individual requirements were to be discussed. The self-assessments were submitted 
by each Member State to the Commission by the end of January 2010. They were translated 
and distributed to all other Member States.  

2.2.2.2.  Second step: meetings in groups of 5 Member States (‘clusters’) 

The aim of the work in clusters was to ensure in-depth discussions on the legal framework of 
each Member State. Cluster work allowed for a variety of views while nevertheless ensuring a 
workable  size  for  in-depth  discussion.  It  enabled  better  understanding  of  the  individual 
situations in the Member States. It encouraged the active engagement of all Member States in 
the process.  

Member States gathered in 6 clusters of 5 countries each. The composition of the clusters was 
proposed by the Commission taking into account (to the extent possible) languages, levels of 
trade, and geographical proximity:  

Cluster 1: 

Austria, the Czech Republic, Hungary, Slovakia and Slovenia.  

Cluster 2: 

Belgium, France, Liechtenstein, Luxembourg and the Netherlands.  

Cluster 3: 

Bulgaria, Italy, Malta, Portugal and Spain.  

Cluster 4: 

Cyprus, Greece, Ireland, Romania and the United Kingdom.  

Cluster 5: 

Denmark, Germany, Iceland, Norway and Poland.  

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Cluster 6: 

Estonia, Finland, Latvia, Lithuania and Sweden.  

The  work  in  the  clusters  was  organised  by  the  Member  States  themselves  with  the 
Commission participating just as an observer. Between the end of January and the middle of 
March,  all  clusters  met  two  or  three  times  (generally  in  the  capitals  of  different  cluster 
members). In all clusters, Member States agreed to provide more detailed information about 
the existing requirements and draft ‘extended self-assessments’ for the service sectors that had 
been identified as priorities.  

The results of the cluster discussions were reflected in a cluster report made available to the 
rest  of  the  Member  States.  The  reports  gave  a  detailed  and  comparative  overview  of  the 
situation  as  regards  specific  requirements  and  sectors  and  summarised  discussions.  Several 
cluster reports also contained best practices that had been identified during the meetings. The 
cluster reports generally also indicated certain issues the cluster members wanted to discuss 
during the plenary phase. For instance, all clusters stated that there was a need to discuss the 
relationship  between  the  Professional  Qualifications  Directive4  and  the  Services  Directive. 
The  need  to  address  requirements  reserving  an  activity  to  specific  professions  was  also 
identified.  

2.2.2.3.  Third step: meetings with all Member States (plenaries)  

The  plenary  discussions  started  at  the  end  of  March  and  continued  until  the  middle  of 
October. These meetings were chaired by the Commission services. Several documents giving 
a detailed overview of the requirements and sectors under discussion were prepared.  

In total, 7 plenary meetings were held. These concerned:  

•  25 March 2010: 

 Overview  of  the  work  in  clusters  and  first  discussion  on 
horizontal/cross-cutting authorisation schemes (Art. 9). 

•  19 May 2010: 

•  20 May 2010: 

•  10 June 2010: 

Continuation  of  discussions  on  authorisations 
(Art.  9); 
discussions  on  legal  form  requirements  (Art.  15(2)(b)),  capital 
requirements (Art. 15(2)(c)) and restriction of multidisciplinary 
activities (Art. 25). 

Discussion on tariffs (Art. 15(2)(g)), quantitative and territorial 
restrictions  (Art.  15(2)(a))  and  bans  on  having  more  than  one 
establishment (Art. 15(2)(e)). 

Discussion  on  Article  16:  general  approaches  to  implementing 
the  freedom 
the  main 
requirements reported by Member States.  

to  provide  services  clause  and 

•  15 July 2010: 

Continuation of  the  discussion on Article 16 and discussion on 
requirements reported in the retail sector. 

•  16 September 2010: 

Discussion on requirements reported in the tourism sector, in the 
construction sector and in the business services sector. 

4  

Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  of  7  September  2005  on  the 
recognition of professional qualifications, OJ L 255, 30.9.2005, pp. 22–142. 

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•  15. October 2010: 

Discussion  on  the  relationship  between  the  Services  Directive 
and 
the  Professional  Qualifications  Directive  2005/36; 
discussion on requirements reported in the education sector and 
discussion  on  requirements  fixing  a  minimum  number  of 
employees  (Art.  15(2)(f))  and  on  obligations  on  providers  to 
supply  other  specific  services 
their  service 
(Art. 15(2)(h)). 

jointly  with 

2.2.3. Stakeholder consultation 

As provided for in the Services Directive, interested parties were consulted during the process 
of mutual evaluation. The on-line consultation took place between 30 June and 13 September. 
For the results, see below under point 7. 

3.  GENERAL REMARKS  

Member  States  reported  in  total  more  than  34 000  requirements.  Most  were  notified  by 
Germany, the Netherlands, Spain and Austria. At the other end, relatively few requirements 
were  notified  by  Bulgaria,  Cyprus,  Liechtenstein,  Malta,  Norway,  Latvia,  Luxembourg  and 
Finland. The number of notified requirements does not necessarily imply that a Member State 
is  heavily  regulated.  The  number  depends  on  various  factors,  including  the  organisational 
structure  of  a  Member  State  (federal  or  centralised  structure;  regulatory  powers  of  local 
authorities)  and  legislative  techniques  (e.g.  general  rules  versus  sector-specific  regulation). 
Significant differences in the number of notified requirements were thus to be expected. Most 
of the requirements notified were authorisation schemes and requirements imposed on cross-
border services.  

It  is  clear  that  not  necessarily  all  existing  requirements  have  been  reported  by  all  Member 
States. Not all Member States have done equally thorough work and certain differences exist 
in the reporting of the Member States.  

Sections  4  to  6  of  this  document  give  an  overview  of  the  main  requirements  that  were 
reported  and  discussed.  They  rely  on  the  information  provided  by  Member  States  in  the 
reports  as  well  as  on  the  information  given  in  the  self-assessments,  the  work  in  the  clusters 
and  the  discussions  in  the  plenary  meetings.  The  overview  does  not  intend  to  provide  a 
complete  picture.  This  is  not  possible  given  the  volume  of  reported  requirements.  The 
different  sections  focus  on  the  requirements  that  have  been  maintained  after  the 
implementation period. They also indicate requirements that have been abolished as a result 
of implementation, but it should be borne in mind that Member States did not have to report 
all the requirements that they abolished5 (in some sections, therefore, only examples could be 
given). A number of Member States are still in the process of amending existing legislation. 
This  is  why  the  document  sometimes  refers  to  changes  that  are  ‘ongoing’  or  have  been 
announced by Member States. In those cases, certain parts of the information provided may 
no longer be up to date (for instance, if laws have since been adopted or proposed drafts have 
been modified).  

5  

The  Services  Directive  only  obliged  Member  States  to  report  abolished  requirements  if  these  were 
covered by Article 15, but not if they came under Article 9, 16 or 25. 

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Finally,  the  document  describes  the  requirements  and  their  justifications  as  reported  by  the 
Member States. It does not make a judgment as to the justification or proportionality of the 
requirements  reported  or  as  to  the  validity  of  the  arguments  and  explanations  given  by 
Member States. The document does not prejudice the position of the Commission in trying to 
ensure  the  full  and  correct  implementation  of  the  Services  Directive,  including  via 
infringement cases. Nor does it prejudice the position of the Commission regarding existing 
or future complaints. 

4. 

ESTABLISHMENT-RELATED REQUIREMENTS

6 

4.1.  Horizontal/cross-cutting authorisations (Article 9) 

4.1.1. What is the legal backdrop? What are the relevant aspects for the Services 

Directive?  

‘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; 

(b) the need for an authorisation scheme is justified by an overriding reason relating to the 
public interest; 

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

Authorisation schemes are procedures that require providers to take steps in order to obtain a 
decision from a competent authority on access to or exercise of a service activity (by contrast, 
procedures  that  simply  require  providers  to  file  a  notification  or  declaration  with  the 
competent  authorities  are  not  considered  to  be  authorisation  schemes).  Under  these 
procedures,  providers  often  have  to  supply  information,  documents  and  certificates  to  the 
competent authorities  without  being  able to start up a new business or expand their activity 
until a decision on their applications has been taken. As recognised by the European Court of 
Justice, authorisation schemes are an obstacle to the establishment of service providers and, as 
such, can be maintained only if they are non-discriminatory, justified by an overriding reason 
of general interest and proportionate.  

This section deals only with ‘horizontal’ authorisation schemes, i.e. those applying across the 
board  to  many  service  activities.  Authorisations  for  specific  service  activities  have  been 
examined  during  the  sector-specific  discussions  in  the  mutual  evaluation  process  and  are 
described in part 6 below. 

6  

The  overview  does  not  include  a  specific  section  on  requirements  reported  by  Member  States  under 
Article  15(2)(d),  i.e. requirements  reserving an  activity  to specific  service  providers for  reasons other 
than professional qualifications. Most of the requirements reported and discussed related to professional 
qualifications. Where reservation requirements not linked to professional qualifications were reported in 
the priority sectors, they are included in the sector-specific parts of this paper. 

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4.1.2. The situation in Member States — what have we seen so far as a result of 

implementation?  

Member States have reported a number of horizontal schemes, in particular obligations to be 
entered  in  business  registers  or  to  obtain  a  general  trade  licence,  as  authorisation  schemes 
covered by Article 9 of the Directive. This is the case with Belgium (‘Banque Carrefour des 
Entreprises  —  Kruispuntbank  van  Ondernemingen’),  Bulgaria  (craft  register:  ‘Централен 
регистър на занаятчиите’), Cyprus (general trade licence)7, Czech Republic (trade licence: 
‘živnostenské  oprávnění’)8,  Estonia  (register  of  economic  activities:  ‘Majandustegevuse 
register’), France (trade registers: ‘Registre de commerce et des sociétés’ and ‘Répertoire des 
metiers’),  Germany  (craft  register:  ‘Handwerksrolle’),  Liechtenstein  (trade  register: 
‘Gewerberegister’), Luxembourg (trade licence: ‘autorisation d’établissement’), Malta (trade 
licence: ‘Liċenzi tal-Kummerċ’)9, Netherlands (trade register: ‘KVK Handelsregister’), Poland 
(register  of  business  activities  of  natural  persons:  ‘Ewidencja  Działalności  Gospodarczej’; 
register  of  entrepreneurs  in  the  national  court  register:  ‘Rejestr  Przedsiębiorców  Krajowy 
Rejestr Sądowy’), Slovakia (trade licence: ‘živnostenské oprávnenie’), and Sweden (different 
company registers held by the company registration office — Bolagsverket)10.  

Other business registers and general trade licences were not reported, but were nevertheless 
discussed  by  Member  States  during  the  mutual  evaluation  process.  Although  some  of  these 
business registers or  general trade licences may  indeed be authorisation schemes,  it appears 
that most were not notified because they were considered simple declarations or to be outside 
the scope of the Directive (for example because applied for taxation purposes).  

Examples  include  Austria  (registration  in  the  trade  register:  ‘Gewerberegister’),  Denmark 
(central business register: ‘CVR’), Finland (trade register: ‘Kaupparekisteri’), Germany (trade 
register:  ‘Gewerberegister’),  Greece  (general  business  register:  ‘ΓΕΝΙΚΟ  ΕΜΠΟΡΙΚΟ 
ΜΗΤΡΩΟ’),  Italy  (business  register:  ‘Registro  delle  imprese’  and  craft  register:  ‘Albo  delle 
Imprese  Artigiane’),  Liechtenstein  (public  register:  ‘Öffentlichkeitsregister’),  Luxembourg 
(trade  register:  ‘Registre  de  Commerce’),  Norway  (business  register:  ‘Foretaksregisteret’), 
Poland  (registration,  for  statistical  purposes,  in  the  register  of  national  economic  entities: 
‘REGON’), Romania (trade register: ‘Registrul Comertului’), Slovenia (craft register ‘Obrtni 
Register’), and United Kingdom (‘Companies house’)  

The  discussion  during  the  mutual  evaluation  process  showed  that  these  horizontal  schemes 
can take very different forms and that their objectives can also be different.11  

In all Member States, legal entities, including of course service providers, are obliged to be 
entered  in  company  registers  for  company  law  purposes.12  A  number  of  the  registers 

7  

8  

9 

10 

11  

Άδεια  άσκησης  υπό  νοµικών  προσώπων,  επί  κέρδει  επιχείρησης,  εµπορίου,  εργασίας,  επαγγέλµατος 
κλπ., εντός των δηµοτικών ορίων του οικείου ∆ήµου. 
Depending on the activity, procedures to obtain a trade licence in the Czech Republic take the form of 
authorisations in some cases and declarations in others. 
The trade licence in Malta has a residual scope of application, i.e. it only applies to those commercial 
activities that are not otherwise governed by any other specific law. 
Sweden reported three different registers held by Bolagsverket (company registration office) covering 
both legal and natural persons: the companies register, the associations register and the trade register. 
In many cases, horizontal registration obligations can be imposed for tax or social security reasons, such 
as obtaining a VAT or taxpayer identification number. However, these cases were not discussed in the 
mutual evaluation since taxation is not covered by the Services Directive, and some of these registration 
requirements are stipulated by specific EU instruments (for example, VAT registrations are dealt with 
by  Directive  2006/112/EC  of  28.11.2006  on  the  common  system  of  value  added  tax,  OJ  347/1  of 
11.12.2006). 

EN 

11 

  EN 

                                                 
mentioned  above  seem  to  fulfil  primarily  (albeit  not  necessarily  exclusively)  the  role  of 
company registers. Discussions showed, however, that in a number of cases the obligation to 
be  entered  in  such  registers  also  applies  to  individual  entrepreneurs.  This  appears  to  be  the 
case,  for  example,  with  the  ‘Registre  de  Commerce’  in  France  and  in  Luxembourg,  the 
‘Registro  delle  Imprese’  in  Italy,  and  the  ‘Handelsregister’  in  the  Netherlands.  Similar 
situations  seem  to  exist  in  other  Member  States  as  well.  This  was  mainly  explained  by 
Member  States  by  referring  to  transparency  reasons  (i.e.  making  sure  that  competent 
authorities  are  aware  of  all  businesses  established  in  their  territory)  or  even,  in  some 
instances, to mere statistical needs.  

In  other  cases,  cross-cutting  obligations  to  enrol  in  business  registers  or  to  obtain  a  trade 
licence  are  imposed  on  service  providers  in  order  to  check  their  good  repute  or  their 
compliance  with  criteria  concerning  their  activity  such  as  professional  qualifications  or 
technical and financial capacity. This is the case, for example, with the trade licences in the 
Czech Republic and Slovakia, the ‘autorisation d’établissement’ in Luxembourg and the craft 
registers  mentioned  by  Bulgaria,  Germany  and  Slovenia.  The  ‘Banque  Carrefour  des 
Entreprises  —  Kruispuntbank  van  Ondernemingen’  in  Belgium  encompasses  different 
registration  obligations  that  appear  to  be  imposed  to  ensure  transparency  and  to  verify 
compliance with activity-specific criteria, such as professional qualifications.  

In a number of cases, these schemes — for example, the trade licences in the Czech Republic, 
Slovakia  and  Malta  and  the  Register  of  Economic  Activities  in  Estonia  —  encompass 
different  procedures  (authorisations  or  declarations),  depending  on  the  specific  activity  for 
which the licence is sought.  

As  a  result  of  the  implementation  of  the  Directive,  some  of  these  horizontal  schemes  have 
been considered to be unjustified or disproportionate by Member States and have either been 
abolished or made less stringent. For instance, in Slovakia all authorisations covered by the 
Trade  Licence  Act  have  been  replaced  by  declarations.  Malta  has  replaced  some  of  the 
authorisations under its general trading licence by declarations. In some cases, changes have 
been  planned  but  not  adopted  yet.  For  instance,  Bulgaria  has  indicated  that  a  draft  law 
currently  pending  before  Parliament  will  make  membership  in  its  craft  register  no  longer 
mandatory  for  those  providers  that  are  already  subject  to  other  registration  obligations. 
Cyprus has communicated its intention to abolish the general trade licence  

Besides these changes to horizontal authorisations, Member States have adopted a number of 
other important administrative simplification reforms benefiting service providers across the 
board.  Often,  authorisations  have  been  replaced  with  declarations.  For  instance,  Italy  has 
established  a  general  principle  that  all  economic  activities  that  previously  required  an 
authorisation (save in exceptional cases) can be started upon filing a simple declaration to the 
competent  authorities.  In  Hungary,  individual  entrepreneurs  can  now  start  their  activities 
upon filing a declaration instead of the multi-step authorisation scheme they were previously 
subject to. 

12 

See for example Directive 2009/101/EC of 16 September 2009 on coordination of safeguards which, for 
the  protection  of  the  interests  of  members  and  third  parties,  are  required  by  Member  States  of 
companies  within  the  meaning  of  the  second  paragraph  of  Article  48  of  the  Treaty,  with  a  view  to 
making  such  safeguards  equivalent  (OJ  L  258/11  of  1.10.2009).  This  Directive,  which  codifies  a 
number of previous company law directives, requires certain categories of companies, in order to ensure 
transparency  and  information  to  third  parties,  to  supply  information  and  transmit  documents  (such  as 
their  company  statutes,  details  of  the  persons  authorised  to  represent  the  company,  etc.)  to  company 
registers in Member States. 

EN 

12 

  EN 

                                                                                                                                                         
CONCLUSIONS:  

Different types of horizontal authorisation schemes, i.e. schemes that apply to all or a large 
variety of services, exist in the Member States. 

As a result of the implementation of the Services Directive, some Member States have reduced 
the scope of such authorisation schemes and replaced, for certain services, authorisations by 
measures such as declarations. In the discussion, some Member States raised questions about 
horizontal authorisation schemes, in particular as regards those requiring prior verification 
of conditions. Some Member States pointed out that not all services covered by such schemes 
needed  prior  verification  and  authorisation.  It  was  stressed  that  declarations  could  be 
sufficient in many cases.  

In a number of cases, the discussion showed that several layers of procedures may apply to 
the start of the same service activity. For example, providers may be required to enrol in a 
business or company law register and, on top of that, obtain from other competent authorities 
a  general  trade  licence  or  other  authorisation  specific  to  their  activity.  Member  States 
stressed the need to avoid duplication and to ensure that procedures are as simple and quick 
as  possible.  Some  Member  States  referred  to  a  principle  in  their  administrative  system  that 
documents  may  not  be  required  from  a  provider  if  they  are  already  available  within  the 
administration.  Others  indicated  that  in  many  cases  the  burden  of  proof  as  regards 
compliance with requirements applicable to service providers has been shifted from providers 
to the public administration, so activities can now be started upon filing a simple declaration 
without having to submit any documentary evidence.  

EN 

13 

  EN 

 
4.2.  Quantitative/territorial restrictions (Article 15(2) (a)) 

4.2.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the  exercise  of  it  subject  to  compliance  with … quantitative  or  territorial  restrictions,  in 
particular in the form of limits fixed according to population or of a minimum geographical 
distance between providers’ 

Quantitative and territorial restrictions can take different forms. In some cases, they limit the 
overall  number  of  providers  in  a  certain  territory,  e.g.  by  imposing  a  maximum  number  of 
providers  through  limits  fixed  according  to  population  or  through  a  minimum  geographical 
distance between providers. In other cases, they do not limit the overall number of providers 
but determine the geographical locations where specific service activities can be carried out.  

These  requirements  in  many  cases  prevent  newcomers  from  entering  the  market  and  thus 
seriously  restrict  the  freedom  of  establishment.  Under  Article  15  of  the  Services  Directive, 
they can only be maintained if they are non-discriminatory, justified by an overriding reason 
of general interest, and proportionate. 

4.2.2. 

The situation in Member States — what have we seen so far as a 

result of implementation?  

Quantitative and territorial restrictions were reported by 22 Member States13 in many different 
service  sectors.  However,  a  large  number  of  these  requirements  were  notified  by  a  small 
group of Member States for a relatively homogeneous group of activities, mainly in the retail 
and tourism sectors.  

4.2.2.1.  Limits according to population, minimum distances, and limits on 

the number of providers in a certain territory  

Limits according to population, minimum distances or straightforward limits on the number 
of providers in a certain territory have been reported by several Member States. In a number 
of cases such requirements have been abolished — or are in the process of being abolished — 
as they were considered discriminatory, unjustified or disproportionate.  

For  instance,  minimum  distance  requirements  have  been  abolished  in  some  Italian  regions 
for beauticians, travel agencies and petrol stations. Greece and Spain (at regional level) have 
also  abolished  minimum  distance  requirements  between  petrol  stations.  Similarly,  Portugal 
has  indicated  that  it  is  in  the  process  of  abolishing  minimum  distance  requirements  for  the 
establishment of driving schools. Italy (at national level and in some regions) has abolished 
limits according to the population for establishments selling food and beverages. In the same 
vein, Luxembourg has indicated its intention to abolish the limits according to the population 
for establishments selling alcohol. A number of regions in Austria and Italy have abolished 
requirements limiting to one the number of ski schools per ski resort/municipality and Greece 

13  

Bulgaria,  Iceland,  Latvia,  Liechtenstein,  Malta,  Norway,  Sweden  and  United  Kingdom  did  not  report 
any such requirements. 

EN 

14 

  EN 

                                                 
has indicated that it will abolish a similar requirement restricting to one the number of private 
art schools that can be opened per district.  

The quantitative and territorial restrictions that have been maintained appear in many cases to 
be used by Member States as a tool to try to reduce or otherwise control the offer of services 
considered to involve potential risks for the recipients or risks/nuisances at the places where 
they  are  provided.  In  these  cases,  Member  States  sought  to  justify  these  requirements  by 
citing the protection of the environment or urban environment and the protection of recipients 
or their health.  

For example, minimum distances between two establishments are imposed on night shops and 
phone  shops  in  Belgium  (Flanders)  with  the  aim  of  limiting  the  nuisance  such  shops  may 
cause  in  the  neighbourhood  where  they  are  located.  For  similar  concerns  —  plus  for  public 
health  reasons  —  the  number  of  establishments  that  can  sell  alcohol  is  limited  in  France 
(depending on how many inhabitants live in a certain area) and in Spain (based on decisions 
taken  by  municipalities  ‘to  avoid  concentration  of  these  establishments’).  In  Ireland,  all 
licensed  premises  (this  includes  pubs,  hotels,  restaurants,  theatres  and  off-licences  —  i.e. 
shops  selling  alcohol  for  consumption  off-premises)  can  be  limited  in  number  by 
municipalities.  

In  some  cases,  Member  States  indicated  that  they  impose  quantitative  restrictions,  in 
particular  in  the  retail  sector,  as  a  tool  to  limit  the  concentration  of  certain  types  of 
establishments  (notably  large  outlets  such  as  supermarkets)  in  a  given  area.  In  particular, 
some regions in Italy limit the total amount of new square meters of certain types of outlets 
that  can  be  authorised  every  year.  It  appears  that  similar  restrictions  apply  to  large-scale 
outlets in other Member States as well. In Greece, the number of itinerant sellers that can sell 
products  outside  commercial  premises  in  a  given  municipality  can  be  limited  by  the  local 
authorities,  and  all  ‘outside  trade’  has  to  comply  with  minimum  distance  requirements. 
Greece  has  invoked  social  policy  reasons  and  the  protection  of  the  urban  environment  to 
justify such restrictions.  

In some instances, minimum distances between establishments carrying out the same service 
seem  to  be  imposed  because  of  scarcity  of  space  and/or  to  prevent  overcrowding  in  natural 
areas. This appears to be the case for establishments selling food and drinks on the beach in 
Spain and, in some instances, for holiday homes and campsites along the coast in Denmark.  

By  contrast,  in  other  cases,  minimum  distances  and  quantitative  limits  are  not  imposed  to 
limit the overall offer of certain services but on the contrary to try to ensure the widespread 
geographical  availability  of  certain  services.  The  idea  seems  to  be  that  restricting  the 
concentration of establishments in a certain area may encourage their setting up in other areas 
of the country or region. For example, in Italy, both national and regional legislation provide 
that  authorisations  to  open  new  newspaper  shops  must  take  into  account  the  population 
density in the catchment area. Some Italian regions have indicated that they are considering 
abolishing these requirements. 

Finally, in a number of cases Member States have notified requirements according to which 
only  one  (or  a  limited  number  of)  provider/s  can  exercise  the  same  activity  in  a  given 
geographical  district.  The  justification  for  these  requirements  varies.  For  example,  in 
Germany, each district can have only one dispatch centre for calls to the emergency number 
‘112’. This measure was explained by the need to ensure efficient organisation of the service. 
In Austria, only a limited number of chimney sweeps can work in a district. Austria cited fire 
protection  and  safety  as  reasons  as  well  as  ‘the  need  to  guarantee  a  minimum  income  to 
chimney sweeps’.  

EN 

15 

  EN 

4.2.2.2.  Territorial restrictions determining the geographical locations 

where certain service activities can be carried out 

Under  Article  15(2)(a),  Member  States  also  notified  a  number  of  requirements  that  do  not 
limit  the  overall  number  of  operators  allowed  in  a  certain  territory  but  rather  determine  the 
geographical  location  or  the  physical  place  where  a  given  service  can  be  provided.  This  is 
done  either  by  prohibiting  the  provision  of  a  service  in  certain  areas  or  by  determining  that 
certain activities can only be carried out in certain places.  

Member  States  have  indicated  that  some  of  these  requirements  will  be  abolished.  For 
example,  Greece  has  indicated  that  it  will  abolish  the  requirement  that  art  traders  can  only 
establish in towns where there are offices of the governmental department responsible for the 
protection of cultural heritage. Greece has also reported that the prohibition of ambulant trade 
in towns with more than 20 000 inhabitants will be abolished. France has indicated that it will 
abolish the requirement that training centres for certain health professions can only establish 
in towns where there is a regional hospital. 

Requirements  of  this  type  maintained  by  Member  States  are  very  heterogeneous  and  the 
reasons provided very different. All in all, the cases most frequently reported seem to concern 
rules that prohibit the exercise of certain service activities in the physical proximity of other 
activities, locations or groups of persons. In  many cases, it seems that the aim is to prevent 
risks  that  these  services  could  represent  in  a  particular  area.  For  example,  in  Greece  petrol 
stations  need  to  keep  a  minimum  distance  from  certain  places  open  to  the  public  such  as 
restaurants.14 In Portugal establishments selling alcohol and sex shops cannot establish next to 
schools, and in Austria vending machines cannot be set up in areas around public buildings 
and  public  transport.  In  the  area  of  the  regulated  professions,  France  notified  a  prohibition 
imposed  on  land  surveyors  (‘géometres  experts’)  from  setting  up  an  office  in  the  same 
geographical  area  where  they  have  previously  worked  as  trainees  or  employees  for  another 
land surveyor. However, this requirement was notified as being made less stringent. 

CONCLUSION:  

With  regard  to  quantitative  and  territorial  restrictions,  the  mutual  evaluation  process 
revealed very divergent situations: while some Member States resort to such restrictions in a 
number  of  cases,  in  particular  in  the  tourism  and  retail  sectors,  others  do  not  seem  to  use 
such restrictions at all.  

Different  types  of  quantitative  or  territorial  restrictions  seem  to  exist  and  different  reasons 
are  invoked  to  justify  them.  Most  of  the  reported  cases  concern  limits  (based  on  the 
population or consisting in minimum distances between providers) imposed by Member States 
on  the  overall  number  of  providers  of  a  certain  service  that  are  allowed  to  establish  in  a 
certain area. These restrictions seem to be used mainly to control potential nuisances due to 
the provision of certain services or their effects in the area where the activity is carried out. 
Specifically  in  the  retail  sector,  the  opening  of  large-scale  outlets  is  sometimes  limited  by 
quotas imposed on the number of new square metres that can be authorised in a given period 
in a certain area.  

Other restrictions concern cases where, for various reasons, Member States do not limit the 
number  of  providers  but  rather  determine  the  geographical  location  of  certain  activities,  in 
particular by prohibiting certain services in specific areas.  

14  

Greece has indicated that this requirement will be made less stringent by reducing the required distance 
from 200 m to 50 m. 

EN 

16 

  EN 

                                                 
As  a  consequence  of  the  Directive’s  implementation,  a  good  number  of  quantitative  or 
territorial  restrictions  have  been  or  are  being  amended.  In  the  discussion,  many  Member 
States  questioned  the  remaining  requirements,  in  particular  those  that  limit  the  overall 
number of service providers. It was pointed out that outright quantitative limits on the offer of 
certain services have  detrimental  effects on competition and,  as a result, on innovation  and 
development  of  high-quality  services.  In  those  cases  where  specific  risks  to  the  health  of 
recipients  or  to  the  environment  may  exist,  the  risks  could  better  be  prevented  by  imposing 
rules, possibly including, if justified, authorisation schemes, to regulate the way in which the 
activities  in  question  have  to  be  carried  out.  The  appropriateness  of  territorial  restrictions 
imposed to ensure the widespread availability of certain services was also questioned.  

EN 

17 

  EN 

4.3. 

Legal form requirements (Article 15(2)(b)) 

4.3.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the exercise of it subject to compliance with … an obligation on a provider to take a specific 
legal form’ 

Legal form requirements can take very different forms. In some cases (often in the area of the 
regulated  professions),  service  providers  are  obliged  to  operate  as  natural  persons  or  under 
specific legal forms (mostly ‘partnerships’ or equivalent forms), which imply a high level of 
personal liability and/or independence of the provider. At the other end of the spectrum, some 
Member States stipulate that certain service providers can only act as legal persons, in some 
cases  in  the  form  of  non-profit  organisations.  Different  legal  form  requirements  restrict 
service providers to different degrees: in some cases only one specific legal form is excluded, 
in others providers have a choice of several legal forms, and in some cases only one specific 
legal form is allowed.  

Legal  form  requirements  constitute  serious  obstacles  to  the  freedom  of  establishment.  They 
limit  the  choice  of  business  models  and  particularly  affect  service  providers  from  other 
Member  States,  which  may  not  be  able  to  establish  unless  they  change  their  legal  form  or 
operate  through  a  subsidiary.  Legal  form  requirements  may  significantly  restrict  the  cross-
border  provision  of  services,  by  preventing  certain  providers  from  offering  their  services 
across borders merely because of the legal form in which they operate. Under Article 15 of 
the Services Directive, they can only be  maintained if they are  non-discriminatory, justified 
by an overriding reason of general interest, and proportionate. 

These  requirements  are  often  reported  as  necessary  to  ensure  the  independence  of  service 
providers. In some cases, they are also deemed necessary to ensure the reliability or solvency 
of  the  service  provider.  Some  Member  States  have  also  justified  certain  legal  form 
requirements  by  citing  the  need  to  ensure  that  providers  possess  the  required  skills  and 
qualifications. 

Legal form requirements are closely related to shareholding requirements and restrictions on 
multidisciplinary  activities,  in  particular  as  regards  the  regulated  professions.  Various 
Member  States  aim  to  attain  the  same  objectives  through  different  types  of  requirements. 
Moreover,  many  Member  States  also  often  seem  to  combine  these  different  types  of 
requirements to try to achieve the same objectives.  

4.3.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

Legal  form  requirements  were  reported  by  almost  all  Member  States15  (in  total  more  than 
400). However, there are considerable differences in the number of reported requirements.16 
Legal form requirements are often found in the area of the regulated professions, but also in 
other areas such as education services or technical control and supervision services. 

15  
16  

Only Latvia and Norway did not report any legal form requirements. 
Cyprus, Luxembourg, Slovakia and Sweden declared only a single legal form requirement, while Italy, 
Lithuania and Spain reported around 50 and Romania more than 100. 

EN 

18 

  EN 

                                                 
4.3.2.1.  Requirements to provide a service as a natural person or under 
legal forms ensuring a high level of personal liability of the provider 
(mostly ‘partnerships’ or equivalent legal forms) 

One  of  the  most  important,  if  not  the  most  common,  legal  form  requirements  is  that  which 
limits the exercise of certain activities to natural persons or partnerships (or similar entities). 
Many Member States impose such a requirement on professions often referred to as ‘highly 
regulated professions’ or ‘liberal professions’. In general, Member States consider that such 
requirements are needed to ensure the independence and impartiality of the service provider 
as well as a high level of personal liability. In some cases, they have been deemed necessary 
to ensure that the activity in question is carried out by qualified professionals.  

As  a  result  of  the  implementation  of  the  Services  Directive,  a  number  of  legal  form 
requirements  that  were  considered  discriminatory,  unjustified  and/or  disproportionate  have 
been abolished or amended. For example, in Poland, the obligation for the legal professions 
and  tax  advisers  to  be  exercised  by  natural  persons  or  partnerships  has  been  made  less 
stringent  by  allowing  an  additional  option  of  a  joint-stock  limited  partnership  (‘spółka 
komandytowo-akcyjna’).  In  Italy,  the  obligation  for  itinerant  and  market  traders  to  be 
individual  entrepreneurs  or  partnerships  (and  not  limited  companies  or  cooperatives)  was 
recently abolished. . Germany has indicated that the legislation on architects and engineers 
has  been  relaxed  and  now  offers  a  free  choice  of  corporate  structure  and  shareholdings.  In 
France,  following  a  recent  reform,  accountants  can  now  provide  services  under  any  legal 
form,  except  that  "commercial  companies".  Also  in France,  the  prohibition  on  artist  agents 
taking  the  form  of  a  limited  company  (‘société  anonyme’  or  ‘société  en  commandite  par 
action’)  has  been  reported  as  being  abolished.  Greece  also  reported  to  be  abolishing  the 
requirement  that  only  natural  persons  can  provide  private  supportive  training  services  to 
school students.  

However, such requirements remain in a variety of areas and Member States. A good number 
(but not all) were reported.  

In  some  cases,  Member  States  have  reported  obligations  to  exercise  certain  activities  as  a 
natural person, thus completely excluding legal persons or other entities. This is the case for 
example  in  Greece  for  ambulant  retail  traders  and  in  Austria  for  ski  schools  and  mountain 
guides.  

In  many  cases,  Member  States  require  professionals  to  exercise  their  activity  as  a  natural 
person,  in  a  partnership  or,  in  some  cases,  in  other  entities  providing  for  a  high  level  of 
personal  liability  and/or  involvement  of  the  professional.  In  some  cases,  such  requirements 
are in fact imposed on a variety of professions across the board. For instance, in Italy, such 
requirements  apply  to  a  wide  range  of  ‘liberal  professions’  (such  as  lawyers,  accountants, 
architects,  engineers17,  etc.)  which  can  only  be  exercised  by  individuals  or  in  the  form  of  a 
partnership (‘società di persone’) or an association between professionals. A similar situation 
exists in Latvia, where professionals need to assume particular legal forms as a condition to 
practice  under  their  professional  title.  Similar  requirements  seem  to  exist  in  other  Member 
States.  

In other cases, this type of requirement is imposed on specific professions only. For instance, 
Poland, Portugal and Romania have reported obligations for legal professionals to operate as 

17  

It  is not  clear,  though, whether  this  limitation fully  applies  to  architects  and  engineers, given  that  the 
creation of limited companies carrying out engineering activities is allowed by Italian legislation at least 
in certain cases (e.g. public procurement). 

EN 

19 

  EN 

                                                 
natural  persons,  partnerships  or  entities  designed  specifically  for  professionals  and  often 
providing  for  a  high  level  of  personal  liability.  Similar  requirements  limiting  the  choice  of 
available  legal  forms  to  natural  persons,  partnerships  or  similar  entities  have  also  been 
reported  for  accountants  in  Portugal18  and  France19,  insolvency  administrators  in  the  Czech 
Republic20 and Romania21, veterinarians in France and Romania, architects and engineers in 
Austria and Bulgaria, and architects in the Czech Republic. In Belgium, real estate agent and 
land surveying activities can only be exercised by natural persons or by legal persons under 
the responsibility and control of an independent land surveyor/real estate agent. 

Legal  form  requirements  of  this  type  have  also  been  reported  for  areas  other  than  ‘highly 
regulated professions’. In Italy, for example, craft companies (‘società artigiane’) cannot take 
the form of limited companies (‘società per azioni’). 

4.3.2.2.  Requirements to provide specific services as (specific) legal entities  

Some  Member  States  require  the  service  provider  to  be  a  (specific  type  of)  legal  person  in 
order  to  provide  certain  services,  thus  excluding  the  provision  of  these  services  by  natural 
persons. Such requirements are often presented as necessary to guarantee the reliability and 
solvency of the service provider and/or a high level of quality.  

Some  of  these  requirements  have  been  or  are  being  abolished  as  a  result  of  the 
implementation  of  the  Services  Directive,  as  they  were  found  to  be  unjustified  or 
discriminatory.  In  Portugal,  for  example,  in  the  car  rental  sector,  the  obligation  to  operate 
exclusively  as  a  ‘sociedade  commercial’  has  been  notified  as  being  abolished.  The 
Netherlands reported the abolition of a requirement for organisations training immigrants for 
the  obligatory  ‘integration  exam’  to  be  legal  persons.  These  services  can  now  also  be 
provided  by  natural  persons.  A  similar  obligation  to  operate  as  a  legal  person  is  also  being 
relaxed  for  gas  emission  control  services  and  greenhouse  inspection  services  in  the 
Netherlands. In Lithuania, a requirement that only a legal entity can be certified to provide 
training to civil servants has been abolished.  

Nevertheless, in certain areas similar requirements remain. In Italy, employment agencies can 
only operate as legal persons and in a limited number of legal forms. In the Flanders region in 
Belgium, in the field of employment services, a careers centre has to be a legal person.. Many 
similar requirements exist in other Member States. 

Such  requirements  also  exist  in  the  area  of  private  education.  For  instance,  in  Italy,  private 
higher education activities (private universities) can only be exercised in the  form  of public 
law entities (‘enti pubblici’). In the Czech Republic and Cyprus, private universities also need 
to be legal persons.  

18  
19  

20  

21  

The profession may not be exercised in the form of commercial companies. 
Following  a  recent  reform,  in  France  accountants  can  now  provide  services  under  any  legal  form, 
except that "commercial companies". . 
Insolvency  administration  services  can  only  be  provided  by  a  natural  person,  an  unlimited  liability 
partnership  (‘veřejná  obchodní  společnost’)  or  a  foreign  company  providing  the  same  liability 
guarantees. 
They can also only provide services as a legal person through a closed list of legal forms. 

EN 

20 

  EN 

                                                 
4.3.2.3.  Other limitations on the number of legal forms available to carry 

out certain activities 

Some of the legal form requirements reported by Member States do not appear to fall into any 
of the previous categories. These are requirements that allow the exercise of certain activities 
both by natural and by legal persons, but which still limit — in different ways depending on 
the Member State — the choice of legal forms that can be used. The reasons justifying these 
requirements  have  been  reported  in  a  rather  general  manner  by  Member  States,  which,  for 
example, in some cases cited the need to ensure that no external interests influence the work 
of professionals.  

Some  of  these  requirements  were  considered  to  be  unjustified  and  were  or  are  being 
abolished. For example, Belgium reported that a requirement that debt recovery activities had 
to  be  exercised  by  a  natural  person  or  by  ‘sociétés  commerciales’  has  been  abolished.  In 
Denmark,  a  restriction  on  the  legal  form  of  real  estate  agents  and  accountants  has  been 
repealed.  In  Spain,  limitations  in  the  choice  of  legal  form  for  travel  agents  have  been 
abolished. 

However,  requirements  remain  in  other  areas.  For  instance,  in  Denmark,  land  surveying 
activities may only be exercised by a natural person, a grouping of several land inspectors, a 
public  limited  liability  company  or  a  private  limited  company  (but  not  in  different  legal 
forms).  In  France,  land  surveyors  can  only  provide  services  as  as  legal  person  as  ‘Sociétés 
civiles  professionnelles  ou  interprofessionnelles’;  ‘Sociétés  d’exercice  libéral’  or  ‘Sociétés 
anonymes ou sociétés à responsabilité limitée’. 

In  Hungary,  an  insolvency  practitioners’  company  can  be  registered  on  the  list  of  the 
insolvency  practitioners  only  if  it  is  a  limited  liability  company  established  in  Hungary,  a 
limited company with registered shares, or a Hungarian branch of a company established in a 
Member  State  and  authorised  under  Council  Regulation  (EC)  No  1346/2000  on  insolvency 
proceedings. In Estonia, a firm of auditors may operate as a general or limited partnership, a 
private limited company, a public limited company, or a European company.  

4.3.2.4.  Requirement to be a non-profit organisation 

In  a  number  of  Member  States,  certain  service  activities  can  only  be  undertaken  by  legal 
persons if they take the form of a non-profit organisation. The reason behind this requirement 
is generally the need to ensure affordable prices or to prevent service providers from pursuing 
profit-only objectives to the detriment of recipients. 

Areas where this requirement exists include social services. For example, in Austria, childcare 
providers are required to act as non-profit entities. In Belgium, a requirement at regional level 
stipulates  that  advice  to  debtors  can  only  be  provided  by  private  establishments  if  they  are 
incorporated as ‘non-profit-making organisations’. In Luxembourg, organisations that inspect 
working conditions must operate as non-profit associations. Such requirements have also been 
reported for collecting societies (for instance in France, Poland or Slovenia).  

CONCLUSION:  

Legal  form  requirements  have  been  notified  by  many  Member  States  for  a  large  variety  of 
different  services.  In  contrast,  some  Member  States  do  not  seem  to  limit  the  legal  form  of 
service providers at all, or at least have not notified any such restrictions.  

