COMMISSION STAFF WORKING DOCUMENT With a view to establishing guidance on the application of Article 20(2) of Directive 2006/123/EC on services in the internal market ('the Services Directive') Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the Services Directive: A partnership for new growth in services 2012-2015
Date: 2012-06-08
Institutions: European Commission
Subjects: administrative formalities, consumer protection, freedom to provide services, market access, national implementing measure, restriction on competition, single market, tax system, tertiary sector

EUROPEAN COMMISSION 

Brussels, 8.6.2012  
SWD(2012) 146 final 

COMMISSION STAFF WORKING DOCUMENT 

With a view to establishing guidance on the application of Article 20(2) of Directive 
2006/123/EC on services in the internal market ('the Services Directive') 

Accompanying the document 

Communication from the Commission to the European Parliament, the Council, the 
European Economic and Social Committee and the Committee of the Regions 

on the implementation of the Services Directive: A partnership for new growth in 
services 2012-2015 

{COM(2012) 261 final} 
{SWD(2012) 147 final} 
{SWD(2012) 148 final} 

EN 

   EN 

 
 
 
 
  
 
COMMISSION STAFF WORKING DOCUMENT 

With a view to establishing guidance on the application of Article 20(2) of Directive 2006/123/EC on 
services in the internal market ('the Services Directive') 

Accompanying the document 
Communication from the Commission to the European Parliament, the Council, the European Economic 
and Social Committee and the Committee of the Regions 
on the implementation of the Services Directive: A partnership for new growth in services 2012-2015 

This document is a European Commission staff working document for information purposes. 
It  does  not  represent  an  official  position  of  the  Commission  on  this  issue,  nor  does  it 
anticipate such a position. 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Table of Contents 

1.  DELIVERING AN INTERNAL MARKET FOR SERVICE RECIPIENTS........................................ 2 

1.1.  Can ‘service recipients’ benefit sufficiently from the single market? ....................................... 2 

1.2. Further facilitating access to the internal market for services ........................................................ 3 

2.  NATIONAL IMPLEMENTATION OF THE NON-DISCRIMINATION OBLIGATION.................. 4 

3. 

4. 

5. 

6. 

PURPOSE OF THE DOCUMENT ....................................................................................................... 4 

EXPLAINING ARTICLE 20(2) OF THE SERVICES DIRECTIVE ................................................... 5 

4.1. 

The scope of application of the provision.................................................................................. 5 

4.1.1. 

4.1.2. 

4.1.3. 

To which services does the obligation apply?........................................................... 5 

To whom does the obligation apply? ........................................................................ 5 

Consumers as service recipients................................................................................ 5 

4.1.4.  What are ‘general conditions made available to the public at large’?....................... 5 

4.1.5. 

Nationality and residence as differentiating factors .................................................. 5 

4.1.6.  What are ‘differences in the conditions of access’? .................................................. 5 

4.2. 

The need to undertake a case-by-case analysis.......................................................................... 5 

4.2.1. 

Identifying discrimination......................................................................................... 5 

SOME EXAMPLES: AN IN-DEPTH LOOK AT CASES OF DIFFERENT TREATMENT.............. 5 

FURTHER ROOM FOR IMPROVEMENT: REMOVING REMAINING OBSTACLES TO THE 
INTERNAL MARKET ......................................................................................................................... 5 

6.1. 

6.2. 

Payments.................................................................................................................................... 5 

Taxation..................................................................................................................................... 5 

6.3.  Divergences in consumer protection and contract law rules...................................................... 5 

6.4.  Debt recovery ............................................................................................................................ 5 

6.5. 

Private copying levies................................................................................................................ 5 

7. 

CONCLUSIONS ................................................................................................................................... 5 

7.1. 

7.2. 

Enforcement of Article 20(2) by Member State authorities....................................................... 5 

The Commission’s role: Information and support to Member States, businesses and 
consumers .................................................................................................................................. 5 

7.3.  Making the single market more tangible: steps businesses could undertake in applying the 

rights granted by Article 20(2)................................................................................................... 5 

1

 
 
 
1.  DELIVERING AN INTERNAL MARKET FOR SERVICE RECIPIENTS 

The  Single  Market  has  delivered  enormous  advantages  to  European  businesses.  The 
implementation of the Services  Directive  has been a  milestone in the  removal of barriers to 
doing  business,  both  at  home  and  across  the  EU.  However,  facilitating  the  provision  of 
services  across  national  borders  is  not  enough  for  the  establishment  of  a  genuine  single 
market.  It  is  equally  important  to  ensure  that  recipients  of  services  can  easily  enjoy  the 
opportunities  that  the  single  market  offers  to  them  as  indicated  in  the  Communication  from 
the Commission to the European Parliament and to the Council on the implementation of the 
Services Directive in accordance with Article 41 of the Services Directive — A Partnership 
for New Growth in Services 2012-2015 (hereafter ‘Communication’). 

Service recipients, in particular consumers, expect that the elimination of regulatory barriers 
to the provision of services in the internal market will make more services available to them. 
However, situations occur whereby recipients experience a refusal to supply or a higher price 
on grounds of their residence in another Member State. This document looks into the situation 
of  the  internal  market  for  services  for  recipients  and  gives  possible  indications  to  further 
facilitate the availability of services to European citizens. 

1.1.  Can ‘service recipients’ benefit sufficiently from the single market? 

Too  often,  consumers  are  disappointed  when  they  try  to  buy  a  service  cross-border. 
Complaints received by the European Commission, by the European Consumer Centres and 
by  other  assistance  bodies  indicate  that  practices  of  different  treatment  on  grounds  of 
nationality or residence are a cause for concern in the internal market. 

In  order  to  assess  the  situation  on  the  ground,  two  studies  on  geographical  discrimination 
against  consumers,  with  a  particular  emphasis  on  e-commerce,  were  commissioned  and 
published in 2009: the ‘Mystery shopping evaluation of cross-border e-commerce in the EU’1 
conducted for the Commission by YouGov Psychonomics and the ‘Matrix Insight: Access to 
services  in  the  Internal  Market:  Study  on  business  practices  applying  different  condition  of 
access  based  on  the  nationality  or  the  place  of  residence  of  service  recipients  — 
Implementation  of  Directive  2006/123/EC  on  Services  in  the  Internal  Market  (hereafter 
referred to as ‘Matrix study’).2  

Reported  practices  relate  to  a  wide  range  of  services  such  as  the  sale  of  electronic  goods, 
textiles,  sports  equipment,  Do-It-Yourself  (‘DIY’)  goods,  music  downloads,  car  rental  and 
mobile  phone  contracts.  Most  cases  of  different  treatment  appear  to  be  related  to  residence 
rather than to nationality as such, and they occur mostly in online transactions. For instance, 
consumers wishing to book a hire car online or book a hotel for a holiday in another Member 
State  may  find  themselves  redirected  to  the  hire  car  firm  or  hotel  chain’s  website  in  his 
country of residence where considerably higher prices are offered. Transactions may also fail 
at the stage of inputting credit card details due to the address of the buyer. 

1   See:http://ec.europa.eu/consumers/strategy/docs/EC_e-commerce_Final_Report_201009_en.pdf. 
2   See:http://ec.europa.eu/internal_market/services/docs/services-dir/studies/20091210_article20_2_en.pdf. 

2

 
 
 
                                                           
Although not as common, different treatment also occurs in offline transactions, particularly 
in the tourism sector. For instance, the Commission is aware of different tariffs being applied 
by  certain  theme  parks  and  tourist  attractions  depending  on  the  country  of  residence  of  the 
customer.  The  Commission  is  also  aware  of  examples  of  would-be-holidaymakers  living  in 
border regions wishing to book cruises through travel agents just across the border, and where 
the travel agent is unable to sell the cruise as the cruise provider forbids him from selling to 
residents of other Member States in order to maintain their differentiated pricing policies. 

1.2. Further facilitating access to the internal market for services 

To  enhance  the  rights  of  recipients  and  strengthen  their  confidence  in  the  internal  market, 
Directive  2006/123/EC  on  services  in  the  internal  market  (‘the  Services  Directive’)  obliged 
Member States to remove obstacles for service recipients wanting to buy services supplied by 
providers  established  in  other  Member  States,  such  as  obligations  to  obtain  a  specific 
authorisation to receive services from another Member State. It also obliged Member States to 
make  available  to  service  recipients  general  information  and  assistance  on  the  legal 
requirements,  in  particular  consumer  protection  rules,  and  redress  procedures  applicable  in 
other  Member  States.  Finally,  it  laid  down  an  obligation  on  Member  States  to  ensure  that 
discriminatory  requirements  based  on  service  recipients’  nationality  or  place  of  residence 
were put at end. 

In  relation  to  this  last  point,  Article  20  of  the  Services  Directive  prohibits  discrimination 
against service recipients on the basis of their nationality or country of residence. The purpose 
of this provision is to help service recipients, especially consumers, access offers available on 
the markets of other Member States and make the most of the internal market. 

Article 20(1) of the Services Directive obliges Member States to ensure that the recipient is 
not  made  subject  to  discriminatory  requirements  based  on  his  nationality  or  place  of 
residence.  Article  20(1)  of  the  Services  Directive  includes  therefore  instances  where  the 
different treatment is applied by public authorities. According to information available to the 
Commission,  a  significant  number  of  the  cases  which  are  perceived  as  blunt  discrimination 
involve preferential access to services granted to residents in a given region or municipality 
by  the  respective  regional  or  local  authorities  or  by  operators  acting  under  the  auspices  of 
those authorities. The Court of Justice of the European Union has already condemned, under 
certain  conditions,  advantageous  rates  for  admission  to  services  granted  by  local  or 
decentralised  State  authorities  only  in  favour  of  nationals  and  persons  resident  within  the 
territory  of  those  authorities,  and  which  exclude  from  such  advantages  recipients  who  are 
nationals of other Member States and non-residents, as being discriminatory.3 

Article 20(2) covers, more specifically, instances where the different treatment is applied by 
service  providers,  that  is,  firms  or  professionals  offering  services  in  a  market.  It  obliges 
Member States to ensure that the general conditions of access to a service, which are made 
available  to  the  public  at  large  by  the  provider,  do  not  contain  discriminatory  provisions 
relating  to  the  nationality  or  place  of  residence  of  the  recipient,  but  without  precluding  the 
possibility of providing for differences in the conditions of access where those differences are 
directly justified by objective criteria. 

3   See judgment of the Court of Justice of 16 January 2003, case C-388/01, Commission v. Italy. 

3

 
 
 
                                                           
2.  NATIONAL IMPLEMENTATION OF THE NON-DISCRIMINATION OBLIGATION 

Member States were obliged to implement Article 20 into their national laws. Article 20(2) of 
the Services Directive is implemented through national provisions that make the prohibition 
of discrimination on grounds of nationality or residence binding on service providers. 

Most  Member  States  have  introduced  in  the  horizontal  laws  transposing  the  Services 
Directive provisions reproducing in full or in part the Services Directive’s provision on non-
discrimination.  Others  have  been  able  to  rely  on  pre-existing  legislation  that  achieves  the 
same end (see Annex I). 

It  is  for  the  relevant  national  competent  authorities  to  ensure  compliance  with  the  relevant 
national  provisions  implementing  Article  20(2)  of  the  Services  Directive  into  their  national 
law. In order to perform this assessment, a case-by-case analysis is required in all instances. 

Member States designate the authorities responsible for this enforcement in their territories. A 
list of competent authorities responsible for this supervision can be found in Annex II of this 
document. Most Member States have attributed the task of administrative enforcement of the 
national  provisions  implementing  Article  20(2)  to  the  authorities  that  are  in  charge  of  the 
administrative  enforcement  of  consumer  protection  rules.  In  some  instances,  competition 
authorities  have  also  been  entrusted  with  the  enforcement  of  this  provision.  In  the  event  of 
judicial  dispute,  it  will  generally  be  for  the  courts  in  charge  of  commercial  or  consumer 
protection rules to adjudicate on these issues. 

Enforcement  of  the  provision  shall  be  carried  out  in  conformity  with  the  powers  of 
supervision  provided  for  in  national  law,  in  particular  through  supervisory  measures  at  the 
place  of  establishment  of  the  provider.  When  it  comes  to  administrative  enforcement,  the 
Member State of establishment is responsible for service providers established in its territory, 
also when they provide services in other Member States. In cases in which a provider is acting 
cross-border, Chapter VI of the Services Directive has laid down administrative cooperation 
requirements which oblige Member States to provide each other with mutual assistance in the 
supervision of providers. 

3.  PURPOSE OF THE DOCUMENT 

National  authorities  assisting  consumers  and  service  recipients  have  received  numerous 
complaints  involving  different  treatment  by  businesses  on  grounds  of  nationality  and 
residence since the adoption of the Services Directive. However, according to the information 
received by the Commission, it would appear that, to date, only a very limited number of the 
cases  brought  to  the  attention  of  these  bodies  have  resulted  in  administrative  or  judicial 
enforcement action at national level. There seem to be a number of possible reasons for this 
lack  of  administrative  and  judicial  enforcement: these  provisions  have not  been  in  force  for 
long in most Member States and the low value of the goods and services normally involved in 
this type of dispute may explain service recipients’ lack of willingness to pursue action. 

