Special Report No 5 // 2016#Has the Commission ensured effective implementation of the Services Directive? #(pursuant to Article 287(4), second subparagraph, TFEU)
Date: 2016-02-03
Institutions: European Court of Auditors
Subjects: EU law - national law, administrative cooperation, administrative formalities, freedom to provide services, national implementing measure, right of establishment, service, services contract, single market

EN	

2016	

NO	05

Special	Report	 Has	the	Commission	

ensured	effective	
implementation	of	the	
Services	Directive?

EUROPEAN
COURT
OF AUDITORS

	
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EN	

2016	

NO	05

Special	Report

Has	the	Commission	
ensured	effective	
implementation	of	the	
Services	Directive?

(pursuant to Article 287(4), second subparagraph, TFEU)

Audit	team

02

The ECA’s special reports set out the results of its performance and compliance audits of specific budgetary areas or 
management topics. The ECA selects and designs these audit tasks to be of maximum impact by considering the risks 
to performance or compliance, the level of income or spending involved, forthcoming developments and political and 
public interest.

This performance audit was produced by Audit Chamber IV — headed by ECA Member Milan Martin Cvikl — which 
specialises in auditing revenue, research and internal policies, financial and economic governance and European Union’s 
institutions and bodies. The audit was led by ECA Member Neven Mates, supported by the Head of his private office, 
Georgios Karakatsanis and Marko Mrkalj, Attaché; Paul Stafford, Principal Manager; Wayne Codd, Head of Task; Sandra 
Dreimane, Jurgen Manjé and Wolfgang Stolz, auditors.

From left to right: J. Manjé, P. Stafford, N. Mates, W. Codd, S. Dreimane, G. Karakatsanis.

Contents

03

Paragraph

Glossary	and	abbreviations

I-VIII 

Executive	summary

1-11 

6-7 

8-11 

Introduction

Objectives	of	the	Services	Directive

Roles	and	responsibilities

12-13 

Audit	scope	and	approach

14-110  Observations

16-42 

Transposition	and	monitoring	of	implementation

16-18 

The	Commission	assisted	and	monitored	the	transposition

19-20 

Twenty	Member	States	were	late	with	transposition

21-27 

Mutual	evaluations	were	an	innovative	practice,	managed	well	by	the	Commission	and	subsequently	also	
used	for	other	directives

28-29 

Still	a long	way	from	successful	implementation

30-32 

Performance	checks	were	made	on	how	EU	legislation	works	in	practical	business	scenarios

33-34 

The	outcomes	led	to	further	legislative	proposals	by	the	Commission

35-36 

Commission	could	have	used	results	better	to	systematically	enforce	the	Services	Directive

37-42 

Lack	of	economic	impact	assessment

43-77 

Implementation

43-45 

Tools	and	support	provided	by	the	Commission	for	the	implementation	of	the	Services	Directive	have	been	
underused	and	are	thus	only	partially	effective

46-52 

Delays	in	setting	up	points	of	single	contact	and	varying	quality	across	Member	States

53-55 

Points	of	single	contact	difficult	to	find,	low	business	awareness

56-64 

Little	administrative	cooperation	in	matters	relating	to	the	Services	Directive

65-71 

Consumers	continue	to	encounter	problems	in	accessing	the	single	market	for	services

 
Contents	

04

72-75 

Service	providers	still	unfairly	discriminate

76-77 

Resolving	the	problems

78-110 

Enforcement

78-79 

The	Commission	employs	a number	of	enforcement	tools

80-85 

Solvit	is	rarely	used	for	the	Services	Directive

86-93 

EU	pilot	—	a pre‑infringement	system	appreciated	by	Member	States

94-99 

The	Commission	has	hardly	used	infringement	procedures

100-101 

Infringement	cases	take	too	long

102-104 

Individual	services‑related	complaints	followed	up	on	regular	basis;	however,	there	are	long	periods	of	
inactivity	during	the	infringement	procedures

105-107  Only	one	case	referred	to	the	Court	of	Justice

108-110  Country‑specific	recommendations	have	had	limited	success

111-120  Conclusions	and	recommendations

112-114  Transposition	and	monitoring	of	implementation	

115-118 

Implementation

119-120  Enforcement

Reply	of	the	Commission

 
05

Glossary	and		
abbreviations

CHAP: Commission complaint recording system

CPC: consumer protection cooperation

CSRs: country-specific recommendations

ECC‑net: European consumer centres network

ESA: European System of Accounts

EU: European Union

EU	pilot: EU pilot entails cooperation between Member States and the Commission on issues concerning the 
conformity of national law with EU law or the correct application of EU law. It is used as a first step with the aim of 
avoiding formal infringement proceedings if possible.

GDP: gross domestic product

IMI: internal market information system

MS: Member State

NACE	Rev	2: statistical classification of economic activities in the European Community

PSC: point of single contact

Solvit: an alternative dispute resolution mechanism that has been set up to help EU citizens and businesses who 
have been denied the possibility to exercise their EU internal market rights because a public administration in 
another Member State has misapplied internal market legislation.

Sweeps: EU-wide screening of websites in particular online sectors

TFEU: Treaty on the Functioning of the European Union

Executive		
summary

06

I
Whereas the single market for goods is well developed in terms of intra-EU trade, the services market is widely rec-
ognised to have not achieved its full potential. The Services Directive addresses services activities covering approxi-
mately 46 % of EU gross domestic product (GDP), with the aim of reducing legal and administrative barriers to both 
providers and recipients of services. This should be achieved by Member States (MSs) through legal transposition of 
the Directive, increased transparency and simplified procedures which make it easier for businesses and consumers 
to provide or receive services in the single market.

II
The Court’s audit focused on the actions that the European Commission had taken to support the MSs in addition 
to an examination of the enforcement measures which should resolve the issues of non-compliance that restrict the 
proper functioning of the single market for services.

III
Most MSs did not transpose the Directive into national legislation on time. Nevertheless, throughout the process, 
the Commission monitored progress and provided support to help implement the Directive during and after 
transpos ition by organising the mutual evaluation process, as well as providing guidance during regular thematic 
expert group meetings.

IV
The mutual evaluations and performance checks in targeted sectors were useful for MSs but also demonstrated that 
a significant number of obstacles persisted. The Commission did not sufficiently follow up on these, in particular 
showing reluctance to challenge the justification of ‘proportionality’ used by some MSs to maintain non-compliant 
requirements.

V
The Commission has been only partially effective in ensuring the implementation of the Directive. Some years after 
the 2009 deadline for implementation, barriers to the internal market for services covered by the Directive remain, 
with the Commission reluctant to pursue legal proceedings, in part due to the length of the judicial procedure but 
also due to a lack of strength in the legislation. Measures such as Solvit and EU pilot have been employed to resolve 
problems, though without the speedy results required by both businesses and service recipients. Consumers do not 
yet enjoy the level of access to the internal market for services intended by the Directive.

VI
The potential economic benefit of full implementation of the Directive is still not known, though estimated out-
put gains are frequently quoted to demonstrate the impact of reducing barriers. Due to the lack of appropriately 
detailed data on sectors affected by the Directive, there is still no reliable quantification of its impact.

Executive	summary	

07

VII
Amongst its recommendations, the Court in particular asks the Commission to be bolder in enforcing the Directive 
by:

—  following up results from exercises such as the mutual evaluation and performance checks to resolve non- 

compliance and, along with MSs, addressing the most economically significant issues;

—  starting EU pilot cases as soon as possible when an issue is identified — information on resolutions should be 

shared;

—  reducing the length of infringement procedures as much as possible;

—  referring important issues of non-implementation and incorrect application to the Court of Justice.

VIII
In addition:

—  the Commission should draft guidance for transposition and issue it as soon as possible after adoption;

—  the Commission should endeavour to ensure that the issue of data needed for assessing the impact of new 

 legislation is addressed early in the legislative procedure;

—  MSs should respect the points of single contact (PSCs) charter by, for example, making information avail able 
in multiple languages and enabling completion of all administrative steps necessary for provision of services 
across borders;

—  the legislator should introduce a standstill period for the notification of draft requirements and ensure that they 

are published on a publicly available website to allow better access and timely scrutiny;

—  revision of the consumer protection cooperation (CPC) regulation should extend the scope to include Article 20 

of the Services Directive.

Introduction

08

01	
The Services Directive (hereafter referred to as the Directive) was adopted in 
2006 with the aim of reducing legal and administrative barriers to both providers 
and recipients of services. This should be achieved by MSs through legal transpo-
sition of the Directive, increased transparency and simplified procedures which 
would make it easier for businesses and consumers to provide or use services in 
the single market. It covers services which contribute 46 %1 of EU GDP. All MSs 
had to implement it by the end of 2009.

02	
The origins of the Directive go back to 1997 with the Commission’s presentation 
of the action plan for a single market2, calling for the removal of sectoral obsta-
cles to market integration. Later papers focused specifically on services, arguing 
that a range of barriers in the internal market for services ‘amounts to a consider-
able drag on the EU economy and its potential for growth, competitiveness and 
job creation’3 and eventually leading to a proposal in 2004 for a Services Directive 
(commonly referred to as the Bolkestein directive) which based free movement of 
services on the country-of-origin principle. This would imply that service provid-
ers should comply only with the regulations of the MS of establishment, regard-
less of where the service activity was performed. The country-of-origin princi-
ple was, however, abandoned at the request of the European Parliament4. The 
Services Directive5, adopted in 2006, introduced instead an obligation for MSs 
to ‘ensure free access to and free exercise of a service activity within its territory’ 
and ‘not make access to or exercise of a services activity in their territory subject 
to compliance with any requirements … that do not respect the principles of 
non-discrimination, necessity and proportionality’6.

03	
The directive exempted a number of economic activities: non-economic services 
of general interest, financial services, electronic communications, temporary 
work agencies, healthcare, audio-visual services, gambling, activities connected 
with the exercise of official authority, social services, private security services, 
notaries and bailiffs and taxation. The Directive also does not affect MSs’ social 
security legislation.

1 

SWD(2014) 131 final of 
31 March 2014, ‘Work plan for 
reporting on national reforms 
in services markets’.

2  CSE(97) 1 final of 4 June 1997 
Communication of the 
Commission to the European 
Council ‘Action plan for the 
single market’.

3  COM(2002) 441 final of 30 July 

2002, ‘Report from the 
Commission to the Council 
and the European Parliament 
on the state of the internal 
market for services’.

4  COM(2013) 547 final of 

24 July 2013, ’Proposal for 
a directive of the European 
Parliament and of the Council 
on payment services in the 
internal market and amending 
Directives 2002/65/EC, 
2013/36/EU and 2009/110/EC 
and repealing Directive 
2007/64/EC’.

5  Directive 2006/123/EC of the 
European Parliament and of 
the Council of 12 December 
2006 on services in the 
internal market (OJ L 376, 
27.12.2006, p. 36).

6  Article 16(1) of the Services 

Directive. Proportionality: the 
requirement must be suitable 
for attaining the objective 
pursued, and must not go 
beyond what is necessary to 
attain that objective.

09

7  Corazza Bildt report on the 
internal market for services: 
state of play and next steps 
(2012/2144(INI) (http://www.
europarl.europa.eu/sides/
getDoc.do?pubRef=-//EP//
TEXT+REPORT+A7-2013-
0273+0+DOC+XML+V0//EN).

8  Cofferati report on single 

market governance within the 
European semester 2014 
(2013/2194(INI)) (http://www.
europarl.europa.eu/sides/
getDoc.do?pubRef=-//EP//
TEXT+REPORT+A7-2014-
0066+0+DOC+XML+V0//EN).

9  Note on the Commission’s 

2014 work plan for reporting 
on national reforms in services 
markets, 5431/14, Compet 29, 
MI 51, Council of the European 
Union, Brussels, 
22 January 2014.

10  As described in Article 14 of 

the Directive.

Introduction	

04	
Whereas the single market for goods is well developed in terms of intra-EU trade, 
it is widely recognised that the services market has not achieved its full potential, 
with a need for growth underlined by the European Parliament in the Corazza 
Bildt report7 on the internal market for services, and more recently in the Coffera-
ti report8. The impact of successful implementation of the Directive is potentially 
very high, given the importance of services in the EU economy.

05	
The deadline for transposition was set for 2009, but the Commission’s Communi-
cation of 22 October 2013 stated that ‘Europe is still falling short of its ambitions 
for the single market, in particular in key areas like the digital economy, energy 
and services’. In January 2014, the Council highlighted the need for coordination 
between the Commission and MSs to improve the way single market rules are 
implemented, applied and enforced9.

Objectives	of	the	Services	Directive

06	
Full implementation of the Directive should remove red tape and significantly fa-
cilitate the establishment of service providers both at home and abroad. It should 
facilitate the cross-border provision of services. To help achieve this objective, 
MSs are required to set up PSCs, which should assist businesses by providing 
comprehensive information on the procedures necessary to offer and provide 
services and by allowing them to complete required formalities online. The direc-
tive also strengthens the rights of service recipients, particularly consumers, by 
prohibiting discrimination on the basis of nationality or residency.