Several  Member  States  require  certain  service  providers  to  be  a  natural  person  or  a 
partnership,  thus excluding companies (or other corporations). This is often the  case in the 

EN 

21 

  EN 

highly regulated professions such as lawyers, tax accountants or architects. These restrictions 
seem  to  be  imposed  to  ensure  the  personal  liability  of  the  professionals,  their  solvency, 
independence and qualifications, or the quality of the service provided.  

In  other  areas,  Member  States  require  service  providers  to  be  a  company  (or  other 
corporation) and exclude natural persons or partnerships from exercising the activity. Such 
requirements are seen as necessary to ensure the solvency of the provider and the quality of 
the  services.  In  some  cases,  Member  States  require  certain  services  to  be  provided  by  non-
profit organisations. Such requirements are seen as necessary to guarantee that the provider 
is not pursuing profit objectives to the detriment of the service recipients.  

Discussions  showed  that  legal  form  requirements  are  closely  related  to  shareholding 
requirements  and  restrictions  on  multidisciplinary  activities,  in  particular  as  regards  the 
regulated  professions.  Various  Member  States  aim  to  attain  the  same  objectives  through 
different  types  of  requirements  but  also  often  seem  to  combine  these  different  types  of 
requirements to try to achieve these objectives. 

Some  progress  has  been  achieved  during  the  implementation  of  the  Services  Directive. 
However, it is clear that considerable restrictions remain. These concern important parts of 
the services sector and include services with a significant cross-border growth potential. The 
discussion confirmed that legal form requirements are very serious obstacles for the internal 
market, which are particularly burdensome for service providers from other Member States. 
These may in fact need to change their legal form in order to be able to exercise their activity 
in another Member State.  

Member States have in particular questioned requirements that certain activities can only be 
carried out by natural persons, all the more so when these requirements are applied across 
the board to a wide range of regulated professions. Some Member States have argued that the 
solvency  of  the  provider  could  be  safeguarded  by  insurance/guarantee  requirements,  the 
quality  of  the  service  would  be  best  ensured  through  requirements  on  the  qualification  of 
professionals, and direct involvement in service provision and independence of the provider 
can  be  guaranteed  by  professional  rules  or  rules  to  ensure  that  professionals  can  act 
independently.  

Legal  form  requirements  requiring  the  provider  to  be  a  legal  person  have  been  questioned, 
since  solvency  could  be  safeguarded  through  insurance/guarantee  requirements  and  the 
quality of the service through requirements for the qualification of professionals.  

EN 

22 

  EN 

4.4. 

Shareholding requirements (Article 15(2)(c))  

4.4.1.  What  is  the  legal  backdrop?  What  are  the  relevant  aspects  for  the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the exercise of it subject to compliance with … requirements which relate to the shareholding 
of a company’ 

Capital  requirements  include  requirements  to  have  a  specific  qualification  in  order  to  hold 
capital (thus limiting the amount of capital that can be held by third parties, i.e. persons who 
do not have specific qualifications) and obligations to have a minimum capital.  

Requirements  to  have  a  specific  qualification  in  order  to  hold  capital  often  exist  for  the 
regulated  professions.  In  fact,  for  some  service  sectors  a  large  number  of  Member  States 
require that the entire capital or the majority (more than 50 %) is directly owned by members 
of specific professions.  

Minimum  capital  requirements  as  a  condition  to  set  up  a  company  carrying  out  specific 
activities  have  been  reported  by  some  Member  States  for  a  number  of  different  sectors,  but 
they seem to be comparatively less frequent.   

Many  capital  requirements  limit  the  possibilities  for  professionals  to  have  third  parties 
investing in their companies and can also prevent providers from entering a market (if they do 
not  have  the  minimum  capital  or  minimum  share  capital  to  be  held  by  professionals).  Both 
aspects  severely  limit  opportunities  for  new  service  providers  to  enter  the  market  and  for 
already active providers to further develop their activities.  

Capital  requirements  are  particularly  burdensome  for  providers  from  other  Member  States, 
who may need to change their ownership structure to establish in another EU country. Under 
Article  15  of  the  Services  Directive,  they  can  only  be  maintained  if  they  are  non-
discriminatory, justified by an overriding reason of general interest, and proportionate. 

As  already  indicated  before,  capital  requirements  are  closely  linked  to  legal  form 
requirements,  in  particular  for  the  regulated  professions.  For  example,  Member  States  that 
allow  professional  services  to  be  carried  out  in  the  form  of  a  company  may  nevertheless 
require  members  of  the  profession  to  hold  the  majority  of  shares/votes  in  the  company  (in 
order  to  try  to  guarantee  that  members  of  the  profession  have  a  decisive  influence  on  the 
company).  

4.4.2. 

The situation in Member States — What have we seen so far as a 

result of implementation?  

Around  100  capital  requirements  have  been  reported  by  23  Member  States.22  As  in  other 
cases,  Member  States  make  use  of  such  requirements  to  very  different  degrees.  Two  main 
categories can be highlighted. 

22  

The Czech Republic, Greece, Finland, Iceland, Latvia, Sweden and the United Kingdom did not report 
any requirement. 

EN 

23 

  EN 

                                                 
4.4.2.1.  Requirements limiting the shareholding by third parties 

Capital  requirements  limiting  the  shares  held  by  third  parties  exist  largely,  but  not 
exclusively, in the area of the regulated professions. Such requirements are used to ensure that 
the majority (more than 50 %) of a company’s capital is held by professionals in the sector in 
question.  The  objective  cited  by  Member  States  is  almost  always  to  guarantee  the 
independence  and  impartiality  of  professionals  or  to  ensure  that  the  activity  is  directly 
exercised by qualified professionals.  

Following  implementation  of  the  Services  Directive,  capital  ownership  requirements  have 
been  made  less  stringent  in  several  cases  because  they  were  found  unjustified  or 
disproportionate.  For  example,  in  Luxembourg,  a  shareholding  requirement  for  crafts  is 
reported as being in the process of being abolished. In other cases, the percentage of capital 
that can be owned by third parties has been raised. For instance, in France, the capital share 
that can be held by third parties in ‘Sociétés d’exercice liberal’ has been raised from 25 % to 
49 %  (except  for  legal  and  health  professionals).  A  change  in  French  legislation  raising  the 
threshold  of  third  parties  capital  to  49%  has  recently  been  approved  specifically  for  land 
surveyors.  In  Spain,  when  professionals  opt  to  set  up  a  ‘professional  company’  (‘sociedad 
professional’), the share of capital that can be held by third parties has likewise been raised 
from 25 % to 49 %.  

Nevertheless,  significant  restrictions  remain.  In  some  cases,  the  capital  of  a  company  is 
entirely closed to non-professionals. For example, Italy has reported that 100 % of the capital 
of professional partnerships  in  the  ‘liberal professions’ has to  be  owned  by  the professional 
members.  In  Lithuania  and  Slovenia,  this  applies  to  lawyers,  in  Portugal  to  lawyers, 
accountants and auditors, and in Malta to lawyers and engineers (‘periti’).  

Member  States  have  also  maintained  other  capital  requirements.  For  instance,  in  Denmark, 
shares  in  a  law  firm  can  only  be  owned  by  lawyers  actively  working  as  lawyers  in  the 
company, its parent company or subsidiary — another law firm — or by other employees of 
the firm23. 

Belgium  has  maintained  a  requirement  that  the  majority  of  shares  in  an  accounting  firm  be 
held by accountants and/or tax advisors who are members of the Institute of Accountants and 
Tax Advisors. In France, the legislation states that accountants must, directly or indirectly via 
a  company  registered  on  the  roll  of  the  professional  order,  hold  a  capital  share  and  voting 
rights equal to at least 75 % in limited liability companies and 66 % in joint stock companies 
and ‘sociétés par actions simplifiées’24.  

In Belgium, the profession of architect can be exercised in the form of legal person only if at 
least 60 % of the company shares are owned directly or indirectly by registered architects. The 
remaining shares cannot be held by persons exercising a profession that may conflict with that 
of  architect.  In  France,  more  than  50 %  of  the  company’s  shares  and  voting  rights  must  be 
held  by  architects  or  firms  providing  architecture  services.  In  Germany,  at  regional  level 
(Bavaria  and  Saxony),  the  majority  of  the  capital  and  voting  rights  has  to  be  held  by 
architects.  In  Austria,  the  engineer  or  architect  responsible  for  running  the  business  has  to 
control  more  than  50 %  of  the  share  capital.  In  the  Czech  Republic,  the  majority  of 
shareholders and statutory representatives (executives) must be authorised architects.  

23 

24  

Other employees of the company are only allowed to own up to 10 % of the shares of the company, and 
must pass a test to prove their knowledge of the rules of particular importance for the legal profession. 
75 %  for  ‘sociétés  à  responsabilité  limitée’,  66 %  for  ‘sociétés  anonymes’  and  ‘sociétés  par  actions 
simplifiées’. 

EN 

24 

  EN 

                                                 
Such  capital  requirements  may  also  be  found  in  areas  other  than  ‘highly  regulated 
professions’.  In  Italy,  at  least  51 %  of  the  capital  of  craft  enterprises  (‘impresa  artigiana’, 
which  includes  for  example  bakers,  barbers,  beauticians,  etc.)  must  be  held  by  qualified 
craftspersons.  As  indicated  above,  a  similar  requirement  is  reported  as  being  abolished  in 
Luxembourg.  Finally,  in  France,  restrictions  on  the  capital  that  can  be  held  by  non-
professionals  apply  to  activities  as  diverse  as  collecting  societies  or  racehorse  training 
companies. 

One further remark: in some cases, it seems that professionals established in another Member 
State (than the Member State where the legal person is established) are more restricted in the 
capital  they  may  hold  than  professionals  established  in  the  Member  State  where  the  legal 
person is established25. This would seem to be discriminatory.  

4.4.2.2.  Requirements imposing a minimum capital requirement on 

companies in certain service sectors 

Requirements  to  have  a  minimum  amount  of  capital  to  set  up  or  run  a  company  in  certain 
service  sectors  have  also  been  notified  by  some  Member  States.  The  objective  of  these 
obligations is often said to be to enhance the liability/solvency and personal responsibility of 
the service provider.  

In  some  cases,  Member  States  have  reported  changes  following  the  implementation  of  the 
Directive.  For  instance,  in  Portugal,  a  minimum  capital  requirement  of  EUR 50 000  for  car 
rental activities has been notified as being in the process of being abolished. In Spain, similar 
obligations for travel agencies have been abolished. In Belgium, minimum capital obligations 
imposed  on  travel  agents  are  also  reported  to  have  been  abolished.  In  Portugal,  the 
requirement  for  travel  and  tourism  agencies  services  to  have  a  minimum  capital  of 
EUR 100 000 has also been reported as in the process of being abolished. 
In other cases, similar requirements have been maintained. In Italy, public limited companies 
acting  as  custom  agents  (‘spedizionieri  doganali’)  have  to  hold  a  minimum  capital  of 
EUR 100 000  and  employment  agencies  must  have  a  capital  of  up  to  EUR 600 000  Euros 
depending on the specific activities they carry out.  

CONCLUSION:  

The  process  of  mutual  evaluation  has  shown  that  there  is  great  variation  between  Member 
States  as  regards  capital  requirements:  while  some  Member  States  have  reported  such 
requirements for several different services, other Member States do not seem to resort to them 
at  all.  This  may,  in  certain  cases,  be  because  the  latter  adopt  a  restrictive  approach  to 
activities carried out by professionals and do not allow the exercise of such activities by legal 
persons.  

Broadly speaking, there are two different types of capital requirements: requirements to have 
a specific qualification in order to hold capital (thus limiting the amount of capital that can 

25  

In Belgium, for example, for accountants and/or tax advisors, the majority of shares and the majority 
voting  power  must  be  held  by  accountants  and/or  tax  advisors  who  are  members  of  the  Institute  of 
Accountants and Tax Consultants. Accountants and/or tax advisors established in another Member State 
and having  a qualification  recognised  as  equivalent  to  an  accountant or  a  tax  advisor  in  Belgium  can 
only hold a minority of shares. 

EN 

25 

  EN 

 
                                                 
be  held  by  third  parties,  i.e.  by  persons  who  do  not  have  specific  qualifications)  and 
obligations to have a minimum share capital.  

As far as requirements limiting the shares held by third parties are concerned, in some cases, 
all  shares  have  to  be  held  by  persons  with  specific  qualifications  (usually  professionals), 
whereas in other cases a percentage of shares (ranging between 25 and 49 %) may be held by 
other  persons  (non-professionals).  Shareholding  requirements  are  closely  related  to  legal 
form  requirements.  For  example,  Member  States  that  allow  a  activity  profession  to  be 
exercised  by  a  company  may  require  members  of  this  profession  to  hold  the  majority  of 
shares/votes  in  the  company  in  order  to  guarantee  that  members  of  the  profession  have  a 
decisive influence on the company. Shareholding requirements that limit the shareholding of 
third  parties  are  usually  imposed  in  order  to  ensure  the  independence,  impartiality  and 
qualifications of the provider.  

Requirements may also take the form of an obligation on companies active in certain sectors 
to  have  a  certain  minimum  capital.  Those  were  often  presented  as  necessary  to  ensure  the 
solvency of the provider. 

As  a  result  of  the  implementation  of  the  Directive,  a  number  of  requirements  have  been 
amended. In most cases, the percentage of capital that may be held by third parties has been 
raised. Nevertheless, a considerable number of restrictions remain, in particular in the area 
of the regulated professions. The discussion confirmed that capital requirements can be very 
burdensome  on  service  providers,  in  particular  providers  from  other  Member  States,  which 
may  need  to  change  their  ownership  structure  in  order  to  be  able  to  exercise  an  activity  in 
another  Member  State.  Such  shareholding  rules  have  been  questioned  by  some  Member 
States, which consider that the application of professional rules, a distinction between voting 
rights  and  shareholding  rights,  and/or  an  obligation  to  ensure  that  the  service  is  actually 
provided by a qualified person would be sufficient.  

Particular doubts were also raised as to the justification for general shareholding restrictions 
covering a wide range of activities.  

EN 

26 

  EN 

4.5. 

Bans on having more than one establishment (Article 15(2)(e) of the Services 
Directive) 

4.5.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the exercise of it subject to compliance with … a ban on having more than one establishment 
in the territory of the same State’ 

Bans on having more than one establishment in the territory of the same Member State do not 
prevent  providers  from  one  Member  State  from  establishing  in  the  territory  of  a  second 
Member  State  (such  a  requirement  would  be  prohibited  under  Article  14  of  the  Services 
Directive), but stop providers from setting up a second establishment there. They thus prevent 
providers from expanding their activities and may restrict them to a very limited market.  

4.5.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

This  type  of  requirement  does  not  seem  to  be  very  common.  Scarcely  more  than  30 
requirements  have  been  notified  by  only  9  Member  States:  Austria,  Belgium,  France, 
Germany26, Greece, Italy, Lithuania, the Netherlands and Spain. As far as such requirements 
have  been  maintained,  they  have  been  presented  as  necessary  to  guarantee  the  provider’s 
personal and full engagement in the activity carried out and hence the quality of the service 
provided. 

Some requirements of this type have been abolished. For instance, some regions in Austria 
and  Italy  report  having  abolished  requirements  that  prohibited  ski  instructors  from  working 
— as self-employed — in more than one ski school and that, similarly, prohibited ski schools 
from  establishing  at  more  than  one  ski  station.  Other  bans  on  having  more  than  one 
establishment  have  been  abolished  by  Austria  for  dancing  schools  and  by  France  for 
veterinarians.  

Nevertheless, a small number of requirements of this type are being maintained.  

In  some  regions  in  Italy  and  Austria,  ski  instructors  are  still  subject  to  the  prohibition  on 
providing services in more than one ski school and ski schools cannot establish in more than 
one  ski  resort.  These  requirements,  when  maintained,  have  been  explained  by  the  need  to 
ensure the full-time presence of ski instructors at the school  

Greece has reported a ban on having more than one establishment for lawyers (to plead before 
a court outside their jurisdiction, lawyers need to be accompanied by a local lawyer) as well 
as  for  veterinary  pharmacists,  private  schools  (‘phrontistiria’)  and  itinerant  traders  at  local 
markets (the latter requirement is presented as a measure to combat unemployment). Austria 
reported a ban on having more than one establishment for chimney sweeps.  

26  

The  requirements  reported  by  Germany  were  notified  as  having  all  been  abolished  or  made  less 
stringent.  

EN 

27 

  EN 

 
 
                                                 
CONCLUSION:  

Bans on having more than one establishment do not seem to be very common — only a very 
limited  number  of  such  requirements  are  reported  to  be  maintained  and  then  only  by  few 
Member States. The bans notified concern a variety of different services, the most important 
ones being those affecting certain regulated professions.  

Several bans on having more than one establishment have been abolished as Member States 
considered  them  to  be  disproportionate.  The  few  that  have  been  maintained  are  generally 
considered necessary to ensure the full personal involvement of the provider in its activity to 
ensure  a  high  level  of  service  quality.  Such  requirements  have  been  questioned  by  other 
Member  States,  which  have  indicated  that  the  objectives  could  be  achieved  by  far  less 
restrictive means such as the presence of qualified staff in each establishment.  

EN 

28 

  EN 

4.6. 

Requirement  to  have  a  minimum  number  of  employees  (Article 15(2)(f)  of 
the Services Directive) 

4.6.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the  exercise  of  it  subject  to  compliance  with …  requirements  fixing  a  minimum  number  of 
employees’ 

Requirements fixing a minimum number of employees oblige businesses to employ a certain 
number  of  staff,  e.g.  one  or  more  persons.  In  many  cases,  the  persons  need  to  have  certain 
qualifications  or skills; in others,  no specific  skills  are  required. Such  requirements fixing a 
minimum  number  of  employees  need  to  be  distinguished  from  requirements  to  have  certain 
qualifications  or  specific  skills  to  provide  a  service.  In  fact,  such  requirements  go  beyond 
qualification  requirements  in  that  they  require  the  provider  to  employ  another  person  in 
addition,  whereas  a  qualifications  or  skills  requirement  may  be  met  by  the  provider 
him/herself.  

Requirements fixing a minimum number of employees are burdensome for businesses, which 
may  need  to  employ  more  staff  when  entering  markets  in  different  Member  States.  This  is 
particularly  so  for  small  and  medium-sized  enterprises,  which  normally  have  a  limited 
number  of  staff  and  may  not  be  able  to  hire  more.  This  could  easily  prevent  SMEs  from 
establishing  or  providing  services  in  Member  States  imposing  such  requirements.  Under 
Article  15  of  the  Services  Directive,  they  can  only  be  maintained  if  they  are  non-
discriminatory, justified by an overriding reason of general interest, and proportionate. 

4.6.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

Requirements fixing a minimum number of employees do not seem to be used to a very large 
extent.  They  have  been  reported  by  18  Member  States27.  However,  the  number  of  reported 
requirements  per  Member  State  is  rather  low  (around  10  or  fewer).28  In  several  cases, 
moreover,  it  seems  unclear  whether  all  reported  requirements  in  fact  call  for  a  minimum 
number  of  employees  or  only  require  the  specific  service  to  be  provided  by  people  with 
necessary  skills  (hence  enabling  the  provider  to  do  it  him/herself  or  to  outsource  certain 
activities).  Requirements  fixing  a  minimum  number  of  employees  have  generally  been 
justified as necessary to ensure the quality of the service or to protect consumers/recipients.  

As  a  result  of  the  implementation  of  the  Services  Directive,  several  such  requirements 
considered to be unjustified or disproportionate have been abolished, for example: in Spain 
for  construction  services,  electrical  works,  wholesale  of  pharmaceutical  products,  technical 
controls  in  the  field  of  industrial  safety,  and  driving  schools;  in  Germany  for  services  in 
connection with the public water supply and sewage systems; in Italy for ski schools and in 

27  

28  

The  Czech  Republic,  Denmark,  Estonia,  Finland,  France,  Ireland,  Latvia,  Liechtenstein,  the 
Netherlands, Norway, Sweden and the United Kingdom have not reported any such requirements. 
The fact that some Member States have reported a higher number of such requirements, including for 
instance Spain (more than 100), Italy and Portugal (around 30) may, to some extent, be due to the fact 
that the reported requirements are imposed in many cases at regional level. 

EN 

29 

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Slovenia for driving schools. Others have been or will be made less stringent, for example for 
construction  services  in  Portugal29  and  for  environmental  controls  and  geodetic  services  in 
Slovenia.  

A large number of requirements have, however, been maintained. The requirements reported 
can be grouped into the following categories: 

4.6.2.1.  Requirements to have a fixed minimum number of employees  

These requirements can be found in very different services. In some cases only one employee 
may  be  needed,  in  other  cases  two  or  more  employees  are  necessary.  In  many  cases, 
employees with specific qualifications or skills are required. 

Requirements to have at least one employee have been notified for service activities such as: 
real estate services in Slovenia; driving schools for professional drivers in Poland; some retail 
activities  (sale  of  fertilisers,  plant  propagation  material,  explosives)  in  Cyprus  and  Greece; 
sanitary services (pest control) and corporate receivership services for insolvency procedures 
in  Lithuania;  several  activities  including  public  water  or  public  sewer  services,  services  in 
energy,  geology,  auditing,  ozone  layer  assessment,  motor  vehicle  emission  checks, 
interpreters  and  translators  in  Slovakia;  fireworks  shows  in  Iceland;  funeral  services  in 
Hungary;  travel  agencies,  construction  (electrical  installations)  and  technical  vehicle 
inspection in Cyprus; hunting services in Romania; employment agencies in Greece, Italy and 
Portugal; diving schools in Portugal. 

Requirements to have more than one employee have been notified for service activities such 
as ski schools and funeral director services in Italy and for sanitary services (disinfection) in 
Lithuania. Requirements have also been notified where the provider has to have a minimum 
number  of  employees  with  several  types  of  skills  (e.g.  three  teachers  and  one  expert 
supervisor,  one  expert  in  agriculture  and  one  engineer,  etc.).  Examples:  construction  in 
Cyprus; technical inspection of lifts, skip hoists and moving walkways, technical installation 
and  operation  of  gas  networks,  fitting  and/or  repair  of  gas  appliances,  maintenance  of  lifts, 
inspection  of  oil-based  fuel  installations  and  inspection  of  gas  distribution  networks  and 
premises in buildings, holiday camps, and external services for the promotion  of health and 
safety  at  work  in  Portugal;  electrical  installations,  technical  supervision/verification  of 
installations/equipment  in  pressure  installations,  and  hoisting  and  fuel-based  equipment  in 
Romania;  private  vehicle  inspection  centres  in  Greece;  insolvency  practitioners  in  Hungary; 
improvement of agricultural lands in Romania and consultancy in agricultural matters in Italy.  

In many of the reported cases, the justification put forward is the need to ensure the quality of 
the  service,  the  protection  of  consumers/recipients,  and  the  protection  of  public  health  or 
public  security.  In  fact,  in  some  cases,  such  requirements  seem  to  be  imposed  because  the 
minimum number of staff is deemed to be necessary to provide the service or to guarantee a 
high quality. In other cases, Member States want to ensure that the service can be provided at 
all  times  and  thus  require  a  certain  number  of  staff  to  ensure  that  they  can  be  replaced  if 
necessary, etc. In cases where Member States require staff with specific qualifications/skills, 
the  main  objective  often  seems  to  be  to  ensure  the  provision  of  the  service  by  qualified 
persons.  

29  

Portugal has indicated that most, if not all, of the requirements of this kind that it had reported in this 
area are in the process of being made less stringent. 

EN 

30 

  EN 

                                                 
4.6.2.2.  Requirements to have a minimum number of employees in 

proportion to the recipients of the service 

In some cases, Member State legislation does not set a fixed number of persons that need to 
be  employed  but  requires  a  certain  number  of  employees  in  proportion  to  the  number  of 
recipients of the services (e.g. 1 monitor per 10 children).  

It seems that this type of requirement applies mainly to the social services in several Member 
States:  social  housing,  centres  for  the  protection  and  care  of  children,  adult  care  centres, 
homes for the elderly and disabled in Cyprus; social housing for persons over 65 and disabled 
persons in Portugal; different types of social assistance and centres for children, students, and 
the elderly in Luxembourg; summer camps for children and home services for the elderly in 
Greece; geriatric establishments, leisure activities for children and youth, and summer camps 
for children in Spain; a number of different social services in Italy, including social assistance 
for  children  with  difficulties,  services  for  early  childhood,  multifunctional  residences,  non-
medical  social  services,  nurseries,  youth  centres,  socio-educational  centres  for  the  disabled 
and  day  care  centres  for  the  elderly.  In  these  cases,  due  to  the  specific  needs  of  service 
recipients and the nature of the services, a certain number of staff, often with specific skills, 
may well be needed to guarantee the quality of the services.  

Another area where such requirements have been reported is education, for example in Spain 
for education services that lead to the award of officially recognised diplomas. 

In most cases, such requirements seem to be justified as necessary to ensure the quality of the 
services, to protect consumers/recipients and/or to safeguard public health. 

4.6.2.3.  Requirements fixing the number of employees in a general manner  

In  some  cases,  legal  requirements  do  not  specify  the  precise  number  of  employees  but 
stipulate  that  the  number  of  staff  has  to  be  ‘appropriate’.  This  type  of  requirement  has  for 
example been reported for certain certification services in Germany and for education services 
in  Cyprus  and  Portugal.  The  assessment  of  what  is  considered  to  be  ‘sufficient’  or 
‘appropriate’  is  made  on  a  case  by  case  basis,  which  may  leave  the  relevant  competent 
authorities  with  a  broad  margin  of  discretion  (whereas  Article  10  of  the  Services  Directive 
requires  conditions  for  granting  authorisations  to  be  clear,  unambiguous,  objective  and 
transparent).  

Again, such requirements have been deemed to be justified to ensure the quality of the service 
and to protect consumers/recipients. 

CONCLUSION:  

Requirements to have a minimum number of employees do not seem to be used to a very large 
extent. Many Member States do not have such requirements at all, and the Member States that 
have such requirements, with certain exceptions, do not seem to impose them in many areas.  

Requirements  to  have  a  minimum  number  of  employees  seem  to  apply  mainly  to  technical 
fields, including construction, technical installations and inspections, but also exist in other 
areas, e.g. in the tourism sector and for some business services, social services and private 
education.  Such  requirements  can  take  different  forms:  in  many  cases,  they  call  for  a  fixed 
number of employees (often with specific skills). In other cases, they fix the required number 
in proportion to the number of recipients or in a more general way by requiring ‘appropriate’ 

EN 

31 

  EN 

 
staff. The main objectives pursued seem to be the need to ensure the quality of the service, the 
protection of consumers/recipients, and the protection of public health or public security. 

Following  implementation  of  the  Services  Directive,  a  number  of  these  requirements  have 
been  abolished  or  made  less  stringent  because  they  have  been  found  unjustified  or 
disproportionate.  However,  there  are  still  some  cases  where  such  requirements  have  been 
maintained. In the discussion, it became clear that they may in many cases not be necessary 
but could often be replaced by qualification requirements.  

EN 

32 

  EN 

4.7. 

Fixed  minimum  and/or  maximum  tariffs  (Article  15(2)(g)  of  the  Services 
Directive)  

4.7.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the exercise of it subject to compliance with … fixed minimum and/or maximum tariffs with 
which the provider must comply’ 

Tariffs,  i.e.  prices  imposed  by  the  State  or  by  professional  organisations  with  which  the 
providers  must  comply  when  offering  their  services  on  the  market,  take  different  forms.  In 
some cases, tariffs predetermine the exact price to be charged by the provider. In others, they 
prescribe  only  the  minimum  or  maximum  amount  to  be  charged.  In  some  cases,  Member 
States set minimum and maximum tariffs for the same services, thus leaving only a reduced 
margin for the provider to set the price. In a few Member States, the law seems to set fixed 
fees,  but  at  the  same  time  allows  the  parties  to  deviate  from  these  fees  by  contractual 
agreement.30 Under Article 15 of the Services Directive, tariffs can only be maintained if they 
are  non-discriminatory, 
interest,  and 
proportionate. 

justified  by  an  overriding  reason  of  general 

Some Member States also have ‘indicative tariffs’. Indicative tariffs are not legally binding, 
but may for instance be set for information purposes. In practice, however, they may have an 
important  influence  on  prices.  Indicative  tariffs  were  not  included  in  the  mutual  evaluation 
process  (even  though  they  have  in  some  cases  been  reported),  as  they  are  not  compulsory. 
However,  their  practical  application,  where  they  exist,  needs  to  be  carefully  monitored  to 
ensure that they do not lead to coordinated pricing behaviour among service providers. Such 
coordination  would  end  up  having  the  same  effect  as  compulsory  tariffs  and  would  raise 
concern under competition rules.  

Tariffs must be distinguished from administrative fees required by a competent authority, for 
example  for  granting  authorisations,  from  fees  fixed  by  the  State  for  services  the  State 
receives itself, and from fees determined by a judge for the reimbursement of costs in legal 
proceedings. All these are different from tariffs imposed on service providers in the form of 
prices  that  the  provider  must  comply  with  when  offering  its  services  to  a  private  party. 
Finally, the notion of fixed tariffs for services must be distinguished from fixed prices set by 
law for certain goods. These fixed prices concern goods and do not involve remuneration for a 
service.  

Fixed, minimum and maximum tariffs constitute a serious restriction on the free movement of 
services across the EU. They limit the possibilities of providers to decide on the price to be 
paid for their services and thus make access to services markets (whether via establishment or 
via the cross-border provision of services) more difficult. For instance, minimum tariffs limit 
competition on price and thus take away an important tool for service providers to compete 
with  incumbent  providers  in  the  market.  Maximum  fees  also  constitute  an  important 

30  

In the Czech Republic, the law sets the remuneration for legal services provided by lawyers only when 
there is no agreement in the contract between the lawyer and the client. Liechtenstein has reported that 
the  law  governing  tariffs  for  lawyers  and  legal  agents  sets  tariffs  for  legal  services  from  which  the 
parties  may  deviate  by  agreement.  In  Germany,  the  parties  may  also  deviate  by  agreement  from  the 
minimum fees set by law for lawyers’ activities out of court. 

EN 

33 

  EN 

                                                 
restriction. They are fixed by reference, amongst other things, to the national market and may 
therefore  have  a  negative  effect  on  providers  established  in  other  Member  States  where  the 
situation  may  be  different  (for  instance,  higher  cost  of  inputs).  Maximum  tariffs  may  also 
limit competition on quality. All these restrictions obviously also affect service recipients, as 
they have the effect of limiting their choice of services and service providers.  

4.7.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

Fixed, minimum or maximum tariffs exist in many Member States to varying degrees and for 
a  wide  variety  of  services,  with  differences  between  Member  States  as  regards  the  sectors 
affected by such requirements. 
Such  requirements  have  been  reported  by  24  Member  States31.  The  reports  provide  a  rather 
diverse  picture  of  what  kind  of  services  are  subjected  to  fixed,  minimum  and/or  maximum 
tariffs. Sometimes, even the same service within the same Member State is subject to different 
tariff requirements (fixed, minimum, maximum or none) depending on the region concerned.  

4.7.2.1.  Fixed, minimum and maximum tariffs removed following 

implementation of the Services Directive 

Eight  Member  States,  i.e.  Belgium,  Germany,  Ireland,  Italy,  Hungary,  Malta,  Romania  and 
Spain, have reported the abolition of (or their intention to abolish) certain fixed, minimum or 
maximum tariffs in the course of implementing the Services Directive. In some cases, this has 
led  to  the  complete  abolition  of  all  tariffs  or  all  tariffs  of  a  specific  type  (e.g.  all  minimum 
tariffs). In others, only certain tariffs have been abolished.  

Malta has abolished all legislative provisions  prescribing tariffs. The tariffs  that remain are 
only  optional/indicative.32  In  Italy,  all  legislation  providing  for  compulsory  fixed  and 
minimum tariffs, at least as regards the liberal professions, has been repealed; this also affects 
those  tariffs  imposed  by  professional  rules,  contractual  provisions  and  codes  of  conduct.  In 
Spain,  professional  associations  are  no  longer  allowed  to  establish  indicative  tariffs 
(compulsory  price  setting  for  professional  associations  had  already  been  previously 
prohibited).33  

Tariffs  have  also  been  abolished  for  specific  services,  e.g.:  for  architects  in  Belgium, 
Germany (for consultancy services ) and Malta; for engineers in Malta and Germany (again 
for  consultancy  services  but  not  for  planning  services);  for  lawyers,  commercial  agents  and 
‘public brokers’ in Malta; for veterinarians in Romania, for ski instructors, mountain guides 
and  tourist  guides  in  certain  regions  of  Italy;  for  testing  laboratories  for  precious  metals  in 
Spain; for employment agencies in Ireland; for waste management services in Belgium; and 
for catering services in Hungary. 

31  

32  

33  

Only Bulgaria, Estonia, Finland, Iceland, Latvia and Norway have not reported any such requirements. 
However, tariffs seem to exist at least in Bulgaria for certain services. 
However, it seems that the possibility to set compulsory tariffs through secondary legislation has been 
left open for certain cases, such as for engineers and veterinarians. 
The reason for this prohibition of indicative tariffs is that experience has shown that any guidelines on 
fees,  even  if  only  of  an  indicative  nature,  end  up  being  applied  de  facto  by  all  professionals,  thus 
constituting  a  hindrance  to  free  competition.  In  some  exceptional  cases,  and  to  assist  the  judiciary  in 
making  decisions  on  prices,  the  law  allows  professional  associations  to  issue  reports  or  opinions  on 
certain specific costs (at the request of the judiciary), but not general guidelines or recommendations on 
professional prices. 

EN 

34 

  EN 

                                                 
4.7.2.2.  Fixed, minimum and maximum tariffs notified as maintained 

Fixed tariffs 

Fifteen Member States34 have reported the existence of fixed tariffs, i.e. tariffs setting a fixed 
amount (and not just minimum or maximum limits).  

A  number  of  these  apply  to  regulated  professions  such  as  lawyers  (Slovenia),  veterinarians 
(Germany),  or  legal  procurators  (Spain).  However,  they  can  also  be  found  in  other  areas, 
including:  

–  Inspection  and  maintenance  services,  including  for  industrial  installations  and  lifts 
(Portugal), the inspection of fire installations and chimney sweeps (Austria and Slovenia), 
car inspection (Portugal, Luxembourg), buildings or water inspection (Germany), 

–  Social and childcare services (Austria, Italy),  

–  Network  services  such  as  postal  services  (Lithuania,  United  Kingdom),  water  services 
(Hungary,  Lithuania  and  Slovakia),  gas  services  (Czech  Republic,  Lithuania,  Denmark), 
electricity  services  (Lithuania,  Czech  Republic,  Romania),  thermal  energy  (Czech 
Republic), heating services (Slovenia) and waste management (Austria, Italy). 

Other  services  where  fixed  tariffs  have  been  reported  include  insolvency  practitioners 
(Hungary,  Germany),  beach  and  sea  sport  activities  (Cyprus),  and  rural  accommodation 
(‘agritourism’ in Italy).  

The objective most commonly cited by Member States to justify fixed tariffs is the protection 
of  consumers/recipients,  i.e.  to  ensure  that  consumers  pay  for  the  service  received.  Besides 
consumer protection, the quality of the service is also often put forward as a reason to impose 
fixed  tariffs  (for  instance  in  the  case  of  the  regulated  professions).  The  protection  of  fair 
competition is also sometimes mentioned. 

In the area of network services, some Member States seem to impose fixed tariffs in sectors 
where there are only a limited number of providers, as they consider that the lack of market 
players  could  negatively  impact  consumer  protection  and  not  guarantee  universal  service. 
Ensuring  access  to  these  services  also  seems  to  be  behind  the  fixed  tariffs  imposed  in  the 
social  or  educational  sectors  (the  fact  that  these  services  are  partly  financed  by  the  State  is 
also mentioned).  

Maximum tariffs 

Fifteen Member States35 have reported the existence of maximum tariffs.  

The service sectors concerned by maximum tariffs are, again, diverse and cover areas such as:  

–  Regulated  professions  such  as  surveyors  (Denmark),  ski  instructors  and  mountain  guides 

(Italy) and lawyers (Italy) 36, 

34  

35  

36  

Austria,  Cyprus,  the  Czech  Republic,  Denmark,  Germany,  Hungary,  Italy,  Lithuania,  Luxembourg, 
Portugal, Slovakia, Slovenia, Spain, Romania and the United Kingdom. 
Austria, Belgium, Denmark, France, Germany, Greece, Hungary, Italy, Luxembourg, the Netherlands, 
Poland, Portugal, Slovenia, Sweden, the United Kingdom. 
In Italy, the law repealing the obligation to comply with fixed and minimum tariffs has not repealed the 
obligation  to  comply  with  maximum  tariffs.  However,  Italy  has  reported  that  it  is  possible  to  pay  a 

EN 

35 

  EN 

                                                 
–  Real estate activities (Austria, Sweden, Germany), 

–  Inspection  services  (Portugal,  the  Netherlands,  Denmark),  including  chimney  sweeps 
(Austria,  Italy),  inspection  of  fire  installations  (Austria),  gas  installation  inspection 
(Luxembourg), 

–  Network services and ancillary services such as water services (United Kingdom, Belgium, 
Portugal),  waste  services  (Poland),  measuring  energy  consumption  (the  Netherlands), 
energy labelling services (Denmark), district heating services (Hungary). 

Other  services  where  maximum  tariffs  have  been  reported  include:  education  services 
(training for drivers and driving schools37 in Luxembourg), storing of personal and payment 
data  for  employers  (Poland),  plant  protection  (Slovenia),  funeral  services  (Portugal),  debt 
recovery  (Austria),  animal  sanitary  services  (Austria),  employment  services  (Belgium, 
Greece), , artistic agents (France) and sport agents (France). 

As in the case of fixed tariffs, protecting the consumer/recipient is the reason most commonly 
invoked  to  justify  maximum  tariffs.  The  quality  of  the  service  is  again  also  mentioned, 
notably  for  the  regulated  professions.  In  certain  specific  activities,  such  as  real  estate 
activities, the reason cited for maximum tariffs may also be to combat potential fraud.  

For network services (where, as indicated before, a limited number of providers may exist), 
some  Member  States  justify  maximum  tariffs  by  the  need  to  ensure  that  providers  perform 
their  tasks  while  at  the  same  time  protecting  consumers  and  guaranteeing  access  to  those 
services. 

Minimum tariffs 

Only  eight  Member  States,  i.e.  Austria,  Belgium,  Bulgaria,  Cyprus,  Germany,  Greece,  Italy 
and Poland, have reported the existence of minimum tariffs38.  

Many  are  found  again  in  the  regulated  professions:  for  lawyers  in  Greece,  Cyprus  and 
Germany  and  for  architects  in  Greece  or  Bulgaria.  Minimum  tariffs  also  apply  to  tourist 
guides in some Italian regions and in Cyprus. Other sectors where minimum tariffs have been 
reported  include  legal  advisers  in  specific  areas,  notably  pensions  (Germany),  construction 
experts  (Germany),  social  services  (childcare  services  in  Austria  or  home  care  services  in 
Belgium), diet experts (Cyprus) and collective management of copyright (Poland).  

Member  States  seem  to  justify  minimum  tariffs  in  the  regulated  professions  by  the  need  to 
protect  service  recipients  and  ensure  the  quality  of  the  services  provided.  The  objective  of 
ensuring fair competition (avoiding dumping) is also cited by some Member States to try to 
justify  the  existence  of  a  minimum  tariff39,  as  is  the  need  to  ensure  the  ‘dignity  of  a 

37  

38  

39  

lawyer’s fee higher than the maximum when there is a disproportion between the professional service 
and the fee fixed by law. 
Luxembourg had notified this requirement as being repealed, but subsequently announced that this had 
been postponed. 
Some  Member  States  have reported  minimum  tariffs while  mentioning  as  a  justification  that  they  are 
not applied in practice. For example, Cyprus justifies the possibility under the law for the government 
to  set minimum tariffs for services provided by food and diet experts by stressing that this provision 
has never been applied in practice. 
For example, for construction experts in Germany, the objective pursued is to ensure minimum fees for 
providers and fair competition (not a ‘race to the bottom’). 

EN 

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profession’.  For  social  services,  it  seems  that  the  objective  pursued  in  this  sector  is  to 
guarantee wide coverage of such services40. 

4.7.2.3.  Application of both minimum and maximum tariffs 

Four Member States, i.e. Austria, Germany, Italy and Slovenia, have reported the existence of 
both  minimum  and  maximum  tariffs  for  the  same  services  (leaving  a  limited  margin  of 
discretion for the provider to set fees). The most common objective cited by Member States is 
again the protection of recipients, more specifically to guarantee the accessibility and quality 
of the service provided.  

For example, Italy has reported that in some regions, ski instructors and/or mountain guides 
must  comply  with  minimum  and  maximum  tariffs,  In  Germany  the  same  is  true  for 
insolvency  administrators  or  architects41.  In  Slovenia,  insolvency  practitioners  must  also 
comply with minimum and maximum tariffs, as must chimney sweeps and inspectors of fire 
installations in Austria.  