As reflected in Recital 95 of the Services Directive, different tariffs and conditions may apply 
to  the  provision  of  a  service,  where  those  tariffs,  prices  and  conditions  are  justified  for 
objective  reasons  that  can  vary  from  country  to  country.  Examples  of  possible  objective 
reasons are given in the recital (such as market conditions, regulatory barriers or risks related 
to compliance with legislation applicable in other Member States). In light of this situation, it 

4

 
 
would  appear  that  the  taking  of  full  effects  of  Article  20(2)  could  be  facilitated  by  further 
clarity on the interpretation to be given to the obligation it entails. 

The importance of correct application of the national provisions implementing Article 20(2) 
of the Services Directive by national authorities has been stressed by European institutions. In 
particular, the European Parliament has made a call for an effective implementation of Article 
20(2) of the Services Directive, as well as the proper enforcement by national authorities and 
courts  of  the  national  provisions  implementing  this  non-discrimination  rule  in  the  legal 
systems of Member States.4 In light of this, clarification by the Commission services appears 
useful to ensure consistency in the application of the non-discrimination clause of the Services 
Directive across Member States. This is all the more important in consideration of the specific 
‘cross-border’  element  of  this  provision  which  deals  specifically  with  situations  of  business 
and consumers located in different countries. 

In  light  of  this,  this  paper  seeks  to  throw  light  on  the  typical  situations  in  which  service 
recipients  are  confronted  with  different  treatment  or  refusal  to  provide  a  service  and  on  the 
circumstances  invoked  by  businesses  so  that  competent  authorities  at  national  level  are  in  a 
better position to undertake the case-by-case analysis that is required of them. With the same 
aim,  it  also  attempts  to  describe  and  explain  when  differences  in  treatment  or  refusals  to 
provide a service may or may not be justified. 

This document builds on and complements the Commission’s assistance to Member States on 
various aspects of the Services Directive since its adoption. It is an indicative document of the 
Commission services, which cannot be considered in any way binding on the Commission as 
an  institution,  and  it  is  without  prejudice  to  the  interpretation  of  EU  law  by  the  Court  of 
Justice of the European Union. 

4   European Parliament resolution of 21 September 2010 on Completing the Internal Market for E-Commerce 
(2010/2012(INI)); points 31 and 32; Conclusions of Competitiveness Council on Digital Single Market and 
at 
of 
Governance 
http://www.consilium.europa.eu/press/council-meetings.  

Single  Market 

30-31  May 

available 

2012, 

the 

of 

5

 
 
 
                                                           
4.  EXPLAINING ARTICLE 20(2) OF THE SERVICES DIRECTIVE 

The  Court  of  Justice  has  emphasised  the  need  to  protect  service  recipients  from  restrictions 
laid down by Member States to the freedom to receive services from a provider established in 
another Member State as being the necessary corollary of the freedom to provide services.5 It 
has also underlined the need to sanction national measures or agreements between companies 
which partition national markets according to national borders and make the interpenetration 
of national markets more difficult.6 Efforts to remove unjustified regulatory restrictions in the 
Single  Market  will  not  translate  into  benefits  for  service  recipients  if  practices  by  service 
providers themselves serve to create artificial borders within the internal market. 

Practices  tackled  by  the  non-discrimination  obligation  involve  both  public  authorities  and 
service  providers.  A  significant  number  of  the  cases  which  are  perceived  as  blunt 
discrimination involve preferential access to services granted to residents in a given region or 
municipality  by  public  authorities  (most  commonly,  the  respective  regional  or  local 
authorities)  or  by  operators  acting  under  the  auspices  of  those  authorities,  for  instance 
concession holders or recipients of regional or local funding. Examples of these services are 
for example access to facilities such as swimming pools, musea, public gardens or historical 
monuments. It is not uncommon for preferential rates to be offered to local residents and not 
to other users of the service although they seem to satisfy the same objective conditions (of 
age,  etc.).  For  example,  when  trying  to  enter  the  premises  of  public  thermal  baths,  citizens 
from  other  Member  States  learn  that  they  are  refused  the  reduced  entrance  fee  offered  to 
consumers exceeding a certain age on grounds of their nationality, despite the fact that they 
can show that they meet the age criterion. 

For these instances, the case-law of the Court of Justice has already condemned, under certain 
conditions,  advantageous  rates  for  admission  to  services  granted  by  authorities  excluding 
recipients  who  are  nationals  of  other  Member  States  and  non-residents,  as  being 
discriminatory.7  At  the  same  time,  it  cannot  be  ruled  out  that,  exceptionally,  in  cases 
involving  social  benefits  granted  by  a  public  authority  which  result  in  advantageous 
conditions of access to a service, local or regional authorities may be allowed, under certain 
conditions, to distinguish between citizens who have a connection with the society financing 
the advantage and those who do not.8 

Article 20(2) however deals specifically with businesses providing services in the market. 
While business are free to determine the scope of the geographic area in which they provide 
their  services,  certain  practices  may  restore  the  divisions  between  national  markets  and  be 
liable to frustrate the TFEU’s objective of achieving the integration of those markets through 
the  establishment  of  a  single  market.  These  practices  may  be  to  the  detriment  of  recipients 
trying to avail of their rights to buy services within the European Union. To fully realise the 
potential  that  the  internal  market  offers  to  them,  recipients  need  to  be  protected  from 
unjustified restrictions on access to services which are applied to them by service providers. 

5   Cases 286/82 and 26/83, Luisi and Carbone v. Ministero del Tesoro, (1984) ECR 377. 
6   Cases C403/08 and C429/08, Football Association Premier League, 4 October 2011. 
7   See judgment of 16 January 2003, case C-388/01, Commission v. Italy. 
8 

See judgment of 1 October 2009 in case C-103/08 ,Arthur Gottwald. In that judgment the Court of Justice 
ruled  under  former  Article  12  EC  Treaty  [now  Article  18  TFEU]  and  not  under  the  freedom  to  receive 
services clause. 

6

 
 
 
                                                           
In this context, the principle of non-discrimination laid down in Article 20(2) of the Services 
Directive balances the interests of businesses, which are free to decide the way in which they 
avail of the opportunities offered to them by the internal market for services, and the interests 
of  recipients  who  have  the  right  not  to  be  discriminated  against  due  to  their  nationality  and 
residence when seeking to acquire services in the single market. This complex balance always 
requires a case-by-case analysis. 

4.1.  The scope of application of the provision 

Further light on the scope of the non-discrimination obligation laid down in Article 20(2) of 
the  Services  Directive  can  be  derived  from  the  wording  of  this  provision  and  from  its 
rationale. Explanations below aim at providing further clarity on the scope of the obligation in 
light of existing EU law and case-law. Further information can be found in the Handbook on 
the implementation of the Services Directive.9 

4.1.1.  To which services does the obligation apply? 

The concept of service encompasses any self-employed economic activity which is normally 
provided  for  remuneration.10  Without  being  exhaustive,  the  following  can  be  mentioned  as 
examples  of  services  covered  by  the  Directive:  distribution  of  goods  and  services  (retail), 
services  in  the  field  of  tourism  such  as  travel  agencies,  leisure  services  such  as  services 
provided  by  sports  centres  and  amusement  parks,  rental  and  leasing  services  (including  car 
rental)  the  activities  of  most  of  the  regulated  professions,  craftsmen,  the  organisation  of 
events, advertising and recruitment services. 

For instance, access to services that are popular with mobile EU citizens such as entrance to 
tourist attractions, car rental or travel agencies should be facilitated by the correct application 
of Article 20(2) of the Services Directive. The same applies to numerous business and leisure 
services such as mobile phone subscriptions or the online or offline retail sale of products and 
services including electronic goods, books, DIY products, and music downloads. 

Services  explicitly  excluded  from  the  Services  Directive  are  for  example  non-economic 
services of general interest, audio-visual and radio broadcasting services, gambling activities, 
private  security  services,  financial  services  and  healthcare  and  pharmaceutical  services 
provided  by  health  professionals  to  patients  to  assess,  maintain  or  restore  their  state  of 
healthwhere those activities are reserved to a regulated health profession in the Member State 
in which the services are provided.11 

4.1.2.  To whom does the obligation apply? 

Article  20(2)  applies  to  ‘providers’  within  the  meaning  of  Article  4(2)  of  the  Services 
Directive, namely any natural person who is a national of a Member State, or any legal person 
as referred to in Article 54 TFEU and established in a Member State, who offers or provides a 
service. 

Where  firms  provide  services  in  several  Member  States  of  the  Union,  they  will  need  to 
understand which of the national provisions implementing Article 20(2) applies to them. For 
that  purpose,  the  determination  of  the  Member  State  of  establishment  within  the 

9   Available at http://ec.europa.eu/internal_market/services/services-dir/documents_en.htm. 
10  Article 57 TFEU. 
11   See Article 2 of the Services Directive. 

7

 
 
                                                           
European Union becomes essential. This determination must be done in accordance with the 
case  law  of  the  Court  of  Justice.  According  to  this  case  law,  the  concept  of  establishment 
involves  the  actual  pursuit  of  an  economic  activity  through  a  fixed  establishment  for  an 
indefinite period. 

This  definition  therefore  requires  the  actual  pursuit  of  an  economic  activity  at  the  place  of 
establishment of the provider. An establishment does not always need to take the form of a 
subsidiary, branch or agency, but may consist of an office managed by a provider’s own staff 
or  by  a  person  who  is  independent  but  authorised  to  act  on  a  permanent  basis  for  the 
undertaking, as would be the case with an agency. 

E-commerce businesses have the possibility to offer their services online or sell their goods 
through  online  platforms,  thereby  becoming  ‘accessible’  in  all  Member  States.  It  seems 
important to recall that the fact that a company has registered a website in a given Member 
State or is using top level domain names of a specific Member State is not always tantamount 
to  that  company  being  established  in  that  Member  State.  The  place  of  establishment  of  a 
company providing services via an Internet website is not the place in which the technology 
supporting its website is located or the place in which its website is accessible but rather the 
place where it pursues its economic activity. For instance, a small company selling electronic 
appliances  could  decide  to  acquire  a  domain  name  in  a  Member  State  neighbouring  its 
Member  State  of  establishment  in  order  to  be  able  to  better  market  to  recipients  in  that 
territory.  However,  the  service  provision  would  be  carried  out  entirely  through  its  Member 
State of establishment. 

In cases in which it is difficult to determine from which of several places of establishment a 
given  service  is  provided,  the  location  of  the  provider’s  centre  of  activities  relating  to  the 
particular service for which the different treatment applies should be assessed. For example, a 
retailer  of  clothes  and  garments  could  have  establishments  in  all  Member  States.  In  these 
cases  it  may  well  be  that  each  of  these  establishments  has  its  country-specific  website  and 
each  of  them  determines  the  conditions  of  access  to  the  sale  of  its  products  in  that  site, 
including  the  price.  When  analysing  a  case,  national  authorities  will  have  to  identify  the 
establishment responsible for the practice in question. 

4.1.3.  Consumers as service recipients 

The  definition  of  recipient  laid  down  in  Article  4(3)  of  the  Services  Directive  refers  to  any 
natural  person  who  is  a  national  of  a  Member  State  or  who  benefits  from  rights  conferred 
upon him by EU acts, or any legal person as referred to in Article 54 TFEU and established in 
a Member State, who, for professional or non-professional purposes, uses, or wishes to use, a 
service. 

Despite  the  fact  that  Article  20(2)  of  the  Services  Directive  applies  to  service  recipients  in 
general, the wording of Recital 95 and the reference to general conditions made available to 
the  public  at  large  would  appear  to  indicate  that  the  purpose  of  the  provision  is  to  protect 
consumers in particular.12 

12   In  accordance  with  Directive  2011/83/EU  of  the  European  Parliament  and  of  the  Council  of  25  October 
2011  (‘Consumer  Rights  Directive’),  the  definition  of  consumer  covers  natural  persons  who  are  acting 
outside their trade, business, craft or profession. 

8

 
 
                                                           
4.1.4.  What are ‘general conditions made available to the public at large’? 

Article  20(2)  of  the  Services  Directive  only  applies  to  ‘general  conditions  of  access  to  a 
service  made  available  to  the  public  at  large’  and  not  to  conditions  of  access  that  are 
negotiated on an individual basis with one service recipient. 

There  is  no  definition  at  EU  level  of  ‘general  conditions  of  access  made  available  to  the 
public at large’. As such, general conditions of access can be understood as all the terms and 
conditions and all other information made available by the service provider through various 
means such as information published in advertisements, on websites or in (pre-) contractual 
documentation  and  which  are  understood  to  apply  in  the  absence  of  an  agreement  to  the 
contrary  entered  into  directly  with  the  service  recipient.  General  conditions  of  access  to  a 
service  could  also  be  practices  which  apply  generally  without  being  laid  down  in  published 
information  or  in  documentation  made  available  by  the  provider,  such  as  information 
provided by way of e-mails or letters addressed to service recipients in response to requests 
for information. 

Individually  negotiated  terms  that  may  govern  commercial  relations  between  two  or  more 
traders are not part of the ‘general conditions of access made available to the public at large’. 
Tailor-made  terms  negotiated  with  a  particular  service  recipient  are  usually  based  on  the 
specific characteristics of the recipient in question including such characteristics as his history 
of custom with the service provider, his ability to pay, or their special requests, and are not 
covered by Article 20(2) of the Services Directive. For instance, favourable rebates granted by 
a wholesale distributor of goods to one of its customers in view of the quantities purchased by 
that individual customer from the trader would not be deemed ‘general conditions of access 
made available to the public at large’ and would thus also not be deemed ‘different treatment’ 
as covered by Article 20(2) of the Services Directive. 