07	
The obstacles which the Directive is intended to eliminate include10:

(a)  discriminatory requirements based directly or indirectly on nationality or, in 

the case of companies, the location of their registered offices;

(b)  prohibition for a provider to have establishment in more than one MS or on 

being entered in the registers or enrolled with professional bodies or associa-
tions in more than one MS;

Introduction	

10

(c)  an obligation on the provider to have its principal establishment in the recipi-

ent territory;

(d)  conditions of reciprocity with the MS in which the provider already has an 

establishment;

(e)  conditions of passing an economic-needs or market-demand test for obtain-

ing authorisation, or mandatory assessment of potential or current economic 
effects of the activity, or assessment of the appropriateness of the activity in 
relation to the economic planning objectives set by the competent authority;

(f) 

involvement of competing operators, including within consultative bodies, 
in the process of granting authorisations or in the adoption of other relevant 
decisions of competent authorities;

(g)  financial guarantees, including any obligation to obtain insurance policies 

from a provider or body established in the recipient territory;

(h)  obligation to have been pre-registered for a given period in the registers in 
the MS or to have previously exercised the activity for a given period in their 
territory.

Roles	and	responsibilities

08	
The directive sets out the roles and responsibilities of the Commission and the 
MSs.

09	
MSs are responsible for transposing the Directive into their legislation and a num-
ber of tasks regarding the following-up of the transposition through mutual 
evaluation (see paragraphs 21 to 29) and for facilitating assistance to businesses 
by setting up PSCs. This is the first time that MSs have been legally obliged to put 
in place such e-government services and make them available for cross-border 
users.

Introduction	

11

10	
Solvit is a dispute resolution mechanism that has been set up to help EU citizens 
and businesses who have been denied the possibility to exercise internal market 
rights because a public administration in another MS has misapplied internal 
market legislation. The system operates through a network of Solvit  centres 
based in the national administration of each MS. Solvit is a practical alternative to 
formal problem-solving mechanisms such as national court procedures or com-
plaints to the European Commission.

11	
DG Internal Market, Industry, Entrepreneurship and SMEs (previously DG Inter-
nal Market and Services) coordinates the Commission’s policy on the EU single 
market and seeks the removal of unjustified obstacles to trade, in particular in 
the field of services and financial markets. It should monitor how EU law is being 
implemented in practice, assist MSs and initiate infringement procedures when 
necessary.

Audit	scope		
and	approach

12

12	
The Court’s main audit question was to assess whether the Commission en-
sured effective implementation of the Directive. This was broken down into two 
sub-questions, as follows.

(a)  Has the Commission adequately monitored and evaluated the implementa-

tion of the Directive?

(b)  Has the Commission sufficiently facilitated and enforced the implementation 

of the Directive?

13	
Interviews and examination of files were carried out at the Commission. More-
over, the audit included fact-finding visits to a range of responsible ministries, 
business organisations, chambers of commerce and consumer bodies in seven 
MSs to collect information on remaining obstacles to trade and the effectiveness 
of existing mechanisms for their elimination. The Court selected MSs with signifi-
cant cross-border trade: Germany, the United Kingdom, Austria, Slovakia, France, 
the Netherlands and Portugal. In addition, a number of European organisations 
were also consulted.

Observations

13

14	
Following the end of the transposition process in 2009, the Commission tried to 
identify areas in which the Directive had not been implemented while also set-
ting up several mechanisms to reduce the remaining barriers. However, barriers 
persist, some of which are due to vague drafting in the Directive. The Commis-
sion has been reluctant to take infringement measures partly due to a lack of 
solidity in the legal base and partly due to the length of time necessary for such 
a legal procedure to enforce compliance (several years even if exchanges are 
made on time).

11  All language versions were 
published on the internet in 
November 2007, with only the 
English language version 
being available as of 
30 July 2007.

15	
It is not yet possible to evaluate the extent to which the expected economic 
benefits of the Directive have been realised. While the Commission has published 
estimates on potential GDP gains from the Directive, this was estimated on the 
basis of approximated data. The Commission did not initiate any systematic effort 
to compile data on cross-border trade in services covered by the Directive before 
2014. Moreover, in 2015 these data remain unavailable, which makes it impossible 
to assess growth in cross-border services or increases in GDP arising from imple-
mentation of the Directive.

Transposition	and	monitoring	of	implementation

The	Commission	assisted	and	monitored	the	transposition

16	
The Directive entered into force on 28 December 2006 and set the deadline for 
transposition at 28 December 2009. The transposition was an onerous exercise 
for MSs, covering legislation on a large number of economic activities and there-
fore the Directive allowed 3 years instead of the usual 2.

17	
The Commission published the Handbook on the implementation of the Services 
Directive, which aimed to provide MSs with technical assistance by describing ap-
propriate approaches to implementation. However, it only became available in all 
languages almost a year after the approval of the Directive11. Representatives of 
MSs visited reported that the handbook was a useful aid, though they considered 
that its impact would have been greater had it been available soon after the Dir-
ective had entered into force. In addition to the handbook, the Commission pro-
vided advice to MSs through monitoring visits and responding to their queries.

14

12  COM (2012) 261 final of 

8 June 2012, ‘A partnership for 
new growth in services 
2012-2015’ and supporting 
documents.

13  Czech Republic, Estonia. 

Croatia, Lithuania, Hungary, 
Malta, Netherlands, Sweden.

14  Germany (closed 26.1.2012), 
Austria (closed 26.4.2012), 
Greece (closed 31.5.2012).

15  First generation PSCs comply 
with the limited requirements 
set out in the Directive. 
Second generation PSCs 
‘should not only meet the 
obligations of the Services 
Directive but go beyond them, 
both in scope and 
functionality’, according to the 
PSC charter.

Observations	

18	
Through bilateral work and support given to MSs, the Commission took the 
necessary steps to monitor progress in transposition and reported on it to the 
Competi tiveness Council. In June 2012 it issued a more comprehensive report in 
the form of the services package12.

Twenty	Member	States	were	late	with	transposition

19	
The deadline for transposition was only met by eight MSs13. Letters of formal no-
tice were sent to the MSs that had not notified transposition, signalling the start 
of infringement procedures. On 27 October 2011, the three cases14 which had not 
in the meantime been resolved were referred to the Court of Justice. These cases 
were, however, resolved before being considered by the Court. The last MS to 
complete the transposition was Greece on 31 May 2012.

20	
The Commission envisaged that the PSCs (see paragraphs 44 to 55) would play 
a significant role in the implementation of the Directive. The Commission there-
fore gave them prominence in its reporting on MSs’ progress on implementation, 
relying on its own analysis as well as on studies made by business organisations. 
By the 2009 deadline, 21 out of 27 MSs had established ‘first-generation’ PSCs15, 
though the degree to which administrative procedures could be completed on-
line, and used cross-border, varied.

Mutual	evaluations	were	an	innovative	practice,	managed 	
well	by	the	Commission	and	subsequently	also	used	for	other 	
directives

21	
The mutual evaluation exercise foreseen in the Directive required each MS to 
assess the justifications for national requirements on service providers and then 
to share their findings with other MSs. Its purpose was to increase understand-
ing of the reasons underlying the requirements in place and to encourage MSs to 
compare their regulatory approaches and share best practices, removing require-
ments which are agreed to be unjustified.

Observations	

15

22	
The directive set out the process and requirements for the mutual evaluations 
of the regulatory framework applicable to services activities in the MSs. By 
28 December 2009 the MSs had to present a report to the Commission contain -
ing information on: (i) authorisation schemes, (ii) specific national requirements 
the MSs intend to maintain and (iii) multidisciplinary activities. The MSs had to 
provide explanations showing the compatibility of the remaining authorisation 
schemes or requirements with the substance of the Directive, justify why those 
requirements complied with the conditions of non-discrimination, necessity and 
proportionality, as well as indicate which providers remained subject to such 
requirements.

16  COM(2011) 20 final of 

27 January 2011, ’Towards 
a better functioning single 
market for services building 
on the results of the mutual 
evaluations process of the 
Services Directive’, p. 6.

17  SEC(2011) 102 final of 

27 January 2011, ‘Commission 
staff working paper on the 
process of the mutual 
evaluation of the Services 
Directive — Accompanying 
document to 
COM(2011) 20 final’, p. 10.

23	
The Commission shared the explanations on requirements with the other MSs, 
giving them 6 months to respond. The Commission then completed a report on 
the mutual evaluation process on 28 December 2010, having coordinated MSs’ 
responses, accompanied where appropriate by proposals for additional initia-
tives. The Commission was required to follow this up on an annual basis. This was 
first done in the form of the services package, published in June 2012 and then 
through initiatives such as peer review on legal form, shareholding and tariff 
requirements, evaluation of national regulations on access to professions and 
 access to insurance stakeholders workshops.

24	
The success of the mutual evaluation exercise in screening multiple MSs’ legisla-
tion was such that this practice has later been emulated in other fields such as 
the revised professional qualifications directive.

25	
The mutual evaluation methodology consisted of the following steps16: individual 
MSs’ self-assessments, discussions in clusters of five MSs and plenary meet-
ings with all MSs. The Commission noted the improvements achieved, such as 
the replacement of cross-cutting authorisation schemes with less burdensome 
 methods such as declarations and the abolition of sector-specific schemes, 
minimum capital requirements, bans on having more than one establishment, 
compulsory tariffs and quantitative and territorial restrictions17.

Observations	

16

26	
Significant steps were made towards the removal of barriers. Officials in the MSs 
visited considered the mutual evaluation process to be one of the highlights of 
the implementation of the Directive due to the fact that the MSs had to cooper-
ate intensively in screening very large amounts of national and regional legisla-
tion, to assess its compatibility with the Directive and the existing case-law of the 
Court of Justice.

18  J. Monteagudo, A. Rutkowski, 
D. Lorenzani, ‘The economic 
impact of the Services 
Directive: a first assessment 
following implementation’, 
Economic Papers No 456, 
June 2012, European 
Commission, Brussels, 2012, 
p. 30.

27	
It was acknowledged by the visited MSs that the Commission has done much on 
a practical level to help implement the Directive, by organising cluster discus-
sions for the mutual evaluation as well as providing guidance during regular 
thematic expert group meetings.

Still	a long	way	from	successful	implementation

28	
The mutual evaluation process reports indicated that barriers were only partly 
lifted. According to Commission estimates, of all the barriers that the Directive 
seeks to remove for the selected professional groups studied, 10 % had been 
fully removed, 60 % partly removed, and 30 % remained18. This indicated that 
there was still a long way to go to complete implementation.

29	
Whilst the mutual evaluations involved cooperation to screen large amounts of 
national and regional legislation, officials in a number of MSs visited criticised the 
eventual effectiveness of this exercise. They considered that the Commission had 
done little to eliminate the potentially unjustified barriers that were identified 
during the mutual evaluation process. In addition, a group of six MSss were of 
the opinion that the Commission did not sufficiently challenge the ‘proportional-
ity’ justification. They advocated publishing specific guidance with examples of 
what is and is not proportionate. This would provide a common understanding 
of proportionality and allow the Commission to have a yardstick when assessing 
existing and new requirements.

Observations	

17

Performance	checks	were	made	on	how	EU	legislation	works 	
in	practical	business	scenarios

30	
In 2011 and 2012 the Commission undertook ‘performance checks’ to assess ‘how 
different pieces of EU legislation are applied and how they work on the ground’19 
from the perspective of different users of the single market. This involved taking 
account of EU instruments besides the Directive. The Commission decided to 
carry out the checks based on case studies in selected business sectors and for 
selected activities.

31	
MSs were invited to provide information on how their national legislation would 
be applied in practice to potential service providers, who wanted to either set up 
a business or provide cross-border services on their territory.

19  COM(2011) 20 final, p. 9.

20  SWD(2012) 147 final of 

8 June 2012, ‘Commission staff 
working document on the 
results of the performance 
checks of the internal market 
for services (construction, 
business services and 
tourism)’.

21  Directive 2013/55/EU of the 
European Parliament and of 
the Council of 20 November 
2013 amending Directive 
2005/36/EC on the recognition 
of professional qualifications 
and Regulation (EU) No 
1024/2012 on administrative 
cooperation through the 
internal market information 
system (‘the IMI regulation’) 
(OJ L 354, 28.12.2013, p. 132).

32	
A staff working document20 of the Commission summarised the results of the 
performance checks for three sectors considered important for cross-border 
trade in the EU: construction (contributing 6.3 % to GDP); business services 
(11.7 %); and tourism (4.4 %).

The	outcomes	led	to	further	legislative	proposals	by	the 	
Commission

33	
The checks showed that there is a very close link between the Directive and the 
professional qualifications directive. Recognition of qualifications is often needed 
before an individual is allowed to provide services or set up a cross-border busi-
ness. The results of the performance checks prompted the Commission to submit 
amendments to the professional qualifications directive and on cooperation via 
the internal market information system (IMI)21.

Observations	

18

34	
Performance checks identified barriers in national legislation imposing require-
ments for special shareholding structures and insurance. Businesses often 
needed to adapt their legal form or shareholder structure to be able to operate 
in another MS via secondary establishment, which might lead to supplementary 
costs. Another common difficulty identified was insurance coverage. In a signifi-
cant number of MSs, the insurance coverage in the MS of establishment is not 
recognised by the MS in which the company intends to provide the service, again 
resulting in additional costs to the provider. Staff working documents on these 
two questions were published in October 201322 and March 201423.