CONCLUSION:  

As  regards  tariffs,  the  mutual  evaluation  process  has  revealed  a  relatively  diverse  picture. 
They are nevertheless widely used. In many cases, such rules are imposed on highly regulated 
professions  (such  as  lawyers,  architects  and  veterinarians)  and  in  certain  network  services. 
However, to a lesser extent they are also used in other sectors. Minimum tariffs are often said 
to be necessary to protect the consumer or ensure the quality of the services, to ensure fair 
competition  (avoiding  dumping)  and  to  safeguard  the  ‘dignity  of  the  profession’.  Maximum 
tariffs are often justified by the need to ensure consumer protection.  

As  a  result  of  the  implementation  of  the  Directive,  such  rules  have  been  abolished  in  a 
number of cases, so that in some Member States no tariffs at all or no tariffs of a specific type 
(e.g.  minimum  tariffs)  remain.  Nevertheless,  some  requirements  have  been  maintained.  The 
discussion with Member States confirmed that the imposition of tariffs is generally perceived 
as  a  severe  restriction  on  service  providers,  which  impedes  them  from  competing  on  price 
and/or  on  quality  (in  the  case  of  maximum  tariffs).  Maximum  tariffs  seem  to  be  largely 
accepted for network services where there is a monopoly or a limited number of competitors. 
However, in other areas tariffs are much more controversial, in particular minimum tariffs. In 
this respect, some Member States have pointed out that minimum prices could not guarantee 
high-quality services but would in fact have harmful effects on consumers by preventing them 
from  benefiting  from  competitive  prices.  General  competition  rules  ensuring  a  functioning 
market, general contract rules prohibiting abusive tariffs, professional rules and the proper 
information of consumers would be sufficient to protect the consumer. 

40  
41  

As explained by Austria and Belgium. 
HOAI — Honorarordnung für Architekten und Ingenieure. 

EN 

37 

  EN 

 
                                                 
4.8. 

Requirements  obliging  providers  to  supply  other  specific  services  jointly 
with their services (Article 15(2)(h) of the Services Directive) 

4.8.1. 

What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

‘Member States shall examine whether their legal system makes access to a service activity or 
the exercise of it subject to compliance with … an obligation on the provider to supply other 
specific services jointly with his service’ 

Obliging  service  providers  to  supply  other  specific  services  jointly  with  their  services 
considerably  restricts  their  choice  of  economic  activity  and  hinders  innovative  business 
models.  It  is  a  major  burden  for  existing  providers  and  a  significant  entry  barrier  for  new 
providers.  It  may  also  have  a  negative  effect  on  the  availability  of  (non-bundled)  services. 
Under Article 15 of the Services Directive, these requirements can only be maintained if they 
are  non-discriminatory, 
interest,  and 
proportionate. 

justified  by  an  overriding  reason  of  general 

4.8.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

Obligations  on  providers  to  supply  other  specific  services  jointly  with  their  services  do  not 
seem very common. Little more than 50 such requirements have been reported by 12 Member 
States42. Not all of the reported requirements seem to constitute clear- cut obligations within 
the meaning of Article 15(2) (h) of the Services Directive.  

Of the reported requirements, a number have been considered unjustified or disproportionate 
and therefore have been abolished or have been reported as being abolished, for example for 
petrol  stations  in  Italy  (obligation  to  host  a  shop),  retail  in Spain  (big  commercial  surfaces 
having to sell fuel as well), personal services in France (where a number of personal services 
had  previously  to  be  provided  together)  or  ski  schools  in  Austria,  which  previously  had  to 
cover a whole range of winter ski sports.  

A number of requirements have nevertheless been maintained. These are quite heterogeneous, 
but have generally been justified by the need to protect recipients or their health. One of the 
most  clear-cut  categories  seems  to  be  services  with  a  social  objective  or  linked  to  a  certain 
category  of  users.  In  Belgium,  for  example,  service  flats  for  the  elderly  also  have  to  offer 
maintenance  services  and  meal  distribution.  Requirements  of  this  type  have  also  been 
reported for energy/network services in Lithuania, where heat and hot water have to be jointly 
supplied  (in  certain  conditions).  In  Austria,  providers  of  educational  services  for  social 
professions  also  have  to  provide  continuous  training.  In  Hungary,  the  sale  of  therapeutic 
equipment  has  to  be  accompanied  by  delivery  and  instructions/technical  advice  on  the 
equipment.  

42  

Bulgaria,  Cyprus,  Denmark,  Estonia,  Finland,  Ireland,  Iceland,  Liechtenstein,  Latvia,  Luxembourg, 
Malta, the Netherlands, Norway, Portugal, Slovakia, Slovenia, Sweden and the United Kingdom did not 
report any requirements While most of the others reported less than 5 such requirements, Italy reported 
20, Austria 10 and Spain 11. 

EN 

38 

  EN 

 
 
                                                 
CONCLUSION:  

Obligations  on  service  providers  to  supply  other  specific  services  jointly  with  their  services 
do  not  seem  to  be  very  common.  After  the  implementation  of  the  Services  Directive,  even 
fewer restrictions remain.  

The remaining restrictions concern various different services without clear tendencies. One of 
the sectors where they are found is social services, where they are justified by  the protection 
of recipients or their health. 

EN 

39 

  EN 

 
 
4.9. 

Restrictions  on  multidisciplinary  activities  (Article  25  of  the  Services 
Directive) 

4.9.1.  What  is  the  legal  backdrop?  What  are  the  relevant  aspects  for  the 

Services Directive?  

‘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 monitoring, test or trial services, in so 
far as is justified in order to ensure their independence and impartiality.’ 

Restrictions on multidisciplinary activities can take two different forms: 

•  They  can  prevent  the  provider  from  exercising  several  activities  at  the  same  time.  This 
requirement  is  usually  an  obligation  to  exercise  a  given  activity  exclusively  or  to  refrain 
from  a  list  of  activities  considered  to  be  incompatible  with  the  exercise  of  the  given 
activity. 

•  They  can  prevent  the  provider  from  working  in  partnership  with  other  providers 
(exercising  a  different  profession).  For  example,  multidisciplinary  partnerships  between 
lawyers and accountants may be prohibited.  

In accordance with Article 25 of the Services Directive, restrictions can only be justified for 
the regulated professions43 or for certification, accreditation, technical monitoring and testing 
services, and only if necessary in order to ensure their independence and impartiality. 

The restrictions vary from an obligation to exercise the activity exclusively to a ban on certain 
specific activities or on any activities where the independence and impartiality of the provider 
is  at  risk.  Obviously,  if  providers  have  to  exercise  an  activity  exclusively,  this  would  also 
prevent them from working in partnership with other providers.  

Restrictions  on  multidisciplinary  activities  are  closely  linked  with  other  requirements.  In 
particular for the regulated professions, they are often linked with shareholding and legal form 
requirements.  

4.9.2. 

The situation in Member States — What have we seen so far as a 

result of implementation? 

More  than  230  requirements  were  reported  by  25  Member  States44  under  Article  25  of  the 
Services  Directive.  The  number  varies  considerably  from  Member  State  to  Member  State45. 

43  
44  
45  

As defined in Article 3(a) of the Directive 2005/36/EC on the recognition of professional qualifications. 
None notified by the Czech Republic, Finland, Iceland, Latvia and the United Kingdom. 
From  40  (Germany,  France)  to  21  (Belgium),  20  (Italy,  Portugal),  10  (Poland),  7  (Norway),  4 
(Denmark), 1 (Sweden). 

EN 

40 

  EN 

                                                 
The requirements concern a wide range of activities. In some cases, the restrictions notified 
by Member States seem to relate to activities other than regulated professions or certification 
and  testing  services.  Any  restriction  not  falling  under  one  of  these  two  groups  should  be 
removed in line with Article 25.  

In the area of the regulated professions, the reports received concern a wide range of different 
services: car experts (France, Belgium), insolvency practitioners (Hungary, Romania), tax and 
fiscal advisers (Poland), tourist guides (Portugal, Italy), employment consultants (Italy), etc. 
However,  a  certain  homogeneity  among  the  Member  States  can  be  seen  for  certain 
professions (such as for lawyers46, veterinarians47, architects48, engineers49, accountants50 and 
real estate agents51). 

Restrictions  to  multidisciplinary  activities  notified  for  certification,  accreditation,  technical 
monitoring  and  testing  services  also  cover  a  broad  range  of  activities  such  as  inspection  of 
elevators  and  escalators52,  certification,  construction  and  real  estate  expertise,  agricultural 
control, work inspection or construction inspection53.  

The  objectives  most  commonly  cited  by  Member  States  to  justify  restrictions  on 
multidisciplinary  activities  are  preventing  conflicts  of  interest  and  guaranteeing  the 
impartiality  and  independence  of  the  professional.  Some  Member  States  also  invoke 
consumer  protection  and  the  need  to  ensure  the  quality  of  the  service.  In  the  area  of  the 
regulated  professions,  one  of  the  objectives  cited  is  also  to  ensure  compliance  with  the 
professional rules.  

Limitations on multidisciplinary activities can be divided in two main groups:  

4.9.2.1.  Obligation for the provider to exercise an activity exclusively or 
restrictions on the exercise of different activities by the same provider 
(incompatibilities) 

Following  implementation  of  the  Services  Directive,  a  number  of  Member  States  have 
abolished or relaxed certain restrictions on multidisciplinary activities as they were found to 
be  unjustified  or  disproportionate.  In  Cyprus,  for  example,  the  requirement  to  exercise 
exclusively the activity of real estate agent has been repealed. France has indicated that the 
obligation to exercise the activity of auctioneer exclusively will be modified. Some Member 
States have decided to repeal the obligation to exercise an activity exclusively and to replace 
it by the requirement for providers to exercise this activity as their main activity. For instance, 
Cyprus  has  indicated  that  the  obligation  for  building  contractors  to  exercise  their  activity 
exclusively will be replaced by an obligation to have it as their main activity. Other Member 
States  that  have  exclusivity  requirements  have  decided  to  relax  them  and  authorise  certain 
professions to work in partnership. In Poland, the obligation for advocates, legal advisers, tax 
advisers and patent agents to engage in a given service activity exclusively has been relaxed 

46  

47  
48  
49  
50  
51  
52  
53  

Notifications  received  from  Cyprus,  Estonia,  France,  Greece,  Hungary,  Ireland,  Italy,  Liechtenstein, 
Lithuania, Poland, Portugal, Romania, Slovenia, Sweden. 
Belgium, France, Greece, Spain. 
Belgium, Bulgaria, France, Italy, Luxembourg, Malta. 
Bulgaria, Italy, Luxembourg, Malta. 
Belgium, France, Italy, Luxembourg, the Netherlands, Portugal. 
Denmark, Portugal and Slovenia. 
Austria, France, Portugal. 
Germany. 

EN 

41 

  EN 

                                                 
in  the  legislation  implementing  the  Services  Directive.  This  allows  these  professions  to 
cooperate within one multidisciplinary partnership.  

Nevertheless,  significant  restrictions  on  multidisciplinary  activities  persist.  For  instance,  in 
Cyprus  or  in  Lithuania,  lawyers  are  obliged  to  exercise  their  profession  exclusively.  In 
Bulgaria, real estate appraisers are also required to do so. In other Member States, there is no 
obligation  to  exercise  an  activity  exclusively  but  there  are  rules  on  incompatibilities  with 
other professions or activities. In France for lawyers and in Germany for tax consultants, the 
law lists specific professions or activities considered to be incompatible with the exercise of 
their  activity54.  Similarly,  in  Italy,  employment  consultants,  accountants  and  lawyers  are 
prevented  from  exercising  a  number  of  other  activities  listed  by  law.  In  Hungary,  attorneys 
are not allowed to engage in entrepreneurial activities in order to guarantee their liability and 
independence.  In  Luxembourg,  a  veterinarian  is  not  allowed  to  exercise  simultaneously  the 
profession of pharmacist. Similarly, in Spain, veterinarians  cannot  at  the  same  time  provide 
pharmaceutical  services  or  engage 
the  manufacturing,  distribution  and  sale  of 
pharmaceutical  sanitary  products.  In  the  Czech  Republic,  architects  may  only  perform 
pedagogic  or  publishing  activities  and  may  not  perform  any  other  activity  that  would 
endanger their independence. In Estonia, a firm of auditors can be active only in certain other 
areas.  

in 

In some cases, restrictions on multidisciplinary activities do not apply in general but only in 
specific cases. For instance, in Germany, certain structural inspectors and structural inspection 
engineers are not allowed to serve as experts or engineers on projects where they are involved 
in  their  planning  or  execution.  In  Bulgaria,  the  same  person  cannot  participate  in  a 
construction project as both architect/engineer and builder. In other cases, Member States lay 
down  a  general  principle  that  providers  can  provide  any  other  services  except  where  this 
would  endanger  their  independence  or  impartiality  (e.g.  in  France  for  lift  inspectors,  in 
Norway for real estate agents or in Sweden for real estate agents, who may not trade in real 
estate or engage in any other activity likely to discredit them as an estate agent).  

4.9.2.2.  Restrictions on exercising an activity jointly or in partnership 

Some Member States have maintained a general prohibition on different providers exercising 
activities jointly or in partnership.  

In Italy, Malta and Portugal, for instance, for professionals to be able to act and be registered 
as an association of professionals or a partnership, all partners have to be professionals of the 
same type. In Italy, however, multidisciplinary partnerships of professional services seem to 
be  possible  at  least  in  certain  cases,  in  particular  between  professions  defined  as  ‘liberal 
professions’, insofar as more specific incompatibility rules do not apply.  

In Greece, legal services cannot be provided jointly or in partnership with other services (e.g. 
accountants).  The  same  requirement  can  also  be  found  in  Bulgaria  and  in  Lithuania,  where 
lawyers  may  practice  in  a  partnership  only  with  other  lawyers.  In  Portugal,  lawyers,  legal 
consultants  and  accountants  are  subject  to  stringent  rules  on  incompatibilities  with  other 
professions, both when they operate as individual service providers or in partnership.  

In  France,  an  architect  cannot  be  an  employee  or  partner  of a  natural  person  or  legal  entity 
that carries out construction or real estate activities.  

54  

The  Steuerberatergesetz  (StBerG),  Durchfuehrungsverordnung  zum  StBerG,  prohibits  commercial 
activities, employment activities and financial administration activities for tax consultants. 

EN 

42 

  EN 

                                                 
In  Norway,  there  are  restrictions  on  offering  jointly  or  in  partnership  services  for  the 
supervision  of  electrical  systems  and  other  services  concerned  with  the  installation  and 
operation  of  electrical  systems.  Similarly,  in  Denmark,  car  safety  inspection  and  car  repair 
services may not be offered jointly or in partnership.  

Some  Member  State  laws  list  activities  or  professions  considered  to  be  compatible  or 
incompatible55  with  the  exercise  of  a  given  activity  or  list  different  professions  allowed  to 
exercise  their  activities  jointly.  As  mentioned  before,  the  Polish  law  implementing  the 
Services Directive allows advocates, legal advisors, tax advisors and patent agents to exercise 
their activity jointly within one multidisciplinary partnership.  

Finally, 
in  some  cases  reported  or  discussed  by  Member  States,  restrictions  on 
multidisciplinary activities in partnerships also take the form of restrictions or prohibitions on 
taking part in more than one professional partnership (this seems to be the case for the ‘liberal 
professions’  in  Italy)  or  owning  shares  in  companies  in  other  sectors.  For  example,  such  a 
requirement can be found in Belgium, where the profession of architect can only be exercised 
by  a  legal  person  if  the  legal  person  has  no  shares  in  other  companies  and/or  legal  persons 
other  than  those  in  the  same  profession.  A  similar  provision  exists  in  France  and  in  the 
Netherlands56 for accountants.  

CONCLUSION:  

Under Article 25 of the Services Directive, restrictions on multidisciplinary activities can only 
be justified for two types of services: (i) services provided by regulated professions and (ii) 
certification, accreditation, technical monitoring and testing services. Nevertheless, in a few 
cases, some Member States seem to have maintained such restrictions in other areas as well. 
Those restrictions should be removed. 

Restrictions  on  multidisciplinary  activities  exist  in  many  Member  States.  Multidisciplinary 
activities  are  regulated  either  by  law  or  by  the  rules  of  professional  organisations  charged 
with enforcing professional ethics. The number and extent of restrictions varies considerably. 
Restrictions  can  take  two  different  forms:  prohibitions  on  exercising  other  activities  and 
prohibitions on exercising an activity in partnership with other providers exercising different 
activities. In both cases, the extent of the restrictions may vary from an obligation to exercise 
an activity exclusively to a ban on certain specific activities to rules which do not prohibit the 
exercise  of  any  activity  in  general  but  only  in  specific  circumstances,  i.e.  if  and  when  the 
independence  and  impartiality  of  the  provider  is  at  risk.  All  these  rules  are  generally 
presented as justified by the need to ensure the independence and impartiality of providers.  

Even  though  several  restrictions  on  multidisciplinary  activities  have  been  abolished  or 
relaxed  following  implementation  of  the  Services  Directive,  significant  restrictions  remain. 
The discussion confirmed that such requirements severely restrict innovative business models. 
Particular doubts have been raised regarding the most severe restrictions requiring providers 
to exercise their activity exclusively but also regarding requirements impeding providers from 
exercising  certain  other  activities.  Questions  have  been  raised  whether  it  would  not  be 
sufficient,  in  certain  cases,  to  have  a  general  rule  authorising  the  exercise  of  different 
activities as long as the independence and impartiality of the provider are not at risk. Some 

55  

56  

Such  as  in  Estonia,  where  services  for  the  design,  installation  and  maintenance  of  surveillance  and 
security  equipment  can  only  be  provided  by  persons  who  do  not  have  shares  in  a  company  that 
manufactures or sells weapons or provides private detective services. 
The majority of the voting rights in an accountants’ office or organisation has to be held by accountants. 

EN 

43 

  EN 

 
                                                 
Member  States  consider  that  authorisation  schemes  and  rules  of  professional  ethics  are 
sufficient  to  ensure  independence  or  impartiality  (any  violation  could  be  sanctioned  by  a 
posteriori control) or that it is sufficient to put in place mechanisms within a partnership or 
company  to  avoid  any  involvement  in  issues  that  could  give  rise  to  a  conflict  of  interest  or 
compromise independence. 

EN 

44 

  EN 

5. 

REQUIREMENTS RELATED TO CROSS-BORDER SERVICES  

5.1. 

The implementation of Article 16 — different approaches  

One  of  the  most  important  aspects  of  the  implementation  of  the  Services  Directive  is  the 
implementation  of  Article  16,  on  freedom  to  provide  services.  Article  16  requires  Member 
States  to  abstain  from  imposing  their  own  requirements  on  incoming  service  providers 
established in other Member States — except where the requirements are non-discriminatory, 
are justified by the four reasons listed in Article 16(1) (b) and 16(3), and are proportionate. 
Member States have taken different approaches in implementing Article 1657. These fall into 
two  main  categories:  the  ‘horizontal’  approach  (with  or  without  additional  sector-specific 
changes) and the sector-specific approach.  

5.1.1.  Member States introducing a clause on freedom to provide services in 

their ‘horizontal law’ 

•  Estonia, Hungary, Lithuania, Poland, Slovakia and the Czech Republic have implemented 
Article  16  by  way  of  a  horizontal  law,  that  is,  general  legislation  implementing  the 
Services Directive. The horizontal laws of Estonia, Hungary, Lithuania and Poland seem to 
state that a rule can only be applied to cross-border services if the specific rule meets the 
criteria provided for in Article 16 and if the relevant (sector-specific) law states explicitly 
that the rule also applies to cross-border services. The Czech Republic and Slovakia have 
included  a  rule  in  their  horizontal  laws  which,  in  principle,  enables  service  providers 
established in other Member States to provide services in these countries without having to 
comply with additional requirements. Exceptions to this have to be laid down by law. The 
basic approach in all these Member States thus seems to be that requirements do not apply 
to cross-border services unless this is specifically stated in the (sector-specific) law.  

Within this framework, these Member States have, to different degrees, maintained the 
application of certain requirements for specific cases (and have specifically stated this in 
the law).58 

57  

58  

The  following  description  concentrates  on  the  Member  States’  general  approach  to  implementing 
Article 16 and changes made to existing (sector-specific) legislation which indicate clearly which rules 
apply  to  cross-border  services  and  which  ones  do  not.  It  does  not  deal  with  other  changes  made  by 
Member States in respect of Article 16, such as the abolition of establishment requirements (for this see 
below point 5.2.1), nor with amendments made to the regulatory framework in general which of course 
also facilitates service provision for cross-border providers. Nor does it deal with cross-border services 
covered by the derogation from Article 16 provided for in Article 17 of the Services Directive. 
The Czech Republic seems to have made specific provisions in only two cases, i.e. for land surveyors 
and the handling of radioactive material. Estonia requires notification for the handling of pyrotechnic 
and  explosive  substances  and  an  authorisation  for  the  handling  of  weapons.  Hungary  has  notified  41 
areas  in  which  they  impose  rules  on  incoming  services.  This  includes  16  authorisation  schemes  (for 
civil  explosion  activities,  private  investigators,  handling of firearms  etc.)  and 23 notification  schemes 
(for patent agents, construction activities, certain accreditation activities, tour operator and travel agent 
activities,  adult  education  and  higher  education,  services  related  to  medical  aid,  lobbying  activities, 
etc.).  Lithuania  has  notified  a  number  of  authorisation  schemes,  in  particular  for  some  construction 
works,  some  education  services,  the  sale  of  alcohol  and  tobacco  products  and  activities  relating  to 
nuclear  energy.  In  Poland,  certain  requirements  apply  to  cross-border  services,  inter  alia  for  tour 
operators and travel agents, the packaging of or trade in plant protection products, training on trade in 
and  the  packaging  and  use  of  plant  protection  products,  the  training  of  aircrew  in  civil  aviation,  and 
certain  activities  relating  to  waste.  Based  on  the  horizontal  law,  it  seems  that  Slovakia  applies 

EN 

45 

  EN 

 
                                                 
•  Belgium,  Bulgaria59,  Cyprus,  Denmark,  Finland,  Greece,  Iceland,  Ireland,  Italy, 
Luxembourg, Malta, Norway, Portugal60, Romania, Sweden and the United Kingdom have 
also chosen to implement Article 16 by way of a horizontal law.61 In their horizontal acts 
(or drafts as they stand now) these Member States seem to have included a clause which 
lays down the principle set out in Article 16, i.e. that requirements can only be imposed on 
incoming  services  if  they  are  non-discriminatory,  justified  for  reasons  of  public  policy, 
public security, public health or the protection of the environment, and are proportionate. 
On  this  basis,  it  seems  that,  if  the  sectoral  legislation  does  not  state  which  rules  can  be 
applied to cross-border services, it is for the competent authorities to decide in each case 
whether a rule complies with these criteria or not.62  
Some of these Member States, including Belgium63, Bulgaria64, Denmark65, Luxembourg66, 
Malta67, Portugal68, Romania69 and Sweden70 have, to varying degrees, also made changes 

59  

60  

61  

62  

63  

64  

65  

66  

67  

68  

69  

70  

including  for 

translators/interpreters, 

requirements  on  incoming  services  only  for  SGEIs,  lawyers  and  auditors.  However,  in  its  self-
assessment it reported authorisation schemes for other services, such as translators and interpreters, too. 
Slovakia  reported  13  authorisation  schemes, 
insolvency 
administrators, mediation, geodetic/cartographic activities, and tax advice. 
Bulgaria  stated  that,  under  its  system,  services  can  be  carried  out  freely  if  there  are  no  special  legal 
requirements imposed for cross-border services. 
Article  4(3)  of  the  Portuguese  horizontal  law  enshrines  the  freedom  to  provide  cross-border  services 
stating that cross-border service providers can freely conduct business. In addition, the Portuguese text 
expressly  prohibits  the  imposition  of  Article  16(2)  SD  requirements  unless  they  are  exceptionally 
justified by the four reasons listed in Article 16. As regards requirements other than those laid down in 
Article 16(2), the Portuguese authorities have indicated that they intend to publish guidelines explaining 
that such requirements are only permissible if they are exceptionally justified by the four reasons listed 
in Article 16. 
In  Iceland  and  Luxembourg  the  current  draft  horizontal  laws  seem  to  contain  a  clause  implementing 
Article 16 but the law has not yet been finally adopted. 
Italy has, however, indicated that its competent authorities do not have the power to decide whether one 
of the four reason apply in specific cases. 
Belgium seems to have clearly stated that the general register (the Banque Carrefour) does not apply to 
cross-border  service  providers.  In  some  regions,  Belgium  has  also  replaced  authorisation  schemes  by 
prior declarations for travel agencies from other Member States providing cross-border services. 
Bulgaria  seems  to  have  replaced,  for  cross-border  services,  an  authorisation  scheme  for  crafts  with  a 
notification scheme. Specific changes also seem to have been made to the law on tourism. 
Denmark has specified that temporary service providers are exempt from  the Danish ban on discount 
coupons and price competition. 
Luxembourg is in the process of adopting amendments to the framework law on establishment and the 
framework  law  on  social  services  specifying  that  authorisation  schemes  do  not  apply  to  cross-border 
services. 
From  the  information  reported  by  Malta,  it  seems  that  the  trading  licences  act,  which  covers  a  wide 
variety  of  services,  has  been  changed  so  that  service  providers  that  are  legally  established  in  another 
Member  State  can  in  principle  provide  cross-border  services  in  Malta  without  authorisation  or 
notification.  The  service  providers  must,  however,  comply  with  all  other  requirements  set  out  in  the 
trading licences act. Malta has also made changes to other rules, e.g. on the sale of time-shares and on 
employment agencies, replacing authorisations with notification requirements for cross-border services. 
Portugal has amended the Code of Commerce to specify that cross-border service providers no longer 
need  to  establish  and  register  in  Portugal.  Portugal  has  also  indicated  that  future  sector-specific 
amendments  will  expressly  state  the  requirements  that  can  be  imposed  on  cross  border  service 
providers. 
Romania has also made certain specific changes for cross-border services in the area of tourist guides, 
fire  prevention  services,  construction  site  supervisors  and  services  for  the  design,  installation, 
maintenance and repair of security systems. 
Sweden  has  specified  that  the  law  on  terms  of  agreement  between  traders  and  the  law  on  travel 
guarantees  are  not  applicable  to  cross-border  services.  In  addition,  Sweden  has  indicated  that  certain 
information requirements do not apply to cross-border services, in the Act amending the Distance and 
Doorstep Sales Act, the Act amending the Occasional Sales Act, the Act amending the Marketing Act 
and the Act amending the Product Safety Act. 

EN 

46 

  EN 

                                                                                                                                                         
to sectoral legislation in which they specify the rules that can or cannot be applied to cross-
border services. 

In contrast, other Member States, including Cyprus, Finland, Greece, Iceland, Ireland, Italy, 
Norway and the United Kingdom, seem to have made no legislative changes specifying 
clearly which rules do or do not apply to cross-border services.  

•  Similar to the Member States in the previous category, Latvia and Spain have also included 
a  clause  on  freedom  to  provide  services,  similar  to  Article  16,  in  their  horizontal  law71. 
From  the  information  we  have  received  it  also  seems  that  Latvia  and  Spain  have  in 
principle  totally  prohibited  Article 16(2)  requirements  (Spain  all,  Latvia  some  of  these 
requirements, including authorisation schemes) 72.  

Spain has also made many changes in sectoral legislation stating specifically which rules 
apply to cross-border services.73   

•  Slovenia has also included a clause laying down the principle of Article 16 in its horizontal 
law. However, from the information received, it seems that the horizontal law in itself will 
not have the effect that competent authorities must or can disapply certain rules on cross-
border  services.  Rather,  it  seems  that  it  necessarily  has  to  be  determined  in  legislation 
which  rules  apply  to  cross-border  services  and  which  do  not.  If  nothing  is  specifically 
stated  in  existing  legislation,  all  the  rules  applicable  to  established  providers  would  also 
apply to cross-border services.74  

•   

5.1.2.  Member  States  without  a  horizontal  law  or  a  clause  on  freedom  to 
provide  services  in  the  horizontal  law,  i.e.  which  rely  (solely)  on 
sector-specific changes 

•  Germany and France have not adopted any horizontal law and therefore have no horizontal 
clause  implementing  Article 16  in  their  national  regulatory  framework.  Similarly, 
Liechtenstein and the (current) draft horizontal laws in Austria do not seem to include any 
clause implementing Article 16 of the Services Directive. To implement Article 16, these 
Member States thus seem to rely solely on making changes to sector-specific legislation.  

From  the  information  available  to  us,  it  seems  that  Germany  has  made  a  number  of 
important changes75; France has also made a number of changes specifically addressing the 
situation of cross-border service providers76. However, Austria and Liechtenstein seem to 

71  
72  

73  

74  

75  

76  

The wording of the Latvian law seems potentially broader, however. 
Spain  has,  however,  reported  many  requirements  under  Article  16  including  authorisation  schemes. 
Latvia seems to have excluded the regulated professions from this outright prohibition. 
Spain  has  made  such  changes  in  relation  to  sectors  such  as  tourism  (travel  agencies,  tourist  guides), 
numerous industrial services and the retail sector. 
In its recently amended legislation on the construction industry, Slovenia specified that all requirements 
apply to cross-border services in the same way as to establishment cases. 
Germany has removed the general obligation to notify a commercial operation (‘Gewerbeanzeige’) that 
applies to a wide range of different activities, the authorisation scheme for itinerant sales (off-premises 
services) and specific authorisation schemes for estate agents, in the auctioneering sector, for property 
developers  and  property development  managers  for  cross-border services.  It has  also  ensured  that  the 
tariffs applicable for architects and engineers do not apply to cross-border services. 
These  mainly  concern  travel  agencies,  top  model  agencies,  live  show  managers,  certain  personal 
services and tattoo/piercing services. 

EN 

47 

  EN 

                                                 
have  made  no  specific  changes  in  the  framework  of  the  implementation  of  the  Services 
Directive that state clearly which rules cannot be applied to cross-border services.77  

•  The Netherlands has also not adopted any general clause implementing Article 16 and is 
thus  relying  on  changes  made  to  sector-specific  legislation.  The  Netherlands’  general 
approach  has  been  to  review  all  requirements,  whether  applicable  to  establishment  or  to 
cross-border services, in the light of Article 16 and maintain only those which are justified 
for  one  of  the  four  reasons  given  in  Article  16  and  which  are  proportionate.  The 
Netherlands  thus  does  not  distinguish  between  establishment  cases  and  cross-border 
services78all  legislation  is  in  principle  meant  to  be  compliant  with  Article 16  of  the 
Services Directive.79 80 

5.2.  Overview of the most relevant requirements reported by Member States 

5.2.1.  Obligation on the provider to have an establishment in the territory 

of the Member State where it provides services (Article 16 (2) (a)) 

5.2.1.1.  What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

Requirements  to  have  an  establishment  in  a  Member  State  are  to  be  distinguished  from 
requirements for the provider or the manager etc. to be resident in the Member State, which 
are  prohibited  under  Article 14.  Of  course,  they  also  need  to  be  distinguished  from  ‘mere’ 
authorisation requirements.  

77  

78  

79  

80  

Austria  indicated,  however,  that  §  373a  (1)  of  the  general  trade  law  already  contains  a  clause  which 
Austria considers to be in line with Article 16. This article stipulates that service providers providing 
cross-border  services  can  provide  these  services  in  Austria  on  equal  terms  with  Austrian  service 
providers. Austria stated that this clause was interpreted in line with the directive as meaning that cross-
border  service  providers would  not need  to get  an  authorisation  nor  make  a  declaration.  They would, 
however, have to comply with rules on the exercise of the respective service activity. Austria also states 
that specific rules for cross-border service providers exist in other laws, in particular for tax advisers, 
accountants and engineers. In addition, Austria states that, as regards the Steiermark region, § 9 of the 
law  on  the  recognition  of  professional  qualifications  states  that  service  providers  established  in  other 
Member States can provide their services in the Steiermark on a temporary basis. A similar rule is laid 
down in § 14 of the Kärnten region’s law on the recognition of professional qualifications. Its second 
paragraph however clearly indicates that for the exercise of the service, the provider has to comply with 
the  laws  in  Kärnten.  In  its  self-assessment,  Austria  has  indicated  that  only  a  limited  number  of 
authorisation schemes are applicable to cross-border services, for instance for boiler installation experts, 
pleasure  visits  to  mines  and  certain  events,  e.g.  variety  shows  and  revues,  circuses,  shows  with 
predatory animals and travelling shows. 
The  requirement  to  register  the  trade/company  is  an  exception,  as  it  only  applies  to  established 
providers. 
Changes made to the regulatory framework in general include the abolition of the authorisation scheme 
for the preparation/stuffing of animals, the abolition of the licence for assessors dealing with damage 
from disasters/major accidents, the abolition of requirements on the use of equipment and materials in 
the area of construction and demolition waste, and the abolition of permission for dumping processed 
animal by-products. 
In  order  to  ensure  that  Article  16  standards  are  upheld  by  all  Dutch  legislative  and  regulatory 
authorities,  the  Prime  Minister’s  Decree  on  Instructions  for  Legislation  and  the  handbook  on  the 
implementation  of  European  rules  have  been  amended  to  allow  the  legislator  to  comply  with  these 
aspects of the Services Directive when enacting legislation. 

EN 

48 

  EN 

 
                                                 
A  requirement  to  have  an  establishment  makes  the  provision  of  services  across  borders 
impossible. This is why the ECJ, relying on Article 56 TFEU, has repeatedly stated that the 
requirement  of  a  permanent  establishment  is  the  very  negation  of  the  freedom  to  provide 
services  and  has  set  a  high  threshold  for  justifying  it,  requiring  that  any  such  condition  be 
indispensable for attaining the objective pursued. In fact, the ECJ has generally not accepted 
such requirements.  

5.2.1.2.  The situation in Member States — What have we seen so far as a 

result of implementation? 

From our information, it is clear that most establishment requirements have been abolished or 
are being abolished as they have been found discriminatory, unjustified or disproportionate. 
For  instance,  for  services  covered  by  the  Services  Directive,  Portugal  abolished  the 
establishment requirement provided for in its code of commerce which previously applied to 
services across the board. Other examples of areas for which establishment requirements have 
been or are being abolished include control bodies for industrial safety (Spain), maintenance 
services  for  electric  substations  (Spain),  sales  of  certain  alcohols81  (Lithuania),  sales  of 
alcoholic  drinks  (Luxembourg),  the  handling  of  pyrotechnic  products  (Lithuania), 
construction  activities  (Austria),  test  engineers  (Germany),  travel  agencies  (Belgium, 
Lithuania, Spain and Slovenia), property and business assessment services (Lithuania), the 
buying  of  non-precious  scrap  metal  and  its  waste  (Lithuania),  exploration  for  and 
exploitation of crude oil (France), the maintenance of fire safety equipment (Lithuania), the 
organisation  of  auctions  of  movable  cultural  property  (Lithuania),  and  the  maintenance  of 
cemeteries (Lithuania), etc. 

As a result, based on what Member States have reported, it seems that many Member States, 
including  Bulgaria,  Cyprus,  Denmark,  Estonia,  Finland,  France,  Hungary, 
Italy, 
Liechtenstein,  Luxembourg,  Latvia,  Malta,  Norway,  Portugal,  Slovakia,  Spain,  Sweden  and 
the Czech Republic, no longer have establishment requirements or will no longer have them 
once implementation is complete.  

However, in some Member States, certain establishment requirements have been kept. These 
remaining requirements seem to concern very diverse services/sectors and have in most cases 
been reported by only one or two Member States. Some of these are cases, such as wholesale 
of  alcoholic  products  (Lithuania)  and  wholesale  of  tobacco  products  (Lithuania),  in  which 
Member States do not want itinerant services of this type for reasons of public policy. Other 
cases concern technical experts82, specific certification services83, chimney sweeps (Austria), 
certain education services84, driving schools85, car rental (Iceland), sale of used cars (Iceland), 
career services (Belgium (Flanders)), supply of vehicle registration plates (United Kingdom), 
and insemination services (Greece and Ireland).  

To  justify  these  requirements,  Member  States  have  mostly  relied  on  the  ‘public  policy’ 
justification, to a lesser degree on ‘public security’, ‘public health’ and the ‘protection of the 
environment’.  In  several  cases,  Member  States  give  more  than  one  reason  or  even  all  four. 

81  

82  
83  
84  

85  

Lithuania  specified  that  this  requirement  applied  to  undertakings  willing  to  obtain  a  certificate  which 
allows them to participate in a tender for the sale of ethyl alcohol obtained from wine intended for the 
manufacture of bioethanol to be used in the EU fuel sector. 
Germany (Hamburg and Berlin) for structural inspectors / structural inspection engineers. 
Germany (Hamburg) certification in relation to sewerage systems; Greece; the Netherlands. 
Lithuania for vocational education and higher education; Poland for specific training for safety advisers; 
Romania for education services. 
Poland for training for learner drivers, for additional training for licence holders, for specific training 
for the transport of hazardous products and for specific training for road transport. 

EN 

49 

  EN 

                                                 
Based  on  these  reasons,  Member  States  have  in  some  cases  argued  that  an  establishment 
requirement is necessary to ensure quality of service or the reliability of the provider. In other 
cases,  Member  States  argue  that  the  requirement  is  necessary  to  ensure  that  providers  can 
easily be personally contacted. In the case of chimney sweeps, one region in Austria argues 
that these service providers exercise public authority. However, the main reason, which is not 
always  spelt  out  clearly,  seems  in  many  cases  to  be  that  Member  States  want  to  be  able  to 
carry out controls/on-site checks at the place of establishment.  

5.2.2.  Obligation on the provider to obtain authorisation, including entry in 
a  register  or  registration  with  a  professional  body  or  association 
(Article 16(2)(b)) 

5.2.2.1.  What is the legal backdrop? What are the relevant aspects for the 

Services Directive?  

Authorisation schemes impose a considerable burden on service providers from other Member 
States. Their application generally renders the provision of services more costly and delays its 
provision.  In  practice,  authorisation  schemes  imposed  on  service  providers  from  other 
Member  States  may  have  a  dissuasive  effect,  in  particular  if  the  service  has  to  be  provided 
urgently but also in other cases such as when administrative hurdles are too high.  

Authorisation  schemes  linked  to  the  recognition  of  professional  qualifications  should  in 
principle  not  exist  for  cross-border  services,  in  line  with  the  Professional  Qualification 
Directive  2005/36.  They  may  only  be  imposed  for  regulated  professions  which  have  public 
health or safety implications and which do not benefit from automatic recognition under Title 
III Chapter III of the Professional Qualifications Directive. 

Under  Article  16  of  the  Services  Directive,  authorisation  schemes  can  only  be  applied  to 
service  providers  from  other  Member  States  in  exceptional  cases  if,  besides  being  non-
discriminatory, they are justified on grounds of public policy, public security, public health or 
the protection of the environment. And it is clear that even in those cases, they can only be 
maintained if it has been clearly demonstrated that subsequent controls would be too late to be 
genuinely effective and to enable it to achieve the aim pursued. 

5.2.2.2.  The situation in Member States — What have we seen so far as a 

result of implementation? 

Authorisation  is  clearly  the  most  common  requirement  also  for  cross-border  services. 
However, the extent to which cross-border services are still subject to such schemes seems to 
vary considerably in the different Member States. While in some Member States, including 
for  instance  the  Czech  Republic,  Estonia,  Hungary  and  Spain,  authorisation  schemes  for 
cross-border services remain in only a few areas, they seem to have been largely maintained 
in some other Member States.  

Authorisation  schemes  have  been/are  being  abolished  or  made  non-applicable  for  cross-
border  services  or  have  been  replaced  by  notification  schemes  (or  by  ‘self-certification’ 
statements,  i.e.  declarations/statements  by  the  provider  that  it  complies  with  the  relevant 
requirements)  in  many  cases.  Spain  and  Latvia  have  in  principle  prohibited  authorisation 
schemes for cross-border service providers.  

As  a  result  of  implementation  of  the  Services  Directive,  there  seem  to  be  no  horizontal 
authorisation schemes remaining for cross-border services. Horizontal authorisation schemes 

EN 

50 

  EN 

 
have been removed or are being removed in several Member States for cross-border services. 
For instance, Malta seems to have amended its trading licences act so that service providers 
from  other  Member  States  can  generally  provide  services  without  authorisation  or 
notification. Similarly, Poland has clarified that cross-border service providers do not have to 
be  entered  in  any  business  registers.  Bulgaria  seems  to  have  replaced  a  horizontal 
authorisation  scheme  for  crafts  with  a  notification  scheme.  Belgium  has  clearly  stated  that 
the  general  business  registers  (Banque  Carrefour)  do  not  apply  to  cross-border  service 
providers. Portugal has amended its commercial code so that cross-border service providers 
no  longer  need  to  register  (nor  establish).  Slovenia  is  in  the  process  of  adopting  a  rule 
ensuring  that  cross-border  craftsmen  do  not  need  to  be  registered  in  its  craft  register.  The 
Czech Republic had already abolished the application of their trade licensing acts for cross-
border  services  providers  when  it  joined  the  EU.  In  Sweden  the  obligation  to  set  up  and 
register  as  a  foreign  branch  before  starting  to  do  business  there  no  longer  applies  to  cross 
border service providers. 