4.1.5.  Nationality and residence as differentiating factors 

By  virtue  of  the  Treaties,  discrimination  on  grounds  of  nationality  has  always  been  banned 
throughout  the  EU.13  In  addition,  many  Member  States  have  had  long-standing  provisions 
prohibiting  discrimination  on  grounds  of  nationality  which  derive  from  obligations 
undertaken  at  international  level  or  from  the  principles  founding  their  constitutional  orders. 
Discrimination  based on residence has  often been considered by the  Court  of Justice, under 
certain  conditions,  as  indirect  discrimination  based  on  nationality.14  Article  20(2)  of  the 
Services  introduces  however  an  explicit  prohibition  of  discrimination  on  the  grounds  of 
residence in the territory of another Member State.15 

Differences  in  treatment  are  often  not  established  directly  on  the  basis  of  nationality  or 
residence  but  rather  on  proxy  factors  which  may  end  up  being  tantamount  to  nationality  or 
residence, such as the country of the driving licence, the country of credit card issuance, the 
place  of  delivery,  the  country  of  origin  of  specifically  dedicated  IP  addresses,  the  lack  of 
credit history in a particular Member State, the lack of registration in the population registry, 
etc. 

13   See former Article 12 EC Treaty and now Article 18 of TFEU. 
14   Judgments of the Court of Justice in cases C-350/96 Clean Car, and C-279/93 Finanzamt Köln-Altstadt v 

Schumacker [1995] ECR I-225.  

15   Member  States  are  in  principle  free  to  extend  the  non-discrimination  obligation  to  unjustified  differences 

based on residence in different parts of the territory of a single Member State (regions, towns).  

9

 
 
                                                           
4.1.6.  What are ‘differences in the conditions of access’? 

Different conditions of access may concern several aspects of the offer or of the provision of 
the  service.  They  do  not,  by  themselves,  constitute  discrimination.  The  first  possible 
difference  involves  obtaining  access  to  the  service  itself:  refusing  to  supply  a  consumer 
resident in another Member State would be the clearest case of a difference in treatment on 
the  grounds  of  residence.  The  question  of  whether  it  is  justified  or  not  would  have  to  be 
assessed on a case-by-case basis. 

For  example,  certain  service  providers,  including  providers  of  electronic  downloads,  do  not 
deliver  their  services  into  certain  territories  for  various  reasons,  which  may  or  may  not  be 
justified. Consumers are often confronted with clauses in the terms and conditions indicating 
that  the  service  they  are  intending  to  acquire  is  available  only  in  a  given  Member  State. 
Recipients are often asked to agree not to use or attempt to use the service from outside this 
location. 

A  second  category  of  possible  different  treatment  may  involve,  for  example,  setting  a 
different  price  for  the  service  or  offering  different  terms  and  conditions  such  as  making 
different delivery or payment options available to consumers resident in other Member States.   

10

 
 
4.2.  The need to undertake a case-by-case analysis 

4.2.1.  Identifying discrimination 

As  indicated  above,  a  case-by-case  analysis  is  required  in  all  circumstances  to  determine 
whether different treatment is being applied to recipients and whether or not that treatment is 
justified for objective reasons. 

According to the case law of the Court of Justice, the identification of discrimination requires: 
a difference in treatment and the presence of comparable situations of recipients to which the 
difference  is  applied.  Differences  do  not  amount  to  discrimination  if,  and  in  so  far  as,  they 
reflect  relevant  and  objective  differences  in  the  situation  of  recipients.  In  this  context,  a 
number of preliminary reflections can be made on the situations of service recipients that can 
help  competent  authorities  better  assess  whether  an  objective  reason  can  justify  different 
treatment in a particular case. 

4.2.1.1.Different treatment on the basis of nationality 

It would appear extremely difficult to find objective reasons to justify differences of access to 
a  service  in  the  European  Union  on  the  basis  of  nationality.  For  instance,  promotional 
campaigns where favourable access to services such as mobile subscriptions or supermarket 
loyalty schemes are made conditional upon a consumer producing evidence of the nationality 
of the Member State where the service is provided would not appear to be acceptable under 
Article 20(2) of the Services Directive. 

4.2.1.2.Different treatment on the basis of residence when the recipient moves to 

acquire the service 

Differences  based  on  the  residence  of  the  recipient  merit  detailed  analysis.  These 
differences  do  not  amount  to  discrimination  if,  and  in  so  far  as,  they  reflect  relevant  and 
objective differences in the situation of the recipients. 

In  a  context  in  which  the  recipient  moves  to  the  territory  of  another  Member  State  (for 
example, as a tourist or as a student), the recipient places himself in a situation very similar if 
not identical to that of recipients resident in the Member States where the service is provided. 
To the extent that the service is to be provided within the territory of the Member State of the 
provider,  objective  reasons  linked  to  the  regulatory  framework  or  to  market  conditions 
prevailing  in  the  country  where  the  recipient  is  resident  would  not  appear  to  be  relevant  in 
justifying different treatment. 

For  instance,  citizens  who  reside  in  one  Member  State  but  spend  a  considerable  amount  of 
time  in  the  territory  of  another  may  want  to  benefit  from  favourable  terms  for  mobile 
telephone subscription offers provided by operators established in the other Member State. It 
appears that sometimes these favourable terms are conditional upon evidence of residence in 
the  Member  State  where  the  mobile  phone  operator  is  established.  Similarly,  students  who 
intend to move to other Member States would appear to experience difficulties in hiring the 
services  of  real  estate  agencies  to  find  suitable  accommodation  in  the  Member  State  where 
they will be pursuing their studies. It appears that in certain instances the provision of these 
services  is  made  conditional  on  residence  in  the  territory  of  the  Member  State  where  the 
service is to be provided. To the extent that the mobile customers or the students are able to 
11

 
 
 
provide the evidence of the required security for the provision of these services, they should 
not  suffer  discrimination  due  to  their  permanent  residence  in  another  Member  State.  In 
principle,  service  providers  should  not  refuse  access  to  those  recipients  solely  based  on  the 
fact  that  they  are  not  permanently  resident  in  the  national  territory.  It  cannot  be  excluded 
though that different conditions could be applied in certain cases where justified by objective 
criteria, such as for example the requirement to provide a proof of security to ensure payment 
of services where residence in other Member State would increase risk or cost of recovery of 
debts. 

4.2.1.3.Different  treatment  on  grounds  of  residence  when  the  service  provider 

moves to provide the service 

In a context in which the provider needs to move to the place of residence of the recipient in 
order  to  provide  the  service,  it  becomes  evident  that  the  situation  of  the  recipient  is  not 
comparable to that of recipients who are resident in the Member State of establishment of the 
provider. Objective reasons linked to the regulatory framework applicable to the provision of 
services in the other Member State or to the market conditions that prevail there (such as costs 
of  the  supply  of  the  service  in  that  territory  or  higher  or  lower  demand  or  pricing  by 
competitors  in  that  market)  become  relevant.  Thus,  for  example,  additional  costs  due  to  the 
fact  that  the  provider  is  moving  to  the  territory  of  the  recipient  to  perform  the  services  are 
normally  to  be  borne  by  the  recipient  who  wishes  to  receive  the  service.  These  additional 
costs  may  be  due,  amongst  others,  to  the  provider  not  having  storage  infrastructure  at  his 
disposal under favourable conditions, to the provider having to comply with procedures linked 
to the service provision in another territory (such as the posting of workers or the need to give 
a notification) or to loss of revenue incurred in the area where they normally provide services 
while attending a request to supply in another territory. 

For example, if called upon to perform a service in the territory of another Member State, the 
director of a small carpentry firm could take into account the fact that the cost of moving his 
professionals  to  another  Member  State  to  provide  a  single  service  may  well  exceed  the 
expected  gains  from  that  service  provision  and  perhaps  not  even  cover  the  loss  of  revenue 
derived  from  the  inability  to  serve  regular  customers  in  its  territory  during  that  period. 
Although businesses are encouraged to ‘think European’ and to avail of opportunities that the 
internal market may offer to them, the non-discrimination provision does not impose a general 
obligation  on  companies  to  supply  their  services  in  circumstances  in  which  such  a  supply 
would involve them travelling to the territory of Member States that do not belong to the area 
in which they have freely decided to target their activities. 

4.2.1.4.Different treatment on grounds of residence in online transactions 

In instances  in which neither the provider nor the recipient moves to another territory, 
the analysis becomes more complex. This is particularly the case in an online context. Service 
recipients do not expect to be confronted with geographic frontiers in the online world. The 
internet  has  made  service  offerings  much  more  available  and  transparent,  with  online 
comparison  websites,  money  saving  tools  and  subscription-based  discount  sites  all  making 
consumers  much  more  aware  of  the  different  offers  available.  Different  treatment  becomes 
much  more  obvious  in  the  online  world  and  undermines  citizens’  confidence  in  the  internal 
market. 

When trying to buy online, customers sometimes learn only at the end of the ordering process 
that  the  desired  product  or  service  cannot  be  delivered  into  their  territory.  Customers  also 

12

 
 
sometimes note a sudden increase in the advertised price at the moment at which they indicate 
the country of residence or the place of delivery of the service. Unless delivery restrictions or 
the  higher  price  can  by  duly  justified  by  objective  reasons,  customers  should  not  be 
discriminated against in this way due to their place of residence. 

As in the offline world, the non-discrimination obligation does not prevent service providers 
from  actively  targeting  their  advertising  to  certain  territories  only  or  from  carrying  out 
campaigns  directed  at  selected  recipients.  Businesses  are  free  to  determine  the  geographic 
scope  to  which  they  target  their  activities  within  the  European  Union,  even  when  selling 
online. Despite the removal of barriers for the provision of services that the single market has 
delivered,  in  particular  with  the  implementation  of  the  Services  Directive,  companies  may 
still,  for  a  number  of  reasons  decide  to  target  their  offer  only  to  their  local  market  or  to 
neighbouring markets.16  

Recipients face a variety of situations when they go online. In certain cases, recipients will not 
be able to obtain information on the conditions of access applicable to a service for recipients 
resident in other Member States. In other cases, consumers will be able to access information 
on the conditions of access applicable to recipients resident in other Member States but will 
not be able to acquire those services under the same conditions because delivery restrictions 
apply. Finally, in other cases recipients may also be able — if they actively seek for it — to 
access information on conditions applicable to recipients resident in other Member States and 
to avail of those conditions. 

National authorities should take into account the way in which differentiation is implemented 
when  carrying  out  the  assessment  of  the  objectivity  of  the  reasons  put  forward  by  service 
providers to justify different treatment. Techniques allowing service providers to identify the 
location of the recipient and thus to direct the consumer to the offer adapted to the territory 
where  he  is  resident  are  not  per  se  indicators  of  discrimination.  However,  when  service 
providers  target  their  activities  to  many  Member  States  and  recipients  in  each  of  these 
countries  are  completely  barred  from  accessing  information  on  the  conditions  of  access 
offered to recipients resident in other Member States, this could be an indication of the fact 
that  different  treatment  is  being  applied.  Competent  authorities  will  then  have  to  assess 
whether or not such a different treatment is objectively justified. 

Technical means of different treatment online 

Different treatment becomes visible to the consumer through online transactions. The internet 
is a powerful tool that enables businesses to reach a greater number and variety of customers 
than  by  more  traditional  sales  methods.  Service  providers  however  often  use  a  variety  of 
techniques, sometimes in combination with each other, to better delimit the area to which they 
target their offers on the internet. Examples of these techniques are territory-based banners on 
third party websites, paying for search engine optimisers in order to be found by consumers 
specifically  in  certain  territories  or  investing  in  online  advertisements  that  are  displayed  to 
users in a particular territory. 

Where service providers target their offers to several Member States, certain techniques allow 
them to adapt their advertising to each of the territories. It is important to stress that some of 

16   According to the Commission Staff Working Paper ‘Bringing e-commerce benefits to consumers’ published 
on 12 January 2012, in 2010, nearly three out of four (74 %) EU retailers did not actively target their sales 
across borders into other EU countries. 

13

 
 
                                                           
these techniques that are used to identify the place of residence of the service recipient do not 
always constitute a discriminatory condition of access to a service. 

Examples of these techniques are automatic geolocation tools, which identify the location of 
the  customer’s  computer  or  device  used  to  access  the  service  online.  A  common  way  to 
geolocate  the  recipient  is  the  IP  look-up  using  the  whois  database.17  The  result  of  this 
technique can be varied: sometimes recipients are technically barred from accessing domains 
addressed  to  other  Member  States.  Sometimes  recipients  are  automatically  redirected  to  the 
domain names of other Member States but can circumvent the redirection manually. 

Geolocation  can  also  be  used  in  other  ways,  for  instance  by  automatically  selecting  the 
country of residence from a list in a drop-down menu, based on the IP address. 

Another example is that of country-specific websites that adapt their language and design to 
the different target audiences and that may or may not feature different terms and conditions. 
When  a  company  has  subsidiaries  or  branches  in  different  Member  States,  country-specific 
websites may be individually managed by each of those subsidiaries or branches, which will 
deliver the services for orders placed in their respective country-specific website. 

Accessing a country-specific website does not automatically imply that users are considered 
residents  of  that  country  and  that  it  is  possible  for  them  to  gain  access  to  the  prices  and 
products  and  services  offered  on  the  website.  Recipients  may  be  able  to  access  information 
but  be  denied  later  on,  through  the  use  of  self-identification  techniques,  the  possibility  to 
acquire services, for example when entering credit card details or the delivery address. 