22  SWD(2013) 402 final of 

2 October 2013, ‘Commission 
staff working document on 
the outcome of the peer 
review on legal form, 
shareholding and tariff 
requirements under the 
Services Directive’.

23  SWD(2014) 130 final of 

31 March 2014, ‘Commission 
staff working document 
— Access to insurance for 
services provided in another 
Member State’.

Commission	could	have	used	results	better	to	systematically 	
enforce	the	Services	Directive

35	
The performance checks revealed that significant barriers and obstacles still exist 
in the MSs, some of them common to all three sectors (cross-cutting barriers) and 
some industry specific.

36	
Even though this was not the main purpose of the exercise, the conclusions 
of the performance checks reiterated those of the mutual evaluation, i.e. that 
a significant number of obstacles remained. The results could have supported 
further systematic enforcement of the Directive by the Commission addressing 
the economically most significant issues.

Lack	of	economic	impact	assessment

37	
The Commission made only a predictive assessment of the economic benefits of 
the Directive, carried out at the time of its introduction, and did not have suf-
ficiently detailed economic data to cover only those activities concerned by the 
Directive.

19

24  J. Monteagudo, A. Rutkowski, 
D. Lorenzani, ‘The economic 
impact of the Services 
Directive: a first assessment 
following implementation’, 
Economic Papers No 456, June 
2012, European Commission, 
Brussels, 2012.

25  Services: tapping the potential 

for growth and jobs, 
Commission contribution to 
the European Council of 
20-21 March 2014.

26  With regard to the 64-branch 
NACE rev. 2 breakdown in 
national accounts. According 
to the recently finalised ESA 
2010 transmission 
programme, this breakdown 
will now be submitted by MSs. 
See Regulation (EU) 
No 549/2013 of the European 
Parliament and of the Council 
of 21 May 2013 on the 
European system of national 
and regional accounts in the 
European Union (OJ L 174, 
26.6.2013, p. 1).

Observations	

38	
In 2012 the Commission estimated that GDP could be increased by an extra 1.6 %, 
on top of the 0.8 % claimed to be already achieved, through better implementa-
tion of the Directive24. This study used an econometric model and data on bar-
riers existing prior to the 2009 deadline for implementation, collected during the 
mutual evaluation process, in combination with economic data on the sectors 
concerned to predict the effects of removing the barriers. It was not, therefore, 
an ex post exercise in quantifying the effects of the Directive’s implementation.

39	
The Commission was obliged to make assumptions about the size of economic 
sectors affected by the Directive since detailed breakdowns are not available 
from existing national accounts or balance-of-payments sources.

40	
The Commission made commitments to the European Council as late as 201425 
that it would ‘reinforce its monitoring tools through more in-depth quantitative 
and qualitative reporting on sectoral and national reforms concerning services’. 
In particular, it agreed to collect services-related data for 2012, 2013 and 2014 
which distinguishes between those relevant for sectors covered by the Directive 
and those relevant for sectors outside its scope. As the data will not encompass 
the period before the implementation of the Directive, they will not enable an 
assessment of its overall effect.

41	
The Commission presented a paper in May 2014 to the National Accounts Work-
ing Group which described the economic analysis undertaken with regard to 
the Directive and presented the data needs arising from the future analytical 
commitments it had made. In particular, it emphasised the need for data which 
distinguishes between economic activity which is covered by the Directive and 
that which is not. The Commission noted that ‘data availability currently seri-
ously restrains the scope of in-depth analysis and progress reporting’ and sought 
a solution for the problems of outdated or missing data26, sometimes for a period 
of up to 10 years.

42	
The National Accounts Working Group members agreed to respond to requests 
from the Commission in order to attempt to resolve specific issues where it 
would be possible to provide data that might not be publicly available. Neverthe-
less, no commitment was given to provide the data necessary for proper evalu-
ation of the Directive.

Observations	

20

Implementation

27  Article 7 of the Directive.

Tools	and	support	provided	by	the	Commission	for	the 	
implementation	of	the	Services	Directive	have	been 	
underused	and	are	thus	only	partially	effective

43	
A number of tools, information services and cooperation mechanisms have either 
been provided for in the directive or have been otherwise set up by the Com-
mission to facilitate full implementation of the Directive. The PSCs have been 
the most prominent of those which derive directly from the Directive. Others, 
including the IMI and the European consumer centres network (ECC-net) have 
also been developed with the intention of improving trade in services within the 
EU. However, the level of effectiveness of these instruments for the directive has 
not been as high as intended.

44	
The directive obliges MSs to ensure that PSCs enable service providers to com-
plete all the procedures and formalities required for authorisation by the compe-
tent authorities electronically at a single point. They should also provide informa-
tion to potential suppliers and users. The MSs should make the information and 
services ‘accessible at a distance and by electronic means’27 and are encouraged 
to provide it in other official EU languages.

45	
Setting up PSCs has proven to be a challenging task, and MSs have considerable 
freedom in choosing an approach, resulting in different ways of PSC being em-
bedded in MSs’ administrative structures.

Delays	in	setting	up	points	of	single	contact	and	varying 	
quality	across	Member	States

46	
By the time the transposition deadline passed (28 December 2009), many MSs still 
did not have a fully functioning PSC. In order to assist MSs, the Commission es-
tablished two expert groups in addition to the general expert group in charge of 
the implementation of the Services Directive. The EUGO expert group deals with 
the PSCs in general and bears the name of the network of PSCs that is also used 
to create a common brand across the EU (see Figure 1). The e-procedures expert 
group focuses on more technical matters involved in enabling service providers 
to complete administrative procedures online.

21

28  —  Services directive 

implementation survey — 
The Chambers’ perspective 
on the points of single 
contact, Eurochambres, 
Policy survey, 7th edition, 
January 2011.
  —  Are the points of single 

contact truly making things 
easier for European 
companies? — Services 
Directive implementation 
report, BusinessEurope, 
November 2011.

  —  The functioning and usability 
of the points of single contact 
under the Services 
Directive — State of play and 
way forward, Final report, 
Deloitte and tech4i2 for 
European Commission, 
Directorate General for 
Internal Market and 
Services, DG 
MARKT/2010/22/E (SMART 
2007/035, LOT 4), 
21-01-2012.
  —  J. Montesgudo, 

A. Rutkowski, D Lorenzani, 
‘Part 2: Assessing the 
economic impact of setting 
up points of single contact: 
an approximation based on 
the doing business’, in ‘The 
economic impact of the 
Services Directive: a first 
assessment following 
implementation’, Economic 
Papers No 456, June 2012.

29  COM(2012) 261 final, p. 12

Observations	

websites

1 The	EU‑wide	logo	intended	for	identification	of	PSC	
e
r
u
g
i
F

47	
PSCs are included in the Commission’s single market scoreboard and have been 
the subject of a number of studies by the Commission and several external or-
ganisations28. These analyses have shown that the level of ambition varies widely 
in terms of what MSs’ administrations have tried to achieve, and consequently 
the quality of PSCs is varied. Weaknesses exist in terms of languages available 
for completing the administrative requirements, user-friendliness, acceptance 
of e-signatures and the extent to which they actually function as e-government 
portals. The promotion and ‘findability’ of PSCs varies, with not all PSCs identify-
ing themselves with the EUGO logo created by the Commission.

48	
Following an announcement in the services package of 201229, and to make the 
PSCs more responsive to the needs of business, the Commission developed 
a Charter for the electronic points of single contact under the Services Directive (PSC 
charter) to serve as a guideline for those countries that intend their PSCs to go 
beyond that which is legally required. The PSC charter aims to underpin the de-
velopment of the second-generation PSCs.

	
Observations	

22

49	
The PSC charter gives guidance to the MSs that are willing and ambitious to 
develop their PSCs and enables them to develop in a similar direction. The 
charter can serve as a framework for discussion on how best to implement it and 
 exchange best practices.

30  The performance of the points 

of single contact — An 
assessment against the PSC 
charter, a study prepared for 
the European Commission DG 
Internal Market, Industry, 
Entrepreneurship and SMEs, 
2015.

50	
The Commission’s development of the charter is a positive action to overcome 
the limited set of legal obligations which exist for the PSCs for businesses and 
private individuals that expect considerably more.

51	
Using the PSC charter for testing the PSCs makes it clear to the MSs against which 
criteria their PSCs are to be measured. On one hand the inclusion of the voluntary 
criteria helps ambitious MSs to get an independent assessment of where they are. 
On the other, MSs which are less ambitious with their PSCs may be encouraged to 
develop PSCs in accordance with the charter.

52	
A study contracted by the Commission30, which was published in 2015, found that 
PSC performance was ‘mediocre with considerable scope for improvement’ and 
provided a detailed list of specific recommendations.

Points	of	single	contact	difficult	to	find,	low	business 	
awareness

53	
For PSCs to contribute to increasing cross-border trade and provision of services, 
businesses should be aware of the information and services they offer. Good 
online access would allow businesses looking for information or support to be 
directed towards the PSCs.

23

31  For example in SWD(2012) 148 

final of 8 June 2012, 
‘Commission staff working 
document: Detailed 
information on the 
implementation of Directive 
2006/123/EC on services in the 
internal market’, p. 20.

Observations	

54	
However, many organisations consulted by the ECA reported that awareness of 
PSCs among businesses remained low. Both MSs’ authorities and business groups 
stated that the Commission should do more to promote PSCs.

55	
The Commission states that the reason for its limited promotion of PSCs is a lack 
of resources31. The Commission says that online, targeted promotion activities 
would have the greatest effect, but that a more active role played by business 
organisations in the promotion of PSCs among their members would enhance 
the level of awareness.

Little	administrative	cooperation	in	matters	relating	to	the 	
Services	Directive

56	
The freedom to make cross-border supplies means that authorities face an ad-
ditional challenge in performing necessary checks on suppliers from another MS. 
The Directive provides for the means to do this through administrative cooper-
ation, which is performed electronically through the IMI system (see Box 1). This 
takes the form of mutual assistance whereby one MS can ask another to supply 
information, for example on permits and compliance with trading standards, or 
carry out checks, inspections and investigations.

1
x
o
B

The	IMI	system

The Directive required the Commission to establish an electronic system for the exchange of information 
on administrative cooperation between MSs, taking into account existing information systems. Commission 
Decision 2009/739/EC32 states that the IMI shall be used for this purpose. The IMI had already been launched 
in February 2008 to support Directive 2005/36/EC on the recognition of professional qualifications33. Since 
 December 2009, the IMI has become an instrument for information exchange in the services field. The 
number of areas in which the IMI is used has since expanded to eight: professional qualifications; services; 
posted workers; cross-border road transport of euro cash; Solvit; patients’ rights in cross-border healthcare; 
e-commerce (pilot project); train driving licences (pilot project).

32  OJ L 263, 7.10.2009, p. 32.

33  Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 

L 255, 30.9.2005, p. 22).

	
Observations	

24

57	
The number of Directive-related requests (see Figure 2) depends on factors such 
as the number of service providers going across borders, the relevant legislation 
in the host country, competent authorities being aware and being connected to 
the IMI and the need to contact the competent authorities in another MS. Inter-
pretation of the number of requests made via the IMI is therefore difficult, but 
the Commission recognises that it is little used in relation to the Directive com-
pared to the professional qualifications directive. In order to boost the use of the 
IMI for directive issues, the Commission has organised conferences and training 
courses.

2 Total	Services	Directive‑related	IMI	requests	per	quarter
e
r
u
g
i
F

140

120

100

80

60

40

20

0

Q1

Q2

Q3

Q4

Q1

Q2

Q3

Q4

Q1

Q2

Q3

Q4

Q1

Q2

Q3

Q4

Q1

Q2

Q3

Q4

Q1

Q2

2010

2011

2012

2013

2014

2015

Sources: http://ec.europa.eu/internal_market/scoreboard/performance_by_governance_tool/internal_market_information_system/index_en.htm 
http://ec.europa.eu/internal_market/imi-net/statistics/index_en.htm

58	
The IMI is also used as the communication tool for the Directive alert mechanism, 
where authorities in other MSs should be warned against a specific service pro-
vider regarding health, safety or environmental concerns. However, the authori-
ties in the MSs visited rarely use the alert mechanism, stating that the corres-
ponding function in the IMI is superfluous. Only three alerts have been sent in 
total, one of which was erroneous and withdrawn.

	
25

34  Figures up to 1 June 2015 

provided by the Commission.

35  Directive 98/34/EC of the 

European Parliament and of 
the Council of 22 June 1998 
laying down a procedure for 
the provision of information in 
the field of technical standards 
and regulations (OJ L 204, 
21.7.1998, p. 37).

36  Adoption of national 

legislation is postponed until 
the end of the standstill 
period.

37  Article 18 of the Directive: 

Derogations from Article 16 — 
in exceptional circumstances 
only, a Member State may, in 
respect of a provider 
established in another 
Member State, take measures 
relating to the safety of 
services.

Observations	

59	
Through the IMI system, the Services Directive provides for notifications of new 
national requirements regarding the cross-border provision of services and 
the freedom of establishment. In September 2013 a notifications module was 
launched in the IMI to replace notifications via email. Notifications sent through 
the IMI are received by the Commission and by the national IMI coordinators in 
the MSs, with the intention that they should be subject to peer review by the 
other MSs.