In addition, existing authorisation schemes for specific services have been/are being removed 
or  made  non-applicable  for  cross-border  services  (in  some  cases  replaced  by  notification 
requirements),  in  important  sectors  such  as  construction,  tourism,  and  education.  This  is  of 
course  in  particular  the  case  in  Member  States  which  have  adopted  a  general  rule  that  in 
principle  no  requirements  apply  to  cross-border  services  (unless  specifically  stated  in  the 
law),  because  such  rules  affect  many  service  sectors  at  the  same  time.  In  other  cases, 
authorisation schemes for cross-border services have been or are being removed/made non-
applicable in specific cases. Examples which have been reported to the Commission include 
certain  construction  services  (Cyprus  and  Spain),  gas  installations  (Spain),  repair  of 
pressure equipment (Spain), repair of refrigerators (Spain), property developers (Germany), 
property  development  managers  (Germany),  engineers/engineering  consultancies  (Spain), 
travel  agencies  (Belgium,  France  and  Spain),  tourist  guides  (Malta),  cross-border  retail 
services  (Spain),  itinerant  trade  (Portugal),  distant  sales  (Spain),  the  auctioneering  sector 
(Germany  and  Portugal),  estate  agents  (Germany),  certain  personal  services  (France), 
maintenance  of  fire  safety  equipment  (Lithuania),  services  of  quality  control  of  buildings 
(Spain), employment agencies (Belgium (Flanders), Malta), sale of time shares (Malta), top 
model agencies (France), live show managers (France), family mediation services (Spain), 
recruitment  services  (Lithuania),  evaluation  of  radio  equipment  (Cyprus),  driving 
instructors  (Portugal),  car  rental  (Cyprus  and  Portugal),  commercial  agents  (Greece), 
environmental  experts  (e.g.  Slovakia),  certain  training  courses  (Spain),  manager  of 
sportsmen  (France),  maintenance  of  lifts  (Portugal),  leisure  activities  (Spain),  catering  in 
mobile  facilities  (Portugal),  ticket  sales  of  shows  (Portugal),  and  forest  exploitation 
(Belgium, Flanders).  

However,  it  seems  that  a  considerable  number  of  sector-specific  authorisation  schemes 
continue to apply to cross-border service activities. The following list illustrates the number 
of schemes reported and the variety of services covered, but is by no means comprehensive.  

Certification, inspection, expert and analysis services, e.g. experts/certification services in the 
construction  sector86,  certification  of  construction  products87,  experts/certification/measuring 

86  

87  

Austria  (some  Länder);  cases  from  several  German  Länder  for  structural  inspectors  /  structural 
inspection  engineers  (Prüefingenieure/Prüfsachverständige)  —  these  rules  generally  provide  for  a 
notification  requirement  if  the  provider  has  complied  with  similar  (substantive)  requirements  in  his 
Member  State  of  establishment  but  for  an  authorisation  scheme  for  all  other  cases;  cases  of  several 
German Länder for certification services relating to safety and fire protection, and for the presentation 
of building documents (Bauvorlageberechtigung). 
Several Member States, for instance several cases from Austrian and German Länder. 

EN 

51 

  EN 

                                                 
aspects88, 

certification 

environmental 

energy  performance 

concerning 
(Sweden), 
verification/control  of  measuring  equipment89,  supervision  services  concerning  certain 
products (some Länder in Germany, and France for tanning beds), certification/testing of fire 
protection  systems  (Slovenia),  verification  of  results  of  land  surveying  (Czech  Republic)90, 
testing  of  vehicles91, 
the  safety  at  work92, 
technical  control/experts  concerning 
control/inspections of lifts93, control of gas or electrical installations94, control/supervision of 
heating/heating  appliances95,  boiler  installation  experts  (Austria),  inspection/expert/analysis 
services in agricultural/food related matters96, certification, testing of technical equipment for 
spraying  pesticides  (Slovenia),  testing  and  analysis  of  plant  protection  products  (Slovenia), 
experts on pipelines (Germany), control of tanks for liquid manure (Denmark), measuring the 
quality of petrol (Denmark), and inspection of gambling machines (one Land in Austria).  

Services  related  to  hazardous  substances/equipment:  e.g.  different  activities  linked  to 
weapons/firearms  and  ammunition97,  handling  of  explosive  substances  and/or  pyrotechnic 
goods and/or explosion activities98, handling of nuclear materials/activities related to nuclear 
energy99, handling/storage of dangerous chemicals (Slovenia and Denmark), import, use and 
release  of  genetically  modified  organisms  (Romania  and  Ireland),  use  of  pesticides  United 
Kingdom),  handling  of  ozone  layer  depleting  substances  (Slovakia),  handling  of  pathogenic 
germs (Germany), advertising, and wholesale of narcotic drugs and psychotropic substances 
(Lithuania). 

Services relating to animals/plants or national parks: e.g. handling/trade etc. in wild/protected 
animals100,  reproduction/insemination  of  animals101,  slaughter  of  animals  (United  Kingdom, 
The Netherlands), killing or taking of birds in marine area (United Kingdom), animal homes 
(United  Kingdom),  animal  tests/experiments  (the  Netherlands),  embalming  of  wild  animals 

88  

89  
90  

91  
92  
93  
94  

95  
96  

97  
98  

99  

100  

101  

Many  Member  States  for  emission  measuring/controls,  for  example  France,  Denmark,  Slovakia, 
Cyprus,  Germany;  many  Member  States  for  verification  of  environmental  reports,  for  instance 
Luxembourg, Slovenia, Slovakia; many Member States concerning water, for instance the Netherlands, 
France,  several  cases  from  German  Länder  concerning  the  control  of  infrastructure  for  use  of  water 
endangering  substances,  several  cases  concerning  waste  water,  for  instance  Germany;  several  cases 
concerning  soil,  for  instance  the  Netherlands  and  Germany,  several  cases  from  German  Länder  for 
testing of plant protection equipment and concerning waste, as well as several cases concerning noise, 
for instance in Denmark, cases concerning air quality in Belgium (Flanders). 
Several Member States, for instance Belgium, Romania and Germany. 
These authorised land surveyors are different from ‘normal’ land surveyors, whose results they check, 
e.g. for the land register. 
Several Member States, for instance Malta, United Kingdom and Denmark. 
Luxembourg, France for workplace noise, radiation and air quality. 
Several Member States, for instance France, Austrian regions, and Belgium. 
Several  Member  States,  for  instance  Luxembourg  for  gas,  Austria  (one  Land),  France  for  gas  and 
electrical installations; the Netherlands for gas and electricity. 
France, Austrian regions, and Slovenia. 
Italy  (Bolzano),  Slovenia  for  analysis  of  seed  quality;  Germany  for  analysis  of  milk  and  experts  for 
agriculture, forestry, viniculture and fisheries, Poland for ecological farming. 
Estonia and Hungary for the transfer, export, import etc. of firearms and marketing and repair of arms. 
Several  Member  States,  for  instance  Hungary,  Cyprus,  Denmark,  Lithuania  for  trade  in  pyrotechnic 
products; the Netherlands for firework-related activities and the use of explosives, Sweden for the sale 
of explosive products. 
Lithuania  for  the  export,  import  etc.  of  nuclear  materials,  Lithuania  for  acquiring,  keeping,  and 
transporting radioactive materials, Lithuania for the provision of services to nuclear facilities. 
France,  several  cases  from  Romania  concerning  trade  in  wild  flora  and  fauna,  several  cases  from 
German  regions  concerning  the  collection  and  processing  of  wild  animals,  and  the  Netherlands 
concerning the exhibition of protected animals (and plants). 
Several  Member  States,  for  examples  France,  Lithuania  for  insemination  of  animals,  Belgium  for 
breeding; the Netherlands for sperm collection. 

EN 

52 

  EN 

                                                 
(Cyprus), tests relating to dogs102, keeping, breeding, and sale of dangerous dogs (Lithuania), 
collection  and  sale  of  minerals,  plants  and  animals103,  collection  and  processing  of  wild 
plants104, organisation of animal fights (the Netherlands), activities in nature protection areas 
(the  Netherlands  and  France),  deforesting  (the  Netherlands),  and  commercial  activities  in 
national parks (Sweden). 
Construction/crafts:  e.g.  construction  services105,  setting  up/maintenance  of  mining 
construction  (the  Netherlands),  drilling  services  (Cyprus),  welding  services  (France), 
plumbers  (Denmark),  work  on/installation  of  electrical  or  gas  appliances/  installations106, 
maintenance  of  heating  installations  (Lithuania),  maintenance  and  installation  of  cooling 
installations/activities with CFCs (the Netherlands), asbestos removal (France), archaeological 
works107,  construction  within  the  marine  environment  (United  Kingdom),  and  placing 
scaffolding on highways (United Kingdom). 
Tourism-related  services  and  leisure  activities:  e.g.  travel  agencies108,  ski  instructors109, 
mountain  guides110,  cave  guides  (Austria),  organisation  of  events,  including  variety  shows, 
circuses,  art  shows  etc111,  diving  instructors  (Italy,  one  region),  recreational  diving  services 
(Malta), fishing-related tourism (Italy, one region), marketing of time-share products (Malta), 
recreational  games  (Greece),  tours  in  mines  (Austria),  tours  and  excursions  with  hired 
trams/cars, coaches etc. (Belgium at local level), and bullfighting (Spain — one region). 
Education  and  training  services,  e.g.  schools112,  higher  education  services113,  vocational 
training114, advanced vocational training (France), business trainings115, driving instructors116, 
driving  schools117,  training  for  drivers  (Denmark),  training  in  the  aviation  area118,  dancing 
schools/dancing  classes119,  dramatic  art  schools  (Greece),  training  for  fire  protection 
(Slovenia  and  France),  training  related  to  health  and  safety  at  work  (Ireland  and  France), 
training on protection of plants (Slovenia), training on phytomedicine (Slovenia), training for 
life saving in water (Slovenia), training on hygiene conditions for tattooing services (France), 
training  related  to  plant  protection  products  (Poland),  courses  in  food  hygiene  (Denmark), 

102  
103  

104  
105  

106  
107  
108  
109  
110  
111  

112  
113  
114  

115  
116  
117  

118  
119  

Several German regions for test of character of dogs and for dog owners. 
Several  cases  from  Austrian  regions  concerning  the  collection  and  sale  of  minerals  and  animals,  and 
trade in listed plants. 
Several cases from German regions for collection and processing of wild animals and plants. 
Several Member States, for example Malta, Lithuania for the design, construction and management of 
construction works and the management of technical activity in relation to construction works; and the 
Netherlands for construction work and digging. 
Several Member States, for instance Finland, Cyprus, Malta, and Denmark. 
Ireland, Lithuania for excavation works, and Spain. 
For instance Finland, Ireland and Poland. 
Several Italian and Austrian regions. 
Several Member States, for instance some regions in Italy and Austria. 
Several  Member  States,  for  instance  France  for  sports,  several  Austrian  regions  for  circuses,  music 
festivals etc. art shows, Hungary for circuses, Lithuania for organising events in public places. 
Italy, United Kingdom. 
Several Member States, for instance Slovenia, Portugal, and Lithuania. 
Several  Member  States,  for  examples  Lithuania  for  vocational  education,  and  Austria  (one  Land)  for 
social professions. 
Belgium (Vlaamse Gemeenschap). 
Denmark, Ireland, Malta and the United Kingdom. 
Several Member States, for instance Bulgaria, Cyprus, Finland, France, Iceland, Portugal, reported that 
the  authorisation  applies  only  to  those  cross-border  service  providers  who  set  up  (temporary)  driving 
schools in Portugal. 
Cyprus for pilots, Poland. 
Greece for amateurs, Greece for higher private dancing schools, and several Austrian regions. 

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training  regarding  trading,  packaging  and  application  of  plant  protection  products  (Poland), 
and the training of dangerous dogs (Austria. 
Wholesale  and  retail  services:  e.g.  markets120,  itinerant/ambulant  trade121,  trade  fairs122, 
commerce on public areas123, trade in used goods (United Kingdom), retail sales of alcoholic 
beverages (Lithuania), retail sales of tobacco products (Lithuania), the supply of and trading 
in electricity and natural gas (Slovenia), energy distribution (Italy, at local level), the sale of 
food  supplements  (Cyprus),  wholesale  of  veterinary  medicines  (Greece),  sale  of  specific 
plants/plants products (Slovenia), trade in plant protection products (Poland), and the sale of 
animal by-products (United Kingdom). 

insolvency 

interpreter125, 

Food and beverage related services: e.g. sale of food/beverages by vending machines in some 
regions in Italy, etc. 
Services  provided  at  courts:  e.g.  court  expert124,  court 
administrator126. 
Business services: e.g. real estate agents127, employment services128.  
Other  services:  e.g.  child  care129,  housing  support  services  (United  Kingdom),  services  for 
people  with  disabilities  (Austria  in  some  regions),  collecting  societies130,  detectives 
(Hungary),  alarm  installations  (the  Netherlands),  funeral  services  (Lithuania),  services  for 
cemeteries  (Germany  (one  Land),  tattooing  services  (the  Netherlands  and  Spain  in  some 
regions), tanning services/solariums (Spain in some regions and Sweden), other care/support 
services  (at  home)131,  consultation  for  debtors  (Belgium,  one  Community),  street  artists 
(Belgium  (at  local  level),  acupuncture  (United  Kingdom),  advertising  in  public  spaces132, 
removal  services133,  security  system  designers  and  technicians  (Hungary),  archiving 
(Lithuania),  handling  of  precious  metals  and  stones  (Lithuania),  bottling  wines  (Slovenia), 
services  comprising  the  use  of  a  plane  (including  aerial  photography)134,  aircraft  related 
services  (Hungary),  activities  for  protection  from  and  prevention  of  professional  risks 
(Cyprus),  waste-related  services135,  activities  with  an  impact  on  water  (United  Kingdom), 

120  
121  
122  
123  
124  
125  

126  
127  
128  
129  

130  
131  
132  

133  

134  

135  

Greece for outdoor markets, Italy, Belgium, and Spain. 
Several Member States, for instance Belgium, Cyprus, Greece, and Portugal. 
Several Member States, for instance Greece including for trade fairs for books, Italy (Lazio), Portugal. 
Several Member States, for example Italy (one Region), 34 Irish Counties and Lithuania. 
Slovenia, Italy (Bolzano) for real estate matters, Slovakia. 
Several  Member  States,  for  instance  Slovenia  and  Slovakia  for  translators/interpreters,  Germany  (one 
Land), and the Netherlands. 
Several Member States, for instance Slovenia, Slovakia, and the United Kingdom. 
Finland, Greece for brokers of civil law contracts in general. 
Several Member States, for instance Finland and Cyprus. 
Several  Member  States,  for  instance  France,  the  United  Kingdom,  several  Austrian  regions,  and 
Belgium (Deutschsprachige Gemeinschaft). 
Several Member States, for instance Malta, Slovenia, Ireland, and France. 
United Kingdom for care home services and care services. 
For  instance  Finland  for  placing  signs  at  roads,  Austrian  regions,  and  Lithuania  for  installation  of 
outside advertisements. 
France.  The  French  authorities  have  pointed  out  that  removal  services  which  do  not  include  goods 
transport  do  not  require  any  authorisation  or  declaration.  If  the  removal  services  include  goods 
transport, it is subject to the rules on goods transport. 
Several  Member  States,  for  example  Luxembourg; Hungary  for  aerial  photography;  Cyprus for  aerial 
photography; Lithuania for aerial photography; and the Netherlands. 
Several  Member  States,  including  for  disposal/management  of  certain  types  of  waste  or  different 
techniques,  for  instance  France  for  the  collection  of  used  oil,  waste  disposal  of  used  tyres,  waste 
disposal of textiles/shoes and disposal of electrical equipment, United Kingdom including for disposal 
of waste batteries, Malta and Slovenia for incineration of waste and waste management at Koper port, 

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mediation activities136, training of racing animals137, horse riders in races (Ireland), charitable 
collections (Germany (one Land) and United Kingdom), and operators of industrial or mobile 
plants (United Kingdom).  

To justify these requirements, Member States have again relied on the four reasons, often on 
more than one reason at a time or even on all four. Based on these reasons, Member States 
have put forward a variety of arguments to justify specific authorisation schemes, including 
the  need 
the 
consumer/recipient, etc. It should be noted that the justifications given under Article 16 do not 
in many cases seem different from the arguments put forward under Article 9.  

to  ensure  sufficient  qualifications, 

to  safeguard  quality, 

to  protect 

5.2.3.  Notification/declaration requirements (Article 16(1))  

5.2.3.1.  What is the legal backdrop? What are the relevant aspects for the 

Services directive?  

Notification requirements are often required for the provision of a service. The alleged reason  
being that, on the basis of such notifications, competent authorities may be able to supervise 
compliance with the relevant legal framework. 

Notification  schemes  are  in  many  cases  less  burdensome  than  authorisation  schemes.  One 
major advantage is that they enable the service provider to start immediately upon sending the 
notification.  However,  even  notification  requirements  can  render  the  provision  of  a  service 
considerably more difficult. In fact, in some cases, notification requirements may almost be as 
burdensome  as  authorisation  schemes,  e.g.  if  they  need  to  be  made  before  providing  the 
service and to include a lot of documentation.  

Under Article 16 of the Services Directive, notification requirements can only be applied to 
service  providers  from  other  Member  States  if,  besides  being  non-discriminatory,  they  are 
justified  on  grounds  of  public  policy,  public  security,  public  health  or  the  protection  of  the 
environment and are proportionate.  

5.2.3.2.  The situation in Member States — What have we seen so far as a 

result of implementation? 

On  the  basis  of  the  information  received  by  Member  States,  it  seems  that  notification 
requirements are used much less than authorisation schemes  (except in relation to regulated 
professions,  for  which  many  Member  States  may  require  a  prior  annual  declaration  in  line 
with the Professional Qualifications Directive138). In fact, in some Member States, including 
Denmark,  Estonia,  Ireland,  Italy,  the  Netherlands,  Poland  and  Slovakia,  notification 
requirements of this kind do not seem to exist at all for cross-border services (or only in very 
few instances) whereas in other Member States including Germany, Spain, Hungary, Portugal 
and  Austria  they  seem  to  be  used  to  a  limited  extent  (even  though  in  most  cases  much  less 
than authorisation schemes). 

136  
137  
138  

Poland for waste management, several cases from the Netherlands, including for collection of specific 
oils, and Romania. 
Slovakia, Germany (one Land) for mediation in insolvency matters. 
Ireland for greyhounds and horses, France for horse training. 
Since such notifications are covered by the derogation in Article 17 No 6, they have generally not been 
reported and are thus generally not included in the overview below. 

EN 

55 

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Notification  requirements  have  been/are  being  abolished  or  made  non-applicable  for  cross-
border services in a number of cases. As is the case for authorisation schemes, this certainly 
applies to many notification requirements in Member States whose general approach is not to 
apply  any  rule  on  cross-border  services  unless  this  is  specifically  stated.  In  other  cases, 
changes  may  have  been  made  to  sector-specific  legislation.  Examples  notified  to  the 
Commission  include  the  removal  of  the  cross-sectoral  notification  scheme  in  the  German 
trade law for cross-border services.  

However, notification requirements have also been maintained (or have even been introduced 
to replace authorisation schemes) in several cases.  

From  the  information  available,  it  seems  that  a  horizontal  notification  scheme  exists  in 
Belgium,  in  Bulgaria  and  Liechtenstein.  Belgium  imposes  a  horizontal  notification 
requirement  on  anybody  providing services  (or  carrying  out  a  business  activity)  in  Belgium 
(with  limited  exceptions).  Liechtenstein  seems  to  subject  all  commerce  (Gewerbe)  to  a 
notification  requirement.  Bulgaria  seems  to  impose  a  horizontal  notification  obligation  on 
cross-border services of craftsmen.  

In most cases, notification schemes concern specific sectors only. Notification schemes have 
been  reported  for  certain  certification,  expert  and  verifying  services139,  including  quality 
control of buildings (Spain at regional level), appraisal services linked to emission reduction 
activities (Hungary), noise audit (Spain at regional level); the construction sector/crafts, e.g. 
certain construction services140, preparation of building documents141, construction-assembly 
services (Hungary), design, installation and maintenance of anti-burglary systems (Romania); 
handling  of  explosive/pyrotechnic  articles142;  animal/plant  related  services,  such  as 
insemination services (Austria), breeding (Austria), import and use of pesticides (Germany), 
disinfection  services  and  crop  spraying  (Germany  at  regional  level);  the  tourism  sector, 
including  travel  agents  (Hungary),  cave  guides  (Austria),  sport  services  (Austria),  summer 
camps for children (Spain at regional level), the organisation of events at sea (France), in the 
retail/wholesale  area,  including  retail  (in  general)  (one  region  in  Spain),  sale  of  seeds 
(Hungary), sale of food and beverages in public transport (Italy at regional level), the sale of 
food and beverages  at the consumer’s home  (Italy at  regional level), the sale of used goods 
(Sweden),  the  sale  of  propane  and  butane  gases  (Hungary),  the  rental,  repair  and  sale  of 
medical  appliances  (Hungary),  wholesale  of  medicines  (Slovenia),  energy  supply  (Austria); 
the  education  sector,  including  adult  education  (Hungary),  higher  education  services 
(Hungary),  professional  trainers  of  animals  (Cyprus),  training  organisers  for  fire  protection 
exams  (Hungary);  interpreters  at  court  (Germany  at  regional  level);  other  services,  such  as 
services related to blood donation (Germany at regional level), family and home care services 
(Belgium),  tattooing  (France),  information  services  on  medical  appliances    and  medicines 
(Hungary), bottling of camping gas bottles (Hungary), fire fighters, distant monitoring of fire 
indicators  (Hungary),  mannequin  placement  services  (France),  detective  and  investigation 
services143, postal and courier services (Lithuania), lobbying activities (Hungary), the use of 
microwaves  to  repair  water  damage  (Sweden),  family  mediation  services  (Spain  at  regional 
level), roadside advertising (Spain at regional level), etc.  

139  

140  
141  

142  

143  

Several cases for structural inspectors/structural inspection engineers in German regions; generally only 
notification requirement if qualifications are equivalent. Otherwise registration is required (Hungary). 
The Netherlands for concrete-, brickwork or plasterwork. 
Several  cases  from  German  regions;  generally  only  notification  requirement  if  qualifications  are 
equivalent. Otherwise registration is required. 
Estonia  for  handling  of  explosives;  Estonia  for  handling  of  pyrotechnic  articles,  Hungary  for  sale  of 
explosives. 
Poland, Romania and Slovenia. 

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To justify these requirements, Member States have again relied in many cases on more than 
one of the reasons set out in Article 16 or even on all four. Based on these reasons, Member 
States  have  put  forward  a  variety  of  arguments  to  justify  specific  notification  requirements, 
including  in  particular  the  protection  of  the  recipient/consumer.  The  basic  reasons  for 
notification  schemes  for  the  provision  of  a  service  as  such  seems  in  many  cases  to  be  that 
Member  States  believe  that  notification  lets  them  know  who  is  in  their  territory  so  that  the 
competent authorities can supervise the service provision, if they wish.  

5.2.4.  Other requirements (Article 16(1)) 

In  addition  to  establishment  requirements,  authorisation  schemes  and  declarations,  Member 
States also reported on other requirements.144  

The  majority  of  information  received  concerned  obligations  on  the  use  of  equipment, 
insurance  obligations  and  obligations  to  obtain  a  special  ID  document  (in  addition  to  the 
catchall  item  "another  obligation  for  service  providers").  In  contrast,  there  were  almost  no 
reports  of  bans  on  infrastructure,  limits  on  financial  assistance  to  service  recipients  or 
obligations to have a representative in the territory.  

5.2.4.1.  Requirements affecting the use of equipment and material which 

are an integral part of the service provided (Article 16(2)(f)) 

Requirements affecting the use of equipment can prevent service providers from using their 
equipment  for  the  provision  of  services  in  other  Member  States  which  may  in  many  cases 
fully hinder the provision of the service as such, in particular if the equipment is essential and 
cannot easily be substituted.  

Most  entries  for  requirements  affecting  the  use  of  equipment  or  material  were  made  by 
Austria, Belgium, Germany, the Netherlands and Slovenia. Other Member States do not seem 
to use such requirements much or did not report them.  

The requirements reported cover a range of services including expert, control or certification 
services145,  environmental  detection  services146  and  other  measurement  services147, 

144  

145  

146  
147  

In particular, for service providers these were bans on a service provider setting up a certain form  or 
type  of  infrastructure  in  the  territory;  the  application  of  specific  contractual  arrangements  between 
service  providers  and  service  recipients  which  prevents  or  restricts  service  provision  by  the  self-
employed; obligations on a service provider to possess an identity document issued by the competent 
authorities specific to the exercise of a service activity; requirements which affect the use of equipment 
and material which are an integral part of the service provided; obligations on a service provider to have 
an address or to designate a representative in the territory of the receiving Member State; obligations on 
a  service  provider  to  take  out  insurance  or  to  subscribe  to  a  guarantee  or  similar  arrangement  in  the 
territory  of  the  receiving  Member  State,  and  other  obligations.  For  service  recipients,  Member  States 
reported on obligations on a service recipient to obtain an authorisation from or to make a declaration to 
the  competent authority  before  using  a  service  supplied  by  a  provider  established  in another  Member 
State, and discriminatory limits on the granting of financial assistance to service recipients 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 and other obligations on the service recipient. 
Several Member States, for instance Austria for inspection of heating facilities and security checks of 
elevators; Germany for experts for emission control, experts for soil protection and brownfields, control 
stations for crop protection products, control stations for construction products, inspection of pipelines, 
experts for sewage examination, inspection of collective assets for milk and experts for waste disposal; 
and Slovenia for measurement of radioactivity and disposal of plant protection products. 
The Netherlands for the detection of radioactive waste. 
The Netherlands for gas measurements. 

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construction  services148,  body/beauty  care149,  solariums  (Slovenia),  funeral  services150, 
opticians151,  mountain  guides  (Austria),  veterinarians152,  castration  of  animals  (the 
Netherlands), slaughter of animals (the Netherlands), friendliness testing of dogs (Germany at 
local  level),  activities  concerning  infrastructure  for  handling  of  substances  dangerous  for 
water  (Germany),  road  safety  teaching  (Slovenia),  handling  of  used  motor  vehicles 
(Slovenia),  handling  of  animal  side  products  (Slovenia),  waste  collection  and  management 
(the Netherlands and Slovenia), and the demolition of constructions waste (the Netherlands). 

In most cases, the requirements concern either the (often) movable equipment used (and seem 
to aim at ensuring the reliability of the results/quality of services and exact measurements) or 
the protection of providers or recipients (e.g. equipment/first aid kits for mountain guides). In 
other cases, requirements seem to relate to the premises.  

5.2.4.2.  Insurance obligations (Article 16(1)) 

Insurance obligations may also be a particular burden on cross-border service providers and 
may in many cases hinder service provision, for instance if the service provider’s insurance 
cover in his home Member State does not cover the exact same risks. In this and other cases, 
providers may need to conclude an insurance contract before providing a service. Moreover, 
such insurance cover for cross-border services may in some cases be too expensive to make 
the service provision economically worthwhile (insurance contracts are often more expensive 
on  a  pro-rata  basis  for  short  periods).  In  some  cases,  insurance  coverage  for  cross-border 
services may actually be difficult to find on the market as such.  

As  with  other  requirements,  it  is  clear  that  insurance  requirements  have  been/are  being 
abolished  or  made  non-applicable  for  cross-border  services  in  a  number  of  cases.  Some 
Member  States  have  reported  this,  e.g.  for  sports  agents  (France),  measurement  of  radon 
volumes  (France),  disposal  of  used  oil  (France),  surveyors  (France),  and  intellectual 
property agents (Portugal).  

As regards the insurance requirements that have been maintained, there seems again to be a 
considerable difference in the use (or at least in the reporting) of such requirements between 
the  Member  States.  Most  of  the  requirements  were  reported  by  France,  Portugal,  Germany 
and Spain, while the other Member States reported very few or none.  
Insurance  requirements  were  reported  for  certain  experts  and  control  services153,  funfair 
operators  (Germany),  certain  event  organisers  (France),  construction  services  (France), 
furniture  auctions  (France),  architects  (France),  biomedical  research  (France),  real  estate 
agents  and  real  estate  property  managers  (France  and  Portugal),  distribution  of 
phytopharmaceutical  products  (France),  placement  services  for  models  (France),  travel 

148  
149  

150  

151  
152  
153  

The Netherlands, e.g. for scaffolding, ladders, piling, conveyors and other material. 
Several  cases  from  German  regions,  including  for  sterile  equipment  and  use  of  protective  utensils; 
Slovenia for special air system in beauty salons. 
Several cases from German Länder, for requirements relating to coffins and transport vehicles; and urns 
for burial at sea. 
Austria for equipment in their business premises. 
Germany for the use of medicines. 
Several cases from German regions, including inspection of pipelines, agricultural experts, experts for 
soil protection and brownfield sites; experts for infrastructure handling substances dangerous to water, 
agricultural experts; experts for infrastructure handling substances dangerous to water; experts for water 
protection;  experts  for  sewage  facilities,  sewage  examination;  France  for  the  inspection  of  lifts  and 
immovable property related experts, Portugal for inspection of gas and distribution networks and for the 
inspection of lifts. 

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agencies154, tourist recreation activities (Portugal), maritime tour operators (Portugal), diving 
services  (Portugal),  certain  high  risk  sports  activities  (Spain  at  regional  level),  door  to  door 
sales (Spain at regional level), aerial photography (Portugal), application of plant protection 
services 
repair  of  gas 
appliances/installations (Portugal), accountants (Portugal).  

lift  maintenance 

installation  and 

(Portugal), 

(Portugal), 

5.2.4.3.  Obligations to obtain a special ID document (Article 16(2)(e)) 

Requirements  to  obtain  a  special  ID  card  are  often  used  to  try  to  enable  an  immediate  and 
easy decision on whether a provider is allowed to exercise an activity. In this way, special ID 
cards are to a certain extent similar to authorisation schemes.  

Requirements  to  obtain  a  specific  ID  document  do  not  seem  to  be  very  common  in  most 
Member States. Nevertheless, a good number of Member States have reported some instances 
where this requirement still exists.  

Requirements to obtain a special ID card were reported in particular in the following areas: 
tourist  and  cave/climbing  guides155,  detectives  (Austria  and  the  Netherlands),  ski  instructors 
(Austria  and  Italy),  experts156,  collection  of  plants  for  commercial  purposes  (Germany  at 
regional level), any commercial activity at cemeteries (Germany at regional level), and sworn 
translators/interpreters (the Netherlands). 

5.2.4.4.  Other obligations on service providers (Article 16(1)) 
Austria,  Germany,  Portugal,  Sweden  and  the  Netherlands157  reported  a  large  number  of 
requirements in this category, many other Member States reported very few or none at all.  

A  variety  of  different  requirements  were  reported  under  this  catch-all  item.  Requirements 
notified  include  requirements  related  to  the  exercise  of  the  activity  as  such,  for  example  on 
continuing  education,  minimum  age  requirements,  reserves  of  activity,  prohibitions  on 
activity in certain areas, and requirements on the way a service must be provided, for example 
requirements  on  quality  and  requirements  to  have  quality  systems,  protective  measures, 
secrecy rules, management requirements, requirements to keep records, etc.  

Like  other  requirements,  these  have  been  removed  in  some  Member  States.  For  instance, 
Germany has ensured that tariffs for lawyers and engineers cannot be applied to cross-border 
services;  France  intends  to  make  fixed  tariffs  for  artistic  agents  and  sports  agents  non-
applicable for cross-border services; Denmark has exempted cross-border services from the 
ban  on  using  discount  coupons  and  prize  competitions  as  marketing  tools.  The  United 
Kingdom has abolished the obligation to have an address in its territory that was previously 
imposed on providers from other Member States wanting to provide cross border services in 
this country. Sweden has stated that the obligations to designate a representative as well as a 
person for the service of documents who are domiciled in Sweden have been abolished and 
that certain information requirements do not apply anymore to cross-border services.  

154  
155  
156  
157  

Several cases from Spanish regions, Portugal, Slovenia and Finland (Aaland). 
Austria for tourist and cave guides, Greece for tourist guides. 
Germany (Sachsen) for agricultural experts; Germany (NRW) for structural inspectors. 
The  relatively  large  number  of  reports  under  this  category  for  the  Netherlands  is  mainly  caused  by 
legislation reported by 441 municipalities at local level, in particular concerning provisions in the local 
Building  Regulation  and  provisions  in  the  General  Local  Regulation  on  street  artists.  Legislation  at 
national level reported in this category included information obligations, obligations to mention certain 
matters and which EN standards are to be used for tests etc. 

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In  other  cases,  such  requirements  seem  to  remain  almost  as  in  establishment  cases.  In 
addition, it seems that, in many cases, requirements have not been reported. This concern in 
particular requirements reported under Article 15 and 25, including legal form requirements, 
shareholding 
restrictions  on 
multidisciplinary  activities.  The  logical  conclusion  to  draw  from  the  fact  that  they  have 
generally not been reported under Article 16 is that they will not be applied to cross-border 
services. But it is unclear whether this is the case in practice.  

tariffs,  quantitative 

requirements, 

restrictions 

and 

CONCLUSIONS 

Member States have taken very different approaches to implementing the freedom to provide 
services clause: 

-  Several  Member  States  have  laid  down  a  horizontal  general  rule  that  requirements 
applicable  to  established  providers  are,  in  principle,  not  imposed  on  cross-border  services 
unless a law specifically provides for their application to cross-border services.  

-  The  majority  of  Member  States  have  included  a  rule  similar  to  Article  16  of  the  Services 
Directive in a horizontal framework law transposing the directive into national law. Several 
of these  Member States have, to varying degrees, also made changes to  sectoral legislation 
indicating clearly which rules can/cannot be applied to cross-border services. It seems that as 
long  as  no  clear  indication  has  been  given  the  requirement  will  either  be  applied  to  cross-
border services or it will be up to the competent authority to decide in each individual case 
whether or not to apply a requirement.  

- A few Member States have not chosen a horizontal approach to implementing the freedom to 
provide  services  clause  but  have  relied  solely  on  varying  degrees  of  amendment  to  existing 
(sectoral) legislation.  

In the discussion amongst Member States, several issues were raised:  

As regards a horizontal approach, it was stressed that it was crucial to make it clear that the 
horizontal framework law implementing the Services Directive took precedence over existing 
(sectoral)  legislation.  A  large  number  of  Member  States  stressed  that  if  the  horizontal 
approach  merely  ‘copied’  Article  16,  service  providers  needed  legal  certainty.  As  far  as  no 
specification  had  been  made  in  sector-specific  legislation  the  effects  of  the  implementation 
would  largely  depend  on  the  competent  authorities  to  decide  in  each  case  whether  or  not 
certain  requirements  were  applicable  to  cross-border  services.  Competent  authorities  could 
often be tempted to apply their national legislation to cross-border services, considering that 
the notions of ‘public policy’, ‘public security’ and ‘public health’ would not be very precise 
and  may  be  used  in  a  different  manner  in  the  national  legal  framework.  The  application  of 
Article 16 would thus need to be monitored carefully to ensure that it was properly applied in 
practice.  

As  regards  approaches  relying  on  sector-specific  requirements  only,  Member  States  raised 
questions as to the completeness of the transposition.  

In  the  discussions  it  was  pointed  out  that  the  real  test  of  implementation  is  the  question  of 
which requirements are in practice applied to cross-border services.  

It is clear that as a result of the Services Directive substantial progress has been achieved. In 
fact, many requirements will no longer be imposed on cross-border services. This is of course 
in particular the case in those Member States which have chosen an approach according to 
which rules are generally not applied to providers of cross-border services unless specifically 
stated otherwise. Other Member States have also made major changes, some of them across 

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the  board.  Establishment  requirements  have  been/are  being  largely  abolished;  in  many 
Member States they no longer exist. A good number of authorisation schemes have also been 
abolished  or  replaced  by  less  restrictive  measures  (notification  or  ‘self-declaration’).  The 
result, however, seems to vary considerably between the different Member States: while some 
Member  States  have  in  principle  fully  abolished  authorisation  schemes  for  cross-border 
services  and  others  have  maintained  very  few  authorisation  schemes,  still  other  Member 
States  have  maintained  a  large  number  of  such  schemes.  Notification  schemes,  both  sector-
specific and cross-sectoral, have also been abolished in a number of cases.  

The discussion showed that the number of requirements applied to cross-border services, in 
particular the number of authorisation schemes, are considered a serious problem by many 
Member  States.  Many  of  them  confirmed  that  establishment  requirements  can  hardly  be 
justified.  Some  Member  States  pointed  out  that  the  argument  that  such  requirements  were 
necessary  to  allow  on-site  checks  was  no  longer  convincing  since  the  Internal  Market 
Information system (IMI) allowed efficient cooperation with competent authorities from other 
Member States. 

than 
The  authorisation  schemes  and  notification  requirements  (considerably 
authorisation schemes) that continue to apply to cross-border services can be found in a wide 
variety of cases. The areas in which they exist overlap to a large extent and cover the same 
service sectors. Some Member States had particular doubts about such requirements in areas 
such as tourism and business services, in which reasons of public policy and public security 
may  often  not  be  at  stake  (nor,  in  many  cases,  public  health  or  the  protection  of  the 
environment). Member States also pointed out that the justifications given often do not seem 
to differ from justifications for establishment cases. 

fewer 

In  addition,  the  discussion  showed  that  problems  for  the  internal  market  persist  which  go 
beyond legal questions: in fact, insurance cover for cross-border services which may still be 
required  in  certain  cases,  often  seems  to  be  difficult  to  obtain,  at  least  at  a  price  allowing 
cross-border service providers to compete with established providers 

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6. 

THE SITUATION IN SPECIFIC SERVICES SECTORS 

6.1.  Wholesale and retail  

This section on wholesale and retail services covers the sale of goods — business to business 
and  business  to  consumer.  All  distribution  modes,  including  e-commerce,  have  been 
considered  under  this  sector.  However,  the  majority  of  requirements  reported  by  Member 
States seem to affect sales carried out from a physical establishment or via ambulant trade.  

Requirements of particular importance in this sector seem to be authorisations for the opening 
of  large  and  medium-size  retail  establishments.  The  type  and  degree  of  regulation  in  this 
sector varies considerably among Member States.  

6.1.1.  Wholesale and retail in general  

This section deals with all the requirements on the wholesale and retail of goods except for 
those  that  apply  specifically  to  ambulant  traders  and  other  types  of  distribution  such  as 
doorstep selling and vending machines. 

6.1.1.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes  

Most  Member  States  do  not  seem  to  have  an  all-embracing  authorisation  scheme  for 
wholesale and retail services. Only in Luxembourg and Belgium is the provision of wholesale 
and  retail  services  subject  to  an  authorisation,  which  seems  to  be  of  a  horizontal  nature.  In 
both countries the scheme seems to be linked to a qualification requirement.  

The vast majority of the reported authorisation schemes for the wholesale and retail of goods 
can be classified into two main categories: (i) authorisation schemes for the opening of large 
and  medium-size  physical  retail  outlets;  (ii)  authorisations  linked  to  the  wholesale  or  retail 
distribution of a specific product.  

Authorisation schemes applicable to the opening of large and medium-sized 
physical retail establishments 

Before  a  physical  retail  establishment,  of  whatever  size,  can  be  opened  the  premises  must 
generally  comply  with  health  and  safety  requirements.  At  least  in  some  instances,  this 
compliance  is  checked  through  an  authorisation  scheme.  Hungary  has  abolished  a  general 
authorisation  scheme  which  existed  for  retail  establishments  and  replaced  it  with  a 
notification scheme. 

In addition, some Member States (Belgium, France, Greece, Italy, Luxembourg, Portugal and 
Spain)  have  reported  specific  authorisation  schemes  for  the  opening  of  large  and  medium-
sized  physical  retail  establishments.  Such  authorisation  schemes  also  seem  to  exist  in  other 
Member  States,  such  as  Austria  and  Romania158.  In  some  cases,  the  procedures  for  such 

158 

For Austria, see the special authorisation scheme laid down in § 77(5) Gewerbeordnung 1994 (GewO) 
for  retail  premises  above  a  certain  size  which  sell  everyday  consumer  goods.  For  Romania,  see 

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authorisation  schemes  for  the  opening  of  large  and  medium-size  retail  establishments  are 
integrated with the procedures for authorising the premises. In other cases the procedures may 
be separate.  

The  overriding  reasons  of  general  interest  given  by  Member  States  for  justifying  specific 
authorisation schemes for the opening of large and medium-sized retail establishments are the 
protection of the environment (including the urban environment), country and town planning 
rules, the protection of workers, social policy objectives, the protection of artistic and historic 
heritage  and  the  protection  of  consumers.  Other  Member  States  seem  to  protect  the  above-
mentioned general interest by applying land use and development rules and town and country 
planning requirements, without having recourse to authorisation schemes159.  

In general, it is the size of the establishment that determines whether an authorisation scheme 
is  required  for  the  opening  of  a  large  or  medium-sized  physical  retail  establishment.  The 
scope  of  these  authorisation  schemes  varies  considerably  among  the  Member  States.  Italy 
requires  an  authorisation  for  establishments  where  the  sales  area  is  larger  than  150 m2  (or 
250 m2  for  bigger  municipalities)..  Belgium  requires  an  authorisation  for  establishments 
larger than 400 m2. At the other end of the spectrum, some Member States have authorisation 
schemes that apply only if the outlet has a sales area larger than 2500 m2 (certain regions in 
Spain). In certain Member States (Italy, Greece and some regions in Spain) these thresholds 
vary according to the population of the municipality or the size of the territory where the new 
establishment will be located. Finally, certain Member States (Greece and certain regions in 
Spain  and  Portugal)  also  have  authorisations linked  to  the  size  of  the  company  or  company 
group that applies for the opening of the new establishment. 