Self-identification  includes  asking  customers  about  their  place  of  residence  through  menus 
on  the  homepage.  Self-identification  can  also  be  carried  out  through  questions  asked  when 
registering for an account (necessary to make most online transactions) or when completing 
the  purchase,  which  in  most  cases  involves  asking  the  customer  to  specify  their  place  of 
residence. 

17   WHOIS is a query and response protocol that is widely used for querying databases that store the registered 
users or assignees of an Internet resource, such as a domain name, an IP address block, or an autonomous 
system. 

14

 
 
                                                           
5.  SOME EXAMPLES: AN IN-DEPTH LOOK AT CASES OF DIFFERENT TREATMENT 

The provision of a service under different conditions is not allowed in the absence of a direct 
justification by objective criteria. Recital 95 of the Services Directive lists some examples of 
objective criteria that can be invoked by service providers for different treatment. It refers to 
additional  costs  incurred  because  of  the  distance  involved  or  the  technical  characteristics  of 
the  provision  of  the  service,  different  market  conditions,  such  as  higher  or  lower  demand 
influenced  by  seasonality,  different  vacation  periods  in  the  Member  States  and  pricing  by 
different competitors, extra risks linked to rules differing from those of the Member State of 
establishment and the lack of the required intellectual property rights in a particular territory. 
The Matrix study published in November 2009 identified  drivers for  differentiation in  three 
categories:  legal/regulatory  drivers,  including  taxation  and  compliance  costs,  information 
costs,  and  legal  uncertainty;  supply-related  drivers  including  cost  of  sales,  and  firm-related 
characteristics, such as corporate structure; and demand-related drivers including the nature of 
competition, the willingness to pay of different customer groups, and seasonality.18 

The task of competent authorities will be to undertake a case-by-case analysis with a view to 
determining whether any of the reasons quoted above are relevant for the service provision in 
question for which the different treatment is being applied. 

The examples below aim to provide some general indications to competent authorities on how 
the assessment of whether or not these objective reasons apply could be undertaken in each 
individual case.19  

Example 1: Refusal to supply due to a lack of delivery options 

Consumers  resident  on  islands  are  sometimes  refused  supply  when  they  seek  to 
purchase  goods  from  a  provider  in  another  Member  State,  due  to  difficulties  in 
delivery.  In  principle,  these  consumers  should  be  granted  access  to  the  delivery  of 
goods  to  the  extent  that  delivery  options  exist  within  the  European  Union. 
Additional  delivery  and  freight  charges  can  help  businesses  recover  the  additional 
cost incurred in these service provisions. 

The  lack  of  alternatives  for  delivery  can  rarely  be  invoked  by  a  service  provider  to  refuse 
supply  to  a  given  Member  State.  For  parcel  deliveries  up  to  20  kg,  the  Postal  Services 
Directive imposes an obligation on Member States to ensure the provision of universal postal 
services, including cross-border.20 This obligation means that at least one delivery option in a 
cross-border context should be available in all Member States.21 

18   http://ec.europa.eu/internal_market/services/docs/services-dir/studies/20091210_article20_2_en.pdf, 

See 

Section 4. 

19   The  examples  provided  in  this  section  draw  inspiration  on  real  cases  of  which  the  Commission  has  been 

made aware but they do not necessarily reflect existing practices in the sectors mentioned.  

20   Despite this clear obligation on Member States, it would seem that in certain exceptional cases, refusal to 
supply  by  universal  service  providers  in  specific  circumstances  (e.g.  force  majeure)  and/or  specific 
geographical conditions (e.g. isolated islands) occurs. This refusal may result in service recipients resident in 
those areas having difficulties in accessing certain services. 

21   Service  providers  may  however  have  concerns  that  they  cannot  achieve  an  appropriate  level  of  service 
related to the delivery of their products; for instance with regard to the display of the product or taking back 

15

 
 
 
                                                           
 
Although delivery services should be available cross-border, the cost of the delivery service 
(be  it  the  parcel  delivery  service  or  other  alternative  methods)  chosen  to  supply  services  in 
another  Member  State  may  significantly  differ  from  the  cost  applicable  to  deliveries  in  the 
Member State of establishment thus resulting in different conditions of access being offered to 
recipients resident in other territories.22  

The difference in delivery costs or in estimates of returning items to be borne by consumers 
may  appear  initially  as  discrimination.  However,  service  providers  are  obliged  to  specify 
additional  freight,  delivery  or  postal  charges  in  their  transactions  to  consumers.23  This 
transparency  should  provide  clarity  to  service  recipients  as  to  the  reasons  behind  the 
difference in the conditions of access. 

Example 2: Refusals to supply due to contractual obligations 

Residents  in  one  Member  State  have  complained  about  being  refused  delivery  of 
baby  prams  manufactured  and  sold  through  an  exclusive  distributor  in  another 
Member  State  where  prices  are  much  lower.  The  reason  invoked  by  the  exclusive 
distributor in that Member state was that the territory of the customer who wanted to 
acquire  the  pram  had  been  reserved  to  another  exclusive  distributor  and  that  they 
were  bound  by  contractual  agreements  to  sell  prams  only  to  customers  resident  in 
that territory. This clause however is likely to be in breach of competition law and 
thus it is unlikely that it can justify such a restriction of supply. 

When  customers  try  to  buy  services  in  another  Member  State,  they  are  sometimes  told  by 
distributors  that  the  service  cannot  be  delivered  to  them  as  the  distributor  is  bound  by 
contractual  arrangements  preventing  him  from  serving  territories  reserved  by  their  suppliers 
for other distributors. 

Service  providers  cannot  be  obliged  to  breach  the  contracts  they  have  validly  entered. 
However,  these  contractual  obligations  between  independent  undertakings  can  be  invoked 
only to the extent that they do not breach competition law, and businesses are responsible for 
ensuring  that  their  agreements  and  practices  satisfy  the  requirements  laid  down  in  EU  and 
national competition rules. 

For  agreements  considered  in  this  context,  the  competition  rules  applicable  to  vertical 
agreements  seem  the  most  relevant.24  Vertical  agreements  are  agreements  for  the  sale  and 

returns  in  time  for  the  products  to  be  resold,  or  if  return  policies  are  comparably  more  difficult  for  their 
customers to manage. 

22   The  difference  could  be  due  to  different  cost  structures  of  postal  operators,  higher  costs  of  cross-border 
delivery  (e.g.  longer  logistical  chain;  additional  administrative  costs),  type  of  delivery  agreements  made 
between operators), different levels of competition in the domestic and cross-border settings, or insufficient 
quantities (volume of items) sent into the territory of other Member States which would mean that service 
providers would not be able to avail of preferential rates for delivery services in those Member States. The 
internal handling of the procedures involved in shipping to another Member State may also be expensive for 
the trader, in particular concerning when selling lower-value goods. 
23  Article 6 of Consumer Rights Directive mentioned above in footnote 12. 
24   Whether a vertical agreement actually restricts competition and whether in that case the benefits outweigh 
the  anti-competitive  effects  will  often  depend  on  the  market  structure.  In  principle,  this  requires  an 
individual  assessment.  However,  the  Commission  has  adopted  Regulation  (EU)  No  330/2010,  the  Block 
Exemption  Regulation  (‘BER’),  which  provides  a  safe  harbour  for  most  vertical  agreements.  Regulation 
(EU)  No  330/2010  renders,  by  block  exemption,  the  prohibition  of  Article  101(1)  TFUE  inapplicable  to 
vertical agreements which fulfil certain requirements. 

16

 
 
                                                                                                                                                                                     
purchase of goods or services which are entered into between companies operating at different 
levels  of  the  production  or  distribution  chain,  such  as  distribution  agreements  between 
manufacturers and wholesalers or retailers. For vertical agreements that cannot benefit from a 
block exemption, the Commission has provided guidance on how to assess its pro- and anti-
competitive effects in its Vertical Restraints Guidelines, which were revised in 2010.25 

To  start  with,  for  the  present  purposes,  there  is  a  need  to  differentiate  between  active  and 
passive sales. Passive sales are those that have not been actively sought by the seller. Having 
a website and receiving and processing orders by a customer following a visit to the website, 
for  example,  constitutes  passive  selling.  Active  sales  are  sales  that  a  distributor  solicits, 
through  marketing,  sales  visits  etc.  Online  advertisement  addressed  to  specific  customers  is 
explicitly recognised as a form of active selling. 

Restrictions of passive sales in the territory of other Member States laid down in distribution 
agreements  are  generally  in  breach  of  Article  101  TFEU.  It  is  thus  unlikely  that  service 
providers  who  have  entered  into  exclusive  distribution  agreements  with  their  suppliers  can 
validly invoke clauses in their contracts containing restrictions of passive sales to cross-border 
service  recipients  resident  in  other  Member  States  whose  territory  has  been  reserved  for 
another exclusive distributor. 

Example  3:  Higher  prices  imposed  due  to  market  conditions  in  the  country  of 
residence of the recipient 

Car rental companies renting motor vehicles with subsidiaries in all Member States 
set up country-specific websites for the delivery of their services, which do not allow 
for the circumvention of automatic geolocation techniques used to display different 
prices according to the Member State of residence of the recipient. Price differences 
in  the  various  country-specific  websites  are  significant,  despite  the  fact  that  the 
differences  are  applied  to  the  same  service  provision  taking  place  in  the  same 
location  and  by  the  same  provider  and  that  costs  of  the  supply  of  the  service  then 
would not appear to differ significantly on grounds of the place of residence of the 
customer.  In  this  event,  cost  considerations  alone  would  not  appear  to  justify  the 
partitioning of the market to the detriment of consumers. 

Market  conditions  are  determined  by  a  variety  of  factors  which  relate  to  both  supply  and 
demand in the market. On the supply side, businesses need to take into account costs such as 
the  cost  of  providing  the  service  (rental  of  necessary  premises  when  there  is  a  physical 
establishment, cost of labour), the cost of delivery, the cost of payment methods and customer 
support  and  advertising  costs.  Factors  affecting  demand  include  brand  penetration,  different 
preferences  or  requirements  with  regard  to  the  level  of  service  to  recipients,  for  certain 
services  such  as  tourism  and  car  rental  seasonality  and  different  vacation  periods  and  the 
presence  and  strength  and  marketing  policies  of  competitors  in  each  of  the  different 
territories.  These different market conditions shape  the geographic scope and the conditions 
under  which  service  providers  decide  to  actively  offer  their  services  in  the  various  Member 
States. 

There are differences between customer groups in terms of how much demand the group has 
for a service at a given price and the way in which the group’s demand changes in response to 
price changes. The wording of Article 20 of the Services Directive, read in conjunction with 

25  SEC(2010) 411, see http://ec.europa.eu/competition/antitrust/legislation/guidelines_vertical_en.pdf. 

17

 
 
                                                           
its Recital 95, indicates that a difference in willingness to pay could be invoked by businesses 
to  justify  the  existence  of  different  pricing  and  marketing  policies  by  a  service  provider 
towards the various Member States. 

The use of the internet has made it much easier for consumers to make comparisons between 
service  providers,  even  those  located  in  other  Member  States.  It  is  therefore  to  be  expected 
that  consumers  will  become  more  active  in  seeking  out  such  favourable  conditions  offered 
online  by  service  providers  established  in  other  Member  States.  The  facilitation  of  price 
comparison  means  more  transparent  markets  which  increases  competition  and  ultimately 
leads to price convergence. This is one of the sought-after benefits of the introduction of the 
euro.  Practices  that  deliberately  prevent  customers  from  accessing  information  on  the 
conditions of access applicable to recipients resident in other Member States should be subject 
to particular scrutiny by national authorities. Furthermore, price information provided on the 
web-site  of  the  trader  should  be  clear  and  comprehensible,  informing  the  consumer  prior  to 
any  purchase  of  the  total  price,  including  taxes  and  also  information  on  freight  or  delivery 
charges.26 

Example 4: Higher charges for cross-border payments 

Drivers who use motorways in other Member States on a regular basis may wish to 
avail  of  the  possibility  to  purchase  toll-payment  devices  through  which  the  driver 
can pay the applicable charges for the use of the road network by means of direct 
debit. Where this possibility is offered to subscribers in the Member State where the 
motorway  is  located,  residents  of  other  Member  States  should  not  be  charged,  in 
principle, a higher price solely on grounds that the account through which payment 
shall be made is located in another Member State. 

Regulation  (EC)  No  924/2009  on  cross-border  payments  in  the  Community  eliminates 
differences in charges for cross-border and national payments in euro, up to a maximum value 
of EUR 50 000, in all EU Member States. 27 Thus, charges for payment transactions offered by 
a payment service provider (e.g. the bank) have to be the same whether the euro payment is 
national  or  cross-border.  The  Regulation  applies  to  all  electronically  processed  payments, 
including credit transfers, direct debits and payments by means of debit and credit cards.  

Example 5: Refusal to supply because of intellectual property rights concerns 

A  music  download  provider  has  acquired  rights  on  the  music  it  offers  for  all 
Member  States,  which  it  sells  through  country-specific  websites  offering  slightly 
different  repertoire  in  each  Member  State  at  different  prices.  When  customers 
attempt  to  have  access  to  certain  tracks  sold  in  Member  States  other  than  their 
Member State of residence they are denied access at the beginning of the ordering 
process. 