60	
The notification process was not considered useful by administrations in the 
MSs visited. The criticisms include the associated workload on the part of MSs’ 
authorities, and the lack of clarity in notifications received.

61	
A total of 310 notifications34 have been sent through the IMI since the system has 
been in use for this purpose. Although issuing the notifications is a legal obliga-
tion, of the 31 EU and EEA MSs connected to the IMI, seven have never sent any 
notification. For the remaining 24 MSs, the number of notifications over a period 
of 20 months ranged from 1 to 73.

62	
Notification of new requirements is an obligation that the Directive has in com-
mon with Directive 98/34/EC35, which obliges MSs to notify the Commission, at 
the draft stage, of their technical regulations related to products and information 
society services. However, the Directive does not include the 3-month standstill 
period36 that applies to Directive 98/34/EC notifications before they are adopted 
or the public consultation of notifications. The publication of directive notifica-
tions on an open website is under consideration according to Commission staff. 
Several interlocutors in the MSs indicated that they would welcome a similar 
standstill procedure.

63	
Overall, the usage of the IMI for the Directive is moderate to low: information 
requests occur, as do notifications, but alerts and case-by-case derogations37 are 
rare.

Observations	

26

64	
Given the fact that the Directive obliges the MSs to notify any new requirements, 
using the IMI for this purpose is logical. The IMI as a communication platform 
 offers the functionality needed. Extension of the IMI system to include a stand-
still period and publicly accessible website containing notified requirements 
would allow interested parties better access to the notifications and scrutiny of 
new requirements.

Consumers	continue	to	encounter	problems	in	accessing	the 	
single	market	for	services

65	
Article 20 of the Directive states that MSs should ensure that service recipients 
(including consumers) must not be subject to discriminatory requirements based 
on their nationality or place of residence and that access to a service should be 
similarly unrestricted. Typical examples of such restrictions may, for example, 
concern a multinational online retailer which does not allow a customer to shop 
directly from one website but automatically redirects that customer to an online 
store in his/her own country, where prices and conditions may be different. In 
other cases of non-compliance, a trader might refuse to supply a product to 
a customer in another country without justification. The directive allows ‘differ-
ences in the conditions of access where those differences are directly justified by 
objective criteria’.

66	
The Commission and MSs have set up ECC-net to provide information and give as-
sistance to services recipients who have problems with traders in other countries. 
Centres in this network, which is made up of the EU MSs, Norway and Iceland, 
are jointly funded by the EU budget and national funds. Each MS hosts a centre 
which should respond to consumers’ queries, providing advice about redress 
procedures and using contacts with ECC-net centres in other countries where 
necessary.

67	
The network published a report analysing consumer complaints made between 
January 2010 and December 2012. In this period, the network received 222 
complaints related to Article 20. In its visits to ECCs and other bodies in seven 
MSs, the ECA understood that this number understates the scale of the problem, 
since the ECC/MSs consider consumers to be ill-informed about their rights, and 
in particular about those deriving from the Directive. Furthermore, even where 
consumers are aware that there may be a breach, the effort necessary to make 
a complaint is often not considered worthwhile either relative to the value of the 
service concerned or because of the need to obtain a prompt solution.

27

38  Published on 

7 December 2009.

39  Published in September 2011.

40 

Items included clothing, 
sporting goods, household 
goods, books, music DVDs, 
video or computer games, 
software, electronic 
equipment and personal care 
products.

41  For example, difficulties in 

finding enough web traders 
who were willing to sell across 
borders, rates of correct 
delivery, free delivery offers 
being withdrawn and 
differences in the amount to 
be charged to credit cards, 
which were then attributed to 
‘VAT rates, customs clearance 
and currency issues’. Many 
traders did not provide 
sufficient information about 
the customer rights to return 
goods.

Observations	

68	
Two reports have been published regarding application of discriminatory re-
quirements: Study on business practices applying different conditions of access 
based on the nationality or the place of residence of service recipients38 and Online 
cross‑border mystery shopping — State of the e‑Union, produced by ECC-net39.

69	
The first report sought to identify whether there are differences in the treatment 
of customers based on nationality or residence. The study covered four  sectors — 
car rental, digital downloads, online sale of electronic goods and tourism. It con-
cluded that there was prima facie evidence of systematic differentiation based on 
the residence of the customer for the four sectors covered but not on national-
ity. Differentiation was identified in particular with regards to services provided 
online, with automatic address-based redirection or the existence of parallel 
country-based websites.

70	
The study suggests that there could be both legal and regulatory as well as busi-
ness drivers to such differences arising. Examples of legal and regulatory drivers 
of differentiation could be financial costs, compliance costs or differences in the 
MSs’ legislation, while business drivers could be transport and delivery costs, 
marketing costs or corporate structure, including franchising.

71	
The second report aimed to identify obstacles to cross-border online shopping. 
With the help of 17 EU members of the ECC network, a shopping exercise of 305 
online cross-border purchases was made for ten relevant product categories40. 
Overall, ECCs reported that 173 cases out of the 305 (56 %) had some issues aris-
ing41 regarding the contractual terms and customer rights, showing that consum-
ers still face obstacles in cross-border receipt of services.

Observations	

28

Service	providers	still	unfairly	discriminate

72	
Whilst Article 20(2) of the Directive requires that any discrimination be ‘directly 
justified by objective criteria’, recital 95 opens a loophole by referring to ‘ob-
jective reasons that can vary from country to country, such as additional costs 
incurred because of the distance involved or the technical characteristics of the 
provision of the service, or different market conditions, such as higher or lower 
demand influenced by seasonality, different vacation periods in the MSs and pri-
cing by different competitors, or extra risks linked to rules differing from those of 
the MS of establishment’.

73	
This has led to unjustifiable discrimination as illustrated in the examples shown in 
Box 2.

2
x
o
B

Discriminatory	practices	towards	consumers

‘While booking a vacation package online with a theme park based in France, a Bulgarian consumer selected 
by mistake the UK as her country of residence. She soon spotted her mistake and selected Bulgaria instead. 
The consumer learned that there was nearly 40 % price difference and she was asked to pay EUR 500 more 
than her British counterparts.’

‘While on holidays in an Austrian ski resort a German consumer discovered that the purchase price of tickets 
for lifts was much more expensive for tourists than for Austrian residents.’

Source: Enhanced consumer protection — the Services Directive 2006/123/EC: analysis of Article 20.2 and Article 21 related consumer complaints 
reported to ECC‑net between 2010 and 2012, pp. 20-21.

74	
ECC-net report lists a number of similar examples of such discriminatory treat-
ment, which are more often based on residence than nationality and often indir-
ectly applied based on country of credit card issuance or place of delivery.

	
29

42  SWD(2012) 146 final of 

8 June 2012, ‘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’).

43 

(External) evaluation of the 
consumer protection 
cooperation regulation — Final 
report submitted by the 
Consumer Policy Evaluation 
Consortium (CPEC), 
17 December 2012.

Observations	

75	
Article 20(2) has also proved to be a cause of unease and uncertainty for busi-
nesses who do not understand what obligations may fall on them when selling 
long-distance to customers in other countries. According to retail representa-
tives in the MSs, the guidance provided so far42 has failed to give reassurances or 
certainty about when businesses must supply across borders.

Resolving	the	problems

76	
The Commission has adopted a thematic approach to resolving the most signifi-
cant types of problems relating to service providers. It uses the CPC network to 
conduct ‘sweeps’, which consist of EU-wide screening of websites in particular 
online sectors. Simultaneous, coordinated checks are made to identify breaches 
of consumer law and to subsequently ensure its enforcement. Following such 
investigations, the relevant national authorities should take proper enforcement 
action, contacting companies about suspected irregularities and ask them to 
take corrective action or face legal proceedings. Sweeps have been made in the 
following fields: airlines, mobile phone content, electronic goods, online ticket 
sales, consumer credit, digital contents and online travel booking.

77	
According to an external evaluation43 carried out in 2012, the resulting enforce-
ment rate was high for all sectors, although the impact of sweeps could be 
increased through more publicity and follow-up actions to ensure continued 
compliance. Unfortunately, the Directive’s requirements have not specifically 
been integrated into the evaluations carried out in these exercises since, accord-
ing to the Commission, the CPC legislation was enacted prior to the Directive 
entering into force. The external evaluation made recommendations for extend-
ing the scope for the sweeps, but rejected the inclusion of the Directive in this, 
despite recognising that ‘[the Directive] guarantees certain rights to recipients of 
services such as non-discrimination, information rights, and professional liabil-
ity insurance and commercial communication. The cross-border relevance and 
consistency criteria are significant in this respect.’ The evaluation considered, 
however, that ‘the Services Directive has a strong focus on MSs’ obligations 
rather than on the activities of individual service providers, and secondly, the 
Direct ive also  covers business-to-business aspects (i.e. the concept of “recipients 
of services” is not limited to consumers) inconsistent with the consumer focus of 
the CPC object ives.’ This view is in contradiction with the evidence presented in 
the ECC-net report which underlines the important effect on consumers of non- 
compliance with the Directive.

30

44  Commission recommendation 

of 7 December 2001 on 
principles for using ‘Solvit’— 
the internal market problem 
solving network (OJ L 331, 
15.12.2001), p. 79.

45  Commission recommendation 

of 17 September 2013 on the 
principles governing Solvit 
(C(2013) 5869 final).

46  Commission recommendation 
on the principles governing 
Solvit (17 September 2013), 
p. 2.

47  http://ec.europa.eu/solvit/

index_en.htm

Observations	

Enforcement

The	Commission	employs	a number	of	enforcement	tools

78	
Compliance with the Directive is important from both the legal and the economic 
point of view. When EU rights are breached, quick and efficient solutions are 
needed for both the service providers and the service recipients.

79	
The Commission may initiate an infringement procedure against an MS that has 
failed to fulfil a treaty obligation. The Commission has also set up the general 
pre-infringement mechanism EU pilot and the alternative conflict resolution 
mechanism Solvit, which is specifically designed for internal market issues. In 
addition, the Commission can address high-level issues at the political level by 
making country-specific recommendations (CSRs) under the European semester.

Solvit	is	rarely	used	for	the	Services	Directive

80	
Solvit is a free, mainly online service between MSs, provided by the national ad-
ministrations. It was set up in 200144 and updated in 201345. Solvit provides solu-
tions to a range of practical situations such as: getting professional qualifications 
recognised, visa and residence rights, trade and services (businesses), vehicles 
and driving licences, family benefits, pension rights, working abroad, unemploy-
ment benefits, health insurance, access to education, cross-border movement of 
capital or payments and VAT refunds. In 2013 the Commission issued a brochure 
with examples of practical solutions to individual problems achieved by using 
Solvit centres.

81	
In general, the majority of cases are resolved successfully, within an average of 
9 weeks46 (against a target of 10 weeks47). Typically, the system has received ap-
proximately 1 400 cases per year, increasing to 2 368 in 2014.

Observations	

31

3
x
o
B

Solvit	solutions

Solvit	lets	tourists	charter	German	yachts	in	Italy

A German enterprise chartered four yachts under a German flag to tourists in Italy. The business owner was 
fined for not having registered its commercial yachts with local port authorities in accordance with recent 
Italian regulations. Five months later, after repeated efforts to obtain registration, the business owner was told 
that registration would only be possible if the business was established in Italy. Solvit stepped in to make it 
clear that this condition was not in line with EU law and that the authorities should accept the registration in 
the German Chamber of Commerce. All four yachts were registered and charter licences were issued.

Solved within 9 weeks

Solvit	ensures	fair	treatment	for	rafting	companies	in	Slovenia

Rafting companies from Hungary and Slovakia complained that cheaper, year-long access to a particular river 
in Slovenia was reserved for Slovenian companies. Foreign companies not only had to pay more but had the 
daily inconvenience of buying tickets. Thanks to Solvit, the discriminatory rules were changed and foreign 
companies can now ply their trade on Slovenia’s rivers on the same basis as local companies. Because it im-
plied a change of the rules, solving the case took longer than the Solvit average.

Solved within 10 months

Source: European Commission, Solvit — Success stories, 2013.

82	
However, Solvit plays a minor role regarding the Directive. In 2014 only 17 cases 
out of 2 368 related thereto (six in 2013, 16 in both 2012 and 2011).

83	
Solvit has limited personnel and technical capacity to handle complex business 
cases48. In large MSs such as Germany, France and the United Kingdom, Solvit 
centres are understaffed49 and the number of staff with legal qualifications is 
insufficient50. The Commission, however, organises regular training courses for 
Solvit centre staff on legal issues.

48  Nordic innovation report, 
Delivering a stronger single 
market, June 2012, p. 50.

49 

Ibid.

50  M. Kaeding, F. Voskamp, Better 

implementation of EU 
legislation is not just a question 
of taking Member States to 
Court, working paper 
(2011/w/01 EIPA), p. 10.

	
Observations	

32

84	
Most cases have been introduced by private individuals, and only approximately 
20 cases have been introduced by companies, as they generally have other 
means to resolve problems arising when conducting business abroad. A study 
made by the Commission in 2011 stated that businesses would prefer to go to 
formal instances to find solutions.