The implementation of the Services Directive has led to significant changes: In many cases, 
authorisation schemes for opening large and medium-sized physical retail establishments have 
been  modified.  For  instance,  economic  needs  tests  that  were  often  included  in  these 
authorisations  have  been  eliminated  in  Belgium,  France  and  Spain.  Similar  economic  needs 
test  have  been  eliminated  from  building  permit  applications  in  The  Netherlands.  Some 
Member States (France, some regions in Spain) have raised the thresholds from which these 
authorisation  schemes  apply.  In  addition,  the  criteria  for  the  granting  of  authorisations  have 
often been clarified. Finally, the procedures to obtain an authorisation have been simplified in 
France and in Spain.160 Luxembourg has reported that it will amend its authorisation scheme 
to ensure that it neither contains economic tests nor allows for the intervention of competitors 
in the granting of individual decisions. Greece has reported that it will abolish the economic 
test in its authorisation scheme.  

Romania  seems  to  have  an  authorisation  scheme,  for  the  opening  of  certain  physical  retail 
establishments, which contains an economic test and allows competitors to have a say in the 
granting of an individual authorisation.  

159 

160  

Government Decision 1454/2004 approving the criteria for setting up large retail sale structures. This 
requires a commercial authorisation for retail outlets exceeding 1000 m2. 
For  example,  this  seems  to  be  the  case  in  Denmark,  Germany,  Finland,  Ireland,  the  Netherlands, 
Sweden and the United Kingdom. 
For instance, nine regions in Spain previously had two parallel authorisation procedures for the opening 
of  large  and  medium-sized  retail  outlet  establishments.  One  authorisation  was  granted  by  local 
authorities  after  checking  that  the  premises  complied  with  health  and  safety  requirements.  The  other 
was granted by regional authorities on grounds of the above-mentioned overriding reasons of general 
interest.  These  nine  regions  have  now  changed  this  system,  maintaining  only  one  authorisation 
procedure. This is the one carried out by the local authorities, but it now includes a binding report from 
the regional authorities. 

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Authorisation schemes linked to the distribution of specific products.  

All Member States have notified authorisation schemes linked to the distribution of specific 
products. Most of them concern the retail distribution of sensitive products such as weapons, 
explosives,  diamonds,  animals,  tobacco  or  alcohol161.  Some  of  these  authorisation  schemes 
are governed directly or indirectly by other EU legislation162.  

In  some  cases,  authorisation  schemes  for  specific  products  have  been  abolished/replaced  by 
less  restrictive  measures  because  they  were  found  to  be  unjustified  or  disproportionate.  For 
instance, Portugal has indicated that it will abolish the authorisation for the sale of tickets for 
public events or shows and Slovakia has replaced authorisations for the sale of weapons and 
explosives  by  notifications.  Iceland,  Liechtenstein  and  the  United  Kingdom  have  indicated 
that  they  have  abolished  discriminatory  requirements  which  some  of  the  reported 
authorisation  schemes  contained.  In  addition,  such  authorisation  schemes/procedures  have 
often  been  clarified,  simplified  and  streamlined —  such  as  the  authorisation  scheme  for  the 
resale of used goods in Norway. Other authorisations for the sale of specific products that are 
generally  not  considered  sensitive  have  been  maintained.  For  example,  Italy  still  has  an 
authorisation scheme for newspaper shops, reportedly relating to the protection of consumers 
and of the urban environment.163 

(cid:190)  Article 15 requirements  

Several  Member  States  have  reported  imposing  restrictions  on  retail/wholesale  sales  in 
particular geographical areas, based on the population of that area or the minimum distances 
between outlets, or simply limiting the number of providers that can exercise their activity in 
that area. 

In a number of cases such requirements have been abolished — or are in the process of being 
abolished  —  because  they  were  considered  unjustified  or  disproportionate.  In  particular, 
minimum  distance  requirements  between  petrol  stations  existed  and  have  been  abolished  in 
Italy (at least in some regions) and in Spain (at least in one region). Greece has informed the 
Commission of its plans to abolish them. Portugal has reported that it will amend quantitative 
and territorial restrictions on the sale of tickets for shows and public entertainment events.  

161  

162  

163 

The reported authorisation schemes covered by this section affect the sales activity as such and not the 
placing of a product on the market. Member States have reported authorisation schemes for the sale of 
products such as weapons, explosives or fireworks and have justified them on grounds of public order 
and public security. Authorisation schemes for setting up petrol stations have been justified by Member 
States on grounds such as public safety, protection of the environment and of the urban environment. 
Member States have invoked crime prevention in order to justify authorisation schemes for the sale of 
diamonds  or  antiques.  Authorisation  requirements  for  selling  animals  have  been  justified  by  Member 
States  on  animal  welfare  grounds.  Authorisation  schemes  for  distributing  phytopharmaceutical 
products, tobacco or alcohol have been justified by Member States on the grounds of protecting public 
health, the environment, consumers and animal health, and the need to combat fraud and counterfeiting. 
For example, the authorisation schemes provided for in Regulation (EC) no 852/2004 of the European 
Parliament  and  of  the  Council  of  29 April  2004 on  the  hygiene of  foodstuffs  and  in  Regulation (EC) 
853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene 
rules  for  food  of  animal  origin.  Another  example  of  an  authorisation  scheme  governed  by  other  EU 
legislation  is  the  authorisation  for  the  wholesale  of  medicinal  products  for  human  use,  required  by 
Directive  2001/83/EC  of  the  European  Parliament  and  of  the  Council  of  6  November  2001  on  the 
Community code relating to medicinal products for human use. 
An authorisation requirement for the sale of newspapers is laid down in national legislation: see Italian 
Legislative Decree 170 of 24 April 2001. Some Italian regions have also notified similar authorisation 
schemes. 

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Other  requirements  have  been  maintained.  For  instance,  minimum  distances  between  two 
establishments  are  imposed  on  night  shops  in  Belgium  (Flanders)  with  the  declared  aim  of 
limiting  the  nuisance  such  shops  are  considered  to  cause  for  the  neighbourhood  where  they 
are located. For similar reasons, and on public health grounds, local authorities in Ireland can 
limit the number of shops selling alcohol for consumption off-premises. 

In Italy, some regional legislation limits the number of new large-scale retail outlets that can 
open in a particular region in a given period of time. The legislation limits the total surface 
area of new sales outlets that can be authorised every year. The aim seems to be to avoid an 
excessive concentration of large establishments such as supermarkets. 

Member  States  have  also  notified  requirements  that  determine  the  geographical  location 
where  certain  sales  can  take  place.  The  rules  either  prohibit  the  provision  of  a  service  in 
certain  areas  or allow certain activities to be carried out only in certain places. By contrast, 
Greece has said that it intends to amend the requirement that traders of certain works of art 
can only be located in cities where there are public services for protecting cultural heritage. 

As  regards  legal  form  requirements,  Lithuania  has  indicated  that  it  is  abolishing  the 
requirement  that  the  provider  of  certain  services  (trade  in  petroleum  products,  trade  in 
explosives) be a legal person.  

France  has  maintained  a  shareholding  requirement  (for  the  wholesale  distribution  of 
veterinary medicines). Undertakings providing this service need to be owned by a veterinarian 
or a pharmacist or by a company managed by one of these professionals. 

As  regards  obligations  to  provide  services  jointly,  Spain  has  said  that  it  no  longer  requires 
petrol stations to be set up in large commercial establishments. A number of regions in Italy 
have abolished the obligation on petrol stations to sell ‘non-oil’ products as well as petrol. 

(cid:190)  Restrictions on multidisciplinary activities 

Italy  has  notified  restrictions  on  the  joint  exercise  of  wholesale  and  retail  activities.  Greece 
has reported that it obliges traders of antiques to exercise that activity exclusively. The Greek 
authorities have justified this on grounds of the protection of cultural goods. Estonia has also 
reported a restriction on the joint exercise of the sale of weapons and the provision of security 
or  private  detective  services.  Romania  has  reported  a  restriction  on  the  joint  exercise  of 
private detective services and trade in general.  

6.1.1.2.  Requirements applicable to cross-border service providers 

A significant number of requirements applicable to cross-border service providers have been 
reported  by  Member  States,  the  majority  of  which  seem  to  concern  the  sale  of  specific 
products or services. 

Establishment requirements for the sale of certain types of alcohol in Lithuania, for the sale of 
alcoholic  drinks  in  Luxembourg  and  for  the  organisation  of  auctions  of  movable  cultural 
property in Lithuania were discriminatory and have been or are being abolished. At the same 
time, certain establishment requirements have been maintained in Lithuania for services such 
as the wholesale of alcoholic products and tobacco products. Lithuania has invoked reasons of 
public  policy.  An  establishment  requirement  for  the  sale  of  cars  has  also  been  reported  by 
Iceland as being necessary for the protection of public policy and public security.  

As  a  result  of  implementing  the  Services  Directive,  some  authorisation  schemes  for  cross-
border  service  providers  have  been  removed  because  they  were  considered  unjustified  or 
disproportionate.  These  include  authorisation  for  distance  sales  in  general  in  Spain,  for 

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itinerant  sales  and  for  auctioneering  in  Germany.  Portugal  has  said  it  will  remove  the 
requirement for an authorisation to sell tickets for public performances.  

Some authorisation schemes linked to the distribution of specific products and applicable to 
cross-border service activities have been maintained. They include authorisations for the sale 
of weapons and explosives in Sweden, Iceland and Norway; trade in pyrotechnical products 
and  precious  metals  in  Lithuania;  retail  of  alcoholic  products  in  Lithuania,  the  United 
Kingdom  and  Norway;  retail  of  tobacco  products  in  Lithuania;  sale  of  food  supplements  in 
Cyprus; wholesale of veterinary medicines in Greece; sale of specific plants in Lithuania and 
plant  products  in  Slovenia;  trade  in  plant  protection  products  in  Poland;  sale  of  animal  by-
products  in  the  United  Kingdom;  trade  in  animals  in  the  Netherlands,  the  United  Kingdom 
and Norway; sale of sex-related products in the United Kingdom.  

Notifications have been reported for retail activities in general in one region in Spain, for the 
sale of food and beverages in public transport in one region in Italy, for the sale of used goods 
in Sweden, the sale of propane and butane gases in Hungary, for the rental, repair and sale of 
medical  aid  in  Hungary  and  for  the  wholesale  of  medicines  in  Slovenia.  Spain  has  also 
reported a notification obligation imposed on established and cross-border franchisors. 

Insurance  obligations  have  been  reported  for  the  distribution  of  plant  health  products  in 
France  

Finally,  as  regards  other  requirements  applied  to  cross-border  services,  it  has  been  reported 
that  the  requirements  limiting  the  use  of  certain  marketing  methods  (such  as  the  use  of 
vouchers  and  prize  competitions)  in  Denmark  and  Sweden  no  longer  apply  to  cross-border 
retailers providing services in those countries. Sweden has also reported that existing rules on 
distance selling no longer apply to cross-border service providers. 

6.1.2.  Ambulant sales  

This section covers a wide variety of off-premises sales such as sales in local markets (indoor 
and outdoor), sales in public areas and street selling.  

It  can  generally  be  concluded  that  the  regulation  of  local  markets  and  sales  in  public  areas 
seeks  to  ensure  a  fair  distribution  of  the  limited  space  in  which  services  can  be  provided, 
whereas  the  regulation  of  random  street  selling  seeks  to  achieve  effective  supervision  of 
service  providers  who  generally  have  no  fixed  establishment.  In  addition,  some  Member 
States  appear  to  take  account  of  social  protection  objectives  when  regulating  access  to 
ambulant  trade.  Finally,  it  seems  that  in  some  Member  States  ambulant  sales  can  only  take 
place in spaces designed for that purpose, and that random street selling is not allowed.  

6.1.2.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes  

Italy  seems  to  be  the  only  Member  State  that  requires  a  professional  qualification  for  the 
provision of ambulant trade services. 

A number of Member States (Belgium, Finland, Germany, Greece, Hungary, Italy, Lithuania, 
Latvia, Malta, Portugal, Spain and the United Kingdom) have reported authorisation schemes 
for  sales  in  markets.  Germany,  France,  the  Netherlands  and  Portugal  have  reported 
authorisation  schemes  for  street  selling.  These  Member  States  justify  such  schemes  on  the 
grounds of public health, public safety, the protection of the environment (including the urban 
environment),  the  protection  of  consumers,  fairness  of  trade  transactions  and  fraud 

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prevention. In some cases, some of the criteria contained in these authorisation schemes have 
been justified by Member States on grounds of social policy objectives. 

As a result of implementing the Services Directive, several Member States including Greece, 
Italy,  Latvia,  Spain  and  the  United  Kingdom  have  modified  or  are  modifying  authorisation 
schemes  governing  ambulant  sales  to  make  them  compatible  with  the  Services  Directive. 
Portugal has declared its intention of doing so. Germany abolished  an authorisation  scheme 
for cross-border provision of  services  of  itinerant  sales.  Spain  and  Italy  have amended their 
authorisation  procedures  regulating  access  to  stalls  in  local  markets  to  ensure  a  fair  and 
competitive selection process and have limited the duration of the authorisations in order to 
allow access to the market. Latvia has simplified the authorisation procedure for street sales 
and  for  trade  at  fairs  and  mobile  shops.  In  addition,  the  United  Kingdom  has  indicated  that 
discriminatory criteria  have  been  eliminated and Greece has said that they will be. Portugal 
has reported that residence requirements will be abolished. 

(cid:190)  Article 15 requirements 

A  number  of  different  restrictions  affecting  ambulant  trade  have  been  reported  by  a  limited 
number of Member States.  

As  regards  quantitative  and  territorial  restrictions,  Greece  has  reported  that  local  authorities 
can  limit  the  number  of  ambulant  sellers  that  can  be  authorised  to  sell  goods  outside 
commercial premises in a given municipality, and that ‘outdoor trade’ establishments must be 
at least 100 m (or in certain cases 50 m) apart. At the same time, Greece has reported that it 
will  no  longer  prohibit  ambulant  traders  from  providing  services  in  towns  with  more  than 
20 000 inhabitants. 

Greece has reported a  ban on having more than one authorisation to operate a stall in a local 
markets as justified by the objective to combat unemployment. 

As  regards  legal  form  requirements,  Italy  has  recently  abolished  the  requirement  that 
ambulant sales and market sales be carried out by an individual entrepreneur or a partnership 
(and not by limited companies or cooperatives). In Portugal and in Greece, however, it seems 
that  there  is  still  a  ban  on  legal  persons  carrying  out  ambulant  or  mobile  sales.  The  Greek 
authorities  have  invoked  social  protection  objectives  as  a  justification  for  maintaining  this 
requirement.  

6.1.2.2.  Requirements applicable to cross-border service providers 

A considerable number of authorisation schemes have been reported as being also applicable 
to  cross-border  service  providers  in  the  area  of  ambulant  trade.  There  are,  for  example, 
authorisation  requirements  for  markets  in  Belgium,  Greece,  Italy  and  Spain;  for  ambulant 
trade in Belgium, Cyprus, Greece and Portugal; for commerce in public areas in Italy, Ireland 
and  Lithuania.  To  justify  these  authorisations,  Member  States  generally  invoked  ‘public 
policy’ and ‘public health’.  

The  implementation  of  the  Services  Directive  has  resulted  in  Germany  abolishing  its 
authorisation  scheme  for  itinerant  cross-border  sales  activities  because  it  was  considered 
unjustified  or  disproportionate.  Sweden  has  also  reported  that  existing  rules  on  occasional 
sales no longer apply to cross-border service providers. Portugal has reported  that it intends 
to  eliminate  the  authorisation  scheme  applicable  to  cross-border  pedlars  and  marketplace 
salespersons.  

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6.1.3.  Other types of sales 

Finally,  a  small  number  of  requirements  affecting  other  types  of  sales,  such  as  doorstep 
selling,164 have been notified.  

Italy  has  abolished  an  authorisation  scheme  for  doorstep  selling,  that  was  laid  down  in 
national  legislation  because  it  was  considered  unjustified  or  disproportionate.  It  has  been 
replaced  by  a  declaration  obligation.  However,  some  Italian  regions  still  seem  to  apply 
authorisation  schemes  to  these  activities.  Malta  has  also  abolished  an  authorisation  for 
doorstep  selling.  One  region  in  Spain  has  reported  an  insurance  obligation  for  door-to-door 
sales. 

Spain has abolished the authorisation scheme that was previously required for sales through 
vending machines. Italy has also abolished authorisation schemes which applied to sales via 
vending  machines,  mail  orders  and  teleshopping.  These  schemes  have  been  replaced,  in 
national  law,  by  declaration  requirements.  However,  in  some  regions  of  Italy,  such 
authorisation schemes are apparently still in force. Austria no longer bans the sale of products 
via vending machines in a given area around public buildings and public transport. 

CONCLUSION:  

Very few Member States subject the exercise of retail activities in general to an authorisation.  

In contrast, several Member States have to authorisation schemes for large and medium-sized 
physical  retail  establishments  (the  definition  of  which  varies  considerably).  These  schemes 
are in addition to the requirements for permits relating to the premises. Member States have 
sought  to  justify  such  authorisation  schemes  on  the  grounds  of  environmental  protection 
(including  the  urban  environment),  town  and  country  planning,  consumer  and/or  worker 
protection  and  social  policy  objectives.  Member  States  that  do  not  require  a  specific 
authorisation  for  large  and  medium-sized  retail  establishments  appear  to  pursue  the  same 
objectives  through  town  and  country  planning  rules.  In  addition,  all  Member  States  impose 
authorisation schemes for the distribution of certain sensitive products.  

An  important  number  of  changes  have  been  made  in  the  retail  sector  as  a  result  of 
implementing  the  Services  Directive,  because  some  of  the  existing  requirements  were 
considered discriminatory, unjustified or disproportionate. Some authorisation schemes have 
been abolished and many have been modified. For example, economic needs tests have been 
abolished, thresholds for the application of authorisation schemes have been raised, criteria 
have been clarified and procedures have been accelerated and simplified. 

During  the  mutual  evaluation  process,  discussion  between  Member  States  focussed  on  the 
advantages  and  disadvantages  of  the  different  approaches  chosen  (general  planning  rules 
versus  specific  authorisation  schemes  for  large  and  medium-sized  establishments).  Some 
Member  States  pointed  out  that  it  is  important  to  ensure  that  authorisation  schemes  do  not 
seek to protect the same public interests that have already been protected through town and 
country planning rules and permits. Member States stressed that the remaining authorisation 
regimes should be further simplified. 

For those cases in which these objectives of general interest are protected through planning 
rules, some Member States also stressed the importance of ensuring that planning rules truly 

164 

At  EU  level,  rules  protecting  consumers  against  unfair  commercial  practices  when  a  contract  is  not 
signed  on  the  trader’s  business  premises.  have  been  harmonised  by    the  Council  Directive  of  20 
December 1985 protecting the consumer in respect of contracts negotiated away from business premises 
(85/577/EEC). 

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meet  the  objectives  which  they  claim  to  serve,  that  they  are  not  going  beyond  what  is 
necessary to attain these objectives and that they are adopted and applied in an objective and 
transparent manner.  

6.2. 

Services in the tourism sector  

The  tourism  sector  encompasses  a  wide  range  of  activities.  During  the  process  of  mutual 
evaluation,  the  following  areas  were  discussed:  travel  agencies  and  tour  operators;  tourist 
guides; the provision of short-stay accommodation (such as hotels or camping grounds); other 
tourism-related activities such as car rental. Given its links to the tourism sector, the serving 
of food and drinks (by restaurants, event caterers and bars) was also covered. 

The level of regulation in the tourism sector seems to vary considerably between the Member 
States. Some of the activities in this sector are regulated professions in a number of Member 
States (for example, tourist guides and travel agents).  

6.2.1.  Services of travel agencies (including tour operators)  

During  the  mutual  evaluation,  discussions  covered  wholesalers  (such  as  tour  operators)  and 
retailers offering different tourism services such as organised trips, transport tickets, package 
travel and booking or reservation services. 

6.2.1.1.   Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Travel agents seem to be a regulated profession in Austria, Belgium, Hungary, Italy, Slovakia 
and Slovenia. In addition, travel agent managers are a regulated profession in Cyprus and tour 
operators are a regulated profession in the Czech Republic and Slovenia. A large number of 
Member States reported an authorisation scheme for travel agencies.165 The Czech Republic 
has an authorisation scheme for tour operators only. In Austria, and at least some regions in 
Italy, the appointment of the director or manager responsible for the travel agency seems to 
require  an  additional  authorisation  (or,  in  some  cases,  a  declaration).  These  authorisation 
schemes are generally deemed justified by Member States on grounds of consumer protection. 

In other Member States, by contrast, travel agencies are subject to prior declarations and not 
to authorisation schemes. This is the case, for example in the Czech Republic, and, as a result 
of implementing the Directive in Slovakia and in certain Spanish and Italian regions. 

(cid:190)  Article 15 requirements 

Before the Services Directive was implemented, travel agencies were to some extent subject 
to  quantitative  restrictions,  legal  form  and  shareholding  requirements.  However,  a  good 
number of these restrictions have been/are being abolished because Member States considered 
them  unnecessary  or  disproportionate.  Quantitative  and  territorial  restrictions:  Italy  has 
abolished  (in  two  regions  at  least)  quantitative  restrictions  limiting  the  number  of  travel 
agencies that can provide services in a given area. 

Legal  form  requirements:  Lithuania  and  Spain,  where  operators  had  to  be  constituted  as  a 
legal  person  or  as  a  commercial  company  respectively,  have  reported  that  limitations  in  the 
choice  of  legal  form  for  travel  agencies  are  being  abolished  (Lithuania)  and  have  been 

165  

Austria,  Belgium,  Bulgaria,  Cyprus,  Estonia,  Finland,  France,  Greece,  Hungary,  Iceland,  Ireland, 
several regions in Italy, Lithuania, Malta, Poland, Portugal, Romania, Slovenia and one region in Spain. 

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abolished (in Spain). Portuguese law continues to require that travel agents be constituted as a 
legal  person,  thereby  preventing  natural  persons  from  setting  up  travel  agencies,  although 
Portugal has reported that this requirement will soon be eliminated. 

Shareholding  requirements:  Belgium  and  Spain  have  reported  that  minimum  capital 
requirements applying to travel agencies have been removed. Portugal has reported that it is 
considering abolishing the minimum capital requirement of € 100 000 for travel agencies. In 
Ireland,  minimum  capital  requirements  of  € 25 000  and  € 38 000  are  imposed  on  travel 
agencies and tour operators respectively. 

Reserve  of  activity:  Belgium  has  reported  that  it  is  abolishing  the  requirement  that  the 
manager  of  a  travel  agency  must  have  previously  done  an  internship  in  the  same  sector  of 
activity. In contrast, Malta has reported that specific training or a certain degree of experience 
is  required  either  of  the  manager  (if  the  provider  is  constituted  as  a  company)  or  of  the 
provider (if he is a natural person).  

(cid:190)  Restrictions on multidisciplinary activities 

Restrictions on multidisciplinary activities seem to be very rare in the tourism field. After the 
implementation  of  the  Services  Directive,  even  fewer  of  these  restrictions  remain.  Belgium 
and Spain have reported that they have abolished an obligation for travel agents to exercise 
their  activity  on  an  exclusive  basis.  Portugal  has  indicated  that  owners,  directors  and 
managers of travel agencies are not allowed to exercise any other profession involving tourist 
information  activities  while  carrying  out  their  managerial  duties.  However,  Portugal  has 
reported that this requirement is currently being reviewed to make it less stringent.  

6.2.1.2.  Requirements applying to cross-border services 

In a number of cases the application of requirements to travel agencies providing cross-border 
services  has  been  removed  or  is  being  removed  as  it  was  not  considered  justified  or 
proportionate.  However,  some  Member  States  have  reported  that  travel  agencies  providing 
cross-border services are still subject to a number of requirements. 

Obligation to have an establishment: In one region in Belgium and in Spain, the obligation to 
have  premises  within  the  country  has  been  abolished.  Slovenia  has  abolished  the 
establishment  obligation  and  such  requirement  has  been  notified  as  being  abolished  by 
Lithuania.  Obligation  to  obtain  an  authorisation:  Iceland,  Ireland  and  Poland  have  indicated 
that travel agencies providing cross-border services are still obliged to obtain an authorisation 
before  starting  to  provide  cross-border  services.  Slovenia  has  abolished  the  authorisation 
scheme that applied to cross-border travel agencies. One region in Belgium has replaced the 
existing authorisation scheme by a declaration and Portugal has reported its intention to do so. 
Estonia  and  Hungary  require  registration  or  notification  for  cross-border  services  providers 
and Greece has announced that it is planning to introduce such a requirement  

Obligation  to  take  out  insurance  and/or  a  financial  guarantee:  Lithuania,  Portugal,  Slovenia 
and  certain  regions  in  Spain  have  reported  that  cross-border  providers  are  obliged  to  obtain 
insurance cover and/or a financial guarantee pursuant to their own regulation in this matter. 
The Czech Republic requires insurance cover for cross-border tour operators. To justify such 
a  restriction,  some  Member  States  have  referred  to  the  Package  Travel  Directive,  which 

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requires Member States to oblige travel agents to provide sufficient evidence of security for 
refunding money paid to them and for repatriating travellers if the firm goes bust166.  

6.2.2.  Services of tourist guides and similar services 

There  was  much  discussion  among  Member  States  about  the  activities  of  tourist  guides, 
mountain  and  cave  guides  and  skiing  or  diving  instructors.  A  professional  qualification  is 
required for carrying out these activities in at least some Member States. 

6.2.2.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Tourist  guides  seem  to  be  a  regulated  profession  in  ten  Member  States,  (France,  Greece, 
Hungary, Italy, Lithuania, Malta, Poland, Portugal, Slovenia and Spain). Mountain/climbing 
guides seem to be a regulated profession in five Member States, (Austria, the Czech Republic, 
one  region  in  Germany,  Italy  and  Slovenia),  and  cave  guides  seem  to  be    a  regulated 
profession in Austria. Ski instructors seem to be a regulated profession in Austria, Germany 
and Italy.  

Authorisation  schemes  for  tourist  guides  have  been  reported  by  the  Czech  Republic,  Italy, 
Malta, Portugal, Romania, Slovenia, Slovakia and Spain.  

(cid:190)  Article 15 requirements 

Member States have notified a limited number of Article 15 requirements for these activities, 
mostly for ski schools or skiing instructors. A good number of such requirements have been 
abolished  or  amended  as  Member  States  found  them  unjustified  or  disproportionate. 
However,  some  requirements  have  been  maintained  in  certain  Member  States  as  they  were 
considered necessary to ensure the quality of the service and protect the recipients.  

Quantitative  and  territorial  restrictions:  Some  Italian  regions  have  abolished  requirements 
limiting  the  number  of  ski  schools  established  within  the  same  municipality,  while  others 
seem  to  have  maintained  them.  Some  Austrian  regions  have  abolished  requirements  that 
forbid  schools  to  take  pupils  out  of  a  specific  territorial  area  where  the  ski  school  is 
established, while others have maintained them. 

Bans  on  having  more  than  one  establishment:  Some  Italian  and  Austrian  regions  have 
abolished requirements prohibiting ski instructors from providing their services in more than 
one  ski  school  and,  in  parallel,  prohibiting  ski  schools  from  setting  up  in  more  than  one 
region. Nevertheless, these requirements seem to remain in other regions. 

Legal form requirements: Austrian legislation lays down provisions obliging ski schools and 
mountain guides to provide their services as natural persons, thereby preventing legal persons 
from carrying out these activities. 

Tariffs:  In  Italy,  minimum  and/or  maximum  tariffs  have  been  abolished  by  a  number  of 
regions as regards tourist and mountain guides. (In other cases, they have been maintained). 
Cyprus has reported minimum tariffs imposed on tourist guides.  

166 

Article 7 of Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and 
package tours — OJ L158 of 23/06/1990 — p. 59. 

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Ski  instructors’  services  in  Italy  may  be  subject  to  different  tariffs  (fixed,  minimum, 
maximum) depending on the region concerned. Some Italian regions say they have abolished 
(or are abolishing) minimum and/or maximum tariffs. 

Joint services: Austria has abolished the obligation for ski schools to cover a wide range of 
different skiing activities.  

Minimum number of employees: In one region in Spain, providers organising diving activities 
must employ a minimum number of professionals, including a doctor and a certain number of 
divers.  Similarly,  Maltese  law  lays  down  the  obligation  to  have  a  manager  with  a  certain 
degree of education and training to manage and organise activities while the diving instructor 
is under water. 

(cid:190)  Restrictions on multidisciplinary activities 

As in the case of travel agents, there are not many restrictions on multidisciplinary activities. 
Portuguese legislation does not seem to allow tourist guides to exercise any other profession 
involving  tourist  information  activities  while  performing  their  duties,  although  Portugal 
reports that this requirement is being revised. A similar restriction has been reported by Italy, 
where tourist guides cannot engage in other commercial services aimed at their direct clients. 

6.2.2.2.   Requirements applying to cross-border services 

In a number of cases, requirements no longer apply to cross-border service providers because 
this was considered unjustified or disproportionate. Still, some Member States have reported 
restrictions on tourist guides and other providers of cross-border services. Reasons of public 
security and environmental protection have been invoked to justify these restrictions.  

Obligation  to  have  an  establishment:  Austria  has  reported  an  establishment  requirement  for 
tourist guides.  

Obligation  to  obtain  an  authorisation:  Austria  still  has  authorisation  schemes  for  cave  and 
mountain  guides  who  provide  cross-border  services.  Malta  previously  required  an 
authorisation  for  cross-border  tourist  guides,  but  now  requires  only  a  prior  declaration.  In 
Greece, tourist guides still need an authorisation. 

Ski instructors providing cross-border services require a prior authorisation in several Italian 
and  Austrian  regions.  In  at  least  one  Italian  region,  cross-border  ski  instructors  for  services 
lasting more than 15 days in a ski season may only come with their own clients. Austria and 
Italy  say  these  requirements  are  justified  on  grounds  of  public  security.  In  Italy  and  Malta, 
providers of diving services need to obtain an authorisation. 

Application  of  specific  contractual  arrangements:  Greece  has  stated  that  it  will  abolish  the 
obligation for tourist guides to provide their services as employees.  

Obligation to possess an identity document: At least one Spanish region has abolished such an 
obligation  previously  imposed  on  tourist  guides,  whereas  Austria  and  Greece  have  reported 
that  cave,  climbing  and  tourist  guides  must  carry  an  ID  card  providing  evidence  of  their 
professional capacity. In Austria this requirement also applies to ski instructors. 

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6.2.3.  Accommodation (including hotels, hostels, apartments, camping etc.) 

6.2.3.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Many Member States have reported authorisation schemes for tourist accommodation,167 and 
there is a general tendency to keep these schemes in place. A considerable number of these 
schemes seem to be aimed at verifying that the facilities meet various conditions or standards 
relating, for example, to health and safety, the environment and the quality and maintenance 
of equipment. In other cases, the authorities carry out prior inspections in order to classify the 
tourist establishment in a particular category. 

Spain  (most  regions),  Italy  (some  regions)  and  Slovakia  have  replaced  some  authorisation 
schemes by declarations /notifications. 

(cid:190)  Article 15 requirements 

A limited number of Article 15 requirements have been reported in this sector.  

Quantitative and territorial restrictions: Italy, Lithuania and one region in Spain have reported 
specific rules as to the where rural accommodation can be located. 

Legal  form  requirements:  Belgium  has  abolished  the  obligation  that  the  service  provider  be 
constituted  as  a  company.  In  at  least  one  Italian  region,  youth  hostels  may  be  run  only  by 
legal persons who are non-profit. (This obligation has been reported as abolished in another 
region).  

Tariffs: Italy has reported tariffs applying to rural accommodation (‘agritourism’). 

(cid:190)  Restrictions on multidisciplinary activities 

There seem to be very few restrictions on multidisciplinary activities in the accommodation 
services sector.  

In  Portugal,  owners  or  managers  of  hotels  are  not  allowed  to  exercise  any  other  profession 
involving  tourist  information  activities  when  they  perform  managerial  duties,  but  the 
authorities say that they will amend this requirement. The authorities in one region in Spain 
report  that  they  no  longer  prohibit  rural  establishments  from  providing  accommodation  as 
well as running a restaurant. 

6.2.4.  Car rental services 

6.2.4.1.   Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Cyprus, Greece, Iceland, Malta and Portugal have reported that undertakings wishing to set up 
a  car  or  motorbike  rental  business  are  obliged  to  obtain  an  authorisation.  The  Greek 
authorisation scheme contains requirements obliging the operator to provide a bank guarantee 
and to have a certain level of education. 

167  

Belgium, Bulgaria, Cyprus, Czech Republic, Estonia, Greece, Spain, France, Hungary, Ireland, Iceland, 
Italy, Lithuania, Luxembourg, Malta, Portugal, Romania, Sweden and the United Kingdom. 

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(cid:190)  Article 15 requirements 

Cyprus  has  reported  that  quantitative  restrictions  applicable  to  car  rental  services  are  in  the 
process of being abolished. 

6.2.4.2.  Requirements applying to cross-border services 

Obligation  to  have  an  establishment:  In  Iceland,  car  rental  businesses  must  be  run  from  a 
‘stable infrastructure’. Iceland has justified this obligation on grounds of public security.  

Obligation  to  obtain  an  authorisation:  Portugal  has  reported  that  it  intends  to  abolish  an 
authorisation applicable to car rental operators providing cross-border services.  

6.2.5.  Food and beverage (including catering services and bars) 

6.2.5.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes  

Many Member States require prior authorisation for setting up bars, restaurants and catering 
establishments.  Bulgaria,  Cyprus,  France,  Finland,  Italy,  Malta,  the  Netherlands,  Portugal, 
Norway  and  Iceland  have  notified  such  schemes,  whereas  Slovakia  has  established 
notification obligations. 

Most  authorisation  schemes  are  reportedly  aimed  at  checking  compliance  with  rules  on 
hygiene  (Belgium),  safety  (Belgium,  the  United  Kingdom)  or  food  conditions  (the  United 
Kingdom). In other cases, operators running restaurants, bars or other establishments serving 
alcoholic beverages must obtain a specific licence (Greece, Luxembourg, the Netherlands and 
Iceland).  

Belgium, and the Netherlands have reported authorisation schemes for operating terraces and 
food  stands  in  public  places.  Italy  abolished  a  specific  authorisation  scheme  for  catering 
services  in  work  places,  means  of  transport,  schools,  hospitals,  etc.  (The  authorisation  has 
been replaced by a declaration). 

(cid:190)  Article 15 requirements 

A number of Member States have reported Article 15 requirements, mostly for establishments 
serving products that could pose public health hazards or generate some sort of nuisance to 
the public. 

Quantitative  and  territorial  restrictions:  Austria  has  reported  quantitative  restrictions  on  the 
use of outside terraces for restaurants and bars. In Spain, establishments which provide food 
and drinks on the beach must be a certain minimum distance apart. 

In Italy, national and regional law no longer require the local authorities to limit the number 
of authorisations for new restaurants and bars on the basis of the population living in a given 
area. (Nevertheless, some regions indicated they are maintaining these restrictions).  

France and Ireland have reported that they restrict the number of establishments distributing 
alcoholic beverages, whereas Luxembourg has announced that it will abolish this restriction. 
Finally,  Portugal  has  reported  a  territorial  restriction  prohibiting  the  sale  of  alcoholic 
beverages near primary and secondary schools. 

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Minimum  or  maximum  tariffs:  Hungary  has  abolished  a  maximum  tariff  for  service  fees 
imposed on restaurateurs.  

6.2.5.2.  Requirements applying to cross-border services 

In  some  Member  States  certain  requirements  apply  to  cross-border  providers  of  food  and 
beverages, notably catering services. 

Obligation to have an establishment: Luxembourg has indicated it will abolish the obligation 
for  operators  to  have  an  establishment  if  they  intend  to  serve  alcohol  through  catering 
services.  

Obligation  to  obtain  an  authorisation:  In  Portugal,  catering  firms  wishing  to  provide  their 
services at more than ten events per year must obtain an authorisation for the premises where 
the  food  is  served,  if  those  premises  are  public  accessible  and  not  already  licensed  as  a 
restaurant  or  bar.  Portugal  cites  public  health  reasons  to  justify  this  restriction.  In  Italy, 
authorisations  imposed  on  catering  providers  offering  their  services  at  fairs,  festivals  and 
similar public events have been reported, at least by some regions, as applicable also to cross-
border providers. Italy has invoked grounds of public health and public security to justify this 
restriction. 

In Iceland, Lithuania, Norway, the Netherlands and the United Kingdom, operators intending 
to  provide  catering  services  on  a  temporary  basis  must  obtain  a  licence  to  serve  alcoholic 
beverages.  Reasons  such  as  public  health,  public  security  and  the  protection  of  the 
environment have been invoked in order to justify this requirement. 

Obligation to make a declaration: In Italy, some regions notified prior declaration imposed on 
caterers  who  provide  their  services  on  means  of  transport  and  at  the  consumer’s  home  as 
applicable also to cross-border service providers. 

Obligation to take out insurance: In Portugal, operators wishing to provide catering services 
on a temporary basis are obliged to take out insurance. This obligation has been justified on 
grounds of public health and protection of the environment. 

CONCLUSION: 

The level of regulation in the tourism sector seems to vary considerably between the Member 
States.  

The  implementation  of  the  Services  Directive  has  resulted  in  a  considerable  number  of 
legislative  amendments,  the  most  significant  ones  being  those  affecting  travel  agencies  and 
tourist  guides.  Many  Member  States  have  abolished  requirements  that  they  considered 
unjustified  or  disproportionate.  Nevertheless,  difficulties  for  service  providers  to  exploit  the 
internal  market  potential  of  this  sector  seem  to  remain.  This  seems  to  be  the  case,  in 
particular,  as  regards  the  cross-border  services  provisions  of  travel  agencies/travel  agents 
and tourist guides.  

The  discussion  on  the  regulation  of  this  sector was  very  lively,  in  particular  as  regards  the 
situation of cross-border service providers. Many Member States questioned the justification 
of certain requirements. The discussion has shown that the significant cross-border potential 
of this sector has yet to be exploited. 

As regards travel agencies, the question of the relationship with the Package Travel Directive 
was intensively discussed, in particular as regards insurance or guarantee requirements for 
cross-border service providers. It seems that the obligations laid down by the Package Travel 

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Directive  may  have  led  certain  Member  States  to  consider  themselves  justified  in  imposing 
requirements  such  as  prior  authorisation  on  cross-border  travel  agents.  However,  other 
Member States argued that the provision of cross-border services should in principle not be 
subject  to  any  requirements  by  the  Member  State  where  the  service  is  being  provided, 
especially in view of the Package Travel Directive. Member States highlighted that it would 
be important to ensure that the insurance/guarantee obligation to which travel agencies are 
subject  in  their  Member  State  of  establishment  also  covers  the  provision  of  services  across 
borders and that he insurance market is well able to cater for the insurance needs of travel 
agents who wish to exploit the potential of the internal market. 

As shown by the discussion amongst Member States, tourist guides wishing to provide cross-
border  services  seem  to  encounter  constant  difficulties  in  many  countries.  Some  of  these 
difficulties  may  be  due  to  a  misapplication  of  national  legislation,  but  others  seem  to  stem 
directly from requirements that have been maintained in certain Member States. Maintaining 
these  requirements  restricts  cross-border  service  provision  just  as  much  as  imposing  an 
establishment requirement or an authorisation scheme. Similar difficulties are encountered by 
other providers of services in the tourism sector.  

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6.3. 

Services in the construction sector  

The construction sector encompasses a wide range of service activities. Construction includes 
not only the actual building but also the planning and surveillance of construction work, the 
services  of  craftsmen  (such  as  plumbers  and  electricians)  and  other  services  such  as  those 
provided by architects or construction engineers. Other important services in the construction 
sector include installation, maintenance and inspection.  

Some of these services, e.g. architects, are regulated professions in all or almost all Member 
States, whereas others (e.g. certain crafts) are regulated in only a few Member States.  

Member  States  have  reported  a  very  uneven  number  of  authorisation  schemes  and  other 
requirements affecting services in the construction sector. Indeed, the level of regulation, the 
regulatory tools used and the construction activities regulated seem to vary widely from one 
country to another. 

There are two main regulatory approaches in this sector. In a minority of Member States, the 
focus is essentially or exclusively on the activity or its result, which is (in general) carefully 
controlled  by  the  competent  authorities.  They  issue  building  permits  or  project-related 
authorisations and they carry out inspections. However, in most Member States the authorities 
also  regulate  the  competence  of  the  professionals  and  companies  involved  in  providing  the 
service.  In  these  countries,  the  checks  carried  out  by  the  competent  authorities  seem  to  be 
fewer or less intensive than in those countries which do not regulate (or regulate less strictly) 
the competence of the providers.  