When the trader holds the required copyright and related rights necessary to deliver 
the  service  in  other  territories,  the  absence  of  required  intellectual  property  rights 
will  normally  not  justify  a  refusal  to  supply.  The  refusal  to  supply  customers 

26   See Article 8 of the Consumer Rights Directive mentioned above in footnote 12. 
27   The IBAN and in some cases the BIC may need to be supplied. 

18

 
 
 
                                                           
resident  in  other  Member  States  will  thus  need  to  be  objectively  justified  on  other 
grounds. 

Holders  of  copyright  and  related  rights  have  protection  by  virtue  of  the  existence  of  their 
work,  so  copyright  and  related  rights  do  not  require  registration.  The  exercise  of  copyright 
and related rights is territorial in nature: a right holder exercises his/her rights on the basis of a 
bundle of independent, national rights which have been harmonised in the EU under a series 
of  directives  adopted  between  1991  and  2011.  Notably,  and  for  purposes  of  the  delivery  of 
online  services,  authors  and  other  right  holders  have  the  exclusive  right  to  authorise  or 
prohibit the reproduction of their works or other protected subject matter; and to authorise or 
prohibit the communication of their works or other protected subject matter, including via the 
internet.28  While  copyright  and  related  rights  are  in  principle  limited  to  the  territory  of  the 
state granting such rights, copyright holders can also grant multi territorial or pan European 
licences. The choice rests with the rights holder. 

A service provider may often need to acquire licences from more than one party.29 The costs 
associated with procuring licences include both the purchase price and a series of transaction 
costs. Music licensing is particularly complex, not least because of the split of rights within 
any given track. As far as the rights of authors are concerned, their licensing is largely based 
on  collecting  societies  (the  bodies  responsible  for  the  management  of  copyright  and  the 
collecting of royalties) which traditionally hold licence rights on a national basis. 

Within the boundaries of competition law, a rightholder may choose whether or not to grant 
authorisation at all, or for a particular territory, so the actual acquisition of licences depends 
on  the  successful  conclusion  of  negotiations.  Lack  of  the  required  authorisation  for  a 
particular  territory  is  an  objective  reason  that  would  justify  the  refusal  of  a  service  to 
consumers in the territory where the rights have not been cleared.30 

When a service provider has acquired the relevant rights for music download services. only 
in,  say,  three  Member  States,  the  service  provider  will  not  be  able  to  make  its  services 
available to residents in the other Member States. In this situation, the provider could include 
a  disclaimer  at  the  beginning  of  the  ordering  process  indicating  that  the  music  service  can 
only  be  delivered  in  certain  territories.  This  could  help  to  alleviate  negative  consumer 
experience. 

However, it seems that even where service providers have acquired authorisation to provide 
access  to  copyright  content  across  multiple  territories,  they  sometimes  choose  not  to  do  so. 
Indeed, in the last years some service providers have rolled out their services across the 27 EU 
Member States but still maintained restrictions on consumer access to services outside their 
Member State of residence. The limiting of offers of digital content to specific Member States 
represents  an  obstacle  for  consumers  in  other  Member  States  who  may  wish  to  access  that 
content.  Traders,  even  when  having  cleared  the  necessary  copyright  and  related  rights  to 
deliver  a  service,  sometimes  elect  to  restrict  the  service  territorially,  taking  into  account 
factors  which  are  unrelated  to  copyright.  In  particular,  commercial  decision-making  implies 

28  Articles 2 and 3 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on 

the harmonisation of certain aspects of copyright and related rights in the information society. 
29   http://ec.europa.eu/internal_market/services/docs/services-dir/studies/20091210_article20_2_en.pdf, 

see 

Section 4.3. 

30   The Commission will table a legislative proposals on Collective Rights Management in 2012 with the aim to 
help simplify the complex system of licensing music online and to improve the governance and transparency 
of collecting societies. 

19

 
 
                                                           
the  balancing  of  the  costs  of  providing  a  given  service  against  the  projected  income  that 
services  can  deliver.  These  costs  may  include:  costs  of  providing  access  in  terms  of  IT 
infrastructure  and  network;  expected  take-up  taking  into  account  local  factors  such  as 
availability  of  high-speed  broadband,  pricing  of  content,  competing  services;  language 
versioning;  content  rating,  marketing  and  promotion  etc.  While  an  absolute  lack  of  the 
required  licences  will  normally  constitute  an  objective  refusal  to  supply  a  service,  other 
reasons, in particular those not related to copyright, will have to be justified on a case-by-case 
basis. As indicated above, audio-visual broadcast services do not fall within the scope of the 
Services Directive.   

20

 
 
 
6.  FURTHER  ROOM  FOR  IMPROVEMENT:  REMOVING  REMAINING  OBSTACLES  TO  THE 

INTERNAL MARKET 

Service  recipients  should  generally  not  be  confronted  with  differences  of  treatment  due  to 
their nationality or residence. However, Article 20(2), of the Services Directive clarifies that 
if the service provider can provide objectively justified reasons for different treatment, it will 
not  be  considered  discrimination.  This  Section  briefly  refers  to  a  number  of  factors  that  are 
often invoked by businesses as possible reasons to establish different treatment and that have 
to  be  taken  into  account  by  competent  authorities  in  their  case-by-case  analysis  of  a  given 
conduct, as they may, in some instances justify different treatment given the current degree of 
completion of the internal market. 

Certain obstacles to the completion of the single market, particularly in the digital arena, have 
been  identified  by  the  Commission  in  recent  years,  including  in  the  E-Commerce 
Communication.31 These areas are being prioritised in order for the obstacles to be eliminated 
as quickly as possible, to make life easier for businesses and consumers. 

It will be for competent authorities, in their case by case analysis, to take due account of the 
factors mentioned in this Section to determine whether in the case in question these elements 
could  justify  certain  practices  or  not.  The  size  of  the  provider  is  an  additional  element  that 
might need to be taken into account in the analysis. Competent authorities are also encouraged 
to  take  due  account  of  any  legislative  developments  or  case-law  on  the  new  possibilities 
offered  by  the  internal  market  to  business  to  avail  of  the  internal  market  including  the 
mandatory or voluntary character of those measures and any remaining obstacles. 

6.1. 

Payments 

With regard to payments, when a customer wishes to pay for his purchase using a credit card 
issued  in  another  Member  State,  instances  have  been  reported  whereby  the  transaction  has 
been blocked or higher charges applied. Member States, in line with Directive 2007/64/EC of 
the European Parliament and of the Council of 13 November 2007 on Payment Services in the 
Internal  Market,  may  allow  for  the  imposition  of  charges  for  the  use  of  specific  means  of 
payment  such  as  credit  or  debit  cards.  However,  when  Member  States  provide  for  this 
possibility, they may not discriminate against cards issued outside that Member State so that 
such  foreign  cards  would  attract  surcharges  while  cards  issued  within  the  Member  State  in 
question  would  not.  Enforcement  of  this  rule  has  resulted  in  discriminatory  practices  being 
ended in certain Member States.  

Concerning  charges  for  the  use  of  certain  types  of  payment  instruments,  Directive 
2011/83/EU of the European Parliament and of the Council of 25 October 2011 on Consumer 
Rights  (‘the  Consumer  Rights  Directive’),  when  implemented,  will  prohibit  retailers  from 
charging fees for the use of individual payment instruments that exceed the cost borne by the 
retailer  for  their  use.  In  addition  and  as  indicated  above  Article  8,  paragraph  3,  of  the 
Consumer  Rights  Directive  obliges,  for  contracts  concluded  after  13  June  2014,  retailer 
websites to indicate clearly and legibly at the latest at the beginning of the ordering process 
whether  any  payment  restrictions  apply.  Furthermore,  the  Commission’s  follow  up  to  the 

31 Available at: http://ec.europa.eu/internal_market/e-commerce/communication_2012_en.htm. 

21

 
 
 
                                                           
January  2012  Green  Paper  ‘Towards  an  integrated  European  market  for  card,  internet 
and  mobile  payments’  will  address  specific  barriers  to  a  more  integrated  payments  market 
for card, internet and mobile payments, thereby leading to broader choice of and better access 
to payments means by consumers. 

6.2.  Taxation 

With regard to national taxation, in particular VAT, when sales in other Member States make 
a service provider subject to a registration obligation in those Member States, the costs of the 
supply  can  increase,  being  proportionally  higher  for  SME  businesses.  These  may  then  be 
passed on to the customer or justify a refusal to supply. Furthermore, differences in the VAT 
rates  applied  to  different  products  and  services  in  the  different  Member  States  can  explain 
certain price differences visible to the consumer. 

Some  services  that  are  commonly  purchased  cross-border  include  electronic  services,  for 
example software and ringtone downloads or access to online games. From 1 January 2015, 
operators established in the EU providing these services in the EU will charge VAT at the rate 
applicable  in  the  Member  State  where  the  customer  resides.  While  these  new  rules  aim  to 
reduce, even remove, the effect of competition between Member States’ VAT rates, they may 
generate costs due to additional complexity. A ‘mini One Stop Shop’ will be introduced as of 
the same date allowing businesses to register, declare and pay the VAT due in other Member 
States  in  their  own  Member  State,  reducing  administrative  burden  and  facilitating  cross-
border provision of telecommunication, broadcasting and electronic services.   

6.3.  Divergences in consumer protection and contract law rules 

One  of  the  reasons  businesses  commonly  give  to  explain  difficulties  in  engaging  in  cross-
border trade is the cost of determining and complying with the applicable national consumer 
protection  and  contract  law  rules.  When  considering  whether  to  offer  their  services  in 
another Member State, service providers must consider what would happen if something went 
wrong  and  if  they  were  to  be  taken  to  court  by  the  customer.  This  was  highlighted  in  the 
Matrix study. 

Thanks to a robust set of EU rules, consumers enjoy a common level of protection across the 
single  market  against,  for  example,  unfair  contract  terms,  faulty  goods,  contracts  concluded 
online or outside the business’s premises.32 However, most of such EU acquis leaves Member 
States free to adopt more stringent rules, if duly justified by consumer protection reasons. As 
a result, Member States’ legal frameworks differ as regards consumer protection and contract 
law, which makes the determination of the applicable law very important for businesses. 

The determination of the competent court, the applicable law as well as the recognition and 
enforcement of judgments are regulated under private international law rules relating to cross-
border dispute resolution. These rules have been harmonised to a great extent at Union level. 

32   See Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (‘Unfair Contract 
Terms’),  Directive  99/44/EC  of  the  European  Parliament  and  of  the  Council  of  25  May  1999  on  certain 
aspects  of  the  sale  of  consumer  goods  and  associated  guarantees  (‘Consumer  Sales  Directive’).  Directive 
97/7/EC of the European Parliament  and of the Council of 20 May 1997 on the protection of consumers in 
respect  of  distance  contracts  (‘Distance  Selling  Directive’)  and  Council  Directive  85/577/EEC  of  20 
December  1985  to  protect  the  consumer  in  respect  of  contracts  negotiated  away  from  business  premises 
(‘the Doorstep Selling Directive’), which currently provide for minimum harmonisation, will be replaced by 
the Consumer Rights Directive mentioned above. 

22

 
 
                                                           
Council Regulation (EC) No 44/2001 of 22 December 2000 of the European Parliament and 
of the Council on jurisdiction and the recognition and enforcement of judgments in civil and 
commercial  matters  (‘Brussels  I  Regulation’)  is  the  most  important  legal  instrument  to 
determine  which  court  is  competent  to  handle  a  dispute.33  The  Rome  I  Regulation34  (for 
contractual  obligations)  and  the  Rome  II  Regulation35  (for  non-contractual  relations) 
determine  the  applicable  law.  In  the  case  of  consumer  contracts,  private  international  law 
rules dictate that when the business is directing its activities to the country of the consumer, 
then the consumer protection rules in the consumer’s country apply in the same way as they 
apply to national service providers unless, in the case of services, the supply of services to the 
consumer takes place exclusively in a country other than that in which the consumer has his 
habitual  residence.36  A  case-by-case  basis  analysis  is  required  to  determine  whether  an 
activity is being directed to a given Member State. 

the  difficulties 

The costs of compliance with differing national rules might give rise to differences in prices 
and  conditions  of  services  supplied  across  borders.  Similarly,  service  providers  may  be 
discouraged  from  directing  their  activities  to  other  Member  States  to  avoid  having  to  alter 
terms and conditions under which the services are provided. Service providers may sometimes 
perceive 
in  complying  with  a  range  of  different  requirements  as 
disproportionate to the revenue they could hope to earn by actively directing their activity to 
other Member States. Such costs due to the regulatory environment may then be passed on to 
the  customer  or  justify  a  refusal  to  supply.  However,  such  concerns  generally  do  not  come 
into play when the provider is not directing its activity to consumers in other Member States 
but  when  it  is  approached  by  a  consumer  in  another  Member  State  wishing  to  purchase  its 
services. 