51  The Czech Republic, Denmark, 

Germany, Ireland, Spain, Italy, 
Lithuania, Hungary, the 
Netherlands, Austria, Portugal, 
Slovenia, Finland, Sweden and 
the United Kingdom.

85	
The solutions provided by Solvit are not legislative solutions, and information on 
cases and how they have been resolved is not available to the public, therefore 
not helping other possibly interested parties. Moreover, different solutions may 
be provided to identical problems, for example by different MSs and regional 
authorities.

EU	pilot	—	a pre‑infringement	system	appreciated	by 	
Member	States

86	
EU pilot is a confidential mechanism for the exchange of information between 
the Commission and the MSs. It was set up by the Commission in 2008 with 
15 volunteer MSs51 and by July 2013 included all 28 MSs. EU pilot is used as an 
attempt to clarify or resolve problems so that, if possible, formal infringement 
proceedings under Article 258 TFEU can be avoided.

87	
The Commission opened 1 502 EU pilot cases in all areas in 2013 and 1 208 cases 
in 2014. By early 2015 there had been 84 cases relating to the Directive.

On	average	it	takes	just	over	16	months	to	resolve	a Services	
Directive‑related	EU	pilot	case

88	
The Commission submits individual cases to the MS concerned using the EU pilot 
application. MSs’ authorities have a 10-week deadline to provide a reply and 
propose a solution.

Observations	

33

89	
The Commission publishes the average response rate of the MSs to all EU pilot 
letters, having set a deadline of 70 days. According to the single market score-
board (July 2014)52 the majority of MSs were marked as ‘green’ for respecting 
the deadline. The Czech Republic, Ireland, Spain, Italy, Latvia, Poland, Portugal, 
Romania, Sweden and the United Kingdom are ranked as ‘yellow’, or close to 
respecting the deadline (with 71 to 77 days average response time). The average 
response time of France, however, is 93 days. The time taken by the Commission 
is not indicated in the scoreboard but according to the second evaluation report 
on EU pilot53, where it also set itself a deadline of 70 days to assess replies and 
decide on follow-up, the average time taken was 102 days.

52  http://ec.europa.eu/

internal_market/scoreboard/
performance_by_governance_
tool/eu_pilot/
index_en.htm#maincontentSec

53  SEC(2011) 1629/2 of 

21 December 2011, ‘Second 
evaluation report on EU pilot’.

90	
For most EU pilot cases concerning the Directive, several exchanges of corres-
pondence were necessary adding to the time required. The average duration of 
directive cases is 16.6 months.

In	some	cases	the	Commission	has	waited	too	long	to	take	action

91	
The Court examined six EU pilot cases concerning the Directive. In this sample, 
the process took between 5 and 8 months where the case was resolved using 
EU pilot. However, the more complex cases which were later transferred to the 
infringement stage took between 9 and 30 months.

92	
MSs were on time with their replies. However, Box 4 gives examples of delays in 
EU pilot procedure.

4
x
o
B

Examples	of	delays	in	EU	pilot	procedure

In case of one MS, it took the Commission 16 months after identifying issue to send the administrative letter 
and another 6 months to launch the EU pilot case.

In the case of another MS, it took the Commission almost 20 months from receiving a complaint to starting 
the EU pilot.

One EU pilot case was started in 2012 and has not yet been closed, as the verification of the correct implemen-
tation of the legislative changes introduced is still necessary.

	
34

54  All complaints, on all subjects, 
including those which lead to 
EU pilot and/or infringement, 
are registered in the 
Commission complaint 
recording system (CHAP). 
CHAP includes field flagging 
where complaints pertain to 
Article 56 (freedom to provide 
services) or 49 (freedom of 
establishment) of the TFEU.

Observations	

93	
Information on EU pilot cases is not made public either during the time they are 
active or after they have been completed. As a result, even if such procedures 
provide a remedy in an individual country, they do not benefit other interested 
parties nor do they contribute to creating an established EU legal practice in this 
area.

The	Commission	has	hardly	used	infringement	procedures

94	
If, after preliminary consultations in EU pilot, the Commission considers that 
EU rules are not being properly applied, it may open infringement proceedings 
against the MS in question. The Commission has the power to try to bring the 
infringement to an end, including, where necessary, referral of the case to the 
Court of Justice of the European Union. This can be done either based on a com-
plaint received by the Commission54 or based on the Commission’s own initiative.

95	
The case may be resolved if the MS provides the necessary additional informa-
tion which satisfies the Commission that there is in fact no infringement or if it 
accepts the Commission’s opinion and brings the violation to an end.

96	
The ‘zero-tolerance policy’ was announced by the Commission as part of its 
services package in 2012. However, the Commission took the position that only 
a limited subset of requirements to be within the scope of its ‘zero tolerance’ (see 
Box 5).

Observations	

35

5
x
o
B

‘Zero	tolerance’	of	non‑compliance

The Commission has decided to only enforce its ‘zero-tolerance’ policy regarding non-compliance in respect 
of the following obligations set out in the Services Directive:

The Directive prohibits a number of discriminatory and particularly burdensome requirements, which are 
listed in Article 14.

The Directive introduces specific obligations to simplify authorisation procedures:

(1) 

tacit approval, i.e. silence from the administration means approval, provided for in Article 13(4); and

(2)  nationwide validity of authorisations is provided for in Article 10(4).

The Directive bans the total prohibition of commercial communications for regulated professions in Article 24.

Establishment requirements render impossible the provision of cross-border services. They are one of the 
most restrictive requirements addressed by Article 16 of the Services Directive (the freedom to provide ser-
vices clause) in its paragraph 2, and MSs may not impose it on service providers.

Source: COM(2012) 261 final, ‘A partnership for new growth in services 2012-2015’, p. 4.

97	
This policy addresses only the most restrictive requirements covered by the Dir-
ective. The policy is not applied to other obstacles and barriers identified where 
the justification of proportionality provided by the MS needs to be assessed and 
possibly challenged. The Commission’s position is that it cannot pronounce on 
these specific cases as they can only be decided by the Court of Justice of the 
European Union. However, the Commission is reluctant to refer cases when it is 
not absolutely certain that the ruling would confirm the breach of legislation.

98	
For some cases, the Commission has provided guidance in presentations to 
expert group meetings of new requirements based on IMI notifications of legisla-
tive measures. Nevertheless, the ‘zero-tolerance policy’ is not applied for what 
the Commission considers to be unjustified requirements imposed by MSs.

	
Observations	

36

99	
There have only been nine infringement cases for non-conformity of national 
legislation with the Directive since its introduction. This is low compared to the 
number of issues reported during the mutual evaluations, performance checks 
and implementation report (services package) and is not consistent with the 
Commission’s announced policy of ‘zero tolerance’.

55  As of 1 April 2015.

Infringement	cases	take	too	long

100	
According to data provided by the Commission, the average duration of the 18 
cases pending on 1 October 2014 which related to the Directive was 19.6 months. 
This already exceeded the 18-month target set by the Commission to resolve 
such infringements. By the end of 2015 — some 15 months later — 11 of these 
cases were still pending. The Commission does not systematically compile or 
publish information on the length of closed infringement procedures relating to 
the Services Directive.

101	
In addition to the 20 cases relating to late transposition (see paragraph 19) and 
nine cases for non-conformity (see paragraph 99), there have been 55 cases55 
regarding incorrect application or transposition of the Services Directive and 20 
similar infringements which concern TFEU Articles 49 (freedom of establishment) 
or 56 (freedom to provide services). These are cases where the directive was 
transposed correctly in the national legislation but the provisions of the legisla-
tion were incorrectly transposed or applied.

Individual	services‑related	complaints	followed	up	on 	
regular	basis;	however,	there	are	long	periods	of	inactivity 	
during	the	infringement	procedures

102	
Ten infringement cases were examined by the Court which arose from either 
barriers highlighted during the visits to the Commission and MSs or where the 
procedure took a particularly long time.

37

56  Articles 14, 15 and 16.

57  Case C-179/14, Commission 
v Hungary, 2012/4083.

Observations	

103	
Cases in CHAP were followed up on a regular basis. Those relating to the Direc-
tive were transferred to DG Internal Market and Services, which then either 
prepared a response or opened an EU pilot case to start the pre-infringement 
procedure. In all cases there were multiple communications between the Com-
mission and the MSs. However, once the infringement procedures started long 
delays occurred, and there were periods of inactivity for individual cases as well 
as delays in the MSs’ responses. For example, in one case there was a period of 
inactivity between February 2012 and March 2014, and in another case there was 
a gap between November 2012 and May 2015 in the correspondence of the Com-
mission, although subsequently the decision was made quickly.

104	
Even though it takes longer than expected and planned, all infringement cases 
closed resulted in the MS concerned amending its legislation, thereby remedying 
the problems identified. It can be concluded that when infringement procedures 
are initiated they lead to legislative changes in the MSs. However, their number 
remains extremely low. Moreover, while the Commission announces the open-
ing of an infringement procedure, detailed documentation is not made available 
to the public when the case is closed, which reduces the transparency of the 
proced ure and adversely affects the development of common legal practice.

Only	one	case	referred	to	the	Court	of	Justice

105	
When the Commission takes an MS to the Court of Justice, it is for the Commis-
sion to provide evidence of the infringement of EU law. If the evidence provided 
is not sufficiently conclusive, the Court is entitled to rule against the Commission 
by declaring the case inadmissible or as unfounded. The Commission has referred 
only one infringement case on the basis of the Directive56 to the Court of Justice57 
(see Box 6).

Observations	

38

6
x
o
B

Infringement	case	brought	to	the	Court	of	Justice

The European Commission decided to bring Hungary to the Court of Justice of the European Union to contest 
its legislation on issuing luncheon, leisure and holiday vouchers. The Commission considers that the restric-
tions introduced by the Hungarian legislation in force on 1 January 2012 are contrary to the fundamental 
principles of the freedom of establishment and the freedom to provide services, enshrined in the Treaty on 
the Functioning of the European Union (Articles 49 and 56) and contrary to the Services Directive (Directive 
2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal 
market).

In 2011, Hungary amended its legislation on the issue of vouchers for meals (hot and cold), leisure and holi-
days, granted by employers to their employees, and considered as benefits in kind and therefore subject to 
more favourable tax and social security rules. This legislation entered into force on 1 January 2012 with no 
significant transitional period or measures. Previously, there were no specific conditions on employers issuing 
hot- and cold-meal vouchers to their employees, or for the form of such vouchers.

This new legislation has created a monopoly for a public foundation responsible for issuing cold-meal vouch-
ers (paper or electronic) and hot-meal vouchers (paper), granted by employers to their employees. Further-
more, it establishes very strict conditions for the issue of vouchers for hot meals, leisure and holidays, consid-
ered as benefits in kind, which may no longer be in electronic form.

This new legislation means that operators present on the hot- and cold-meal vouchers market for several 
years are now excluded from the market for vouchers considered as benefits in kind.

Since Hungary has not brought its legislation into line with the reasoned opinion sent to it in November 2012 
the Commission decided to bring this case before the Court of Justice. As of October 2015, the case was still 
pending.

106	
In the reports of the Commission, European Parliament and other bodies, and 
particularly in the services package (June 2012), enforcement tools have been 
reviewed and recommendations made for future action. The Court found con-
sensus in the MSs visited that all issues of non-compliance should be rigorously 
addressed and that infringement procedures should be applied.

107	
The Commission has not created a systematic strategy to strengthen the single 
market in services, in particular the areas covered by the Directive. The current 
enforcement activities do not always focus on the economically most significant 
industries selected on a risk-based approach.

	
39

58  http://ec.europa.eu/

europe2020/pdf/csr2014/
overview_
recommendations_2014_ 
by_member_state_en.pdf

59  For example, regulated 
professions, particularly 
pharmacies and opticians, 
promoting competition in 
services, reducing the 
regulatory burden affecting 
the retail sector with the ‘Loi 
relative à l’artisanat, au 
commerce et aux très petites 
entreprises’ (ACTPE), aimed at 
simplifying the procedure for 
the establishment of retail 
outlets and the draft law on 
economic activity giving more 
powers to the Competition 
Authority.

Observations	

Country‑specific	recommendations	have	had	limited	success

108	
In addition to infringement procedures, the Commission is trying to influence 
MSs by including Services Directive-related recommendations in CSRs issued 
in the context of the European semester. Such recommendations are approved 
by the Council. The Commission considers CSRs to have greater political im-
pact than infringement procedures since they are agreed and adopted by MSs’ 
governments.

109	
In June 2014, issues related to ‘competition in the service sector’ were included in 
14 CSRs58. For example, the Commission recommended that the government of 
France ‘remove unjustified restrictions on the access to and exercise of regulated 
professions and reduce entry costs and promote competition in services’. In 2015, 
it was noted that some progress had been made in this area59. However, in some 
MSs there has been either no progress, limited progress or the CSR has not been 
addressed. (See Box 7).

110	
Although the CSRs are considered by the Commission to have greater political 
impact than infringement procedures, not all MSs act upon the recommenda-
tions appropriately. There is no evidence that CSRs are more effective in remov-
ing barriers than infringement procedures.

Observations	

40

7
x
o
B

2014	CSR	followed	up	in	2015,	with	limited	or	no	progress	noted

CSR 5 for Hungary recommended that it ‘stabilise the regulatory framework and foster market competition, 
inter alia by removing barriers in the services sector.’