6.3.1.  Requirements applying to establishment 

6.3.1.1.   Authorisation schemes 

Member States have notified a large number of authorisation schemes covering major parts of 
the  construction  sector.  However,  as  indicated  before,  there  are  considerable  differences 
between Member States.  

Authorisation schemes imposed on services providers in the construction sector fall into three 
broad  categories:  (i)  authorisation  affecting  the  construction  sector  in  general;  (ii) 
authorisation for specific activities in the construction sector; and (iii) authorisation required 
in specific situations (notably for hazardous activities and activities presenting a danger to the 
environment). Justifications for authorisation schemes in the construction sector are generally 
based on public safety and the protection of consumers but also to some extent, for specific 
activities, on the protection of the environment. 

As  a  result  of  the  implementation  of  the  Services  Directive,  a  number  of  authorisation 
schemes that were previously imposed on service providers in the field of construction have 
been  abolished  or  have  been  made  less  stringent  because  they  have  been  found  unjustified 
and/or  disproportionate.  Authorisation  schemes  have  notably  been  abolished  in  Spain  and 
Sweden.  In  Spain,  national  authorisation  is  no  longer  required  for  gas  installers  and 
companies  installing  gas  facilities,  for  companies  installing  high  voltage  lines,  for  high 
pressure equipment installers or for companies installing lifting equipment. At regional level 
authorisation  is  no  longer  required  for  heating  systems  installers  and  electrical  equipment 
installers.  In  Sweden,  it  is  no  longer  necessary  for  the  inspection  of  lifts  and  other  motor-
driven  installations  in  construction  work  to  be  carried  out  by  bodies  whose  competence  has 
been confirmed through accreditation. Portugal and Latvia have both indicated that they are 
changing the cross-cutting authorisation schemes for several construction service providers. 

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Nevertheless,  a  large  number  of  authorisations  applicable  to  service  activities  in  the 
construction sector are still in force in many Member States.  

(cid:190)  Authorisation schemes affecting the construction sector in general  

Some Member States seem to apply authorisation schemes for all (or almost all) construction 
services.  This  is  the  case  in  those  Member  States,  such  as  Luxembourg  and  Liechtenstein, 
which apply cross-cutting authorisation schemes to all or a large variety of services (beyond 
the construction sector). Where such schemes exist, they of course affect construction services 
as well.  

Other Member States seem to impose a cross-cutting authorisation regime on all or most of 
the construction service providers. A scheme of this kind appears to be in force in Bulgaria, 
where  all  construction  service  providers  have  to  be  authorised  and  registered  before  they 
begin operating. Similar schemes seem to exist in Latvia and Portugal but are being modified. 
In  Spain,  a  company  must  be  authorised  and  registered  before  it  can  be  a  construction 
subcontractor or deal with subcontractors.  

(cid:190)  Authorisation schemes for specific activities in the construction sector 

The specific activities in the construction sector which are subject to an authorisation scheme 
are many and diverse, and the situation varies considerably from country to country.  

Member States report a significant number of authorisation schemes for professionals whose 
job it is to supervise and inspect construction works and control building quality and safety. 
These  include  the  people  who  supervise  the  work  while  it  is  being  carried  out,  those  who 
inspect the completed work and those who carry out administrative supervision. For instance, 
building  inspectors  and  foremen  of  works  (construction  supervisors)  must  be  authorised  in 
Hungary, as must chartered inspectors in the Czech Republic and in Denmark, surveyors and 
civil  and  environmental  engineers  in  Italy,  and  building  inspectors  in  France.  Construction 
engineers  are  also  subject  to  an  authorisation  requirement  in  the  Czech  Republic  and 
Slovakia.  Consulting  engineers  and  test  engineers  are  subject  to  authorisation,  at  regional 
level,  in  Germany.  Mechanical  and  electrical  engineering  service  providers  need  to  be 
authorised in Malta. Similar requirements exist in other Member States. 
The  profession  of  architect  is  in  principle  a  regulated  profession  in  all  Member  States.168. 
Authorisations for architects were notified by the Czech Republic, France, Hungary, Latvia, 
Malta and Slovakia (both for architects and landscape architects). Hungary has indicated that 
architectural,  engineering  and  urban  planning  activities  can  only  be  exercised  by  authorised 
professionals.  In  Hungary,  an  authorised  planning  inspector  must  be  involved  in  approving 
plans  for  buildings  for  use  by  the  public,  by  the  national  defence  forces  or  for  national 
economic purposes. 

It is clear that a large number of authorisation schemes also exist in areas traditionally referred 
to as crafts (plumber, mason, tiler, carpenter, etc.), which are regulated professions in some 
Member  States.  Some  authorisation  schemes  have  been  reported  and  more  may  well  exist. 
The Czech Republic has notified authorisation requirements for service providers dealing with 
the  construction  and  alteration  of  buildings,  roofing  and  carpentry,  painting,  insulation, 
plumbing  and  heating,  electrical  work,  bricklaying,  flooring  and  woodworking,  stone 

168  

See title III of the Directive 2005/36 on the recognition of professional qualifications. In some Member 
State the effect of the professional qualification is limited to make sure that only qualified architects can 
call  themselves  architects.  In  others,  in  addition  to  that,  the  professional  qualification  is  linked  to  a 
reserve of activity in favour of qualified architects.  

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processing and specialised technical work. Austria requires an authorisation for appointing a 
manager  or  branch  manager  in  certain  professions,  notably  master  builders,  electrical 
engineers  and  master  carpenters.  An  authorisation  is  also  required  in  Austria  for  engineers 
who  test  heating  systems  and  in  Portugal  for  gas  equipment  installers  and  gas  network 
installers. In Spain, at regional level, authorisation procedures have been reported for heating 
and air conditioning installers, gas equipment installers and electrical equipment installers. In 
Denmark, technicians who check ventilation and air conditioning systems must be accredited, 
and mechanical and electrical engineering service providers need to be authorised. At regional 
level, an authorisation  scheme  was  notified in Italy for chimney sweeps and noise emission 
technicians. In Finland, electrical works must be supervised by an authorised professional. In 
Lithuania, welders’ qualifications must be certified. In Hungary, natural persons in charge of 
controlling  gas-fitters  and  professionals  who  repair  gas-burning  equipment  must  be 
authorised. 

A  number  of  authorisation  schemes  have  also  been  reported  for  elevator  maintenance  and 
installation services. For example, in Finland, lift works must be supervised by an authorised 
professional.  In  Austria,  at  regional  level,  lift  inspectors  must  be  authorised.  In  Hungary, 
natural persons responsible for inspecting elevators and escalators must be authorised.  

In  the  construction  sector  there  are  a  number  of  certification  (or  similar)  services  (e.g.  the 
certification of energy performance169 and certification of construction products170). These too 
are  often  subject  to  authorisation  schemes.  However,  only  a  few  such  schemes  have  been 
notified. In Austria, at regional level, authorisations can be required for service providers who 
certify  building  activities.  Those  who  carry  out  the  technical  certification  of  construction 
products must be authorised in Slovakia. The same is true in Germany, at regional level, for 
bodies in charge of certification procedures. Energy efficiency certification service providers 
are  subject  to  an  authorisation  scheme  in  the  Czech  Republic  and  Slovakia,  but  are  subject 
only  to  a  notification  requirement  in  Hungary.  In  the  United  Kingdom,  in  Scotland,  it  was 
reported that service providers issuing energy performance certificates must be licensed. 

(cid:190)  Authorisation schemes for particular activities or situations 

In some cases, authorisation schemes concern construction activities in particular locations or 
specifically sensitive or dangerous activities, e.g. those which present a specific danger to the 
environment. It is clear that such rules exist in many Member States (though not all of them 
seem to have been reported).  

For example, Austria has notified authorisation schemes for activities presenting a particular 
danger to the environment. Austria also notified an authorisation required for certain activities 
that affect running water, natural springs or ground waters. The United Kingdom has notified 
authorisations  for  services  in  coastal  areas  or  near  rivers  and  specific  licences  required  for 
handling  waste,  asbestos  and  dangerous  chemicals.  The  United  Kingdom  also  reported  that 
authorisations  are  required  for  drainage  activities,  for  construction  works  within  the  marine 
environment and for activities involving placing materials in the sea or on public highways. 
The  Netherlands  have  notified  environmental  authorisation  schemes  and  authorisation 
schemes for dangerous activities (such as drilling, excavating works or the use of explosives 

169  

170  

Directive  2002/91/EC  of  the  European  Parliament  and  of  the  Council  of  16  December  2002  on  the 
energy performance of buildings. OJ L 1, 4.1.2003. 
Directive  89/106/EEC  of  21  December  1988  on  the  approximation  of  laws,  regulations  and 
administrative provisions of the Member States relating to construction products, modified by Directive 
93/68/EEC of 22 July 1993 and Regulation (EC) No 1882/2003 of the European Parliament and of the 
Council of 29 September 2003 OJ L 284, 31.10.2003. 

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for  construction  activities)  and  for  activities  in  protected  natural  monuments.  France  has 
notified  authorisation  obligations  for  people  working  on  gas  equipment,  in  asbestos 
decontamination activities or checking the safety of water works.  

Specific rules applying to the conservation of historic and artistic heritage or ‘listed’ historical 
buildings have been notified by some Member States. For instance, the restoration of cultural 
monuments must be authorised in Austria, in the Czech Republic, in Latvia and in Slovakia. 
Authorisation  requirements  for  construction  activities  involving  archaeological  excavations 
were  notified  by  France,  the  Netherlands  and  Spain.  In  Malta,  the  profession  of 
conservator/restorer (for the protection of cultural heritage) requires a specific authorisation. 
Nature protection experts must be authorised and registered in Hungary.  

Special  rules  may  also  be  imposed  for  large-scale  construction  projects.  For  instance, 
Lithuania  reported  that  a  certificate  must  be  obtained  for  construction  works  of  exceptional 
significance. 

6.3.1.2.  Article 15 requirements 

The  service  activities  which  are  subject  to  Article  15  requirements,  and  the  type  of 
requirement  imposed,  vary  from  one  Member  State  to  another.  Fixed  tariff  requirements 
appear to be relatively frequent in the construction sector, mostly for the services of architects 
and inspection activities. . Justifying this, Member States often referred to the need to protect 
consumers  and  public  security,  and  (for  minimum  tariffs)  the  objective  of  ensuring  fair 
competition.  

A  number  of  requirements  previously  imposed  on  construction  service  providers  have  been 
modified  or  abolished  as  they  have  been  found  unjustified  and/or  disproportionate.  For 
instance,  Lithuania  has  abolished  a  legal  form  requirement  imposed  on  service  providers 
exploiting energy installations. Cyprus has announced that its legislation is being modified to 
allow  legal  persons,  in  addition  to  natural  persons,  to  provide  engineering  services. 
Luxembourg  indicated  that  it  is  repealing  a  shareholding  requirement  that  craftsmen  should 
own at least 50 % of the shares of a craft company. In Malta, fixed tariffs for Periti (architects 
and  civil  engineers)  have  been  abolished.  In  Germany,  regional  authorities  say  they  have 
made  less  stringent  the  legal  form  requirement  for  test  engineers  and  have  also  reduced  or 
abolished the requirement that test engineers should have only one establishment. In Spain, an 
obligation  for  pressure  equipment  installation  and  repair  providers  to  have  a  minimum 
number of employees has been abolished. 

A good number of Article 15 requirements nevertheless still seem to be in force. As indicated 
previously,  some  Member  States  impose  certain  Article  15  requirements  on  regulated 
professions in general (for instance restrictions relating to legal form or to capital ownership). 
Such requirements would also affect a number of service providers in the construction sector. 

Austria has reported territorial restrictions imposed on chimney sweeps. 

As  to  legal  form  requirements,  Austria  has  indicated  that  chimney  sweep  activities  must  be 
provided  by  natural  persons  or  registered  partnerships,  and  one  of  the  partners  must  be  a 
natural person and personally liable. Lithuania imposes a legal form requirement on service 
providers  wishing  to  engage  in  construction  work  of  exceptional  significance.  In  Italy, 
architects’  activities  can  only  be  carried  out  by  individuals  or  in  the  form  of  a  partnership 
(‘società  di  persone’)  or  an  association  between  professionals.  Legal  form  requirements  for 
architects seem to be also imposed in Austria, Bulgaria, Cyprus, the Czech Republic, France, 
Germany, Malta and Romania. In Italy, at regional level, craft companies (‘società artigiane’) 
cannot take the form of limited companies (‘società per azioni’). 

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When it comes to shareholding requirements, in Belgium, the profession of architect can be 
exercised by a legal person only if at least 60 % of the company shares are owned directly or 
indirectly  by  architects  registered  on  the  records  of  the  Order  of  Architects.  The  remaining 
shares cannot be held by persons exercising a profession that may conflict with the profession 
of  architect.  In  France,  more  than  50 %  of  the  company’s  shares  and  voting  rights  must  be 
held by architects or by firms providing architectural services. In Germany, at regional level, 
the majority of the capital and the voting rights have to be held by architects.  Shareholding 
rules  are  also  imposed  on  architects  in  Austria,  Bulgaria,  the  Czech  Republic,  Italy, 
Luxembourg,  Malta,  Slovakia  and  Spain.  In  Italy,  at  least  51 %  of  the  capital  of  a  craft 
enterprise (‘impresa artigiana’) must be held by qualified crafts persons.  

Fixed tariff requirements appear to be quite frequently in force in the construction sector and 
have  been  reported  by  ten  different  Member  States.  In  Bulgaria,  Germany  and  Greece, 
minimum tariffs are imposed on architects for various types of work. Minimum tariffs have 
also been reported  in  some  regions of Germany for experts in the field of  construction, fire 
prevention experts and  test  engineers. In Spain,  coastal construction or excavation activities 
seem  to  be  subject  to  minimum  and  maximum  tariffs.  Fixed  maximum  tariffs  are  also 
imposed on chimney sweeps in Finland, Germany and, at regional level, in Austria and Italy. 
In  Denmark,  authorised  building  surveyors,  boiler  and  heating  system  inspectors  and 
authorised energy consultants are under an obligation to comply with maximum tariffs.  

Requirements  regarding  the  minimum  number  of  employees  are  imposed  in  Germany,  at 
regional  level,  on  certification  bodies  in  the  construction  sector.  In  Cyprus  they  apply  to 
electrical installers and in Spain, at regional level, to test laboratories for construction works. 
In Portugal, the obligation to have a minimum number of certain specific employees applies 
to the technical inspection of lifts, skip hoists and moving walkways, the technical installation 
of  gas  networks  and  the  fitting  and/or  repair  of  gas  appliances.  Bulgaria  also  requires  a 
minimum number of employees for service providers in the construction sector. 

Austria reports banning chimney sweeps from having more than one establishment.  

Austria  also  requires  chimney  sweeps  to  supply  other  specific  services  jointly  with  their 
chimney-sweeping service. 

6.3.1.3.  Restrictions on multidisciplinary activities  

Many  restrictions  on  multidisciplinary  activities  have  been  reported  for  architects  and,  to  a 
lesser extent, for inspection and supervision activities. 

For  example,  in  Belgium,  a  legal  person  exercising  the  profession  of  architect  can  only 
provide  services  that  arise  from  the  exercise  of  that  profession.  Bulgaria  prohibits  anyone 
from carrying out building  work on a project while at the same time being the architect for 
that  project.  France  restricts  the  freedom  of  an  architect  to  provide  other  services,  either 
jointly  or  in  partnership171.  In  Luxembourg,  the  activities  of  an  architect  or  a  landscape 
architect are considered incompatible with commercial or craft activities or with the exercise 
of any other activity that might compromise their professional independence. Italy restricts the 
possibility of architects, cultural and environmental heritage experts and landscape architects 
to provide another service, either jointly or in partnership. The Czech Republic also appears to 
impose  limitations  on  the  multidisciplinary  activities  of  architects.  Germany  reportedly 
prohibits anyone working on a construction project from carrying out both expert assessments 
and  planning  activities  for  that  project.  In  Malta,  Periti  partnerships  can  only  have  as  their 
objective the practice of that profession. 

171  

To associate with or be employed by professionals in the construction sector. 

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Limitations on multidisciplinary activities also exist in other professions. For example, such 
restrictions  have  been  reported  for  elevator  and  escalator  inspection  activities  in  Austria  (at 
regional level), France and Portugal, where lift inspectors are not allowed to be economically 
dependent  on  firms  that  build  or  maintain  lifts,  and  must  avoid  any  situation  that  could 
compromise  their  independence.  France  also  says  it  bans  the  exercise  of  any  activity  that 
could  compromise  the  independence  of  building  inspectors.  Germany  has  notified  such 
limitations  for  structural  inspectors/structural  inspection  engineers,  who  are  prohibited  from 
serving  as  experts  or  engineers  on  projects  which  they  were  involved  in  planning  or 
executing. Italy notified limitations for civil and environmental engineers: they can carry out 
collective  exercises  only  if  professional  responsibility  remains  individually  attached  to  each 
member  of  group..  In  Norway,  restrictions  are  imposed  on  the  provision  (jointly  or  in 
partnership)  of  services  related  to  supervision  of  electrical  systems,  and  of  other  services 
related to the installation and operation of electrical systems. Limitations on multidisciplinary 
activities have also been notified by Portugal for inspectors of gas networks and inspectors of 
petrol  fuel  installations.  In  contrast,  Cyprus  has  reported  that  the  obligation  for  building 
contractors to carry out only building work is being replaced by an obligation that this be their 
main activity. 

6.3.2.  Requirements applying to cross-border services 

As  a  result  of  the  implementation  of  the  Services  Directive,  some  requirements  that  were 
previously imposed on cross-border service providers in the field of construction have  been 
abolished  or  have  been  (or  will  be)  made  less  stringent  because  they  have  been  found 
discriminatory, disproportionate or unjustified. For instance, establishment requirements have 
been/are  being  abolished  in  Spain,  at  regional  level,  for  industrial  safety  inspectors  and  in 
Germany,  at  regional  level,  for  test  engineers.  Germany  has  also  amended  its  legislation  on 
engineers  and  architects  to  make  it  clear  that  fixed,  minimum  or  maximum  tariffs  are  not 
applicable  to  cross-border  services.  In  Spain,  the  obligation  to  obtain  an  authorisation  for 
installing  low-voltage  and  high-voltage  lines  has  been  abolished,  while  several  other 
authorisation schemes are being modified (e.g. for lift installers, boiler repairers, gas installers 
and  electrical  installation  inspectors).  In  Cyprus,  the  authorisation/“special  permit”  imposed 
on  natural  and  legal  persons  for  the  provision  of  cross-border  services  has  been  reported  as 
being abolished. Estonia has replaced by a declaration the authorisation previously applicable 
to  cross  border  providers  of  services  related  to  electrical  safety,  machinery  safety,  pressure 
equipment safety, fuel gas safety, lifts and cableway installations safety with a declaration A 
large  number  of  requirements  applying  to  cross-border  services  have  nevertheless  been 
notified. In many cases, Member States seem to apply the same requirements to cross-border 
services  as  they  apply  to  established  operators.  However,  there  are  considerable  differences 
between the Member States. In some countries it is not entirely clear how certain construction 
activities are regulated and monitored for cross-border service providers172. Reasons generally 
given for imposing requirements on cross-border service providers are public security and the 
protection of the environment. 

6.3.2.1.  Obligation to have an establishment  

Germany, at regional level, obliges imposes an establishment obligation to test engineers.. 

172  

For instance, Latvia only notified establishment requirements in the construction sector. 

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6.3.2.2.  Obligation to obtain an authorisation  

A  large  number  of  authorisation  schemes  applying  to  cross-border  services  have  been 
notified. But, as indicated above, the situation varies considerably from country to country.  

For  instance,  the  general  authorisation  scheme  for  construction  activities  in  Portugal  is  also 
imposed on incoming cross-border services providers, but is reportedly being simplified173. In 
contrast, the cross cutting authorisation scheme applied to construction services in Latvia has 
not  been  reported  as  applicable  to  cross-border  service  providers.  The  general  authorisation 
scheme for construction activities in Bulgaria seems to be imposed only on service providers 
established in Bulgaria174.  

In  Lithuania,  service  providers  established  in  other  Member  States  wishing  to  carry  out 
design,  construction  and  management  activities  for  construction  works  of  exceptional 
significance are subject to a specific authorisation procedure. In Liechtenstein, ‘coordinators’ 
for planning or executing large scale construction projects need an additional authorisation.  

In  Lithuania,  authorisation  is  needed  for  managing  technical  activities  such  as  the  design 
documentation  for  building  works,  specialised  work  relating  to  building,  or  technical 
supervision  of  building  works.  In  France,  building  inspectors,  certification  providers  for 
asbestos  decontamination  works  and  lift  inspectors  need  an  authorisation.  In  Denmark,  an 
authorisation  is  needed  by  chimney  sweeps,  by  companies  carrying  out  work  on  electrical 
installations  and  by  plumbing  companies  (working  on  water,  heating  and  sanitary 
installations).  In  Germany,  authorisation  procedures  are  imposed,  at  regional  level,  on  test 
engineers,  bodies  in  charge  of  building  certification  procedures,  construction  experts175  and 
experts  in  energy-saving.  In  Malta,  stone  masons  who  design  and  erect  a  building  must  be 
authorised.  In  Greece,  an  authorisation  scheme  for  architects  from  other  Member  States 
providing cross- border services has been reported.  

A large number of authorisation schemes for sensitive or dangerous activities or construction 
activities at particular locations have been notified as applying to cross-border services. The 
Netherlands  have  notified  environmental  authorisation  schemes,  authorisation  schemes  for 
dangerous  activities,  drilling  activities,  water  management  and  water  abstraction,  earth 
removal, excavating works, waste disposal (breaking up building and demolition waste ) and 
the  use  of  explosives  for  construction  activities.  France  has  notified  that  authorisations  are 
needed by service providers working on gas equipment, in asbestos decontamination activities 
or checking the safety of water works. In the United Kingdom, service providers who handle 
waste, asbestos, and dangerous chemicals need a specific licence. The United Kingdom also 
says that authorisations are required for drainage activities, for construction work within the 
marine  environment  and  for  works  that  involve  depositing  materials  at  sea  or  on  public 
highways. In Germany, at regional level, environmental experts and bodies investigating soil 
protection  must  be  authorised,  as  must  experts  who  carry  out  safety  inspections  and  audit 
safety-related  documents.  Authorisation  requirements  for  construction  activities  involving 
archaeological excavations were notified by France, the Netherlands and Spain. Authorisation 
schemes were also notified by the Netherlands for activities in protected natural monuments.  

173  

174  
175  

Portugal  indicated  that  temporary  cross-border  providers  will  have  to  make  a  declaration  including 
proof of having the minimum human resources (not necessarily their own employees) to carry out the 
specific type the construction and proofs of good repute and insurance. 
Cross border providers are subject to a notification obligation. 
For  stability  and  solidity  of  constructions,  metal  and  wood  construction,  structural  fire  protection, 
geotechnical engineering, sound and heat insulation. 

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6.3.2.3.  Declarations/notifications 

Relatively few declarations or notification  procedures have been notified by  Member  States 
for  activities  in  the  construction  sector.  Some  of  those  reported  may  relate  to  professional 
qualifications.  

In  Belgium,  any  service  provider  wishing  to  exercise  a  commercial,  craft  or  professional 
activity  (including  activities  in  the  construction  sector)  as  part  of  the  free  movement  of 
services  must  give  prior  notification.  This  is  also  the  case  for  craftsmen  in  Luxembourg.  In 
Germany, at regional level, notification schemes have been reported for structural inspectors / 
structural  inspection  engineers,  for  experts  preparing  building  documents176,  for  consulting 
engineers  or  environmental  experts  and  bodies  investigating  soil  protection.  In  Hungary,  a 
notification  is  required  from  construction  service  providers  in  order  to  prove  they  have  an 
appropriate professional qualification. Estonia reported requiring a notification from persons 
handling explosives. 

6.3.2.4.  Obligation to take out insurance  

Member States have reported that they require providers to provide insurance  or a  financial 
guarantee affecting various service activities.. Several more such requirements may exist but 
have not been notified.  

Slovenia  has  notified  an  obligation  to  have  insurance  for  supervising  building  works.  In 
France,  all  service  providers  in  the  construction  sector  (except  for  repair  and  maintenance 
activities) need a ten-year insurance policy in the case of new buildings. In Latvia, a building 
permit  cannot  be  issued  unless  the  builder  has  indemnity  insurance.  Liability  insurance  is 
required for certain construction services in Slovakia and Slovenia. In Germany, at regional 
level,  laboratories  testing  pipelines,  environmental  experts  and  bodies  investigating  soil 
protection are all obliged to prove that they have liability insurance. In Portugal, technicians 
signing construction projects, bodies installing gas networks and gas appliances, technicians 
supervising or inspecting construction works, and bodies inspecting gas appliances, lifts and 
petrol  fuel  installations  are  all  obliged  to  have  a  valid  professional  liability  guarantee 
(equivalent  to  the  professional  liability  insurance  required  for  established  technicians  who 
perform the same tasks). 

6.3.2.5.  Requirements affecting the use of equipment 

In Germany, at regional level, requirements affecting the use of equipment have been reported 
for  environmental  experts  and  bodies  investigating  soil  protection.  Austria  too  has 
requirements affecting the use of equipment for inspecting heating facilities and for checking 
the safety of lifts. The Netherlands also notified requirements affecting the use of equipment 
(e.g.  for  scaffolding,  ladders,  piling,  conveyors  and  other  material)  for  certain  construction 
activities. 

CONCLUSION: 

Very  different  situations  seem  to  exist  in  different  Member  States  as  regards  the  level  of 
regulation, the type of regulatory tools in force and the categories of construction activities 
regulated.  There  are  two  main  regulatory  options  that  can  be  identified..  A  minority  of 
countries seem to focus essentially or exclusively on controlling the activity and checking its 

176  

The laws generally impose (only) a notification requirement if the qualification is equivalent. Otherwise 
a registration or authorisation is required. 

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outcome.  The  majority  of  Member  States  not  only  require  building  permits  and  carry  out 
inspections but also regulate the competence of the professionals and companies involved. 

As a result of implementing the Services Directive, a number of important changes have been 
made in the rules applicable to the construction sector. In some Member States, authorisation 
schemes are being made less stringent and other requirements, including tariffs, or legal form 
requirements,  have  also  been  abolished,  amended  or  made  non-applicable  to  cross-border 
service providers.  

Nevertheless, the construction sector is still heavily regulated. To justify their requirements, 
Member  States  have  generally  invoked  the  need  to  prevent  serious  damage  to  the  health  or 
safety  of  the  service  recipient  or  to  protect  consumers  and  (to  a  lesser  extent)  the 
environment.  Most  requirements  are  authorisation  schemes.  In  some  cases,  cross-cutting 
authorisation schemes affect the whole construction sector. In other cases, authorisations are 
for specific activities, such as supervision and inspection, or activities presenting a danger to 
the  environment.  Member  States  also  report  a  large  number  of  tariffs,  legal  form 
requirements,  shareholding  requirements  and  restrictions  on  multidisciplinary  activities,  in 
particular  for  architects,  building  surveyors,  test  engineers,  etc.  A  significant  number  of 
requirements, notably authorisations, also seem to be imposed on cross-border services.  

The  discussion  showed  that  the  construction  sector,  which  has  great  potential  for  cross-
border  activities,  is  seen  as  highly  regulated.  Several  requirements,  such  as  fixed  tariffs  or 
minimum numbers of employees, were called into question. Doubts were raised as regards the 
application  of  requirements  such  as  cross-cutting  authorisation  schemes  to  cross-border 
services. Discussion also showed that service providers have difficulty obtaining reasonably-
priced insurance cover for cross-border services. 

6.4. 

Real estate services 

Real estate covers a variety of different service activities, including acting as intermediary in 
the selling, buying and renting of property. It also embraces the evaluation and management 
of  real  estate,  and  activities  relating  to  land  surveying,  and  the  demarcation  of  real-estate 
properties.  

This  field  of  activity  is  highly  regulated  in  some  Member  States.  For  example,  real-estate 
agents  are  a  regulated  profession  in  several  countries.  In  other  Member  States  it  is  hardly 
regulated at all. The most regulated activities in this sector relate to land surveying. 

6.4.1.  Requirements applying to establishment 

6.4.1.1.  Authorisation schemes  

Real-estate  agents  seem  to  be  a  regulated  profession  in  12  Member  States.177  Lithuania  has 
indicated  that  the  requirement  for  property  assessment  service  providers  to  hold  a 
qualification certificate is in the process of being made less stringent. 

Authorisation  schemes  applying  to  real-estate  and  property  management  services  have  been 
reported  by  Denmark,  Finland,  France,  Germany,  Slovakia  and  Sweden.  In  Romania,  real-
estate  service  providers  need  to  register  with  the  National  Office  for  Trade  Registry.  In 

177  

Austria, Belgium, Cyprus, Denmark, France, Iceland, Norway, Poland, Portugal, Slovakia, Slovenia and 
Sweden. 

EN 

85 

  EN 

 
 
                                                 
Greece  an  obligation  to  register  is  imposed  both  on  established  and  cross-border  service 
providers.  In  addition,  an  obligation  to  be  certified  has  been  reported  in  France  for 
professionals  making  diagnostic  examinations178  of  real-estate  properties.  In  Latvia, 
professionals  offering  real-estate  evaluation  services  must  be  certified.  Such  authorisation 
schemes  for  real-estate  activities  were  reported  as  justified  mainly  in  order  to  protect 
consumers, the recipients of services and their financial security. 

Land surveyors seem to be a regulated profession in the Czech Republic, Denmark, France, 
Ireland,  Italy,  Liechtenstein,  Slovakia,  Slovenia  and  the  United  Kingdom.  Authorisation 
schemes  have  been  reported  for  surveyors  and  cartographers  in  Denmark,  France,  Hungary, 
Latvia and Slovakia. In Estonia, providers wishing to engage in land readjustment work and 
the valuation of land must obtain a licence. These authorisation schemes have generally been 
reported  by  Member  States  as  justified  for  reasons  of  public  policy,  the  protection  of 
consumers  and  the  protection  of  recipients  of  services,  but  also  to  some  extent  to  combat 
fraud. 

6.4.1.2.  Article 15 requirements 

Most  of  the  requirements  reported  are  legal  form  requirements,  shareholding  requirements 
and  tariffs  and  they  have  mostly  been  notified  for  land  surveying  activities.  Member  States 
have  indicated  that  legal  form  and  shareholding  requirements  are  usually  imposed  to 
guarantee  the  independence  and  impartiality  of  professionals  and  to  prevent  conflicts  of 
interest, whereas tariffs are often deemed to be justified in order to protect consumers and the 
recipients of services.  

A number of the existing requirements were found unjustified and disproportionate and thus 
abolished  or  modified.  For  instance,  in  Denmark,  a  requirement  for  real-estate  service 
providers to take a specific legal form has reportedly been abolished. Belgium has indicated 
that  it  would  abolish  a  requirement  that  real-estate  agent  activities  be  exercised  only  by 
natural  persons.  France has  amended  its  legislation  on  land surveying  activities.  Previously, 
land  surveyors  were  obliged  to  hold  at  least  75 %  of  their  company’s  capital:  the  new  law 
reduces this figure to 51 %. 

A number of requirements have nevertheless been maintained. Some Member States still have 
legal  form  requirements.  In  Denmark,  for  example,  land  surveying  activities  may  only  be 
provided by a natural person, a grouping of several land inspectors, a public limited liability 
company  or  a  private  limited  company.  In  France,  land  surveyors  can  provide  services  as  a 
natural  person  or  as  a  legal  person  in  certain  forms179.  Legal  form  requirements  for  land 
surveyors also seem to be in force in Austria, Italy, Lithuania and Portugal.  

Shareholding  requirements  are  imposed  on  land  surveyors  in  Austria,  Denmark,  France, 
Germany,  Italy,  Luxembourg,  and  Romania.  Norway  imposes  specific  ownership  rules  on 
real-estate agents.  

As  regards  fixed  tariffs,  Austria  has  a  federal  regulation  that  imposes  maximum  tariffs  on 
real-estate  activities.  In  Sweden,  a  statutory  maximum  tariff  is  imposed  on  letting  agents. 
Maximum tariffs are also imposed in Germany, at national level, on rental agency activities. 
For real-estate activities, the objective of protecting the consumer/recipient of services is the 
overriding  reason  of  general  interest  most  commonly  given  to  justify  the  maximum  tariffs. 
However,  the  objective  of  combating  potential  fraud  has  also  been  reported.  In  Romania, 

178  
179  

Inspecting for lead, asbestos and termites, and assessing gas, electricity and energy performance. 
In the form of ‘Sociétés civiles professionnelles ou interprofessionnelles’, ‘Sociétés d’exercice libéral’ 
and ‘Sociétés anonymes ou sociétés à responsabilité limitée’. 

EN 

86 

  EN 

                                                 
maximum tariffs are imposed on surveying activities. For land surveyors, maximum tariffs are 
also  in  force  in  Italy  while  minimum  tariffs  are  imposed  in  Bulgaria  and  fixed  tariffs  are 
imposed by Germany.  

6.4.1.3.  Restrictions on multidisciplinary activities  

Cyprus  reported  to  have  abolished  a  restriction  obliging  real-estate  agents  to  exercise  this 
activity exclusively. In Portugal, an obligation for real-estate agents to exercise their activity 
exclusively is reportedly being replaced by specific rules on incompatibility. 

Remaining  restrictions  on  multidisciplinary  activities  have  been  notified  both  for  real-estate 
agents  and  (land)  surveyors.  They  can  in  any  case  only  be  imposed  if  these  professions  are 
regulated professions in the Member State concerned.  

Limitations  on  multidisciplinary  activities  apply  to  real-estate  agents  in  Norway,  which 
prohibits  them  from  offering  real-estate  and  other  services,  jointly  or  in  partnership,  if 
providing such other services would affect the agent’s independence. In Sweden, real-estate 
agents  may  engage  in  other  activities  if  it  is  proved  that  these  activities  are  not  likely  to 
discredit them as real-estate agents.  

Regarding land surveying activities, in Slovakia, geodesists and cartographers are obliged to 
exercise their activity exclusively. A similar limitation to just one activity is also imposed on 
land surveyors in Denmark. France has notified limitations for real-estate expertise activities, 
prohibiting  service  providers  from  exercising  any  activity  that  could  compromise  their 
independence. Restrictions on multidisciplinary activities are also imposed on land surveyors 
in Belgium, Germany, Italy and Luxembourg.  

6.4.2.  Requirements applying to cross-border services 

A certain number of requirements have been modified (or are reportedly being modified) as 
they were found unjustified and disproportionate.  

For real-estate activities, an obligation to have a financial guarantee for professionals wishing 
to  exercise  real-estate  activities  in  France  has  been  modified  in  order  to  impose  it  only  on 
certain types of activity. Slovenia has reportedly abolished the establishment requirement for 
land  surveying  activities.  In  Lithuania,  an  obligation  for  companies  engaging  in  property 
assessment  services  to  be  registered  is  reportedly  being  abolished  for  cross-border  services. 
Cyprus says it has abolished a requirement that real estate agents from other Member States 
operating  in  Cyprus  must  work  together  with  a  licensed  real  estate  agent  established  in 
Cyprus.  It  has  also  abolished  a  requirement  that  real-estate  agents  established  in  other 
Member States must pass an examination set by the Real Estate Registration Board.  

Nevertheless  a  considerable  number  of  requirements  have  been  maintained,  generally  on 
grounds of public policy and environmental protection. 

As regards authorisation schemes, Greece reported an obligation for real-estate activities to be 
registered. An obligation to be certified has been reported in France for professionals making 
real-estate  diagnostic  tests  (for  lead,  asbestos,  termites,  gas,  electricity  and  energy 
performance).  An  authorisation  imposed  on  a  specific  category  of  land  surveyors  for  the 
cross-border  provision  of  services  has  been  reported  by  the  Czech  Republic.  Romania  also 
imposes an authorisation on land surveyors who provide cross-border services. 

EN 

87 

  EN 

 
In France, a notification including proof of legal establishment and absence of prohibition to 
exercise  in  another  Member  State  is  required  from  professionals  wishing  to  carry  out  real-
estate activities as part of the free movement of services. 

As regards insurance/financial guarantee requirements, Spain, at regional level, has notified a 
requirement  to  have  a  financial  guarantee  for  real-estate  activities.  France,  Portugal  and 
Slovenia oblige real-estate agents and real-estate property managers providing services across 
borders  to  give  proof  of  insurance  and/or  a  financial  guarantee.  This  also  applies  to  service 
providers who wish to set up their business in those countries. The Member States concerned 
have  justified  this  on  grounds  of  public  policy  (France  and  Portugal)  and  public  security 
(Slovenia). Portugal also requires real-estate valuers to provide a valid financial guarantee if 
the  real-estate  property  in  question  is  located  in  Portugal.  Insurance  obligations  are  also 
imposed in France on land surveyors and on professionals who check the quality of real-estate 
properties. 

In  Sweden,  a  statutory  maximum  tariff  is  imposed  on  professional  housing  agency  services 
(letting  agents)  established  in  the  country  or  taking  advantage  of  the  free  movement  of 
services. 

CONCLUSION: 

Land surveying  activities seem to be the most regulated activities in this sector.  Real-estate 
activities  are  also  regulated  in  many  Member  States.  To  justify  regulating  these  activities, 
Member States usually refer to the need to protect consumers and/or recipients of services.  

Many  of  these  rules  (on  establishment  and  on  cross-border  services)  have  been  changed 
during  implementation  of  the  Services  Directive,  in  particular  for  real-estate  services. 
Nevertheless, during the discussions, questions were raised about the level of regulation and 
whether it is necessary and proportional, especially as regards cross-border services. It was 
pointed out that a good number of requirements imposed on cross-border services have been 
maintained  and  that  the  justifications  given  often  appear  no  different  from  those  given  for 
establishment  cases.  In  particular,  doubts  were  raised  regarding  insurance  and  financial 
guarantee obligations imposed on cross-border service providers, since these obligations may 
in  many  cases  hinder  the  service  provision.  The  proportionality  and  necessity  of  such 
requirements has been questioned. 

EN 

88 

  EN 

 
6.5. 

Business services  

Business services cover a wide range of different service activities used by businesses (B2B) 
in  the  context  of  their  operations.  It  is  a  large  and  heterogeneous  sector.  The  following 
services were covered by the process of mutual evaluation: employment agencies, advertising 
agencies,  exhibitions  and  trade  fairs  and  debt  collection  services.  In  addition,  given  the 
importance  of  these  services  for  the  business  sector  as  a  whole,  a  number  of  professional 
services  were  also  discussed,  such  as  services  provided  by  tax  advisers,  insolvency 
practitioners,  patent/trademark  agents  as  well  as  interpreters  and  translators.  Services 
provided  by  lawyers  and  accountants,  although  highly  relevant  to  business,  were  not 
examined in this context as they are to a large extent dealt with in the section of this document 
on legal form, shareholding requirements and limits on multidisciplinary activities.  

In general, Member States considered business services to be lightly regulated. Nevertheless, 
some  services,  for  instance  employment  agents  and  debt  collectors,  are  regulated  in  many 
Member States, as are the tax advisers, patent agents and insolvency administrators. 

6.5.1.  Services  provided  by  employment  agencies  (including  agents  for 

specific professions, information for job seekers, etc.) 

Employment  services  cover  a  range  of  services  including  placement  consultancy  services, 
recruitment services and labour market data gathering. Employment agencies provide services 
to  both  employers  and  potential  employees.  They  often  also  provide  services  of  temporary 
work  agencies.  However,  the  Member  States  did  not  review  or  discuss  the  requirements 
applicable to this specific activity as they are not covered by the Services Directive.180  

6.5.1.1.   Requirements applying to establishment  

(cid:190)  Authorisation schemes 

Most Member States seem to require employment agencies to be authorised.181 Furthermore, 
in  Austria,  the  Czech  Republic,  Poland  and  Slovakia,  employment  agents  are  a  regulated 
profession.  Some  Member  States  (Belgium  (Flanders)  and  Slovakia)  have  separate 
authorisation  schemes  for  entities  providing  guidance  and  counselling  to  jobseekers.  Poland 
has reported that, although it has only one authorisation scheme, applicants have to indicate 
the type of service182 that they intend to deliver. Belgium and France seem to have separate 
authorisation  schemes  for  employment  intermediation  services  for  athletes,  models,  and 
artists.  

Some  Member  States  do  not  impose  authorisation  schemes  for  providers  of  employment 
services. In Belgium (Wallonia), Hungary, Lithuania and Slovakia, employment agencies are 
subject  to  a  notification/declaration  requirement.  Other  Member  States,  such  as  Estonia,  do 
not have specific rules applicable to employment agencies. 

180  
181  

182  

See Article 2(2)(e) of the Services Directive. 
Belgium,  Bulgaria,  Cyprus,  the  Czech  Republic,  Finland,  France,  Greece,  Ireland,  Italy,  Latvia, 
Liechtenstein, Malta, Poland, Portugal, Romania, Slovenia, Slovakia and Spain. 
Job  placement  services  in  Poland,  job  placement  services  abroad  with  foreign  employers,  vocational 
counselling services, personal advisory services, temporary work agency services. 