The EU has partially reduced these differences by harmonising certain areas of contract law. 
The  current  rules  on  EU  consumer  protection  contain  minimum  requirements  for  unfair 
contract  terms  and  sales  and  guarantees.  Directive  2000/31/EC  of  the  European  Parliament 
and  of  the  Council  of  8  June  2000  (‘E-Commerce  Directive’)  contains  basic  provisions  on 
online  contracting.  Finally, 
level  of 
harmonisation of consumer protection legislation across the EU and achieves common rules 
in  some  important  domains.37  The  new  rules  set  out  in  the  Consumer  Rights  Directive  will 
have to be transposed into national laws by the end of 2013.38 

the  Consumer  Rights  Directive 

improves 

the 

33   The  Brussels  I  Regulation  provides  that  actions  against  a  person  domiciled  in  a  Member  State  can,  as  a 
general rule, be brought in the courts of that State. It also provides that cases resulting from a contractual 
relationship may be decided by the courts of the place of performance of the contractual obligation. In the 
case of consumer contracts, however, rules protecting the consumer apply. In order for those protective rules 
to  apply,  the  Brussels  I  Regulation  requires  that  the  trader  ‘directs  its  activities’  to  the  Member  State  in 
which the consumer is domiciled. (Article 15 (1) (c)). 

34  Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law 

applicable to contractual obligations (Rome I), OJ L 177/6, 04.07.2008. 

35  Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law 

applicable to non-contractual obligations, OJ L 199/40, 31.07.2007 . 

36   See the Rome I Regulation, Article 6(4)(a). 
37   For  distance  and  off-premises  contracts,  the  information  requirements  for  traders,  the  consumer’s  right  of 
withdrawal  from  the  contract  and  the obligations for  traders  and  consumers  in  case of  withdrawal will  be 
fully harmonised. Both consumers and traders will benefit from standard forms for the rights of withdrawal. 
Additionally,  the  Directive  entails  new  harmonised  rules  on  the  passing  of  risk  in  sales  contracts  and  the 
default time-limit for the delivery of goods as well as a ban on hidden charges, on pre-ticked boxes which 
impose surcharges higher than the trader’s actual costs for the use of a certain payment means (e.g. credit 
cards)  and  on  charges  for  telephone  hotlines  higher  than  the  standard  telephone  rate  for  calls.  As  to  the 

23

 
 
                                                           
 
Furthermore, on 11 October 2011 the Commission proposed an optional Common European 
Sales  Law.39  It  aims  to  facilitate  trade  by  offering  a  voluntary  set  of  rules  for  cross-border 
contracts in all 27 EU countries which the parties can choose as the applicable law to cross-
border contracts for the sales of goods, digital content and limited number of related services. 
Thereby the proposal will contribute to the elimination of some of the internal market barriers 
stemming from diverging national contract law. This proposal is currently under negotiation 
in the European Parliament and in the Council. 

However  even  with  the  adoption  of  the  Consumer  Rights  Directive  and  of  the  proposed 
Common European Sales Law, considerable barriers stemming from national contract laws 
in the EU remain. This is particularly relevant for the contracts falling completely outside the 
existing and proposed legislative measures. For instance, services contracts are almost entirely 
excluded from the scope of the Common European Sales Law and some contract law areas are 
not covered (e.g. legal capacity to contract or legal representation). Furthermore, considering 
the  optional  character  of  the  proposed  Common  European  Sales  Law  and  its  scope,  once 
adopted  the  proposal  will  provide  an  optional  tool  to  overcome  the  obstacles  created  by 
different contract laws. As it will not per se eliminate all barriers related to diverging contract 
laws,  enforcement  authorities  may  wish  to  take  this  into  account  in  their  case-by-case 
analysis. 

It  is  possible  for  disputes  to  arise  in  the  context  of  a  cross-border  service  provision.  For 
instance,  a  consumer  may  want  to  take  legal  action  if  he  had  bought  a  product  over  the 
internet from another EU Member State but it never arrived; if a computer that he had bought 
while  visiting  another  EU  country  did  not  work  properly  when  he  got  it  home,  or  if  the 
construction company renovating his holiday home in another EU country did not do its work 
properly. When selling services, traders may fear being subject to such court proceedings if a 
dispute arises with a consumer who bought their services. 

Service  providers  may  be  unaware  of  how  to  resolve  cross-border  disputes  in  a  simple, 
efficient  and  low-cost  way  through  Alternative  Dispute  Resolution  procedures.  Settling 
disputes out of court through alternative dispute resolution (ADR) is faster, cheaper and easier 
than court proceedings. Actions proposed to enhance universal access to quality ADR across 
the EU will help businesses delivering services into other Member States better manage their 
customer relations and it can also save them some costs of potential court cases. 40 Thus they 
will remove  disincentives  for providers  to  deliver into the territory of other Member States. 
The  creation  of  an  EU-wide  online  platform  (‘ODR  platform’)  providing  consumers  and 

scope, contracts on the provision of utilities (water, gas, electricity) and contracts concerning digital content 
will also be covered by the new rules, but certain areas such as healthcare services, passenger transport and 
gambling will be excluded. 

38   It should be noted that the application of the Consumer Rights Directive to digital content (data produced 
and  supplied  in  digital  form  such  as  computer  programs,  applications,  games  or  music).  Contracts  for  the 
supply  of  digital  content  are  within  the  scope  of  the  Directive,  but  the  right  of  withdrawal  is  limited  to 
situations where the performance of the contract has not yet begun or begun without the consumer’s prior 
consent or, if the digital content is provided on a tangible medium such as a CD, where the consumer has not 
yet unsealed it. The Consumer Rights Directive improves and clarifies the information rights for consumers 
when  purchasing  digital  content.  In  particular,  traders  will  have  to  inform  (consumer)  buyers  of  digital 
content not only about its compatibility with hardware and software, but also about the application of any 
technical protection measures or digital rights management, for example about a limitation on the right of 
the consumers to make copies of the content. 

39  See http://ec.europa.eu/justice/newsroom/news/20111011_en.htm.  
40   See http://ec.europa.eu/consumers/redress_cons/adr_policy_work_en.htm. 

24

 
 
                                                                                                                                                                                     
businesses with a single point of entry for resolving on-line the disputes concerning purchases 
made on-line in another EU-country should serve to that purpose. 

6.4.  Debt recovery 

For service providers who cannot rely on advance payment, the cost of debt recovery in case 
of non-payment may deter them from providing services or selling their goods to customers in 
other countries. Some 2.7 % of all business transactions in Europe were written off due to bad 
debts in 2010,41 albeit mostly at national level. EU law on civil and commercial litigation can 
be used in cases which have a cross-border element to claim money owed. For instance, the 
European  Payment  Order  offers  a  simplified  procedure  for  cross-border  monetary  claims 
which  are  uncontested  by  the  defendant.  The  European  Small  Claims  Procedure  is  a 
simplified  procedure  which  speeds  up  the  processing  of  cross-border  claims  that  do  not 
exceed  EUR  2000.  The  Commission  has  published  practical  guides  on  using  these 
procedures.42 While both of these initiatives offer substantial assistance to providers wishing 
to claim payment for services rendered to a client in another Member States and the resulting 
judgment  will  circulate  in  the  EU  without  any  need  for  intermediate  proceedings  for 
recognition  and  enforcement,  the  judgment,  would  still  need  to  be  enforced  in  accordance 
with the national rules and procedures of the Member State where enforcement is sought. 

In  this  context,  the  Commission  is  currently  undertaking  a  pilot  project  to  support  SMEs  in 
facilitating  cross-border  debt  recovery.  Its  main  objective  is  to  increase  awareness, 
understanding  and  use  of  the  legal  instruments  available  for  claims  management,  through 
financial support for a series of seminars and training sessions in EU Member States to inform 
SMEs about debt recovery management and the legal instruments available in this field. 

6.5. 

Private copying levies 

Rightholders have an exclusive right to authorise or prohibit the reproduction of their works 
(e.g.  books,  music,  films)  and  other  protected  subject  matter  (e.g.  phonograms,  broadcasts). 
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the 
harmonisation  of  certain  aspects  of  copyright  and  related  rights  in  the  information  society 
gives the Member States a possibility to provide for exceptions to this right. When protected 
content  is  copied  by  virtue  of  ‘private  copying  and  reprography  exceptions’,43 
rightholders’  harm  must  be  compensated  by  means  of  a  fair  compensation.  Member  States 
often provide for fair compensation by imposing levies on goods that are typically used to 
produce copies (such as blank CDs, recording equipment, MP3 players, computers, printers, 
scanners, etc.) Important differences however exist between Member States’ levy systems as 
to the equipment which bears a levy or the methodology according to which the tariffs are set. 
These differences affect the smooth functioning of the Single Market. 

The Commission has launched a mediation process which brings key stakeholders together in 
order  to  identify  key  elements  on  which  a  workable  agreement  could  be  found.  44  The 

41  Source:  Intrum  Justitia  2011  European  Payment  Index,  see  http://www.intrum.com/About-Us/European-

Payment-Index/. 

42  Available at: http://ec.europa.eu/civiljustice/publications/publications_en.htm. 
43   Article 5(2)(a) and Article 5(2)(b) of Directive 2001/29/EC of the European Parliament and of the Council 
of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information 
society. 

44   http://ec.europa.eu/commission_2010-2014/barnier/headlines/speeches/2012/04/20120402_en.htm. 

25

 
 
                                                           
mediation  touches  in  particular  upon  issues  such  as  the  devices  subject  to  a  levy,  the 
methodology for tariff-setting and cross-border sales. At the same time, private copying and 
reprography is being analysed in the context of new digital forms of distribution of copyright- 
protected content and its implications for levy systems. 

On the basis of this mediation process, the mediator will formulate recommendations which 
could serve as a framework for possible legislative action. 

26

 
 
 
7.  CONCLUSIONS 

Article 20 of the Services Directive prohibits discrimination against service recipients on the 
basis  of  their  nationality  or  country  of  residence.  This  applies  to  refusals  to  supply,  to 
limitations  of  access  to  offers,  or  to  offers  subject  to  inferior  conditions.  Yet  too  often, 
consumers  are  disappointed.  There  are  instances  of  refusal  to  provide  a  service  or  unequal 
conditions  available  for  consumers  from  another  Member  State.  Full  implementation  of 
Article 20(2) in the Member States should put an end to discriminatory practices in so far as 
they  are  not  objectively  justified.  The  following  actions  should  help  to  ensure  that  this 
purpose is achieved. 

7.1. 

Enforcement of Article 20(2) by Member State authorities 

Reported complaints of different treatment have as yet very rarely translated into enforcement 
decisions by competent authorities in the Member States, not the least because it appears that 
in  a  good  number  of  instances  the  problem  was  resolved  amicably  after  involvement  of 
enforcement  authorities  or  consumer  protection  bodies.  These  authorities  should  ensure 
thorough  follow-up  of  such  cases  where  necessary.  In  instances  of  dispute  with  regard  to 
service  recipients’  rights,  and  where  consumers  and  service  providers  have  been  unable  to 
reach  an  amicable  solution,  including  through  the  intervention  of  the  relevant  assistance 
bodies,  Member  State  authorities  should  enforce  the  national  provisions  setting  out  service 
recipients’  rights  under  the  Services  Directive  in  accordance  with  the  applicable  national 
procedures. 

When  assessing  whether  there  is  an  objectively  justified  reason  for  a  refusal  to  provide  a 
service  or  to  do  so  under  different  conditions,  Member  State  authorities  are  encouraged  to 
take  into  account  progress  made  in  the  completion  of  the  internal  market  and  the  further 
elimination of barriers. When action at EU level makes it possible for businesses to overcome 
certain current regulatory barriers to the provision of cross-border services, those businesses’ 
decision not to make use of those possibilities (resulting in a refusal to supply or in different 
treatment) should be normally supported by other objective justifications. Examples of such 
actions  could  include  the  completion  of  the  Single  Euro  Payments  Area  or  the  legislative 
developments in the area of copyright. 

The  Commission  will  coordinate  the  exchange  of  information  and  good  practices  between 
authorities with regard to their enforcement actions. 

7.2. 

The Commission’s role: Information and support to Member States, businesses 
and consumers 

The Commission services will follow up closely on the way in which the non-discrimination 
provision  is  enforced  in  the  Member  States  and  will  coordinate  a  structured  exchange  of 
information and good practices between authorities with regard to their enforcement actions. 
The Commission services will also come forward with further specific guidance on the basis 
of  experience  with  the  national  implementation  of  this  provision  and  in  order  to  take  into 
account regulatory developments that will eliminate remaining barriers for cross-border trade. 
27

 
 
 
 
The  Commission  services  will  continue  to  liaise  with  the  business  community,  including 
through  business  representative  organisations,  chambers  of  commerce  and  other  bodies,  in 
order to educate them on their rights and responsibilities under Article 20(2) of the Services 
Directive.  In  this  regard,  the  Commission  will  work  with  Member  States  to  encourage 
providers  in  specific  sectors  to  take  action  in  order  to  ensure  the  quality  of  their  service 
provision through quality charters for the application of this provision. 

It will also work with businesses to improve transparency and support efforts by businesses to 
ensure their customers can shop cross-border in the single market. 

7.3.  Making  the  single  market  more  tangible:  steps  businesses  could  undertake  in 

applying the rights granted by Article 20(2) 

The  Commission  is  working  to  ensure  businesses  can  take  advantage  of  the  possibilities 
presented by use of the internet. Businesses may choose to focus on building a customer base 
in their local or national market. They may also pursue marketing campaigns in the Member 
States of their choosing. However, in order to prevent erecting artificial borders within the EU 
single market, an effort should be made to make it possible for consumers in other Member 
States  to  gain  access  to  the  services  proposed  in  those  target  countries,  especially  those 
offered online. 