However, in 2015 it was noted that Hungary has made limited progress in addressing CSR 5 and the Council 
recommendation. In fact no progress was achieved in stabilising the regulatory framework and fostering mar-
ket competition, especially in the services sector. 

CSR 4 for Austria recommended that it ‘remove excessive barriers for services providers, including as regards 
legal form and shareholding requirements and with respect to setting up interdisciplinary services companies’. 

Austria has not made reform progress over the reporting period, including as regards legal form and share-
holding requirements and interdisciplinary service activities. There has still been no broad review of the exist-
ing restrictions.

CSR 6 for Spain recommends that it ‘adopt an ambitious reform of professional services and of professional 
associations by the end of 2014, defining the professions requiring registration in a professional organisation, 
and the transparency and accountability of professional bodies, opening up unjustifiably reserved activities 
and safeguarding market unity in the access to and exercise of professional services in Spain. Further reduce 
the time, cost and number of procedures required for setting up an operating business. Address unjustified 
restrictions to the establishment of large-scale retail premises, in particular through a revision of existing 
regional planning regulations.’ 

No progress has been made as regards the adoption of the reform of professional services and professional 
associations.

Some progress has been made in further reducing the time, cost and number of procedures required for set-
ting up an operating business.

	
Conclusions	and	
recommendations

41

111	
The Commission has a duty to coordinate policy on the EU single market and 
seek the removal of unjustified obstacles to trade in the field of services. Some 
years after the deadline for implementation of the Services Directive, barriers 
to the internal market for services covered by the Directive still exist. The Com-
mission has set up a number of mechanisms to identify barriers, created support 
structures to assist MSs in reducing them and set up alternative conflict resolu-
tion measures. However, the Commission has been reluctant to pursue legal 
proceedings, partly due to the length of the procedure and partly due to its lack 
of confidence in the strength of the legislation. Overall, the Commission has been 
only partially effective in ensuring the implementation of the Directive.

Transposition	and	monitoring	of	implementation

112	
Most MSs did not transpose the Directive into national legislation on time. The 
Commission monitored MSs’ progress and reported thereon to the Competitive-
ness Council. It was acknowledged by the MSs that the Commission has done 
much on a practical level to help them implement the Directive during and after 
transposition, by organising group discussions for the mutual evaluation process 
as well as providing guidance during regular thematic expert group meetings. 
Guidance for transposition was issued in the form of the Handbook on the im‑
plementation of the services directive, which, though considered useful, was not 
released in time for the start of the 3-year period and thus contributed to delays 
in full transposition (see paragraphs 16 to 20).

Recommendation	1

The Commission should draft guidance for transposition and issue it as soon as 
possible after adoption.

113	
The mutual evaluation process and subsequent performance checks demon-
strated that a significant number of obstacles persisted. The MSs consider that 
the Commission could have done more to eliminate the potentially unjustified 
barriers that were identified during this process. In addition, the Commission did 
not sufficiently challenge the proportionality justification provided by some MSs. 
The results were not used to support systematic enforcement of the Directive by 
the Commission by aiming to address the economically most significant issues 
(see paragraphs 21 to 36).

Conclusions	and	recommendations	

42

Recommendation	2

Results from exercises such as mutual evaluations and performance checks 
should be followed up to resolve non-compliance; the Commission and the MSs 
should address the economically most significant issues.

114	
The potential economic benefit of full implementation of the Directive is not 
known, though estimated output gains are frequently quoted to demonstrate 
the impact of reducing barriers. Due to the lack of appropriately detailed data on 
sectors affected by the Directive, there is still no reliable quantification of its im-
pact. The Commission has only recently asked MSs to provide necessary detailed 
national accounts breakdowns (see paragraphs 37 to 42).

Recommendation	3

The Commission should endeavour to ensure that the issue of data necessary 
for assessing impacts of new legislation is addressed early in the legislative 
procedure.

Implementation

115	
PSCs are a prominent feature of the Directive. There were delays in their estab-
lishment and their quality varies greatly across MSs, with some demonstrating 
a lack of ambition to make the PSCs more responsive to the needs of businesses. 
The Commission drew up a charter which asks MSs to make the important effort 
needed to achieve this, but this has yet to yield satisfactory results (see para-
graphs 46 to 52).

116	
Awareness of PSCs amongst businesses is not high and not all PSCs are sufficient-
ly visible (see paragraphs 53 to 55).

Recommendation	4

MSs should respect the PSC charter by, for example, making information available 
in multiple languages and enabling completion of all administrative steps neces-
sary for the provision of services across borders.

Conclusions	and	recommendations	

43

117	
Administrative cooperation through the IMI can be usefully applied with regard 
to the Directive but is much less used than, for example, under the professional 
qualifications directive. The IMI is also a useful communication vehicle for the ob-
ligatory notifications, but is underused due to MSs’ dissatisfaction with the Com-
mission’s treatment of notifications sent and with the lack of comprehensibility in 
notifications received from other MSs (see paragraphs 56 to 64).

Recommendation	5

The legislator should introduce a standstill period for the notification of draft 
requirements and ensure that they are published on a publicly available website 
to allow better access and timely scrutiny.

118	
There is evidence that many consumers continue to encounter problems in 
accessing the single market for services, even if they do not make formal com-
plaints. However the Commission could propose to extend the scope of the CPC 
regulation so that it covers Article 20 of the Services Directive (see paragraphs 65 
to 77).

Recommendation	6

The Commission should amend the annex of the CPC regulation so that it in-
cludes Article 20 of the Services Directive.

Enforcement

119	
Whilst EU pilot is a useful tool for cooperation between MSs and the Commission, 
it often takes too long to launch cases and information about their resolution is 
not made public. As a result, even if the EU pilot provides a remedy in an indi-
vidual case, it does not benefit other interested parties or contribute to creating 
an established EU legal practice in this area (see paragraphs 86 to 93).

Conclusions	and	recommendations	

44

Recommendation	7

The Commission should not delay the starting of an EU pilot case where an issue 
has been identified. Information on the issues resolved via EU pilot should be 
shared (anonymously, if necessary), contributing to disseminating best practice.

120	
Despite the ‘zero-tolerance’ policy there have only been nine infringement cases 
for non-conformity of national legislation with the Directive. These have taken 
too long to resolve (2 years on average) and only one Services Directive infringe-
ment case has actually reached the Court of Justice. The Commission has no 
systematic strategy to strengthen the single market in services, in particular the 
areas covered by the Directive. The current enforcement activities do not always 
apply a risk-based approach to focus on the most economically significant indus-
tries (see paragraphs 94 to 107).

Recommendation	8

The Commission should reduce the length of the infringement procedures as 
much as possible. It should apply an approach to initiating infringements based 
on risks and economic importance of the issue concerned. Finally, given that the 
Commission itself considers that important issues of implementation can only be 
decided by the Court of Justice, it should refer them where necessary.

This Report was adopted by Chamber IV, headed by Mr Milan Martin CVIKL, Member 
of the Court of Auditors, in Luxembourg at its meeting on 3 February 2016.

For the Court of Auditors

Vítor Manuel da SILVA CALDEIRA
President

 
 
 
Reply	of		
the	Commission

Executive	summary

45

IV
The Commission set out its priorities in the 2012 communication on the implementation of the services directive1. 
In its communication, the Commission explains that it is focusing on enforcement, but that it is not its only area of 
action. The Commission has also identified priority sectors and set actions for the years to come, including a retail 
action plan, reform of the professional qualifications directive and a peer review on legal form and shareholding. 
This set of actions was welcomed by the European Council in its conclusions of 23 October 2013. The Member States 
(MSs), as underlined by the European Council, have their central role to play in the implementation of the services 
directive.

The Commission opened several infringement files in the first half of 2015 where the proportionality of a national 
measure needs to be assessed. For example, the Commission opened eight infringement cases on legal form and 
shareholding, or tariffs (which are conditional obligations provided by Article 15 of the Services Directive). A num-
ber of cases have also been launched on the basis of quantitative or territorial restrictions (Article 15 of the Services 
Directive) and on the basis of Article 20(2) (non-discrimination in the access to services). Ten EU pilots were opened 
in the second half of 2015 on non-compliance with Article 8 of the Services Directive on points of single contact 
(PSCs), which, again, need a proportionality assessment.

V
The Commission does pursue legal proceedings where necessary. The Commission has identified its priority sectors 
and taken action in them.

Part of the directive is based on a proportionality assessment to be conducted by the MSs on a case-by-case basis, 
and the Commission must take that into consideration (e.g. Article 15 and Article 39 requiring MSs to evaluate cer-
tain requirements). Action is therefore decided not by levels of confidence, but by legal basis. The length of judicial 
procedures has never been a deterrent to the opening of infringement files. For unconditional obligations con-
tained in the directive, the Commission has acted promptly with a very consistent number of own-initiative investi-
gations. Of the average 80 EU pilots per year, the Commission opens more than 30 files on its own initiative.

1 

 http://ec.europa.eu/growth/single-market/services/services-directive/implementation/evaluation/index_en.htm

Reply	of	the	Commission	

46

VI
Regarding the economic impact of the Services Directive, the 2012 study (http://ec.europa.eu/economy_finance/
publications/economic_paper/2012/pdf/ecp_456_en.pdf) was based on an assessment of barriers in services sec-
tors at two points in time: before the introduction of the directive and after the introduction (at the end of 2011). 
The Commission has also carried out an update of this study to capture national reforms which were carried out 
between 2012 and 2014 (available here: http://ec.europa.eu/DocsRoom/documents/13327/attachments/1/transla-
tions/en/renditions/native). In addition, more detailed assessments have recently been carried out on remaining 
barriers and the economic potential of removing them in the priority sectors of business services and retail. These 
were published in the staff working document on the single market strategy (see Sections 2.3 and 2.4: http://
ec.europa.eu/DocsRoom/documents/13405/attachments/1/translations/en/renditions/native).

VII	First	indent
The Commission opened more than 30 files (zero-tolerance cases) following the 2013 mutual evaluation exercise. It 
opened 15 EU pilot files following the peer review on legal form, shareholding and tariffs in 2014. Of those 15 files, 
in five cases a letter of formal notice has been sent to the MS concerned, which makes around 80 EU pilots per year 
overall. This is one of the highest number of files opened in the Commission for a single piece of secondary legisla-
tion. It constitutes a huge effort from MSs and the Commission since it required 1 584 national pieces of legislation 
to transpose it, the highest number of transposition measures ever required for a single piece of EU secondary 
legislation

VII	Second	indent
EU pilot is a system via which the Commission and the MSs discuss, at an early stage, possible violations of EU 
law. These discussions are governed by confidentiality. The Commission does not disclose whether an EU pilot 
on a particular subject matter is/was pending against a particular MS. The Commission exchanges good practices 
with MSs on the application of Union law, including the functioning of EU pilot, in dedicated fora. The Commission 
publishes information on EU pilot in an aggregated manner in the annual report on monitoring the application 
of EU law (COM(2015) 329). If the Commission were to publish specific information on an EU pilot case, it would 
have to respect the confidentiality obligations it has vis-à-vis the MSs, to be considered on a case-by-case basis. 
The Commission’s practice of handling ongoing EU pilot investigations confidentially has already been confirmed 
by the Court of Justice of the European Union (Petrie judgment (Case T-191/99), Spirlea judgment (Case T-306/12), 
ClientEarth v Commission (Cases T-424/14 and T-425/14)). These judgments were rendered in relation to access to 
documents requests by external third parties. In light of the foregoing, the Commission considers that its current 
dissemination policy strikes an appropriate balance between the need to promote best practices on application of 
EU law and respect for confidentiality vis-à-vis the MSs. The Commission is committed to disseminating aggregate 
information on EU pilot.

VII	Third	indent
The Commission considers the aim of the infringement proceeding to be to terminate a violation of EU law and 
ensure compliance at the earliest stage possible. It is committed to limiting as far as possible the time needed to 
reach this goal. The most effective way to reach this goal, though, is not always linked to the rapidity of an infringe-
ment proceeding, since sometimes going ahead with an infringement procedure without taking into consideration 
contingent situations can have counter-effective results.

Reply	of	the	Commission	

47

VII	Fourth	indent
The fact that cases have not been referred to the Court of Justice does not necessarily mean that the Commission 
was not active in pursuing infringements, but means that compliance has been ensured before the referral. The 
purpose of the infringement procedure is to ensure compliance at the earliest stage possible. In this respect the EU 
pilot tool is an effective instrument for solving issues before starting a formal infringement procedure and, eventu-
ally, referring the case to the Court of Justice, if needed. After the introduction of EU pilot, the number of infringe-
ment proced ures, and thus of referrals to the Court of Justice, has drastically decreased in general. As indicated in 
the reply, this statement is valid for the infringement procedure in general.

VIII	First	indent
The Commission is assisting MSs in the implementation of Union legislation using a comprehensive array of com-
pliance-promoting tools (implementation plans for major legislative initiatives, networks and expert committee 
meetings and guidelines). The better regulation package adopted in May 2015 confirmed the Commission’s support 
for MSs in their implementation efforts (Better regulation guidelines, pages 33-35). In this respect, all proposals for 
major directives are accompanied by implementation plans which describe implementation challenges and relevant 
support actions to be taken by the Commission. 