EN 

89 

  EN 

 
                                                 
Member States usually justify their authorisation schemes by public policy and social policy 
objectives,  the  need  to  protect  jobseekers  and  to  ensure  a  high  quality  of  services.  Some 
Member States also identified perceived risks for jobseekers in terms of lack of information, 
especially when the jobs offered are abroad. 

Generally, the Member States that require authorisation set conditions for the management or 
staff  providing  this  service,  generally  considered  to  be  necessary  to  ensure  professional 
competence or good repute (Belgium, Cyprus, France, Liechtenstein and Portugal). In some 
instances,  Member  States  (in  particular  Bulgaria,  Czech  Republic,  Greece,  Romania, 
Portugal)  also  impose  requirements  on  the  level  of  education  needed,  which  varies  greatly 
from high school to specialised master degrees and from no previous experience to five years 
in  the  field.  Another  specific  condition  for  obtaining  authorisation  concerns  the  premises 
and/or  equipment  used  by  the  service  provider,  which  is  required  in  Belgium,  Greece, 
Liechtenstein, Portugal and Slovenia. Italy and Slovenia require proof of financial resources 
as a condition for obtaining authorisation.  

As a result of implementing the Services Directive, some Member States have made certain 
amendments  because  the  requirements were found to be unjustified or disproportionate. For 
example, Belgium reported that the Brussels Region plans to abolish the current authorisation 
scheme. Slovakia replaced the authorisation scheme by a declaration. Latvia has indicated that 
it is considering amending its existing authorisation scheme, maintaining it only for agencies 
offering recruitment abroad, as they were identified as posing greater risks for jobseekers.  

(cid:190)  Article 15 requirements 

In  general,  only  a  few  Article  15  type  requirements  were  reported.  Those  reported  mostly 
concerned tariffs, legal form and shareholding requirements.  

Belgium,  Greece  and  France  reported  maximum  tariffs.  The  requirements  were  typically 
justified as protection of jobseekers, the specific needs of the category of employees protected 
(athletes, models, artists) and as considered necessary to prevent fraud. Ireland communicated 
its intention to remove fixed tariffs imposed on employment agencies.  

Belgium,  Italy,  Liechtenstein  and  Spain  reported  legal  form  requirements  applicable  to 
employment agencies. Some of the justifications put forward by the Member States cited the 
protection of jobseekers, principles of equality of opportunity, access to employment and non-
discrimination. 

Italy reported a minimum capital requirement (of up to € 600 000, depending on the specific 
activity  carried  out),  justified  as  needed  to  ensure  the  seriousness  of  the  provider,  and  as 
means to protect the recipients of the service.  

(cid:190)  Restrictions on multidisciplinary activities  

Only a few restrictions on multidisciplinary activities were reported. Of course, under Article 
25, such restrictions can only be justified, if compliant with the conditions laid down in this 
article and  if applied to regulated professions (or to certification and similar services).  

Belgium reported that employment agencies must provide their  services exclusively. France 
reported  a  list  of  services  deemed  incompatible  with  sports  agents  (such  as  managing  sport 
associations  or  federations).  The  same  applied  to  agents  of  artists,  who  are  not  allowed  to 
provide    certain  services  (such  as  managing  theatres,  producing  films  or  manufacturing 
musical instruments).  

EN 

90 

  EN 

6.5.1.2.   Requirements applying to cross-border services  

A  considerable  number  of  requirements  applicable  to  cross-border  service  provision  were 
reported  for  employment  agencies  under  Article  16.  Member  States  typically  cited  as 
justifications  public  policy  and  indicated  more  specifically  that  these  requirements  are 
necessary  to  prevent  illegal  work,  human  trafficking,  prostitution  and  fraud,  and  to  ensure 
compliance with jobseekers’ rights. 

Belgium (Flanders) and Slovenia reported an establishment requirement for career guidance 
centres.  Ireland  reported  its  intention  to  scrap  this  requirement  for  employment  agencies 
established in other Member States. 

Authorisations  are  required  by  several  Member  States  for  the  cross-border  provision  of 
employment  services:  Belgium,  Bulgaria,  Cyprus  and  Ireland.183  However,  some  Member 
States reported abolishing, or their intention to abolish, current authorisations for cross-border 
provision  of  employment  services  because 
to  be  unjustified  or 
disproportionate. France has abolished the authorisation scheme for employment agencies and 
intends  to  replace  it  by  a  declaration  for  sport  agents.  Portugal  intends  to  replace  its 
authorisation for employment agencies by prior notification. 

they  were  found 

Declaration requirements were reported by France (prior declaration for modelling agencies), 
Liechtenstein, Lithuania and Malta.  

Malta also reported an obligation to indicate an address in Malta ‘from which the activity will 
be carried out’.  

In  some  cases,  Member  States  referred  to  other  requirements,  such  as  information  and 
disclosure  obligations  as  well  as  limitations  to  the  possibility  of  charging  jobseekers  a  fee 
(only  allowed  for  recruitment  in  the  entertainment  sector  in  the  United  Kingdom)  or  other 
conditions (good repute of the provider, its partners and managers and the obligation that jobs 
are advertised in Portuguese in Portugal).  

Portugal  and  France  reported  an  obligation  to  take  out  insurance/provide  a  guarantee  for 
modelling agencies. However, France is nevertheless abolishing the insurance requirement for 
sport agents. To justify these requirements, Member States cited public policy and indicated, 
more  specifically,  the  need  to  protect  employees  (France)  and  the  need  to  ensure  the 
repatriation of workers from abroad (Portugal). 

6.5.2.  Advertising  

Advertising  agencies  usually  provide  a  wide  range  of  services  to  their  clients  related  to  the 
promotion  of  goods,  services  or  corporate  image  (e.g.  designing  and  running  advertising 
campaigns,  developing  a  brand  image,  media  planning  and  buying).  Broadly  speaking,  this 
area  seems  to  be  generally  lightly  regulated  and  few  Member  States  reported  requirements 
applicable specifically to the services provided by advertising agencies as such.  

However, it is clear that there are a number of requirements, which do not directly regulate 
advertising  agencies  but  which  nevertheless  affect  the  provision  of  these  services  by  laying 
down rules on certain advertising modalities or other forms of commercial communication.  

183  

It  seems  that  it  is  not  necessary  to  obtain  a  licence  in  Ireland  if  the  employment  agency  is  regulated 
under the law of another Member State and that regulation is the same or similar to the regulation in 
Ireland. 

EN 

91 

  EN 

 
                                                 
For  instance,  several  Member  States  reported  authorisation  schemes  related  to  the  use  of 
outdoor facilities (for example historical buildings) or public space for advertising purposes. 
Others  reported  authorisation  schemes  applicable  to  specific  means  of  advertising  such  as 
aerial  advertising,  distribution  of  flyers  for  commercial  purposes,  the  physical  infrastructure 
in which advertising is placed and parking advertising vehicles. Many of these schemes also 
apply  to  cross-border  service  providers.  To  justify  the  requirements,  Member  States  cited 
reasons of public security (aerial advertising, vehicles) and the protection of the environment.  

Other  requirements  related  to  commercial  communications,  e.g.  restrictions  to  the  use  of 
certain  forms  of  commercial  communication  or  the  content  of  the  communication  or  the 
language  used,  which  exist  in  many  areas,  may  also  affect  the  services  provided  by 
advertising  agencies.  Only  a  few  such  restrictions  were  reported  under  Article  16,  which 
should indicate that Member States do not apply commercial communication requirements to 
cross-border  providers.  Denmark  expressly  indicated  that  it  excludes  cross-border  providers 
from the ban on using vouchers and promotional competitions as marketing tools.  

6.5.3.  Organisation of exhibitions and trade fairs 

Exhibitions  and  trade  fairs  are  large  to  medium-sized  events  where  entrepreneurs  from  a 
specific  field  of  activity  present,  promote,  and/or  sell  their  products/services  to  potential 
distributors, business partners, wholesalers, retailers or consumers. The organisation of such 
events is subject to different types of requirements:  requirements applicable to the activity of 
the  organiser  of  the  specific  exhibition  and  trade  fair;  requirements  applicable  to  the 
organisation  of  exhibitions  and  trade  fairs  in  general  and  requirements  applicable  to  certain 
types of exhibition and trade fairs.  

Requirements applicable to the activity of organising exhibitions/fairs seem rather rare. In this 
category, Greece reported that the activity of trade fair organiser is subject to a good repute 
requirement, an exclusivity requirement (although Greece reported its intention to abolish it) 
and specific financial guarantees. Italy (at least one region) reported a legal form requirement 
for organisers of trade fairs. 

By  contrast,  many  requirements  apply  to  the  organisation  of  exhibitions/fairs  in  general, 
particularly  concerning  the  use  of  premises.  Several  Member  States  reported  such  prior 
authorisation  schemes,    usually  issued  by  regional  or  local  authorities:  Bulgaria,  France, 
Greece, Hungary, Italy, Lithuania, Netherlands, Poland, Portugal and Spain.  

Finally,  Member  States  have  reported  several  requirements  specific  to  the  type  of 
the  fair/exhibition.  Specific  authorisation 
product/service  promoted  or  presented 
requirements  exist,  for  example  in  Greece  for  book  fairs,  in  Hungary  for  firearms  fairs,  in 
Spain and Norway for animal fairs or public display of animals in general.  

in 

6.5.4.  Debt collection services 

Debt  collection  means  the  activity  of  pursuing  payment  on  debts  owed  by  individuals  and 
businesses. In principle, it covers judicial and non-judicial recovery of debt. A debt collection 
agency  usually  operates  as  an  agent  of  creditors  and  collects  debts  for  an  agreed  price  or  a 
percentage of the total amount owed. Debt collection should be distinguished from ‘factoring’ 
where  claims  are  actually  purchased  and  then  pursued  on  behalf  of  the  new  owner  of  the 
claim. Factoring is a financial service and thus is not covered by the Directive.  

EN 

92 

  EN 

 
 
Based on information available, it seems that debt collection is a regulated profession only in 
Norway and Austria. In other countries, this activity may be fully or partly (e.g. as regards the 
judicial  recovery  of  debt)  reserved  to  regulated  professions,  e.g.  lawyers.  For  instance,  in 
Portugal, all debt collection services are reserved to lawyers and ‘solicitadores'.  

Only  a  limited  number  of  requirements  were  reported  to  apply  to  debt  collection  services. 
Hardly  any  seem  to  concern  the  judicial  recovery  of  debts.  A  number  of  Member  States 
reported  authorisation  schemes  applicable  to  debt  collection  services:  Austria,  Belgium, 
Denmark, Finland, Germany, Iceland, Italy, Norway, Sweden and the United Kingdom.  

Belgium  reported  a  legal  form  requirement  laying  down  that  recovery  of  debt  may  only  be 
exercised by a natural person or by a company with the legal form of ‘sociétés commerciales’ 
but it would appear that this is in the process of being amended.  

Austria reported a maximum tariff requirement. 

Some Member States reported an authorisation scheme for the cross-border provision of debt 
collection services: Belgium Denmark, Iceland, Italy and the United Kingdom. Norway has, 
however,  abolished  its  authorisation  and  registration  requirement  for  cross-border  services. 
Belgium  reported  the  obligation  to  have  professional  insurance  when  the  service  provider 
collects consumer debts, while Iceland and Norway reported a general insurance obligation. 
Austria  reported  that  maximum  tariffs  apply  to  cross-border  services  and  established 
providers alike.  

Most  Member  States  cited  objectives  like  the  prevention  of  fraud,  the  protection  of  debtors 
and  creditors  and  efficient  supervision  as  justification.  For  cross-border  services,  Member 
States mainly cited public security and public policy.  

6.5.5.  Tax advisers 

Tax  advisers  are  often  highly  regulated.  In  many  cases,  this  activity  is  considered  to  be  a 
separate  regulated  profession  (for  example  in  Belgium,  Czech  Republic,  Germany,  Greece, 
Hungary and Poland). In other countries, providing tax advice is reserved to other regulated 
professions, such as accountants or lawyers (for example in France or Italy). In some Member 
States, however, it does not seem to be a regulated profession, for example in Denmark, the 
Netherlands or Slovenia.  

6.5.5.1.   Requirements applying to establishment 

(cid:190)  Authorisation schemes 

The provision of tax advice is a regulated profession in 10 Member States.184 Authorisations 
for  tax  advisers  have  been  reported  by  the  Czech  Republic,  Greece,  Hungary,  Italy,  Poland 
and  Slovakia.  In  addition,  in  the  Member  States  that  reserve  tax  advice  to  other  regulated 
professions, the authorisations for these professions also apply.  

(cid:190)  Article 15 requirements 

Some  Article  15  requirements  for  tax  advisers  (legal  form  and  shareholding  requirements) 
were notified by a number of Member States. In the Member States where tax advice services 

184  

Austria,  Belgium,  Czech  Republic,  Germany,  Greece,  Hungary,  Ireland,  Poland,  Slovakia  and  United 
Kingdom (only for ‘chartered’ tax advisers). 

EN 

93 

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are  provided  by  lawyers/accountants,  the  requirements  applicable  to  these  professions  also 
apply to tax advice services. In some Member States where such requirements are applied to 
regulated professions in general, they may also apply to tax advisers.  

For instance, Belgium, Poland and Slovakia reported legal form requirements. Nevertheless, 
Poland reported abolishing a ban on carrying out the profession of tax advisor in the form of a 
limited joint-stock partnership, therefore making the legal form requirement less restrictive.  

Shareholding requirements for legal persons providing tax consultancy services were reported 
by Belgium (a complex list of different cases), Poland (majority of voting rights to belong to 
tax  advisers  and  the  rest  to  other  specific  regulated  professionals)  and  Slovakia  (75 %  of 
voting rights or the capital must be held by tax advisers). 

Member  States  typically  justified  these  legal  form  and  shareholding  requirements  as 
necessary  to  ensure  the  independence  of  service  providers.  In  some  cases,  they  are  deemed 
necessary to ensure the reliability or solvency of the service provider. Some Member States 
also  cited  the  need  to  ensure  that  only  providers  with  the  requisite  skills  and  qualifications 
provide these services. 

(cid:190)  Restrictions on multidisciplinary activities  

Belgium, Italy, Poland and Germany reported incompatibilities in the provision of tax advice 
and justified them by the need to prevent conflicts of interest and guarantee the impartiality 
and independence of professionals. In some cases, there is a general incompatibility with any 
other  activity.  In  others,  incompatibilities  relate  to  certain  specific  activities.  In  Member 
States  with  general  incompatibilities  applicable  to  regulated  professions  (such  as  a  general 
prohibition  of  joint  exercise),  such  incompatibilities  also  apply  to  tax  advisers.  And,  of 
course,  since  these  services  are  reserved  to  other  regulated  professions,  rules  applicable  to 
them  may  also  have  an  impact  on  tax  advice  services.  Poland  reported  that  the  Act 
implementing the Services Directive has allowed advocates, legal advisors and tax advisers to 
cooperate within one multidisciplinary partnership.  

6.5.5.2.   Requirements applying to cross-border services 

Hardly  any  requirements  were  reported  for  the  cross-border  provision  of  services.  Only 
Greece reported an authorisation requirement and justified it for reasons of public security. Of 
course, as for all regulated professions in those Member States where the activity is reserved 
to  a  regulated  profession,  service  providers  may  be  subject  to  an  annual  declaration  in  line 
with  the  Professional  Qualifications  Directive.  Other  requirements  may  not  have  been 
reported.  

6.5.6. 

Insolvency practitioners 

Insolvency  practitioners  are  taken  to  mean  those  who  provide  advice  on  and  who  are 
appointed  in  formal  insolvency  procedures.  These  procedures  can  be  either  personal 
(bankruptcies,  sequestrations,  individual  voluntary  arrangements,  etc.)  or  specific  to 
companies and  partnerships  (liquidations, company and partnership  voluntary arrangements, 
administrations and administrative receiverships, etc.). In general, they are appointed by the 
shareholders,  unsecured  creditors  or  by  court  order  to  manage  the  winding  up  of  a  firm  by 
selling off its assets. Another commonly used term is ‘liquidator’. 

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In  some  Member  States,  insolvency  practitioners  are  is  a  separate  regulated  profession.  In 
other  Member  States,  these  services  may  again  be  reserved  to  other  regulated  professions, 
such as lawyers.  

6.5.6.1.   Requirements applying to establishment 

(cid:190)  Authorisation schemes  

Insolvency practitioners seem to be a regulated profession in France, the Netherlands, Poland 
and  the  United  Kingdom.  Authorisation  schemes  for  insolvency  practitioners  were  reported 
by  the  Czech  Republic,  Germany,  Hungary,  Latvia,  Lithuania,  Romania,  Slovenia  and  the 
United  Kingdom.  In  Portugal,  only  insolvency  practitioners  appointed  by  court  order  are 
regulated professionals (considered by Portugal as exercising public authority). 

The  United  Kingdom  reported  abolishing  the  ban  preventing  insolvency  practitioners 
authorised in Northern Ireland from acting in Great Britain.  

(cid:190)  Article 15 requirements 

Few requirements were reported under Article 15 specific to insolvency practitioners. Those 
that  were  mostly  concerned  legal  form  and  shareholding  requirements.  However,  more 
requirements  may  well  apply  to  insolvency  services  where  Member  States  reserve  these 
services  to  other  regulated  professions.  Moreover,  in  cases  in  which  Member  States  apply 
certain  restrictions  to  regulated  professions  in  general,  these  restrictions  may  also  apply  to 
insolvency  practitioners.  As  justification,  Member  States  mostly  cited  protection  of 
recipients/creditors and proper administration of justice.  

Quantitative restrictions were reported only by Hungary, where a public tender is organised 
every seven years based on the needs established by the Government.  

Legal  form  requirements  were  reported  to  apply  in  the  Czech  Republic  (natural  persons, 
unlimited liability partnerships or foreign companies providing the same liability guarantees), 
Hungary  (limited  liability  companies),  Germany  (only  natural  persons)  and  Romania  (only 
natural persons, associated offices or civil partnerships).  

Shareholding requirements were reported by the Czech Republic (an insolvency practitioner 
can  only  practice  in  one  unlimited  liability  partnership  or  foreign  company  providing  the 
same liability guarantees) and Romania (the capital must be held by insolvency practitioners, 
who  can  practice  only  in  one  partnership,  with  a  minimum  capital  of  € 10 000).  The 
justifications put forward by Member States were the need to guarantee the independence and 
impartiality  of  professionals  or  to  ensure  the  service  is  provided  directly  by  qualified 
professionals.  The  minimum  capital  requirement  was  deemed  to  enhance  the  liability, 
solvency or personal responsibility of the service provider. 

Tariffs were reported by Germany and Hungary.  

Requirements  imposing  a  minimum  number  of  employees  were  reported  by  Hungary  and 
Lithuania. In Hungary, at least two employees or partners belonging to certain categories of 
professionals, such as lawyers, economists, auditors, etc., are required to provide insolvency 
practitioner services. In Lithuania, a new law requires that at least two persons are available 
with the qualification of corporate restructuring administrator/corporate receivership (be they 
employees or bound by some other contractual arrangement). Again, Member States justified 
this as necessary to ensure that the service is directly provided by qualified professionals. 

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(cid:190)  Restrictions on multidisciplinary activities  

Very  few  Member  States  reported  multidisciplinary  restrictions  on  insolvency  practitioners. 
Hungary  reported  incompatibilities  with  certain  activities  and  Romania  reported  an 
exclusivity  requirement.  However,  similarly  to  requirements  notified  under  Article  15,  in 
cases  where  services  of  insolvency  practitioners  are  reserved  to  a  (different)  regulated 
profession, the requirements applicable to these regulated professions will apply. Moreover, 
in  Member  States  where  general  incompatibilities  apply  to  regulated  professions,  they  may 
also apply to insolvency practitioners.  

6.5.6.2.   Requirements applying to cross-border services  

Very  few  requirements  were  reported  for  insolvency  practitioners  providing  cross-border 
services. However, since these services are often provided by regulated professions, providers 
are often required to submit an annual declaration. In addition, requirements applying to other 
regulated professions may also apply to insolvency-related services.  

In  respect  of  cross-border  services,  authorisation  requirements  were  reported  by  Lithuania 
(only  for  natural  persons,  legal  persons,  by  contrast,  are  subject  to  an  establishment 
requirement),  Slovakia  and  the  United  Kingdom.  They  were  deemed  to  be  necessary  for 
reasons of public policy. More specifically, Member States pointed to the need to ensure the 
protection  of  all  parties  affected  by  insolvency:  individuals  and  businesses,  creditors, 
employees,  shareholders,  the  insolvent  party  etc.,  and  to  ensure  proper  administration  of 
justice.  

The  United  Kingdom  reported  the  obligation  to  take  out  insurance.  However,  the  United 
Kingdom  reported  amending  the  legislation,  to  recognise  professional  liability  insurance 
cover or guarantees obtained in another Member State.  

6.5.7.  Patent/trademark agents 

Patent or trademark agents typically assist and represent clients in securing proper protection 
of their industrial property rights and advise on the impact of rights of others on their client’s 
business. They usually draft the required applications, follow them through the various stages 
on behalf of the applicant, provide advice on the use of  the rights and so forth. In this field, 
the  terms  ‘agent’  and  ‘attorney’  are  sometimes  used  alternatively,  but  there  may  be    some 
differences in competences, especially in respect of in-court representation. 

Patent  agents  and  trademark  agents  are  regulated  professionals  in  many  Member  States.  In 
others,  these  services  are  provided  by  other  professionals,  for  example  lawyers.  In  some 
countries, they are not considered to be a regulated profession. 

6.5.7.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes  

Patent/trademark  agents  seem  to  be  a  regulated  profession  in  16  Member  States.185 
Authorisation  schemes  were  reported  by  the  Czech  Republic,  Estonia,  France,  Germany, 
Hungary, Ireland, Liechtenstein, Lithuania, Luxembourg, the Netherlands (where lawyers can 

185  

Austria,  Belgium, 
Liechtenstein, Luxembourg, the Netherlands, Poland, Portugal, Slovakia and the United Kingdom. 

the  Czech  Republic,  Finland,  France,  Germany,  Hungary,  Ireland,  Italy, 

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also act as patent agents), Portugal, Slovakia and Spain. In some cases, authorisation schemes 
apply to agents of industrial  property rights in general, while  some Member  States reported 
different schemes, depending on the type of industrial property rights. These were generally 
deemed to be necessary to ensure the protection of the recipient and the quality of services.  

(cid:190)  Article 15 requirements 

Very  few  Member  States  reported  Article  15  requirements  specific  to  patents  or  trademark 
agents. However, where Member States apply restrictions to regulated professions in general, 
these restrictions may also apply to patent or trademark agents. Furthermore, if these services 
are  restricted  to  other  regulated  professions,  e.g.  lawyers,  the  regulation  applicable  to  that 
profession will also apply.  

Shareholding requirements: Germany reported that shares must be held by patent agents only 
or  the  majority  must  belong  to  patent  agents  and  the  rest  to  specific  regulated  professions 
(lawyers,  tax  advisers,  auditors,  and  accountants)  and  cited  as  a  justification  the  need  to 
ensure  the  independence  and  impartiality  of  providers.  Liechtenstein  reported  an  obligation 
that the majority of the capital be held by Liechtenstein or EEA citizens and that the executive 
manager be a patent agent. This was again justified by the need to ensure the independence of 
the  patent  agent  and  the  proper  functioning  of  the  legal  system.  Similar  requirements  may 
well exist in other Member States. 

Slovenia  reported  the  requirement  setting  a  minimum  number  of  employees,  justified  by 
public policy and protection of the recipients of services.  

(cid:190)  Restrictions on multidisciplinary activities  

regards  patent  or 

to 
trademark  agents,  only  Germany 
As 
multidisciplinary  activities.  Similar  restrictions  may  however  exist  in  other  Member  States: 
for example, where incompatibilities apply to regulated professions in general, they may also 
apply  to  patent  or  trademark  agents.  Equally,  when  the  service  is  restricted  to  lawyers, 
existing restrictions applicable to this profession will also apply. 

restrictions 

reported 

6.5.7.2.   Requirements applying to cross-border services  

Very  few  Member  States  reported  requirements  applicable  to  the  cross-border  provision  of 
services by patent or trademark agents. However, since these services are often provided by 
regulated  professions,  providers  are  often  required  to  submit  an  annual  declaration.  In 
addition,  requirements  applicable  to  other  regulated  professions  may  also  apply  to  these 
services.  

Slovenia reported a registration requirement.  

Hungary and Liechtenstein reported notification or declaration requirements. 

Austria  imposes  an  insurance  obligation  for  patent  agents  offering  cross-border  services, 
while Slovakia requires  an indication of a delivery or postal address in the national territory. 

Hungary reported a professional ID requirement. 

Liechtenstein  reported  a  ban  on  infrastructure  requirement  since,  by  setting  up  chambers  or 
offices  in  Liechtenstein,  a  patent  agent  is  considered  to  be  established  in  that  country,  for 
reasons of public policy. 

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The  Member  States  gave  various  reasons  justifying  these  requirements  under  public  policy: 
protection  of  recipients,  proper  functioning  of  the  legal  system  and  allowing  authorities  to 
keep reliable statistics.  

6.5.8.  Translators and interpreters  

Translation  and  interpretation  services  are  used  by  public  authorities,  business  and  citizens 
and  play  an  essential  role,  especially  in  cross-border  activities.  Sometimes  the  exact  and 
correct  meaning  is  important  enough  to  require  certified  translation  or  interpretation  and 
Member States’ regulations contain many instances when this is compulsory.  

Translation  and  interpretation  are  regulated  professions  in  several  Member  States.  In  some 
cases, only sworn or certified translators and interpreters (the person needs to be sworn in or 
publicly  appointed  and  services  are  provided  during  court  proceedings  or  with  public 
authorities, the police, etc.) constitute regulated professionals. 

6.5.8.1.   Requirements applying to establishment 

(cid:190)  Authorisation schemes  

It appears that translation and interpretation are regulated professions in Denmark, Germany, 
Greece, Iceland, Poland, Slovakia, Spain and Sweden. In some of these Member States, only 
sworn  or  certified  translators  and  interpreters  are  regulated.  Authorisation  schemes  were 
reported  by  Bulgaria,  the  Czech  Republic,  Denmark,  Germany,  Liechtenstein,  Netherlands, 
Poland, Romania,  Slovenia and  Spain. Slovakia indicated that it has amended its scheme to 
make  authorisation  mandatory  only  for  sworn  translators  and  interpreters,  the  others  being 
subject only to notification. As justification, Member States often cited public policy, public 
security, the proper administration of justice and protection of the recipients of services. 

(cid:190)  Article 15 requirements 

Only a few requirements specific to translators and interpreters were reported by the Member 
States  under  Article  15.  However,  requirements  applicable  to  all  regulated  professions  may 
also apply to translators and interpreters, if these are regulated professions.  

The  Czech  Republic,  Germany,  Poland,  Romania  and  Sweden  reported  that  the  services  of 
translators  and  interpreters  provided  in  court  or  in  other  official  proceedings  are  subject  to 
fixed fees, usually set by legislation or by courts (these tariffs are however not subject to the 
Services Directive when they apply to services provided to the State).   

6.5.8.2.  Requirements applying to cross-border services 

Very  few  Member  States  reported  requirements  applicable  to  the  provision  of  cross-border 
services by translators and interpreters established in other Member States. As far as they are 
regulated  professions,  an  annual  declaration  may  be  imposed,  in  line  with  the  Professional 
Qualification Directive.  

Germany  (at  regional  level)  has  abolished  establishment  requirements  that  applied  to  these 
services but it has maintained authorisations. Authorisation requirements are also maintained 
in  the Netherlands, Slovakia (only for sworn translators and interpreters) and Slovenia. They 
have  been  justified  by  Member  States  by  public  policy.  More  specifically,  Member  States 

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cited  the  need  to  ensure  the  quality  of  the  service  and  the  integrity  of  translators  and 
interpreters, as their services have a direct influence on decisions taken by public authorities. 
Denmark reported information requirements for the benefit of recipients and requirements to 
take out insurance (only applicable to interpreters and translators having the protected title of 
‘translatør’).  

CONCLUSION: 

Business  services  cover  a  wide  range  of  activities,  for  instance  services  of  employment 
agencies, advertising, organisation of exhibitions and trade fairs and debt collection services. 
but also, when services are provided to other service providers, it also includes many other 
services provided by more traditional regulated professions, such as tax advisers, insolvency 
practitioners, patent/trademark agents and interpreters and translators.  

Some  services  are  lightly  regulated.  Others  are  subject  to  stricter  regulation,  for  instance 
employment  agents  and  debt  collectors.  Quite  a  few  are  considered  to  be  a  regulated 
profession  (or  are  reserved  to  a  regulated  profession).  For  certain  business  activities  (e.g. 
employment  agencies,  debt  collection,  translation  and  interpretation  services),  the  level  of 
regulation differs considerably between the Member States, from no/very light regulation to 
major restrictions to the freedom of establishment and to provide services. 

Implementation of the Services Directive led to certain changes. Nevertheless, the discussion 
identified some residual difficulties. Some Member States questioned the level of regulation, 
e.g.  for  translation  and  interpretation  services.  Moreover,  specific  questions  were  raised  as 
regards the cross-border provision of business services in general.  

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6.6. 

Private education services  

The  private  education  sector  encompasses  a  wide  range  of  different  activities.  During  the 
process  of  mutual  evaluation,  the  following  services  were  discussed:  higher  education 
services,  vocational  training,  adult  education,  language,  dancing,  dramatic  arts  and  similar 
courses,  as  well  as  driving  courses.  This  document  does  not  include  any  information  on 
providers  of  primary  or  secondary  education,  neither  does  it  include  information  on 
requirements related  to providers of  courses that do  not have as their objective  professional 
training (except adult education, language, dancing, dramatic arts and similar courses as well 
as driving courses) or on requirements for short-term (e.g. day or week-long) courses.186 

The  provision  of  higher  education  services,  vocational  training  and  driving  courses  is 
regulated  in  most  Member  States.  The  opposite  is  true  for  language,  dancing,  dramatic  arts 
and adult education, which is regulated only in a few Member States. For vocational training 
and driving schools, there are considerable differences in the level of regulation.  

6.6.1.  Higher education services 

Higher education services include any kind of post-secondary (tertiary) academic education, 
such as a private university, college etc. offered by service providers. 
9  Member  States187  did  not  report  any  requirements  related  to  higher  education.  Some 
(Denmark, Finland, Poland and Sweden) explained that higher education services (even those 
offered by private operators) in their Member States are essentially financed by public funds 
and  are  thus  regarded  as  non-economic  services,  which  are  not  covered  by  the  Services 
Directive.  Hungary  and  Slovenia  reported  the  same  but  nevertheless  reported  requirements 
concerning providers established in other Member States.  

6.6.1.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Most  Member  States188  reported  that,  to  ensure  a  high  quality  of  education,  providers  of 
higher education services are obliged to obtain authorisation for establishing and operating a 
higher education institution. In a number of Member States (e.g. Latvia, Lithuania, Portugal, 
Slovakia  and  Spain),  this  is  coupled  with  the  requirement  to  obtain  accreditation  of 
programmes of study offered by the institution.  

In many cases, authorisation schemes do not apply to all higher education institutions, or not 
in the same way. In fact, the main criterion affecting the degree of regulation in the field of 
higher  education  services  often  seems  to  be  the  type  of  diploma  (qualification)  issued  upon 
completion of the course: 

186  

187  
188  

For example, this document does not include information on providers of sailing, surfing, skiing, horse 
riding, parachute jumping, aviation or similar courses. Some of these services, namely those that fall in 
the category of ‘leisure activities’, are dealt with in the section on tourism. 
Belgium, Denmark, Finland, Iceland, Luxembourg, Norway, Poland, Slovakia and Sweden. 
Bulgaria,  Cyprus,  the  Czech  Republic,  Estonia,  France,  Germany,  Greece,  Ireland,  Italy,  Latvia, 
Liechtenstein, Lithuania, Malta, the Netherlands, Portugal, Romania, Spain and the United Kingdom. 

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- for higher education institutions which offer State-approved programmes and issue diplomas 
belonging  to  the  educational  system  of  the  Member  State  in  question  (or  diplomas  that  are 
officially recognised as equivalent to national diplomas), an authorisation or accreditation of 
the  school  issuing  the  diplomas  and  often  also  of  the  programmes  of  study  is  generally 
required, whereas  

- for higher education institutions which issue diplomas that are not officially recognised or 
that issue diplomas belonging to the educational system of another Member State (i.e. cases in 
which a branch of a foreign higher education institution issues diplomas officially recognised 
in the Member State of its primary establishment), the requirement to obtain authorisation is 
often made less stringent or dropped altogether.  

For  example,  Spain  only  regulates  the  provision  of  higher  education  for  institutions  issuing 
diplomas which are officially recognised by the State, while access to the activity of all other 
institutions  is  only  subject  to  information  obligations.  Hungary  reported  that  foreign  higher 
education institutions establishing in Hungary must provide evidence that they are recognised 
as higher education institutions in their country of origin and that diplomas issued by them are 
officially  recognised  in  their  country  of  origin.  Romania  reported  that  branches  of  foreign 
universities  that  issue  diplomas  belonging  to  other  educational  systems  do  not  need 
authorisation. 

By contrast, some Member States (e.g. Latvia, Portugal) seem to require all higher education 
institutions (regardless of the type of  diploma awarded) to be authorised or accredited. The 
justification  given  is  that  all  types  of  higher  education  should  be  regulated  to  ensure  that 
citizens  obtain  high  quality  educational  services  adequately  preparing  them  for  the  labour 
market.  

(cid:190)  Article 15 requirements 

Very  few  requirements  were  reported.  Most  concern  the  legal  form.  Many  Member  States 
require higher education institutions to be set up as a legal person. 

Regarding  the  obligation  to  take  a  specific  legal  form,  in  the  Czech  Republic,  Cyprus  and 
Slovakia,  private  universities  can  be  operated  by  legal  persons  only.  In  Italy,  all  higher 
education institutions must take the form of public law entities. In Estonia, private universities 
must  be  public  limited  companies  or  private  limited  companies  entered  in  the  commercial 
register or a foundation or non-profit association entered into the non-profit associations and 
foundations register. In Liechtenstein, higher education institutions must be either public-law 
institutions/foundations  or  legal  entities  under  civil  law.  Portugal  reported  that  higher 
education  services  can  only  be  provided  by  certain  legal  persons  with  a  specific  corporate 
purpose.  In  Romania,  higher  education  services  can  only  be  provided  by  legal  persons 
operating for no profit. Justifications given by Member States for these requirements varied. 
For example, the Czech Republic and Slovakia cited the nature and complexity of services, 
Estonia  explained  that  the  requirement  was  necessary  to  ensure  better  protection  of 
consumers’  (students’)  rights,  especially  with  regard  to  insolvency  of  the  service  provider. 
Liechtenstein indicated that higher education institutions operated as one-man companies are 
not practicable and they must endure beyond the natural life of individuals.  

By  contrast,  Greece  reported  a  legal  form  requirement  for  private  schools  of  supportive 
teaching  which  can  only  be  provided  by  natural  persons,  thus  excluding  legal  persons  from 
providing these services.  

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Regarding the ban on having more than one establishment, in Greece the same person cannot 
operate more than one private school of supportive teaching.  

Regarding requirements fixing a minimum number of employees, Spain notified a number of 
requirements  concerning  staff  teaching  at  higher  education  institutions  issuing  diplomas 
which  are  officially  recognised  by  the  state.  For  example  in  one  region,  universities  must 
ensure  that  there  is  at  least  one  academic  teacher  per  25  students.  Spain  cited  the  need  to 
ensure an adequate level of training. Portugal also reported a similar requirement. 

6.6.1.2.  Requirements applying to cross-border services  

Higher  education  services  may  be  offered  across  borders,  for  example,  by  way  of  online 
courses or in the framework of educational franchising or validation agreements. Franchising 
and validation agreements are concluded between universities or other institutions of higher 
education which award diplomas, certificates or degrees and educational institutions (or other 
entities) responsible for running study programmes that lead to the award of these diplomas. 
‘Validation’ is a process under which an institution awarding a diploma reviews a programme 
of study developed by another educational institution (i.e. reviews its content, teaching staff, 
facilities  and  resources  available,  etc.)  and,  when  the  outcome  of  the  review  is  positive, 
validates  (authorises)  the  programme  as  leading  to  the  award  of  its  diploma.  Under 
‘franchising’, in principle (given the many variations of this model), an existing programme 
of  study  offered  by  an  institution  awarding  the  diploma  is  submitted  to  be  run  at  a  partner 
institution under the supervision of the awarding institution, culminating in a diploma issued 
by the awarding institution. In both cases, i.e. ‘validation’ and ‘franchising’, the characteristic 
element is that one educational institution is responsible for the day-to-day running of a study 
programme  and  the  other  awards  a  diploma  at  its  completion  and  therefore  guarantees  the 
quality  of  the  programme.    In  case  of  cross-border  educational  franchising/validation 
schemes, the institution issuing the diploma is located in one Member State and the institution 
running the programme in another. 

Not  many  Member  States  reported  requirements  applying  to  cross-border  higher  education 
services.  This  may  be  due  to  the  fact  that  educational  franchising/validation  schemes  are  a 
relatively new development in the area of education services and not all Member States have 
yet  put  in  place  appropriate  regulatory  framework  or  that  appropriate  regulations  have  not 
been  detected  and  screened  due  to  the  particular  characteristics  of  this  type  of  service 
provision  (cooperation  between  institution  providing  services  across  borders  and  the 
institution established in the given Member State).  

Regarding the obligation to have an establishment, Lithuania reported that only State higher 
education  institutions,  private  higher  education  institutions  and  branches  of  foreign  higher 
education institutions established in the Republic of Lithuania can provide study programmes 
and related activities. Lithuania explained that the requirement to have an establishment was 
necessary  to  ensure  compliance  with  public  order  and  national  security  under  national 
legislation.  Greece  requires  providers  of  higher  education  in  dance  and  dramatic  arts  to  be 
established  in  Greece.  Romania  also  notified  an  establishment  requirement  for  higher 
education institutions.  

Italy, Portugal and Slovenia require authorisation for the provision of cross-border services by 
foreign  higher  education  institutions.  Such  requirements  are  typically  justified  by  Member 
States  for  reasons  of  public  policy.  The  Netherlands  reported  authorisation  schemes 
concerning  the  organisation  of  courses  in  public  places  (such  as  lakes,  parks,  etc.).  By 
contrast,  Hungary  has  amended  its  scheme  for  cross-border  services  of  foreign  higher 

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education institutions by replacing the authorisation scheme with a notification requirement. 
Hungary indicated that the notification obligation must be maintained as the status of being a 
student of such institutions gives rise to certain rights in Hungary, such as student cards (and 
related benefits) or student loans.  

Some  Member  States  also  reported  other  schemes  applicable  to  cross-border  services.  For 
instance,  the  German  Land  of  Nordrhein-Westfalen  reported  special  schemes  under  which 
private  universities  and  art  academies  may  cooperate  with  institutions  from  other  Member 
States in the framework of educational franchising (i.e. the diploma is issued by the institution 
located  in  another  Member  State).  Under  these  schemes,  universities  and  academies  must 
submit  evidence  that  the  programme  taught  in  Nordrhein-Westfalen  is  taught  in  the  same 
manner as in the State in which the institution awarding the diploma is established and that 
the  diploma  is  accepted  in  this  Member  State  despite  it  being  conducted  in  Nordrhein-
Westfalen.  

Portugal reported a ban on educational franchising, claiming that it would put the fundamental 
rights  to  high  quality  education  at  risk,  even  with  restrictions  linked  to  the  programmes. 
Regulations on educational franchising also exist in Greece and Cyprus (the latter has recently 
lifted  a  ban  on  cooperation  with  foreign  institutions  in  the  framework  of  educational 
franchising).  

6.6.2.  Vocational training  

Services of vocational training include training services that prepare learners for jobs based in 
manual  or  practical  activities,  traditionally  non-academic  and  related  to  a  specific  trade, 
occupation or vocation. These activities seem to be fairly highly regulated in a great number 
of Member States but considerably less regulated in others.  

6.6.2.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

There appear to be two different types of vocational training courses: those that attest certain 
professional  skills  and  lead  to  a  diploma  and  those  that  do  not  attest  professional  skills  but 
lead to the acquisition of certain general skills, such as first aid skills. For the former, Member 
States typically justify the existence of authorisation schemes by the fact that training leads to 
officially  recognised  titles  or  skills  entitling  the  graduates  to  perform  specific  activities. 
Members States explain that providers of these courses need to be authorised (accredited) to 
ensure  that  instructors/teachers  have  the  necessary  qualifications,  appropriate  teaching 
methods  and  materials/equipment  are  used,  the  programme  covers  the  required  minimum 
content, etc. For the latter type of training course, Member States often indicated that, even 
though the course does not lead to professional qualifications, the skills that it develops are so 
vital  to  society  that  their  teaching  must  be  properly  supervised.  Examples  of  such  courses 
include occupational first aid training or cardiopulmonary resuscitation courses. 