In  order  for  Article  20(2)  to  take  full  effect,  business  providers  are  called  upon  to  facilitate 
access  to  service  recipients  who  want  to  benefit  from  the  internal  market.  Discrimination 
based  directly  on  grounds  of  nationality  should  no  longer  occur,  as  a  rule.  In  addition, 
recipients  who  move  to  other  territories  and  try  to  acquire  services  therein  should  not  be 
faced,  in  principle,  with  discriminatory  treatment  on  grounds  of  their  place  of  residence  as 
their situation will generally be comparable to that of recipients resident in the Member State 
where the service is provided. 

Businesses selling online should be encouraged to indicate in advance in a prominent place on 
their websites any possible delivery restrictions applying to their services. This practice will 
become an obligation further to the implementation of the recently adopted Consumer Rights 
Directive.45 

When businesses selling services online are approached by customers that are not resident in 
the  Member  States  to  which  those  businesses  directly  (implicitly  or  explicitly)  target  their 
online  offers,  refusals  to  supply  or  different  treatment  of  consumers  resident  in  other 
territories  should  only  occur  when  it  is  justified  by  objective  reasons.  In  the  case-by-case 
assessment of these reasons, competent authorities may need to take due account of the size of 
the company providing the service. 

The  non-discrimination  clause  requires  a  case-by-case  assessment.  However,  particular 
attention  should  be  given  to  cases  where  consumers  face  higher  charges  than  would  be 
imposed for a domestic transaction when they wish to pay for a service provided in another 
Member  State  by  credit  transfer  or  direct  debit  in  euro.  Consumers  should,  in  principle,  no 
longer  be  refused  supply  on  the  grounds  that  it  is  impossible  to  physically  deliver  goods  in 
another  Member  State.  Similarly,  service  providers  should  not  rely  on  mere  geographic 
factors  to  apply  different  conditions  of  access  to  their  service,  where  there  are  no  objective 
criteria to justify such differences.  

45   Article 8(3) of the Consumer Rights Directive. 

28

 
 
                                                           
Transparency helps recipients to comprehend better the reasons behind a possible refusal to 
supply  or  a  higher  price  in  those  cases  in  which  these  may  be  justified.  Businesses  are 
encouraged to provide reasons for the different treatment upon the request of the recipients. In 
those  instances  in  which  the  business  had  already  given  clear  indications  in  advance  of  the 
delivery  restrictions  applying  to  its  offer,  it  will  probably  be  easier  for  it  to  provide 
information to customers on the reasons for those delivery restrictions. When determining in 
advance the delivery restrictions that they apply, businesses will have identified the reasons 
that underpin their policy. 

A number of obstacles still make the provision of cross-border services difficult and hamper 
businesses from ‘thinking European’, both online and offline. These obstacles must be tackled 
so  that  businesses  can  fully  exploit  the  opportunities  that  the  internal  market  places  at  their 
disposal.  Initiatives  are  underway  at  EU  level  to  eliminate  the  remaining  impediments  to 
cross-border service provision. 

29

 
 
ANNEX I 

Implementing Provisions

 
 
 
 
 
 
 
 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

AT 

Art. 1, § 23 of the Dienstleistungsgesetz 

BE 

Article 24(1) de la Loi sur les services du 26 
mars 2010, (M.B. du 30 avril 2010, p. 24437) 

BG 

Art. 1 and 2 of the Protection Against 
Discrimination Act 

21/11/2011 

28/12/2009 

Die allgemeinen Geschäftsbedingungen eines Dienstleistungserbringers für den Zugang 
zu 
einer Dienstleistung dürfen keine auf der Staatsangehörigkeit oder dem Wohnsitz des 
Dienstleistungsempfängers beruhenden diskriminierenden Bestimmungen enthalten. 
Unterschiede bei den 
Zugangsbedingungen sind nicht diskriminierend, wenn sie durch objektive Kriterien 
gerechtfertigt sind. 

NL: De afnemers worden niet onderworpen aan discriminerende 
eisen op grond van nationaliteit of verblijfplaats. 
De algemene voorwaarden voor toegang tot een dienst, die door de 
dienstverrichter voor het publiek toegankelijk worden gemaakt, bevatten 
geen discriminerende bepalingen in verband met de nationaliteit of 
verblijfplaats van de afnemer, zonder evenwel de mogelijkheid uit te 
sluiten om verschillende toegangsvoorwaarden te stellen wanneer die 
verschillen rechtstreeks door objectieve criteria worden gerechtvaardigd.                               
FR: Les destinataires ne sont pas soumis à des exigences 
discriminatoires fondées sur la nationalité ou le lieu de résidence. 
Les conditions générales d’accès à un service, qui sont mises à la 
disposition du public par le prestataire, ne contiennent pas de 
conditions discriminatoires en raison de la nationalité ou du lieu de 
résidence du destinataire, sans que cela ne porte atteinte à la possibilité 
de prévoir des différences dans les conditions d’accès lorsque. 

Art. 1: This Act shall regulate the protection against all forms of discrimination and shall 
contribute to its prevention. Art. 2: The purpose of this Act shall be to ensure to every 
person the right to: 1. equality before the act; 2. equal treatment and opportunities for 
participation in public life; 3. effective protection against discrimination. 

 
 
 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

CY 

CZ 

DE 

DK 

Section 20(2) of the Freedom of Establishment 
of Service Providers and the Freedom of 
Movement of Services Law of 2010, Law 
76(I)/2010. 

Providers shall ensure that the general conditions of access to a service made available to 
the public do not contain discriminatory provisions relating to the nationality or place of 
residence of the recipient, but without precluding the possibility of providing for 
differences in the conditions of access where those differences are directly justified by 
objective criteria. 

16/07/2010 

Pre-existing provision: Antidiscrimination Act 
No 198/2009 Coll., § 1/1 j), § 2Consumer 
Protection Act No 634/1992 Coll. ,§ 6 

§ 6 Zákaz diskriminace příjemců služeb 
(1) Poskytovatel služby je povinen zajistit, aby podmínky přístupu k poskytovaným 
službám nebyly diskriminační, zejména co se týče státní příslušnosti příjemců služeb nebo 
jejich místa bydliště. 
(2) Diskriminací není stanovení rozdílných podmínek přístupu ke službám na základě 
objektivních kritérií, zejména účtování dodatečných nákladů vzniklých v důsledku 
vzdálenosti nebo v důsledku technické povahy poskytování služby. Jednotná kontaktní 
místa 

Antidiscrimination Act: 
01/12/2009 Consumer 
Protection Act/ 12/02/2008 

§ 5 DL-InfoV (Service Information 
Requirements Regulation) 

Kap 4, §5‘Lov om tjenesteydelser i det indre 
marked nr. 384 of 25 May 2009 

The service provider shall not make public any conditions of access to a service that 
contain discriminatory provisions relating to the nationality or place of residence of the 
recipient. This shall not apply to differences in the conditions of access where those 
difference are directly justified by objective criteria. 

§ 5. A service provider may not subject a service recipient to discriminatory treatment 
based on the nationality, place of registered office or place of residence of the service 
recipient. 
Para. 2. Para. 1 does not preclude the possibility of providing for differences in the 
conditions of access where those differences are directly justified by objective criteria 

17/03/2010 

28/12/2009 

. 

32 

 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

EE 

§ 15(2) of the European Union Services 
Directive Implementation Act 

§15. Prohibition on discrimination of recipients 
(2) Also, the conditions of access to a service, which are made available to the public by 
the provider, shall not be discriminating on grounds of the nationality or place of 
residence of the recipient unless they are directly justified by objective criteria 

28/12/2009 

EL 

Art. 21 of Law 3844/2010 

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

03/05/2010 

ES 

Article 16 (3) of Law 17/2009, of 23 
November, governing the free access to and 
exercise of service activities (horizontal law 
implementing Services Directive),and  

Los prestadores de servicios no podrán imponer a los destinatarios requisitos ni 
condiciones generales de acceso a los servicios que sean discriminatorios por razón de su 
nacionalidad o lugar de residencia, sin que ello menoscabe la posibilidad de establecer 
diferencias en las condiciones de acceso directamente justificadas por criterios objetivos. 

24/12/2009 

Article 4, paragraph 2, of Law 25/2009, of 22 
December, that modifies 48 laws for its 
adaptation to Law 17/2009 

33 

 
 
FI 

Legal order was deemed to be in conformity 
with Article 20, paragraph 2, by virtue of the 
following provisions Constitution, 731/1999, 
(6 § equality);  

Non-discrimination Act, 21/2004, (6 § 
prohibition of discrimination);  

Administrative procedure act, 434/2003, (6 § 
Legal principles of administration);  

Criminal Act, 39/1889, (Chapter 11, 11 § 
Discrimination) 

34 

 
 
 
Member 
State 

Implementing Provision in national legal 
order 

FR 

Article L. 420-1 Code de commerce prohibant 
les ententes anticoncurrentielles 

Article L. 420-2 Code de commerce relatif aux 
abus de position dominante 

Article L. 442-6 Code de commerce sur les 
pratiques restrictives de concurrence. 
For consumer transactions Article L. 122-1 
Code consommation, Article R. 121-13 Code 
de consommation (sanctions). 

HU 

Act LXXVI of 2009 on the general rules 
regarding access to and exercise of service 
activities, Article 11(1) and (2) 

IE 

Regulation 10 of the European Union 
(Provision of Services) regulations 2010 (S.I. 
No. 533 of 2010) 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

10/12/1986 for provisions 
on competition law 

1/12/1986 for provisions 
on Code de la 
Consommation. 

(1) In respect of the use of services provided in the framework of service activities, all 
kinds of discrimination based on the nationality, place of residence or registered office 
shall be prohibited, unless there are other, reasonably justified conditions based on 
objective consideration related to the nature of the service. 
(2) The general terms of contracts applied by the service provider for the use of the 
service constituting discrimination provided for under paragraph (1) shall be null and 
void. 

10. (1) A competent authority in the State shall not impose on a recipient a discriminatory 
requirement that is based on the recipient’s nationality or place of residence.  
  (2) Subject to paragraph (3), a provider who provides a service to the general public shall 
not discriminate in the conditions on which the service is provided to a recipient on the 
basis of the recipient’s nationality or place of residence. 
  (3) A provider may provide for differences in the conditions of access where those 
differences are directly justified by objective criteria.  
  (4) A requirement or condition imposed in contravention of this Regulation has no 
effect. 

01/10/2009 

16/11/2010 

35 

 
 
 
 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

IT 

LT 

LV 

Article 29(1) del Decreto Legislativo n. 
59/2010, ‘Attuazione della direttiva 
2006/123/CE relativa ai servizi nel mercato 
interno’ (horizontal law implementing the 
Services Directive) 

Art. 29 
(Divieto di discriminazioni) 
1. Al destinatario non possono essere imposti requisiti discriminatori fondati sulla sua 
nazionalità o sul suo luogo di residenza. 
2. E’ fatto divieto ai prestatori di prevedere condizioni generali di accesso al servizio 
offerto che contengano condizioni discriminatorie basate sulla nazionalità o sul luogo di 
residenza del destinatario, ferma restando la possibilità di prevedere condizioni d’accesso 
differenti allorche’ queste sono direttamente giustificate da criteri oggettivi. 
3. A decorrere dalla data di entrata in vigore del presente decreto sono abrogate le 
disposizioni legislative e regolamentari statali incompatibili con le disposizioni di cui al 
comma 1 

26/03/2010 

Article 11(3) of the Law on Services of the 
Republic of Lithuania 

When establishing the general conditions for receiving services that are made available to 
the public, it shall be prohibited to impose requirements discriminating the recipients on 
grounds of nationality, permanent residence or Member State of the establishment, except 
when such requirements can be objectively justified 

28/12/2009 

Law on the Free Provision of Services, Section 
10 

Section 10. Rights of the service recipient  
(1) The service recipient’s rights to receive a service shall not be restricted: 
1) by obliging him to obtain a permit in order to receive or use a particular service; 
2) by imposing a prohibition or restriction on him regarding the receipt of financial aid, if 
this right or scope of aid is dependent on the status of the service recipient concerned in 
Latvia or in those locations where the service is provided.     
(2) A service recipient has the right to receive a service which is not discriminative 
regarding his/her citizenship (nationality) or residence, except the cases, when the 
application of such conditions is clearly and distinctly formulated, objectively justified, is 
fair and honest. 

04/05/2010 

36 

 
 
 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation)  

Date of entry into force 

LU 

MT 

Article 11 of Loi 24 mai 2011 relative aux 
services dans le marché intérieur (Horizontal 
law implementing the Services Directive) 

Les exigences discriminatoires fondées sur la nationalité ou le lieu de résidence des 
destinataires sont interdites, y compris dans les conditions générales mises à disposition 
par les prestataires. Toutefois, les prestataires ont la possibilité de prévoir des différences 
dans les conditions d’accès lorsqu’elles sont directement justifiées par des critères 
objectifs. 

24/05/2011 

Article 9 of ACT No. XXIII of 2009 to 
establish general provisions facilitating the 
exercise of freedom of establishment for 
service providers and the free movement of 
services in the internal market 

9. Recipients and potential recipients of a service shall not be subjected to discriminatory 
requirements, including:(a) limitations to access to services in Malta through a provider’s 
general conditions that contain discriminatory provisions relating to the nationality or 
place of residence of the recipient, provided that this does not preclude the possibility for 
a provider to provide for differences in the conditions of access where those differences 
are directly justified by objective criteria. 