The handbook on the implementation of the Services Directive was available 7 months after the adoption of the 
Services Directive, and 29 months before the deadline for transposition. Extensive consultations and discussions 
with the MSs took place before the publication of the handbook, and the content was therefore well known to MSs 
beforehand. Publishing the handbook without proper consultation would have been a greater problem than the 
delay in its publication.

VIII	Second	indent
According to the new better regulation agenda, the Commission is strengthening its approach to impact assess-
ment and evaluation in order to improve the evidence base which underpins all legislative proposals, without preju-
dice to political decisions. The Commission opened up its policymaking process to further public scrutiny and input 
with a web portal where initiatives and new public consultations can be tracked when the Commission is evaluating 
existing policies or assessing possible new proposals. 

VIII	Fourth	indent
The single market strategy for goods and services, published by the Commission on 28 October 2015, announced 
several actions in order to improve the delivery of the Services Directive, including reform of the notification 
proced ure. The Commission is considering several legislative options, including elements such as a standstill period 
and allowing the stakeholders access to notifications to ensure better transparency. The single market strategy 
points to the fact that provision of information on a publicly available website is not available yet. A corresponding 
proposal is planned for 2016.

VIII	Fifth	indent
The single market strategy announces such revision of the consumer protection legislation, but also legislation 
offering a more specific framework beyond Article 20 of the Services Directive.

Reply	of	the	Commission	

48

Introduction

11
The Commission notes that DG Internal Market, Industry, Entrepreneurship and SMEs was formed through the 
 merging of the previous DG Internal Market and Services and DG Enterprise and Industry.

Observations

14
The Commission identified areas in which the directive had not been implemented and took appropriate actions, 
e.g. the zero-tolerance policy and the legal form, shareholding and tariffs cases. MSs have the responsibility to iden-
tify restrictions and barriers in their territory. 

The Commission has found it useful to systematically apply EU pilot as an effective way of avoiding lengthy legal 
procedures and of ensuring compliance by MSs in a swift way.

Some important provisions in the Directive require a proportionality assessment to be conducted by the Member 
State on a case-by-case basis, and the Commission has to take that element into consideration and take care not to 
go beyond the scope of the Services Directive. 

15
Regarding the economic impact of the Services Directive, the 2012 study (http://ec.europa.eu/economy_finance/
publications/economic_paper/2012/pdf/ecp_456_en.pdf) was based on an assessment of barriers in services sectors 
at two points in time: before the introduction of the directive and after the introduction (at the end of 2011). 

The Commission has done an update of this study to capture national reforms which were carried out between 
2012 and 2014 (available here: http://ec.europa.eu/DocsRoom/documents/13327/attachments/1/translations/en/
renditions/native). In addition, more detailed assessments were recently done as well on remaining barriers and the 
economic potential of removing them in priority sectors business services and retail. These were published in the 
staff working document on the single market strategy (see Sections 2.3 and 2.4: http://ec.europa.eu/DocsRoom/
documents/13405/attachments/1/translations/en/renditions/native).

17
The handbook was available 7 months after the adoption of the Services Directive, and 29 months before the dead-
line for transposition. Extensive consultations and discussions with the MSs took place before the publication of the 
handbook, and the content was therefore well known to MSs beforehand. Publishing the handbook without proper 
consultation would have been a greater problem than the minor delay in its publication.

Reply	of	the	Commission	

49

28
The Commission is of the view that more should be done to improve the ambitious implementation of the Services 
Directive. In 2015, the Commission services conducted a follow-up exercise to the 2012 assessment, examining the 
progress made during 2012-2014. The exercise found that measures undertaken this period will only add an addi-
tional 0.1 % of EU GDP (out of the potential 1.8 % of GDP as identified in the 2012 study).

The Commission is of the view that additional measures should be undertaken to further reduce legal form restric-
tions, as evident in e.g. country specific recommendations under the European semester, and through recent Com-
mission actions targeting such restrictions in several MSs.

29
The Commission set out its priorities in the 2012 communication on the implementation of the Services Directive2. 
In its communication, the Commission explains that it is focusing on enforcement, but that it is not its only area of 
action. The Commission has also identified priority sectors and set actions for the years to come, including a retail 
action plan, reform of the professional qualifications directive and a peer review on legal form and shareholding. 
This set of actions was welcomed by the European Council in its conclusions of 23 October 2013. The MSs, as under-
lined by the European Council, have a central role to play in the implementation of the Services Directive.

In summer 2012, the Commission contacted MSs to enquire how they intended to remove obvious infringements 
(zero-tolerance cases). 

36
Performance checks did not aim to identify barriers incompatible with the Services Directive. Following the 
perform ance checks, the professional qualifications directive was amended in 2013 (see the initial proposal 
(COM(2011) 883 final, Section 4.11) and the 2011 Commission communication (COM(2011) 20, Section 4.2)) and the 
amended package travel directive is being agreed in 2015 (see the initial Commission proposal (COM(2013) 512, Sec-
tion 1.4)).

37
A detailed assessment of the reforms implemented by MSs since the introduction of the Services Direct ive until the 
end of 2011 and their potential economic impact was published in 2012. 

The study (http://ec.europa.eu/economy_finance/publications/economic_paper/2012/pdf/ecp_456_en.pdf) pro-
vides a detailed explanation of the economic data used to carry out the assessment, as well as their sources (see 
pages 19-20 and 67-68). Some of the data may have been missing or unavailable for one or more MSs. This is, how-
ever, a very common problem for any type of economic study or econometric analysis. 

38
Please see Commission reply to paragraph 15.

2 

 http://ec.europa.eu/growth/single-market/services/services-directive/implementation/evaluation/index_en.htm

Reply	of	the	Commission	

50

39
See also Commission replies to paragraphs 37 and 38.

40
See Commission replies to paragraphs 37 to 39. 

Common	reply	to	paragraphs	41	and	42
The Commission has launched an initiative trying to obtain more complete and timely submission of the national 
accounts data published by Eurostat. However, there are several other types of statistical data on services sectors 
(including for example Eurostat’s structural business statistics) which allow for in-depth analysis of the services 
markets. 

43
Concerning information services or cooperation mechanisms, the Services Directive only provided for PSCs. As 
regard the use of the IMI, more than 6 000 competent authorities are registered in the system for the area of service. 
The number of information exchanges between the authorities is still relatively low because MSs underestimate the 
potential of the system (and due to the lack of awareness about the legal obligations based on the Services Direc-
tive especially at local level).

The European consumer centres network (ECC-net) was not created for the purposes of the Services Directive. It is 
in charge of a broad range of activities. One of its key roles is to promote the rights of consumers in a cross-border 
context. The European consumer centres (ECCs) also participate, as much as their resources permit, in the promo-
tion of consumer rights under the Services Directive.

46
Setting up the PSCs and ensuring their proper functioning is the responsibility of the MSs. The Commission has pro-
vided support throughout this process. This was done through the following two expert groups.

—  EUGO. This provided a platform for exchanging best practices and organising a benchmarking exercise to give 
MSs feedback about their performance and necessary improvements (organised on a yearly basis via bench-
marking studies or user testing).

—  The e-procedures expert group. This was set up to discuss issues related to the interoperability of electronic 

procedures and specific tools provided by the Commission to facilitate compliance with the obligations under 
Article 8 of the Services Directive. This technical subgroup no longer exists. Issues relevant to e-procedures are 
now addressed under Regulation (EU) No 910/2014 on electronic identification and trust services for electronic 
transactions in the internal market (eIDAS regulation). 

47
The single market scoreboard provides an opportunity to report on the performance of the PSCs on a yearly basis. 
This has been done based on the external studies referenced by the Court, but also based on the user testing that 
the Commission has been carrying out jointly with the MSs. User testing was carried out with the MSs in 2011, 
2013 and 2015. In 2013, the Commission also involved businesses (through the Enterprise Europe network, Euro -
chambers and BusinessEurope) in the testing exercise. This was not continued in 2015 as business testing was car-
ried out by the external contractor as part of the study.

Reply	of	the	Commission	

51

51
The Commission will continue to support MSs by giving guidance and issuing recommendations based on best 
practice.

52
Following the recent PSC study, the Commission has decided to open 10 EU pilot investigations against 10 MSs. The 
investigations are currently under way (December 2015).

54
The EUGO network was created to coordinate the actions of the authorities governing PSCs, contributing to raising 
awareness among entrepreneurs and enterprises on how they can get detailed information about doing business 
abroad and how to complete administrative formalities concerning the establishment of a business or the cross-
border provision of services.

55
The Commission has been working to increase access to the PSCs, e.g. through better signposting from Ythe our 
Europe Business website. Under the COSME programme, it has proposed funding PSC cross-border awareness- 
raising projects, particularly focusing on online activities.

60
The clarity and the quality of notifications sent via the IMI, and in particular of the proportionality assessment of 
national regulations required under the Services Directive, depend on the notifying Member State. In order to facili-
tate the assessment of notifications, the Commission provides a translation into English for all MSs, and makes this 
available in the IMI system. 

It should be noted that, since there is no obligation under the Services Directive to notify about draft measures, in 
the majority of cases the notified measures are already adopted. In that context, the only effective tool for the Com-
mission to tackle those measures is an infringement procedure, whereas the action of the Commission would be 
more efficient at the draft stage. Under the single market strategy the Commission announced a legislative initiative 
to address these issues.

61
The Commission is aware of several requirements which should have been notified by MSs but have not been. 
Unlike the system set under the transparency directive, (ex 98/34/EC, now 2015/1535/EU) completed by the Court of 
Justice case-law (Case C-194/94 CIA Security), where in the absence of notification the national measures are inappli-
cable. Sanctions of this kind do not exist under the Services Directive. The Commission is considering introducing, 
within the framework of its legislative action under the single market strategy, a provision according to which non-
notification renders the requirement void, which should encourage the MSs to notify.

Reply	of	the	Commission	

52

62
Although the Services Directive and the transparency directive both set out an obligation to notify new require-
ments, the Services Directive does not contain any obligation to notify draft measures and does not include any 
standstill period, seriously limiting the possibility for the Commission to intervene. The figures show that the 
great majority of measures notified have already been adopted by the MSs. In addition, notifications under the 
Services Directive are not transparent to stakeholders and the business community at large, and thus they do not 
have the possibility to react on the draft measure. In order to improve the notification procedure for services, the 
Commission is considering several legislative options, including elements such as a standstill period and allowing 
stakeholders access to notifications to ensure better transparency. Provision of information on a publicly available 
website can be considered a tool to achieve this transparency.

66
Certain ECCs host a Services Directive contact point, but the activities of these contact points are separate from the 
activities of ECCs, which are structures co-financed by the European Commission and the MSs to assist consumers 
with their cross-border purchases issues.

67
Brochures have been published at the EU level to ensure consumers are better informed, not least Buying services 
everywhere in the EU3, giving clear indications to consumers about their rights. The main awareness-raising efforts 
must, however, take place nationally so as to take into account the specific communication needs of citizens in the 
various MSs. 

The 222 complaints relating to Article 20 reported by ECCs represent only a subset of all complaints by consumers, 
as not all of these complaints are reported to ECCs but can be reported to national authorities, consumer associa-
tions or the Commission (e.g. around 1 000 complaints have been made to Your Europe Advice, Direct).

75
The Commission’s 2012 guidance has not been effective in providing legal certainty for traders and consumers and 
clarifying the provisions of Article 20(2). Further action is therefore necessary to give effect to these principles and 
develop concrete rules against discrimination based on the nationality or place of residence of market participants. 
In the single market strategy, the Commission announced that it will take legislative measures to fight unjustified 
different treatment of customers on the basis of residence or nationality in terms of access, prices or other sales 
conditions. This includes identifying and banning specific forms of residence-based discrimination not grounded in 
objective and verifiable factors.

76
Sweeps are carried out under Article 9 of the consumer protection cooperation (CPC) regulation (Regulation (EU) 
No 2006/2004), which contains an annex listing the substantive laws concerned. The Services Directive is currently 
not included in this annex, and therefore sweeps cannot be carried out to check business compliance with the 
consumer-relevant provisions of this directive (i.e. Article 20). Within the context of the single market strategy, the 
aim is to add Article 20 to the annex of the CPC regulation. This would mean that it will be subject to all the provi-
sions of the regulation — not only sweeps provisions (Article 9) but also general provisions such as mutual assist-
ance requests (Articles 6-8).

3  http://bookshop.europa.eu/en/buying-services-everywhere-in-the-eu-pbKM0414646/?CatalogCategoryID=X0gKABstUGQAAAEjwZAY4e5L

Reply	of	the	Commission	

53

77
The external evaluation indeed recommends extending sweeps, as these are powerful enforcement tools. This is 
taken into account in the review of the CPC regulation, as one of the measures that will be proposed is to increase 
the efficiency of coordinated actions (under Article 9 of the regulation) such as sweeps. The external evaluation 
made a clear difference between the current CPC framework and what needs to be achieved to strengthen its 
cooperation mechanisms per se and the scope of its annex. As no provisions of the Services Directive are cur-
rently included in the CPC annex, there is no specific recommendation regarding sweeps in relation to the Services 
Directive. 