Many Member States reported a very high number of authorisation schemes for the provision 
of  vocational  training.  Others,  including  Cyprus,  Greece,  Iceland,  Liechtenstein,  Malta, 
Norway,  Sweden  and  the  United  Kingdom,  did  not  report  any  authorisation  schemes.189 

189  

Some  of  these  Member  States,  however,  reported  requirements  on  ‘further  education’  or  ‘private 
schools’  which,  depending  on  the  educational  system,  may  also  cover  vocational  training.  Other 

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Certain  Member  States  (e.g.  Hungary,  Romania,  Spain)  reported  different  authorisation 
schemes concerning various kinds of vocational training. Others reported the majority of their 
authorisation  schemes  in  the  same  domain  e.g.  France  (medical  training)  and  Poland 
(agricultural  training).  Some  Member  States,  such  as  Spain,  only  regulate  the  provision  of 
vocational training if the course leads to a diploma that is officially recognised by the State, 
while access to the activity of institutions issuing diplomas which are not recognised by the 
State is subject solely to consumer protection regulations.  

The  Czech  Republic,  Estonia,  Hungary,  Latvia,  Lithuania,  Luxembourg,  Portugal,  Romania 
and  some  regions  in  Spain  reported  more  general  schemes  that  cover  a  higher  number  of 
vocational  training  providers.  However,  in  most  cases,  there  are  specific  authorisation 
schemes  concerning  the  provision  of  particular  vocational  training  such  as,  for  example, 
training for: 

-  technical  staff  (e.g.  workers  in  all  sectors  engaged  in  manual  handling  tasks  in  Ireland; 
operators  of  high-risk  equipment  and  facilities  in  Bulgaria;  personnel  involved  in  highly 
specialised  technical  work  in  the  Czech  Republic;  specialists  in  developing  thermal 
installations projects in Spain; specialists in developing electronic communication networks in 
Portugal); 

- health professionals (further/additional training) (e.g. medical and paramedical staff in the 
Czech Republic; medical professionals in Hungary, France and Germany, sport masseurs and 
doctors in Italy);  

- lawyers (further/additional training) (e.g. trainee lawyers and lawyers in the Netherlands);  

-  teachers  (further/additional  training)  (e.g.  further  education  of  teachers  in  the  Czech 
Republic and Romania);  

-  transport  professionals  (e.g.  transport  operators  and  personnel  managing  or  performing 
roadworthiness testing in Finland; personnel specialised in road transport in Romania);  

- safety specialists (e.g. security advisors in Slovakia; railway transport safety instructors in 
Hungary;  safety  advisors  in  the  transport  of  dangerous  goods  in  Hungary;  industrial  safety 
specialists  in  Spain;  maritime  rescue  specialists  in  Denmark;  fire  security  specialists  in 
France; safety advisors in railway transport in Poland); 

-  environmental  specialists  (e.g.  specialists  in  environmental  management  and  audit  in 
Slovakia,  environmental  specialists  in  soil  contamination  and  environmental  coordinators  in 
Belgium);  

- cave guides (e.g. in Hungary and Slovenia); 

- veterinarians (further/additional training) (e.g. in Germany and Poland); 

- social services professionals (e.g. social service specialists in Germany); 

- aviation personnel (e.g. in Poland); 

- employment services specialists (e.g. in Belgium and Italy); 

- sport professionals (e.g. in Spain and Portugal); 

- agricultural specialists (e.g. in Portugal and Austria, integrated production specialists, plant 
protection products specialists). 

Member  States  reported  schemes  on  ‘adult  education’  which  may  also  cover  vocational  training  — 
these schemes are referred to below. 

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As  a  result  of  implementation  of  the  Services  Directive,  many  authorisation  schemes  and 
procedures  applicable  to  vocational  training  have  been  or  will  be  simplified  and/or 
accelerated.  For  example,  Spain  reported  its  intention  to  make  a  number  of  changes  to 
simplify authorisation schemes that involve more than one authority.  

(cid:190)  Article 15 requirements 

A limited number of Article 15 requirements were reported. Most concern the legal form and 
often require the provider to be a legal person.  

Regarding  quantitative/territorial  restrictions,  France  requires  that  centres  providing  training 
courses  to  certain  medical  professions  are  located  in  cities  in  which  regional  hospitals  are 
located  to  ensure  that  students  have  access  to  technical  training  at  the  departments  of  the 
hospital. 

Regarding  the  obligation  to  take  a  specific  legal  form,  in  the  Czech  Republic,  advanced 
vocational  education  can  be  provided  only  by  legal  persons.  In  Estonia,  providers  of 
vocational  training  must  be  legal  persons  in  order  to  ensure  the  protection  of  consumers’ 
rights,  including  in  the  event  of  insolvency.  Romania  reported  a  number  of  obligations  on 
vocational  training  providers  to  be  legal  persons.  By  contrast,  the  Netherlands  reported 
abolishing  a  legal  form  requirement  for  training  organisations  that  train  persons  for  the 
obligatory ‘integration exam’. These services can now also be provided by natural persons. 

Regarding  the  reserve  of  activity,  in  Belgium  supplementary  and  further  training  of 
entrepreneurs  can  only  be  provided  by  recognised  professional  and  inter-professional 
organisations of small and medium-sized businesses. These limits were deemed necessary to 
guarantee the availability and quality of training. 

Regarding requirements setting a minimum number of employees, Spain notified a number of 
requirements  concerning  the  ratio  between  students  and  teachers  in  vocational  training 
institutions issuing officially recognised diplomas to ensure an adequate level of training.  

6.6.2.2.  Requirements applying to cross-border services  

A high number of requirements, in particular authorisation schemes, were reported for cross-
border  providers  of  vocational  training.  Some  Member  States  indicated  that  a  distinction 
should  be  made  between  providers  that  offer  courses  leading  to  a  certificate  or  diploma 
officially  recognised  in  the  host  Member  State  and  those  that  do  not.  Member  States  often 
justified such requirements by the need to ensure a high level of training and cited reasons of 
public  policy  or  a  combination  of  the  four  reasons  set  out  in  Article  16  of  the  Services 
Directive.  

Lithuania  requires  permanent  establishment  for  providers  of  vocational  education  services, 
explaining  that  it  was  necessary  to  ensure  the  required  high  level  of  education.  Poland 
requires permanent establishment for providers of training for safety advisers, explaining that 
it was needed to ensure the right level of training, identification of providers and to carry out 
controls.  

Many  Member  States  notified  authorisation  requirements  for  providers  of  cross-border 
vocational training, for example: Ireland (training of workers in all sectors of work engaged in 
manual  handling  tasks),  Slovenia  (training  in  plant  protection  medicine  and  training  for 
lifeguards), Lithuania (vocational training in general); Germany (training of psychotherapists, 
further  training  for  doctors);  Spain  (hygiene-sanitary  training);  Belgium  (training  for 

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environmental  specialists  in  soil  contamination,  environmental  coordinators,  employment 
services specialists, entrepreneurs), Romania (training for technical staff), France (training for 
fire security specialists, health professionals, persons working with asbestos), Poland (training 
in  trading,  packaging  and  application  of  plant  protection  products).  Portugal  imposes 
authorisation  schemes  for  courses  on  agriculture,  courses  for  driving  instructors  and  deputy 
directors  of  driving  schools,  courses  for  electronic  communication  networks  developers, 
training courses for managers of sport facilities, training courses in health and safety at work. 
However,  the  authorisation  procedure  for  a  number  of  these  courses  in  Portugal  is  in  the 
process of being replaced by declarations. The justification often used by Member States for 
authorisation concerns the need to ensure a high level of training through prior accreditation 
of training programmes. 

Hungary  requires  a  declaration  from  organisers  of  training  in  connection  with  the  fire 
protection  examination.  It  explained  that  the  authority  needs  to  be  informed  about  the 
activities of such providers and be able to monitor them.  

6.6.3.  Adult education and arts, language, dancing schools 

Adult  education  covers  all  types  of  training  for  adults  who  have  left  initial  education  and 
training,  however  far  that  process  went.  It  includes  learning  for  personal,  civic  and  social 
purposes  (and  can  therefore  encompass  arts,  language  and  dancing  classes),  as  well  as  for 
employment-related  purposes  (therefore  encompassing  vocational  training).  The  concept  of 
arts, language, dancing and similar schools covers any kind of school or training in this area 
which  is  not  part  of  a  formal  education  (for  example  it  does  not  cover  higher  education  in 
these fields).  

Only  some  Member  States  reported  general  schemes  concerning  adult  education  covering 
training in arts, language and dancing, but also, in certain cases cover vocational training. In 
most  Member  States,  there  are  no  specific  requirements  for  schools  offering  non-formal 
training in dramatic arts, dancing or language. However, a number of Member States reported 
specific schemes applicable to these courses.  

6.6.3.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Estonia,  France,  Hungary,  Lithuania  and  Spain  reported  authorisation  schemes  concerning 
adult education. These schemes are often justified by Member States by the fact that providers 
of adult education services issue officially recognised diplomas, hence the need to ensure an 
appropriate level of education.  

Relatively  few  Member  States,  including  Austria,  the  Czech  Republic,  Estonia,  France, 
Greece,  Malta,  Slovakia  and  Spain190  reported  authorisation  schemes  for  non-formal 
education  in  dramatic  arts,  dancing  or  language.  These  Member  States  usually  require 
providers to obtain an authorisation, citing various justifications ranging from ensuring a high 
level of education, safety of recipients of services, protection of consumers, transparency, tax 
records and the protection of neighbours of these establishments from emissions.  

190  

Spain explained that (except in the regions of the Basque Country and Andalusia) only art schools with 
programmes resulting in officially recognised art qualifications are subject to authorisation schemes. 

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The  remaining  Member  States  did  not  report  any  authorisations  in  this  area.  Finland  and 
Sweden  indicated  that  private  language  schools  or  private  schools  in  visual  arts  were 
regulated  to  the  extent  any  business  activity  is  regulated  and  do  not  require  any  specific 
licence.  

Malta reported that schools teaching English as a foreign language required an authorisation. 

The  Czech  Republic  imposes  an  authorisation  scheme  for  operating  a  language  school 
authorised to conduct state language exams and issue official certificates.  

Slovakia reported an authorisation scheme for education in arts culminating with an official 
certificate.  To  provide  such  education,  one  must  have  completed  studies  at  an  art  school  or 
have ten years' experience. Similarly, Slovakia reported an authorisation scheme for education 
in  foreign  languages  culminating  with  an  official  certificate,  which  also  requires  completed 
study  of  languages  at  university  level  or  certificate  of  the  state  language  examination, 
alternatively proof of a ten-year stay in a country that has same the official language as the 
one to be taught.  

Spain  reported  that,  in  some  regions,  an  authorisation  is  required  for  non-formal  music 
education.  

Estonia  imposes  a  registration  obligation  reported  as  an  authorisation  for  non-academic 
schools  and  their  curricula  explaining  that  these  requirements  are  justified  by  public  safety 
(safety of the children attending the school), public health (health protection of the children 
attending  the  school),  protection  of  consumers  and  users  of  the  service  (protection  of  the 
rights  of  the  parents  and  the  children),  social  and  cultural  policy  objectives,  protection  of 
users of the service in case of insolvency of the school and the need to ensure a high level of 
the education.  

Greece notified authorisation schemes for language schools, music schools and private dance 
schools  for  amateurs.  Greece  justifies  the  authorisation  schemes  by  the  need  to  protect 
recipients of services, fight fraud and unfair competition and ensure transparency and a high 
level of education.  

France requires providers of dance classes to obtain an authorisation.  

In  Austria,  a  number  of  regions  also  impose  authorisation  schemes  on  providers  of  dance 
lessons.  

(cid:190)  Article 15 requirements 

Very few Article 15 requirements were reported. They would appear to be very exceptional.  

Austria abolished a ban on having more than one establishment applicable to dancing schools. 

Regarding  quantitative/territorial  restrictions,  in  Greece,  authorisation  to  open  a  private  art 
school can be refused if similar schools already exist in the same district. 

Regarding the obligation to take a specific legal form, in Estonia all private schools (and non-
academic  schools)  must  take  the  form  of  a  legal  person  governed  by  private  law  to  ensure 
better protection of consumers’ rights, including in the event of insolvency of the provider.  

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6.6.3.2.  Requirements applying to cross-border services  

Only  a  very  limited  number  of  requirements  were  reported  in  this  area.  The  requirements 
applicable to cross-border services were typically justified by Member States as necessary to 
ensure a high level of training, citing reasons of public policy.  

Greece reported an obligation to have an establishment in Greece for non-formal training in 
dancing, explaining that both the facilities and staff's qualifications needed to be checked. 

France required providers of adult education and dance classes to obtain an authorisation.  

Austria notified a number of authorisations applicable to dancing schools. 

A declaration is required in Hungary for providing adult education.  

6.6.4.  Driving courses 

All (or at least almost all) Member States regulate driving lessons. Some apply specific rules, 
in particular authorisations, to driving instructors as well as to driving schools, whereas other 
Member States only have rules applicable to driving instructors.  

Driving instruction is often considered to be a regulated profession. In some Member States, 
driving school operators/managers are also considered to be regulated professionals. 

6.6.4.1.  Requirements applying to establishment 

(cid:190)  Authorisation schemes 

Driving instruction seems to be a regulated profession in 17 Member States.191 Authorisation 
schemes for driving instructors were reported by 24 Member States.192  
Driving school owners/managers seem to be regulated professionals in four Member States.193 
Authorisation  schemes  for  driving  schools  were  reported  by  21  Member  States.194  Latvia 
reported that it had abolished its scheme.  

Many  Member  States  reported  separate  authorisation  schemes  for  training  non-professional 
drivers and professional drivers (e.g. taxi drivers, bus drivers, transport vehicles drivers). 

To  justify  such  authorisation  schemes,  Member  States  generally  cited  public  safety  reasons 
and  the  need  to  ensure  that  services  are  delivered  by  qualified  driving  instructors  using 
approved facilities and, in particular, approved vehicles.  

Driving school operators must typically comply with the following (or similar) requirements: 
employ licensed driving instructors, have specific teaching facilities and in particular specific 
vehicles, practice areas and theoretical training areas. Sometimes operators must also comply 

191  

192  

193  
194  

Belgium,  Bulgaria,  the  Czech  Republic,  Denmark,  Finland,  France,  Greece,  Iceland,  Malta,  the 
Netherlands, Norway, Poland, Portugal, Slovakia, Spain, Sweden and the United Kingdom. 
Austria,  Bulgaria,  Cyprus,  Denmark,  Estonia,  Finland,  France,  Germany,  Greece,  Hungary,  Iceland, 
Ireland,  Italy,  Latvia,  Lithuania,  Luxembourg,  Malta,  Norway,  Poland,  Romania,  Slovakia,  Slovenia, 
Spain and the United Kingdom. 
Belgium, the Czech Republic, France and Spain. 
Austria,  Bulgaria,  Cyprus,  Estonia,  Finland,  France,  Germany,  Greece,  Hungary,  Iceland,  Italy, 
Lithuania,  Luxembourg,  Malta,  Norway,  Poland,  Portugal  Romania,  Slovenia,  Spain  and  Sweden 
(Sweden  explained  that  the  authorisation  scheme  for  driving  school  operators/managers  encompasses 
the  right  to  manage  a driving  school  as  well  as  the  right  to  provide  education and driving  training to 
students). 

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with  specific  requirements  regarding  the  course  content,  duration  of  training,  organisational 
structure etc. For example, in Portugal, driving schools must have a qualified deputy director. 
In  Cyprus,  in  order  to  obtain  a  licence  for  opening  a  driving  school,  the  applicant  must 
comply with conditions concerning age, good repute, experience, facilities and staff.  

Finally,  certain  Member  States  also  reported  authorisation  schemes  for  additional  training. 
For  example,  Sweden  notified  risk  training  for  learner  drivers  of  passenger  cars  and  motor 
cycles, training for learner drivers of mopeds, snowmobiles and off-road vehicles (quads) and 
a scheme providing training to ‘tutors’ who have a right to train learner drivers. Luxembourg 
reported additional mandatory training for drivers.  

(cid:190)  Article 15 requirements 

A  certain  number  of  requirements  applicable  to  driving  schools  were  notified.  Several, 
however, have been or are being abolished.  

As a result of implementation of the Services Directive, Spain reported that it had abolished a 
ban on having more than one establishment of driving school operators. Slovenia reported that 
it  had  abolished  the  requirement  under  which  driving  schools  must  employ  at  least  three 
driving teachers and one expert supervisor and the requirement that all providers (including 
those  providing  cross-border  services)  must  have  specific  learning  facilities  for  road  safety 
teaching in Slovenia. 

Finland  reported  as  quantitative/territorial  restrictions  the  fact  that  a  licence  to  instruct 
(learner)  taxi  drivers  is  restricted  to  a  particular  region,  i.e.  it  does  not  cover  Finland  in  its 
entirety.  A  similar  situation  exists  in  Poland,  where  permits  for  various  types  of  drivers 
training  are  valid  only  in  the  area  in  which  the  issuing  authority  is  competent.195  Portugal 
reported a ban on setting up driving schools at a distance of less than 500 m from one another. 
Portugal explains that the requirement contributes to a wider territorial distribution of training 
providers but adds that it is currently considering repealing this requirement. 

Regarding  the  obligation  to  take  a  specific  legal  form,  some  Member  States  reported  rules 
under which providers of certain driving training must be legal persons: Finland (training for 
truck drivers/bus drivers, training for taxi drivers) and Estonia (all driving schools). In Malta 
driving  instructors  can  only  offer  their  services  through  an  authorised  driving  school. 
Requirements are typically justified by the need to ensure adequate quality of training. 

Luxembourg has maintained a maximum tariff for services provided by driving schools.  

6.6.4.2.  Requirements applying to cross-border services  

A  relatively  high  number  of  authorisations  for  the  cross-border  provision  of  driving 
instruction  were  reported.  In  addition,  some  Member  States  reported  an  obligation  to  have 
established  certain  infrastructure  in  their  territory.  It  would  seem  that,  similarly  to  the 
situation  concerning  established  operators,  the  cross-border  provision  of  driving  instruction 
remains strongly regulated. 

Regarding the obligation to have an establishment, Norway reported that all driving schools 
must  have  a  permanent  establishment  in  Norway  in  order  for  it  to  carry  out  non-notified 
controls.  

195  

Although  they  were  reported  under  Article 15,  these  requirements  may  constitute  restrictions  falling 
within  the  scope  of  Article  10(4)  of  the  Services  Directive  (i.e.  the  rule  according  to  which 
authorisations should be valid throughout the national territory and not limited to a particular area). 

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A  number  of  Member  States  reported  that  the  authorisation  schemes  for  driving  instructors 
(Denmark,  Ireland,  Malta  and  the  United  Kingdom)  or  driving  schools  (Bulgaria,  Cyprus, 
Denmark, France, Iceland, Norway, Portugal196 and Slovenia are also applied for cross-border 
service providers.  

Poland requires all providers of driving school services to have adequate infrastructure within 
its territory. 

CONCLUSION: 

The  private  education  sector  encompasses  a  wide  range  of  different  activities,  including 
higher education services, vocational training, adult education, language, dancing, dramatic 
arts  courses  and  driving  courses.  The  provision  of  higher  education  services,  vocational 
training  and  driving  courses  are  relatively  strongly  regulated  in  most  Member  States.  The 
opposite  is  true  for  non-formal  training  in  language,  dancing  and  dramatic  arts,  which  is 
regulated only in a few Member States.  

As regards the establishment of branches of higher education institutions, it seems that there 
are substantial disparities between the regulatory approaches adopted by the Member States. 
In some cases, the extent of regulation varies depending on the nature of the diploma issued 
upon  completion  of  the  course  (i.e.  between  diplomas  that  are  officially  recognised  in  the 
Member  State  in  question  and  those  officially  recognised  in  another  Member  State),  while 
others do not make this distinction. 

Implementation of the Services Directive has led to certain changes. In particular, a number 
of  requirements  falling  under  Article  15  of  the  Services  Directive  have  been  made  less 
stringent or abolished.  

However, a number of Member States have maintained major restrictions, e.g. establishment 
requirements,  which  exclude  the  cross-border  provision  of  services.  The  existence  of  these 
requirements has been questioned in discussions between Member States. Similarly, a number 
of Member States have identified residual difficulties regarding cross-border services in the 
area of educational franchising, vocational training and driving courses.  

196  

Portugal  reported  that  authorisation  applies  only  to  cross-border  service  providers  who  set  up 
(temporary) driving schools in Portugal. 

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7. 

STAKEHOLDER CONSULTATION 

7.1. 

Introduction 

A  public  consultation  was  held  as  part  of  the  mutual  evaluation  process.  Interested  parties 
were consulted on the results of the review of legislation carried out by Member States during 
the  implementation  period  (as  required  by  Article  39(2)  of  the  Directive).  The  objective  of 
this consultation was to get the views of consumers, businesses and other interested parties on 
the results achieved and on the areas where problems for stakeholders persist.  

The public on-line consultation took place between 30 June and 13 September 2010. 

Replies  came  from  a  wide  range  of  respondents:  individual  citizens  (mostly  exercising  a 
regulated profession), trade unions, consumer protection associations, chambers of commerce, 
individual business, companies and business organisations.  

The  consultation  did  not  cover  all  aspects  of  implementation  of  the  Services  Directive  but 
focused,  in  line  with  Article  39(2)  of  the  Directive,  on  national  measures    covered  by  the 
mutual evaluation process. Nevertheless, some replies covered a wider range of issues (from 
general statements on the functioning of the internal market for services to issues such as the 
Points  of  Single  Contact).  These  are  not  reflected  here  but  all  replies  are  available  online, 
together with a summary, at:  

http://ec.europa.eu/internal_market/consultations/2010/services_directive_en.htm  

7.2. 

The results of the consultation in detail 

7.2.1.  Authorisations (Article 9) 

Most  of  the  replies  received  concerned  authorisation  schemes.  In  most  cases,  respondents 
considered that the specific authorisations were (still) too burdensome and could be simplified 
or, in some cases, abolished. Comments also concerned the scope of horizontal/cross-cutting 
authorisation schemes, which many respondents suggested reducing (to exclude simpler/less 
dangerous activities).  

Examples specifically mentioned in the replies included the general trade licence required in 
Luxembourg  (considered  as  disproportionate),  and  authorisation  schemes  for  certain 
professions,  e.g.  for  certain  land  surveyors.  The  construction  sector  was  singled  out  by  a 
number  of  respondents,  who  identified  an  excess  of  different  authorisations  (sometimes  for 
rather simple activities). Other respondents highlighted authorisations required in the tourism 
sector,  in  particular  for  schemes  regulating  activities  in  certain  sites  or  areas  (considered  as 
excessive or fragmenting the profession), in addition to specific requirements of professional 
qualifications. 

Significant problems of duplication and opaque authorisation procedures were highlighted for 
retail establishments, sometimes aggravated by economic needs tests and an involvement of 
competitors in decisions on individual cases. Respondents specifically mentioned the situation 
in Belgium, Germany (in some Länder), Luxembourg and Spain (in some regions).  

By  contrast,  some  consumer  protection  organisations  stated  in  general  that  eliminating 
authorisations could be detrimental to consumers.  

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7.2.2.  Requirements covered by Article 15 

Several  respondents  addressed  Article  15  requirements,  in  particular  requirements  as  to  the 
legal  form  of  service  providers.  In  many  cases,  these  were  considered  as  unjustified  or 
disproportionate.  

For  instance,  several  respondents  raised  questions  regarding  legal  form  requirements,  in 
particular  cross-cutting  requirements  imposed  on  all/many  regulated  professions  (France, 
Italy, Latvia and Spain were mentioned as examples). A number of replies raised problems as 
regards legal form requirements imposed on veterinarians, in particular in France. Restrictions 
on  accountants,  in  particular  shareholding  requirements  in  France,  were  also  raised  as  were 
tariffs, in particular tariffs imposed on lawyers, architects and engineers in Greece. The ban 
on  lawyers  having  more  than  one  establishment  in  Greece  was  also  flagged  as  a  major 
problem  for  professionals.  Several  replies  addressed  the  issue  of  reserve  of  activities. 
Examples included the reserve of activity in the case of training in crafts, which in France can 
only  be  provided  by  the  Chamber  of  Crafts,  and  the  reserve  of  activity  in  the  case  of  real 
estate administrators in Spain.  

By  contrast,  several  replies  to  the  consultation  sent  by  representatives  of  regulated 
professions,  in  particular  professional  associations,  stated  that  there  were  no  unjustified  or 
disproportionate requirements in their Member State.  

7.2.3.  Restrictions on multidisciplinary activities (Article 25) 

Few  replies  addressed  restrictions  on  multidisciplinary  activities.  However,  several 
respondents  raised  the  issue  of  restrictions  on  multidisciplinary  activities  for  land  surveyors 
(in France), tourist guides (in Italy) and veterinarians (in France).  

7.2.4.  Requirements for cross-border services (Article 16) 

A  great  many  replies  addressed  the  requirements  imposed  on  cross-border  services.  Many 
identified specific examples of requirements applicable to cross-border provision of services 
that  respondents  deemed  to  be  either  unjustified  on  the  basis  of  the  four  reasons  set  out  in 
Article  16  or  as  overly  burdensome/disproportionate.  In  many  cases,  respondents  also 
described  lengthy  and  burdensome  procedures.  In  several  cases,  respondents  reported 
problems  of  duplication  of  requirements  (i.e.  where  a  requirement,  such  as  a  training 
obligation, is imposed both by the Member State of establishment  and the Member State in 
which  the  service  is  provided  including  areas  covered  by  EU  instruments.  Respondents 
considered  that  a  multiplication  of  requirements  should  be  avoided.  Some  respondents  also 
expressed general concerns over the correct implementation of the Services Directive in this 
respect.  

Requirements  specifically  mentioned  include  cross-cutting  requirements,  such  as  the 
LIMOSA  system  in  Belgium  and  the  RUT-register  in  Denmark.197  Others  concern  a  wide 
variety  of  different  requirements  applicable  to  many  different  services,  for  instance:  prior 

197  

LIMOSA  is  a  mandatory  declaration  applicable  to  non-Belgian  employers  and  self-employed  person 
which  intend  to  carry  out  temporary  activities  in  Belgium.  This  declaration  must  be  submitted 
electronically  and  in  advance.  RUT  is  a  register  where  non-Danish  service  providers  need  to  be 
registered before providing services in Denmark in respect of posted workers but also, according to one 
of  the  respondents  to  the  consultation,  soon  to  be  applicable  to  self-employed  non-Danish  service 
providers. 

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authorisation procedures for scaffolding work (described as very stringent and burdensome in 
Denmark); mandatory safety training in the construction sector (Ireland, Luxembourg, Spain 
and  the  UK  were  mentioned  as  not  taking  into  account  training  in  other  Member  States  ); 
certification  requirements  for  services  provided  by  electricians,  plumbers  and  heating 
installers  (in  Denmark  and  Sweden),  waste  management  and  restrictions  to  commercial 
communication for veterinarians. Many respondents addressed insurance obligations (e.g. for 
real  estate  services  in  Spain),  travel  agents  (in  general)  and  insurance  in  the  construction 
sector (in France).  

7.2.5.  Relationship between other EU legislation and the Services Directive 

A  recurring  concern  raised  by  many  respondents  is  the  relationship  between  the  Services 
Directive  and  other  EU  instruments.  Several  respondents  considered  that  there  is  room  for 
improving  the  application  of  certain  EU  instruments  by  national  administrations  and 
considered that the European Commission should provide clarification on the applicable rules 
in  areas  also  covered  by  other  EU  legislation.  Other  EU  instruments  that  were  specifically 
mentioned  include  Directive  2005/36/EC  on  the  recognition  of  professional  qualifications; 
Directive  90/314/EEC  on  package  travel,  package  holidays  and  package  tours;  Directive 
2008/98/EC  on  waste  and  repealing  other  directives  (Waste  Framework  Directive)  and 
Regulation (EC) No 1013/2006 on shipments of waste. 

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ANNEX  

THE REGULATORY FRAMEWORK APPLICABLE TO SERVICES IN THE EU 

IMPROVEMENTS AFTER THE IMPLEMENTATION OF THE SERVICES DIRECTIVE 

The  regulatory  framework  applicable  to  services  in  the  EU  has  improved  considerably  with 
the implementation of the Services Directive. This improvement is still ongoing as a number 
of  Member  States  have  not  yet  completed  all  the  changes  required  to  comply  with  the 
Directive198.  

In addition to adopting legislation implementing the general principles and provisions of the 
Directive  in  a  horizontal  manner,  most  Member  States  have  undertaken  a  thorough 
examination  of  the  requirements  they  imposed  on  service  providers  wanting  to  establish  in 
their territory or wanting to provide services there on a temporary basis. Many Member States 
have abolished or modified requirements that were found to be discriminatory, unjustified or 
disproportionate. To illustrate the concrete results of this work, this annex presents a number 
of  examples  of  important  changes  made  as  well  as  some  of  the  sectors  that  are  expected  to 
benefit the most from these changes.  

IMPROVEMENTS TO THE LEGAL FRAMEWORK APPLICABLE TO THE ESTABLISHMENT OF 
SERVICE PROVIDERS  

Important progress has been made as regards prior authorisation schemes – one of the most 
common requirements imposed on service providers.  

In those Member States where cross-cutting authorisation schemes are in place (i.e. schemes 
applied  generally  to  service  activities  or  at  least  to  a  high  number  of  different  service 
activities)  a  number  of  changes  have  been  introduced  to  make  them  less  burdensome.  For 
instance, in Slovakia all authorisations covered by the Trade Licences Act have been replaced 
by  declarations.  Malta  has  replaced  a  good  number  of  authorisation  procedures  under  its 
general trading licence by declarations. So has Hungary, as regards the general authorisation 
scheme in the retail sector and the new act on individual entrepreneurs. Similar changes are 
pending in Bulgaria and have been announced by Cyprus.  

Sector-specific authorisation schemes have been abolished or simplified in a number of key 
economic sectors.  

For  instance,  in  the  retail  sector  there  have  been  significant  improvements  in  particular  as 
regards  the  conditions  for  the  opening  of  large  and  medium-sized  retail  establishments. 
"Economic  needs  tests"  (such  as  the  making  of  the  granting  of  an  authorisation  subject  to 
proof  of  the  existence  of  a  market  demand)  in  authorisation  regimes  applicable  to  retail 
services have been eliminated in Belgium, France, Italy and Spain. The Netherlands have 
introduced in their zoning regulations an explicit prohibition of such practices. Luxembourg 
and  Greece  have  announced  similar  changes  to  their  existing  authorisation  schemes. 

198  
On  the  basis  of  the  information  reported  to  the  Commission  by  Member  States  themselves  this  is 
notably the case of Cyprus, Greece, Lithuania, Portugal and Slovenia where a high number of planned changes 
have  been  reported.  Work  also  seems  to  be  ongoing  in  countries  like  Austria,  Bulgaria,  Ireland,  Latvia  or 
Luxembourg.  

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Furthermore,  some  Member  States  like  France,  Italy  or  Spain  have  raised  the  thresholds 
above which retailers need to apply for an authorisation, thus facilitating the establishment of 
smaller  retailers.  In  addition,  the  criteria  for  the  granting  of  authorisations  have  often  been 
clarified and/or simplified. Authorisation schemes applicable to the retail of specific products 
have in a number of occasions also been abolished, modified or replaced by declarations. The 
regulatory framework for other forms of retail such as itinerant sales (e.g. in Germany, Italy, 
Latvia, Spain or the United Kingdom) or franchises (e.g. in Spain) has also been simplified. 

In  the  field  of  construction,  a  high  number  of  authorisation  schemes  that  were  previously 
imposed on service providers have also been abolished or made less stringent. The examples 
are as varied as services in the construction sector are. For instance, changes in Sweden cover 
activities such as the inspection of lifts and other motor-driven installations and in Hungary 
activities  such  as  energy  efficiency  certification  or  design  of  built-in  fire  protection 
installations.  Of  a  more  cross-cutting  nature  are  changes  such  as  those  in  Latvia  where  the 
obligation  imposed  on  professionals  working  in construction activities  to  obtain  a  "builder's 
practice certificate" is being replaced by a registration obligation and those in Bulgaria where 
changes  have  been  adopted  in  order  to  recognise  registrations  already  made  in  another 
Member  State.  In  Portugal  a  horizontal  authorisation  scheme  imposed  on  several 
construction service providers has also been reported as in the process of being modified. 

Other sector-specific authorisation schemes applying to very different service activities have 
been abolished or simplified in a number of key economic sectors and in a good number of 
different Member States. Besides construction and retail, the sectors of tourism and business 
services seem to have been among the main beneficiaries of this simplification.  

Clearly,  there  has  been  a  trend  in  a  number  of  Member  States  to  replace  authorisations  by 
declarations.  Italy  has  established  a  general  principle  that  all  economic  activities  that 
previously required an authorisation (save in exceptional cases) can be started upon filing a 
simple  declaration  to  the  competent  authorities;  in  Hungary  more  than  50  authorisation 
schemes  have  been  replaced  by  declarations  (for  various  activities  ranging  from  tourist 
guides,  private  recruitment  agencies  to  property  management);  in  Spain,  more  than  30 
authorisation  schemes  in  the  area  of  industrial  services  have  been  replaced  by  declarations 
(e.g. companies installing high voltage lines, high pressure equipment or lifting equipment), 
etc, etc. Administrative simplification efforts have also been directed to eliminate duplication 
of authorisations.   

It  is  also  important  to  stress  that  most  Member  States  have  by  now  incorporated  in  their 
national legal systems the principle of tacit agreement in the granting of authorisations, their 
unlimited duration or the recognition of their national validity. 

Other  changes  in  legislation  affecting  the  establishment  of  service  providers  have  been 
particularly  important  in  the  area  of  the  regulated  professions.  A  number  of  legal  form 
requirements (such as the obligations imposed on providers of certain services to operate as 
natural persons or under specific legal forms) have been abolished or made less stringent: for 
example, in Poland for the legal professions and tax advisers, in Germany for architects and 
engineers and in France for accountants. Other activities benefiting from this type of changes 
include recovery of debt services in Belgium, real estate agents and accountants in Denmark, 
travel agents in Spain and itinerant sales in Italy. Similar changes are pending in Portugal, 
Estonia  or  Lithuania.  Equally  burdensome  for  the  regulated  professions  are  capital 
ownership  requirements  (such  as  the  obligations  to  have  a  specific  qualification  in  order  to 
hold capital, thus limiting the amount of capital that can be held by third parties). These have 

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been made less stringent in several cases. Important changes, due to their cross cutting nature, 
have been adopted to raise the amount of capital that can be owned by third parties (i.e. non-
professionals)  in  companies  providing  professional  services  for  instance  in  France  or  in 
Spain (in both countries such external participation in capital can now go up to 49%). Other 
important  changes  related  to  shareholding  restrictions  are  pending,  for  instance  in 
Luxembourg for crafts. 

Minimum  capital  requirements  (i.e.  the  obligation  to  have  a  minimum  amount  of  capital  in 
order to start an activity) have also been abolished in a number of Member States, notably in 
the  tourism  sector,  for  instance,  for  travel  agencies  in  Spain  or  Belgium  (similar  changes, 
covering car rental too, are pending in Portugal). Quantitative and territorial restrictions (for 
instance,  requirements  fixing  the  number  of  providers  according  to  population  or  through  a 
minimum  geographical  distance  between  them)  have  also  been  abolished  -  or  are  in  the 
process of being abolished – in a number of cases. This has been done as regards activities as 
varied as the establishment of petrol stations in Italy and Spain, travel agencies in Italy or the 
services of ski schools in Austria. Similar changes have been notified as pending in Cyprus, 
Greece  and  Portugal.  A  similar  type  of  restriction  -  bans  on  having  more  than  one 
establishment - have been abolished in some Italian and Austrian regions for ski instructors 
or  in  France  for  veterinaries,  while  their  abolition  is  pending  in  Greece  for  employment 
agencies.  

Important progress has been made as regards compulsory tariffs. In some cases, this has led to 
a complete abolition of all tariffs such as in the case of Malta. In others, changes affect all 
tariffs for specific types of service activities such as in the case of Italy where all legislation 
providing for compulsory fixed and minimum tariffs as regards liberal professions has been 
repealed or in the case of Spain where professional associations are no longer allowed to set 
up indicative tariffs (and where compulsory tariffs had already been abolished). Tariffs have 
also  been  abolished  for  specific  services  such  as  architect  services  in  Belgium,  veterinary 
services in Romania, employment agency services in Ireland, waste management services in 
Belgium,  catering  services  in  Hungary,  and  tourist  and  mountain  guide  services  in  Italy. 
Germany  has  abolished  tariffs  for  some  of  the  services  provided  by  architects.  A  general 
reform to eliminate tariffs applicable to several regulated professions is pending in Greece. 

Finally, obligations to exercise an activity exclusively or restrictions on exercising the activity 
jointly  or  in  partnership  have  also  been  abolished,  for  instance  in  Belgium  and  Spain  for 
travel  agencies,  in  Cyprus  for  real  estate  agents  and  building  contractors  or  in  France  for 
auctioneers.  In  some  cases  they  have  been  significantly  lightened  such  as  in  the  case  of 
Poland for advocates, legal advisors, tax advisors and patent agents.  

IMPROVEMENTS  TO  THE  LEGAL  FRAMEWORK  APPLICABLE  TO  THE  CROSS-BORDER 
PROVISION OF SERVICES  

Many  Member  States  have  made  important  changes  aiming  at  lifting  unjustified  barriers  to 
the  provision  of  cross-border  services  into  their  territory.  The  inclusion  of  “free  movement 
clauses” in the new horizontal laws or in sector-specific legislation should greatly improve the 
situation of business and self employed wanting to provide services across borders.  

These  general  clauses  have  been  often  accompanied  by  further  modifications  in  existing 
legislation. As a result, most of the remaining establishment requirements (i.e. requirements 
obliging the service provider to be established in the country before it can provide the service) 
have been abolished. Some of the changes, such as those in the commercial code in Portugal, 

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are  particularly  relevant  because  of  their  cross-cutting  nature.  Specific  establishment 
requirements  have  been  abolished  for  services  in  important  sectors  such  as  the  construction 
and  maintenance  sectors  (for  instance  in  Austria  or  Germany),  the  tourism  sector  (in 
Belgium,  Spain  or  Slovenia),  the  business  services  sector  (such  as  for  interpreters  and 
translators in Germany) or regarding inspection services (The Netherlands). Plans aiming at 
abolishing establishment requirements remaining in different sectors (such as land surveying 
activities or property and business assessment services) exist in Slovenia and Lithuania. 

Prior  authorisations  imposed  on  those  that  want  to  provide  cross-border  services  have  also 
been  removed.  Again  some  of  these  changes  are  particularly  important  due  to  the  cross 
cutting nature of the laws they modified or their large scope. For instance, in the case of the 
changes to the Foreign Branches Act in Sweden, to the obligation to obtain a trade licence in 
the Czech Republic, to the Trading Licence Act in Malta, to the National Court Register and 
the Register of Business Activity in Poland, and to the general business registers in Belgium. 
Changes  of  a  similar  nature  have  been  adopted  in  Bulgaria  and  Slovenia  for  crafts,  in 
Estonia for construction and related activities, in Germany for itinerant sales. Portugal has 
reported that the general authorisation scheme for construction activities is in the process of 
being  modified.  In  Cyprus  the  special  permit  imposed  on  cross-border  providers  of 
construction services is being abolished.  

In addition, authorisation schemes existing for specific service activities have been removed 
or made non-applicable for cross-border services (in some cases they have been replaced by 
notification  requirements)  in  important  sectors  such  as  the  construction  sector,  the  business 
services  sector,  the  tourism  sector,  the  education  sector  or  the  services  of  the  regulated 
professions.  Services  as  diverse  as  building  contractors,  gas  installation  services,  property 
developers,  engineering  consultancies,  patent  agents,  travel  agencies,  tourist  guides,  distant 
sales,  auctioneering,  real  estate  agents,  recruitment  services,  driving  instructors,  car  rental, 
commercial  agents  or  services  of  foreign  higher  education  institutions  or  of  vocational 
training can now be provided across the borders in a majority of Member States without being 
imposed a prior authorisation. 

A number of  notification  requirements imposed on cross-border service providers  have  also 
been  abolished.  Some  of  these  changes  are  again  particularly  important  due  to  their  cross-
cutting  nature  such  as  the  removal  of  the  horizontal  notification  scheme  for  cross-border 
service providers in the trade law in Germany. 

Other  types  of  requirements  applied  to  cross-border  services  have  also  been  abolished.  For 
instance  Denmark  has  made  requirements  limiting  the  use  of  certain  marketing  methods 
(such as the use of vouchers and prize competitions) not applicable to cross-border retailers 
providing  services  in  their  territory.  Sweden  has  reported  that  the  law  on  contractual  terms 
between traders, the obligation to provide guarantees for trips other than package tours, and 
certain rules on distant/doorstep selling/off-premises sales do not longer apply to cross border 
service  providers.  Tariffs  have  been  abolished  in  Germany  for  architects  and  engineers 
providing services from an establishment in another Member State. An obligation to have a 
financial guarantee for  professionals  wanting to exercise real-estate activities in France has 
been modified in order to impose it only on certain types of activities. The United Kingdom 
has abolished the obligation to have an address in its territory that was previously imposed on 
providers from other Member States wishing to provide cross-border services in this country. 
Also  obligations  on  the  use  of  equipment  or  insurance  obligations  have  been  modified  in  a 
number  of  areas  to,  at  least,  take  account  of  requirements  complied  with  by  the  service 
provider in the country of establishment.  

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