NL 

Article 1 of the Dutch Constitution; •  

Article 1, paragraph 1, of the General Equal 
Treatment Act(definitions); 

Article 2, paragraph 1, of the General Equal 
Treatment Act; 

Article 7, paragraph 1, of the General Equal 
Treatment Act;  

Article 9 of the General Equal Treatment Act 

• Article 1 of the Dutch Constitution: 
All which are present in The Netherlands, shall be treated equally in equal cases. 
Discrimination due to religion, affiliation, political opinion, race, sex or on any ground 
whatsoever, is prohibited. 
• Article 1, paragraph 1, (definitions) of the General Equal Treatment Act: 
1. In this Act and the articles based thereupon the following applies:  
a. discrimination (in Dutch: onderscheid): direct and indirect discrimination as well as an 
order to that end; 
b. direct discrimination: discrimination between persons on the basis of religion, 
philosophy of life, political persuasion, race, sex, nationality, hetero- or homosexual 
inclination or civil state; 
c. indirect discrimination: discrimination based on other qualities or behaviour as referred 
to under b, which have a direct discriminatory effect.’ 
• Article 2, paragraph 1, of the General Equal Treatment Act: 
‘1. The prohibition of discrimination as provided for in this Act does not apply with 
regard to indirect discrimination if that discrimination can be objectively justified by a 
legitimate goal and the means to attain that goal are proportionate and necessary.’ 
• Article 7, paragraph 1, of the General Equal Treatment Act: 

Article 1 of the Dutch 
Constitution (current 
wording): 2/03/1983 
Article 1, paragraph 1, 
General Equal Treatment 
Act (current wording): 1st 
of September 1994 as last 
modified by Act applicable 
from 1/04/2004 
Article 2, paragraph 1, of 
the General Equal 
Treatment Act (current 
wording): 1/09/1994 as last 
modified by Act applicable 
from 1/04/2004 
Article 7, paragraph 1, of 
the General Equal 
Treatment Act (current 

37 

 
 
 1. Discrimination is prohibited when offering or providing access to goods or services 
and when closing, excuting or terminating such a contract, as well as when giving carreer 
advice and advice on school choice or choice of a profession, when this occurs: 
a. in the exercise of a profession or a business, 
b. by public authorities 
c. by organisations active in the field of social housing, welfare, health, culture or 
education, and 
d. by natural persons which do not act in the exercise of a profession or a business, when 
offering occurs in public. 
 Note: Paragraphs 2 and 3 of Article 7 of the General Act contain some exceptions in the 
fields of education by private schools which are based on religious principles and when 
dealing with purely private relationships where no economic activity is concerned. 
• Article 9 of the General Equal Treatment Act: 
‘Contractual provisions in breach of this Act are null and void.’ 

wording): 1/09/1994 as last 
modified by Act applicable 
from 1/04/2004 
Article 9 of the General 
Equal Treatment Act 
(current wording): 
1/09/1994 

PL 

PT 

Article 9 of the Act on providing services on 
the territory of the Republic of Poland 

A provider shall ensure that general conditions of access to a service do not discriminate a 
recipient on the grounds of citizenship or place of residence. 

10/04/2010 

Article 19 of Decree-Law 92/2010,  

of 26 July 2010 (horizontal law implementing 
Services Directive) 

01/10/2010 

Article 19 
Non-discrimination of recipients 
1 — Service recipients shall not be made subject to discriminatory requirements based on 
their nationality, place of residence or location of the registered office. 
2 — The general conditions of service provision defined by the service provider shall not 
contain discriminatory provisions relating to the nationality, place of residence or location 
of the registered office of the service recipient, except where those differences are directly 
justified by objective criteria. 
3 — The law shall not make recipients subject to any conditions, limitations, prohibitions 
or other requirements which restrict the use of a service supplied by a provider established 
in another Member State. 
4 — ‘‘Recipient’’ shall be deemed to mean any natural person who is a national of a 
Member State or who benefits from rights conferred upon him by Community acts, or any 
legal person established in a Member State, who, for professional or non-professional 
purposes, uses, or wishes to use, a service. 

38 

 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

RO 

SE 

SI 

SK 

Government Emergency Ordinance no. 
49/2009, Art. 20(2) (Section IV — Rights of 
the services’ beneficiaries, Chapter IV — 
Freedom to provide services) 

(1) The providers may not include discriminatory requirements based on his citizenship or 
nationality, or the place of residence or the registered office of the recipient under the 
general conditions of access to a service, which are made available to the public. 
          (2) Providers may provide for different conditions of access where they are justified 
by objective criteria.  
           (3) The clauses or declarations containing discriminatory conditions are 
automatically void. 

05/06/2009 

Article 20, Act (2009:1079) on services in the 
Internal Market 

En tjänsteleverantör får inte för tillhandahållandet av tjänster ställa upp allmänna villkor 
som diskriminerar tjänstemottagare på grund av nationalitet eller bosättningsort, om detta 
inte kan motiveras på objektiva grunder. 

27/12/2009 

Article 17 of Decree Promulgating the Services 
in the Internal Market Act (ZSNT) 

Contractual and general conditions for access to services which are made available to the 
public at large by a service provider may not contain discriminatory provisions relating to 
the nationality or place of residence of the service recipient. 

30/03/2010 

Act No 136/2010 Coll. on services in the 
internal market and amending and 
supplementing certain acts — Art. 1 Section 10 

A service provider shall be obliged to ensure that the same conditions of access to services 
provided apply to all recipients of services regardless of the nationality, place of 
permanent residence or registered office of the recipient of the service. 

01/06/2010 

39 

 
Member 
State 

Implementing Provision in national legal 
order 

Wording of implementing provision (or, where available, English translation) 

Date of entry into force 

UK 

Regulations 30(2) and 30 (3) of the Provision 
of Services Regulations 2009 

(1) A competent authority may not subject recipients of a service who are individuals to 
discriminatory requirements based on their nationality or place of residence. 
(2) The provider of a service may not, in the general conditions of access to a service 
which the provider makes available to the public at large, include discriminatory 
provisions relating to the 
place of residence of recipients who are individuals. 
(3) Paragraph (2) does not apply to differences in conditions of access which are directly 
justified by objective criteria 

28/12/2009 

EEA-EFTA countries 

IS 

LI 

Art 15, Act 76/2011 on services in the internal 
market of the European Economic Area 

The recipients of services shall not be made subject to discriminatory requirements based 
on their nationality or place of residence, and providers are prohibited from including in 
their terms of service discriminatory provisions relating to the nationality or place of 
residence of recipients. In exceptional circumstances, different conditions of access to a 
service may be established, provided that the differences are justified by objective criteria. 

29/06/2011 

Article 21 of the Services Act (Bericht und 
Antrag der Regierung betreffend die Schaffung 
eines Gesetzes über die Erbringung von 
Dienstleistungen (Dienstleistungsgesetz)) 

Der Dienstleistungserbringer darf den Zugang zu einer Dienstleitung nicht in 
diskriminierender Weise von der Staatsangehörigkeit oder dem Wohnsitz des 
Dienstleistungsempfängers abhängig machen. Underschiede bei den Zugangsbedingungen 
sind nicht diskriminierend, wenn sie durch objektive Kriterien gerechtfertigt sind. 

40 

 
 
 
 
 
NO 

§ 19 (2), second and third sentence of Lov 
2009-06-19 nr. 103 om tjenestevirksomhet 
(Norwegian Services Act) 

Service recipients cannot be subject to requirements that limit their right to receive 
services from a provider established in another EEA State.  
Service recipients from other EEA States cannot be subject to discriminatory requirements 
on grounds of their nationality, residence or establishment state. Similar discrimination 
must not occur in a service providers’ general conditions of access to a service. The first 
and second sentences do not to prevent the application of special conditions for the receipt 
of the service when they are justified by objective factors. 

28/12/2009 

41 

 
ANNEX II 

Competent Authorities

 
 
 
 
 
 
 
 
Member State 

Competent  authority  —  Consumer 
enforcement 

Competent 
enforcement 

authority  —  Business 

AT 

BE 

BG 

CY 

CZ 

DE 

DK 

Bezirksverwaltungsbehörde 

Bezirksverwaltungsbehörde 

SPF  Economie, 
P.M.E.,  Classes 
moyennes  et  Energie  —  Direction 
générale du Contrôle et de la Médiation 

SPF  Economie,  P.M.E.,  Classes  moyennes 
et  Energie  —  Direction  générale  du 
Contrôle et de la Médiation 

Commission on Consumer Protection 

Commission on Consumer Protection 

Consumer  and  Competition  Protection 
Service (CCP) 

National courts 

Courts,  Ombudsman,  Czech  Trades 
Inspectorate, ECC 

National courts 

7 000  trade  and  business  authorities, 
chambers  of  auditors,  lawyers  and  tax 
consultants 

Forbrugerombudsmanden 
Consumer Ombudsman) 

(Danish 

Forbrugerombudsmanden 
Consumer Ombudsman) 

(Danish 

43 

 
 
  
 
Member State 

Competent authority — Consumer enforcement 

Competent 
enforcement 

authority  —  Business 

EE 

EL 

ES 

FI 

FR 

Estonian  Consumer  Protection  Board  (although  no 
specific tasks under Art 20 have been delegated it to it 
by law) 

National courts 

Consumers Ombudsman 

Enterprise Europe Network in Greece 

Consumer protection regional authorities to be found at 

http://aplicaciones.consumo-
inc.es/cidoc/Consultas/dirMapas.aspx?tabla=dirconsum 

Sectoral competent authorities responsible at 
national or regional level  

Civil or criminal courts depending on the nature of the 
case. In some circumstances the Chancellor of Justice, 
Parliamentary  Ombudsman,  Ombudsman  for  equality 
or Ombudsman for minorities may also be competent. 

Civil  or  criminal  courts  depending  on  the 
nature  of  the  case.  In  some  circumstances 
the  Chancellor  of  Justice,  Parliamentary 
Ombudsman,  Ombudsman  for  equality  or 
Ombudsman  for  minorities  may  also  be 
competent. 

la 
Direction  générale  de 
consommation  et  de 
fraudes 
la 
(DGCCRF),  Ministère  de  l’économie,  des  finances  et 
de l’industrie 

la  concurrence,  de 

répression  des 

National courts 

44 

 
 
 
HU 

IE 

IT 

LT 

LV 

LU 

Member State 

Competent authority — Consumer enforcement 

Equal  Treatment  Authority 
Hatóság-EBH), Judicial authority 

(Egyenlő  Bánásmód 

Competent 
enforcement 

authority  —  Business 

Hungarian 
Authority 
Competition 
(Gazdasági Versenyhivatal — GVH), Equal 
Treatment Authority, Judicial authority 

Sectoral  competent  authorities  responsible  for  the 
enforcement  of  all  provisions  pertaining 
the 
implementation of the Services Directive for that sector 

to 

Sectoral  competent  authorities  responsible 
for 
the  enforcement  of  all  provisions 
pertaining  to  the  implementation  of  the 
Services Directive for that sector 

ANTITRUST (autorità garante della concorrenza e del 
mercato) 

ANTITRUST 
concorrenza e del mercato) 

(autorità 

garante 

della 

Civil courts 

Civil courts 

State Non Food Products Inspectorate (consumer rights 
protection authority) 

National courts 

Ombudsman  

Civil courts 

National courts 

Collective and single legal actions in front of Courts in 
the  scope  of  articles  L.121-1  à  122-8  and  L.313-1and 
L.313-2 du Code de la consommation 

Conseil de la concurrence 

45 

 
 
 
Member State 

Competent authority — Consumer enforcement 

Competent 
enforcement 

authority  —  Business 

MT 

NL 

PL 

PT 

RO 

SE 

SI 

SK 

Office  for  Consumer  Affairs,  Malta  Competition  and 
Consumer Affairs Authority 

Office 
Competition 
Authority 

for  Consumer  Affairs,  Malta 
and  Consumer  Affairs 

Equal Treatment Commission 

Equal Treatment Commission 

Civil courts 

Civil courts 

ASAE  —  Autoridade  para  a  Segurança  Alimentar  e 
Económica  

ASAE  —  Autoridade  para  a  Segurança 
Alimentar e Económica, IRAE  

IRAE  — 
Económicas for the Azores and Madeira Regions. 

Inspecções  Regionais  de  Actividades 

For  professional  services  under  a  public  professional 
association, the relevant public professional association 

de  Actividades 
Inspecções  Regionais 
Económicas  for  the  Azores  and  Madeira 
Regions  

For  professional  services  under  a  public 
professional  association,  the  relevant  public 
professional association. 

National Authority for Consumers Protection 

National courts 

Sectoral  competent  authorities  responsible  for  the 
enforcement  of  all  provisions  pertaining 
the 
implementation of the Services Directive for that sector 

to 

Sectoral  competent  authorities  responsible 
for 
the  enforcement  of  all  provisions 
pertaining  to  the  implementation  of  the 
Services Directive for that sector 

Market Inspectorate of the Republic of Slovenia 

National courts 

Slovak Trade Inspection 

Slovak Trade Inspection 

46 

 
Member State 

Competent authority — Consumer enforcement 

Competent 
enforcement 

authority  —  Business 

UK 

Office  of  Fair  Trading,  Local  Authority  Trading 
the  Department  of 
Standards  Authorities  and 
Enterprise, Trade and Investment in Northern Ireland 

National courts 

EEA-EFTA countries 

IS 

LI 

NO 

Consumer Agency 

National courts 

Office of Trade and Transport 

Office of Trade and Transport 

Consumer Ombudsman 

National courts 

47