On the scope of the annex, the external evaluation does not recommend taking into account the whole of the Ser-
vices Directive for the reasons referenced by the Court and copied from the external evaluation report. While pre-
paring the review of the CPC regulation, however, the assessment of the external evaluation regarding the import-
ant cross-border dimension of this directive has been taken into account, and the Commission intends to propose 
the inclusion of Article 20 only (as explained in the Commission reply to paragraph 76). 

82
Implementation issues related to the Services Directive are very often structural problems linked to regulation, and 
not to administrative misconduct. Having said that, the single market strategy provides for Solvit to be reinforced so 
as to be able to deal with more structural problems and problems not necessarily having a cross-border dimension.

83
The Commission assists and supports the functioning of Solvit by:

(a)  organising regular training sessions and network events in cooperation with national Solvit centres;

(b)  drafting and updating the Solvit case-handling manual in cooperation with national Solvit centres;

(c)  providing case-handling assistance at the request of Solvit centres (in complex cases this may include providing 

informal legal advice);

(d)  managing and maintaining the Solvit database and a public interface, and providing specific training and materials 

to facilitate its use by the Solvit centres;

(e)  monitoring the quality and performance of Solvit centres and the cases they handle; 

(f )  ensuring good articulation of complaint handling and Solvit; 

(g)  informing Solvit centres, at their request, about the follow-up given by the Commission to unresolved cases, where 

a complaint has been lodged with the Commission.

89
The EU pilot is primarily a tool to obtain compliance by the MSs and avoiding launching an infringement procedure. 
This requires a thorough analysis and continuous dialogue.

Reply	of	the	Commission	

54

90
16.6 months is the timespan from the registration of the first complaint. Therefore the time for a case in EU pilot is, 
on average, 11 months. 

Box	4		—	Examples	of	delays	in	the	EU	pilot	procedure
The Commission opened an EU pilot in November 2012 and sent a letter of formal notice (the first step in the 
infringement proceeding) in October 2013. As such, the EU pilot stage lasted only 11 months. 

The third case was opened in March 2012 and was closed in May 2013 for further treatment within the framework of 
infringement proceedings. The Commission’s request for supplementary information in February 2013 is the reason 
for the slight delay in closing the EU pilot.

93
EU pilot is a system via which the Commission and the MSs discuss, at an early stage, possible violations of EU law. 
EU pilot is an informal but structured dialogue phase between the Commission and the individual Member State 
concerned, the aim of which is to rapidly find solutions and to avoid recourse to formal infringement procedures. 
If this bilateral dialogue leads to a satisfactory outcome, the EU pilot case will be closed. If, on the contrary, a pos-
sible violation of EU law has been identified but a solution could not be found at this early stage, the Commission 
may launch an infringement procedure (by sending the Member State a letter of formal notice). This dialogue is 
governed by confidentiality. The Commission does not disclose whether an EU pilot on a particular subject mat-
ter is/was pending against a particular Member State. The Commission exchanges good practices with MSs on 
the application of Union law, including the functioning of EU pilot, in dedicated fora. The Commission publishes 
information on infringement cases, i.e. where a formal procedure for violation of EU law has been opened by the 
Commission by sending a letter of formal notice. Once an infringement procedure has been opened and a letter 
of formal notice has been sent, the Commission publishes the title and number of the case (http://ec.europa.eu/
atwork/applying-eu-law/infringements-proceedings/infringement_decisions/?lang_code=en). The same applies 
to the stage of a reasoned opinion, where a short press release is published as well. At the state of referral to the 
Court of Justice, the Commission publishes a more detailed press release. The Commission publishes information on 
EU pilot in an aggregated manner in the annual report on monitoring the application of EU law (COM(2015) 329). If 
the Commission were to publish specific information on an EU pilot case, it would be contrary to the confidentiality 
obligations it has vis-à-vis the MSs in the context of pre-infringement action (which might undermine the trust of 
the national authorities in these and other cases). The Commission’s practice of handling ongoing EU pilot investiga-
tions confidentially has been confirmed by the Court of Justice (Petrie judgment (Case T-191/99), Spirlea judgment 
(Case T-306/12), ClientEarth v Commission (Cases T-424/14 and T-425/14)). 

In light of the foregoing, the Commission considers that its current dissemination policy strikes an appropriate bal-
ance between the need to promote best practices on application of EU law and the Commission’s confidentiality 
relationships with the MSs. The Commission is committed to reflecting on the best ways to disseminate aggregate 
information on EU pilot.

Reply	of	the	Commission	

55

97
The Commission opened several infringement files in the first half of 2015 in cases where the proportionality of 
a national measure needed to be assessed. For example, the Commission opened eight infringement cases on legal 
form and shareholding, or tariffs (which are conditional obligations provided by Article 15 of the Services Direc-
tive). A number of cases have also been launched on the basis of quantitative or territorial restrictions (Article 15 of 
the Services Directive) and on the basis of Article 20(2) (non-discrimination in the access to services). Ten EU pilots 
were opened in the second half of 2015 on non-compliance with Article 8 of the Services Directive on PSCs, which, 
again, need a proportionality assessment. When the Commission takes a Member State to the Court of Justice, it 
is up to the Commission to provide necessary evidence for an infringement of EU law and for the fact that it gave 
MSs the opportunity to present their arguments prior to any Court action. If the Commission does not provide such 
evidence, the Court of Justice is entitled to rule against the Commission by either declaring it as not admissible or as 
unfounded. 

98
The zero-tolerance policy was conceived immediately after the mutual evaluation exercise as a policy for tackling 
unconditional obligations, i.e. obligations which were not dependent on a proportionality analysis. At the begin-
ning of the implementation of the Services Directive, those obligations were deemed a priority for the Commis-
sion. However, as indicated in the Commission reply to paragraph 97, the Commission has subsequently launched 
infringement cases for unjustified requirements.

99
The Commission has opened much more cases than nine for non-conformity of national legislation and has open 
nine infringement cases based on the zero-tolerance policy, meaning that for a selection of measures included in 
the Services Directive — which the Commission can identify as unconditional obligations — MSs should have no 
infringement cases for non-conformity with national legislation. ‘Zero tolerance’ is therefore met when there are 
no infringement proceedings against MSs. Although nine infringement cases have been opened, the Commission 
launched around 40 investigations. The nine infringement cases can therefore be considered a good result, since 
the others have been solved in the previous stages of the investigation. We must take into consideration that the 
Commission based zero-tolerance cases on the report on national obstacles, which is the basis of the 2012 imple-
mentation package. Following the screening of this report, the Commission identified the unconditional obligations 
which were not met by the MSs. The 40 investigations open are the result of such exercise.

100
The Commission confirms that 18 months has been the target for an infringement case and that the average dur-
ation for cases concerning the Services Directive was 19.6 months. Those cases include politically very sensitive 
ones. The duration of cases concerning the Services Directive is below the average duration of cases concerning 
other internal market directives.

101
As explained in the Commission reply to paragraph 99, the so-called cases for non-conformity are zero-tolerance 
cases launched by the Commission on its own initiative.

Reply	of	the	Commission	

56

104
The duration of infringement cases related to the Services Directive is below the average. Furthermore the Com-
mission considers that legislative changes in the MSs are not only the consequences of the opening of infringement 
proceedings. Since the introduction of EU pilot many cases have been solved before the opening of infringement 
procedures. The success of EU pilot explains the more limited number of infringement procedures and subsequent 
referrals to the Court of Justice. On the documentation available, decisions taken by the Commission on infringe-
ment cases are publicly available on the Commission website. In addition, the Commission’s annual report on 
monitoring the application of Union law provides a complete overview of the infringement procedures handled by 
the Commission in the previous year. As recognised by the Court of Justice, the climate of mutual trust between the 
Commission and the Member State concerned should be preserved while these procedures are on going. This policy 
is also pursued in the context of requests for access to documents (see Article 4(2) of the access to documents regu-
lation (Regulation (EC) No 1049/2001). However, in line with that case-law, as soon as the investigation is closed, and 
to the extent that it is not linked to other ongoing investigations, the Commission no longer applies such a general 
presumption and examines each request with a view to granting widest possible access pursuant to Regulation (EC) 
No 1049/2001. 

Box	6	—	Infringement	case	brought	to	the	Court	of	Justice 	
As stated in the annual report on monitoring the application of EU law (2014)4, the overall decrease of the number 
of infringement procedures can be put in relation to the important increase of preliminary rulings under Article 267 
TFEU since 2010. The Court of Justice has addressed conformity issues of national laws in regard to EU legislation 
in about half of its judgments under Article 267 TFEU since 2010 and has identified non-conformities in numerous 
cases. Whilst preliminary rulings are distinct from infringement judgments, this gives the Commission an additional 
opportunity to ensure in a more systematic manner that violations of Union law deriving from national legislation 
or its application are remedied.

The Advocate General delivered his opinion in September 2015.

107
The enforcement strategy in the area covered by the Services Directive is based on different instruments: infringe-
ments, corporate social responsibility (CSR) and dialogue with MSs. Action by the Commission has to consider all the 
different instruments. Since 2007, the Commission has set out its priorities via enforcement action, and the Com-
mission set out its priorities in the 2012 communication. These priorities have been pursued, of course taking into 
consideration the obligation of the Commission as guardian of the treaties. A more thorough priority-based policy 
will be further developed under the single market strategy.

108
CSRs under the semester process relate to issues and problems that have been analysed and discussed between 
MSs and the Commission, as well as at Council level. There is thus stronger political ownership. Infringement proce-
dures can have political impacts as well.

110
Please see the Commission reply to paragraph 108. 

4 

 COM(2015) 329 final

Reply	of	the	Commission	

57

Conclusions	and	recommendations

111
The Commission does pursue legal proceedings where necessary. The Commission has identified its priority sectors 
and pursued them.

Much of the directive is based on a proportionality assessment to be conducted by the MSs on a case-by-case basis, 
and the Commission must take that into consideration (e.g. Article 15 and Article 39 requiring MSs to evaluate cer-
tain requirements). Action is therefore decided not by levels of confidence, but by legal basis. The length of judicial 
procedures has never been a deterrent to the opening of infringement files. For unconditional obligations con-
tained in the directive, the Commission has acted promptly with a very consistent number of own-initiative investi-
gations. Of the average of 80 EU pilots per year, the Commission opens more than 30 files on its own initiative.

112
The handbook was available 7 months after the adoption of the Services Directive, and 29 months before the dead-
line for transposition. Extensive consultations and discussions with the MSs took place before the publication of the 
handbook, and the content was therefore well known to MSs beforehand. Publishing the handbook without proper 
consultation would have been a greater problem than the minor delay in its publication.

Recommendation	1	
The Commission accepts the recommendation. The better regulation package adopted on 19 May 2015 set a general 
framework for simplifying and making EU laws more effective. The Commission is assisting MSs in the implementa-
tion of Union legislation using a comprehensive array of compliance-promoting tools (implementation plans for 
major legislative initiatives, networks and expert committee meetings and guidelines). The Commission considers 
that the preparation of guidance should not interfere with the political process leading to an agreement between 
the European Parliament and the Council on new legislation.

113
The Commission set out its priorities in the 2012 communication on the implementation of the Services Directive5. 
In its communication, the Commission explains that it is focusing on enforcement, but that it is not its only area of 
action. The Commission has also identified priority sectors and set actions for the years to come, including a retail 
action plan, reform of the professional qualifications directive and a peer review on legal form and shareholding. 
This set of actions was welcomed by the European Council in its conclusions of 23 October 2013. The MSs, as under-
lined by the European Council, also have their role to play in the implementation of the Services Directive.

Performance checks did not aim to identify barriers incompatible with the Services Directive. Instead they focused 
on possible inconsistencies between different pieces of EU legislation, so as to avoid any inconsistencies among 
them. Following the performance checks, the professional qualifications directive was amended in 2013 (see the 
initial proposal (COM(2011) 883 final, Section 4.11) and the 2011 Commission communication (COM(2011) 20, Sec-
tion 4.2)) and the amended package travel directive is being agreed in 2015 (see the initial Commission proposal 
(COM(2013) 512, Section 1.4)).

5 

 http://ec.europa.eu/growth/single-market/services/services-directive/implementation/evaluation/index_en.htm

Reply	of	the	Commission	

58

Recommendation	2
The Commission accepts the recommendation. The Commission identified its priorities in the 2012 communication 
and followed up on this. In its communication from June 2012, it called on the MSs to introduce more ambitious 
national reforms in services. It supported this call by issuing CSRs in the context of the European semester.

114
The 2012 study (http://ec.europa.eu/economy_finance/publications/economic_paper/2012/pdf/ecp_456_en.pdf) 
was based on an assessment of barriers in services sectors at two points in time: before the introduction of the 
directive and after the introduction (at the end of 2011). The calculated impacts were therefore not based on theo-
retical ex ante estimations but on actual national reforms that were carried out. Calculated elasticities to estimate 
the economic impact of removing barriers were based on cross-country comparisons of economic data available at 
the time. This does not, however, mean that these elasticities are inaccurate or unreliable. 

The Commission has done an update of this study to capture national reforms which were carried out between 
2012 and 2014 (available here: http://ec.europa.eu/DocsRoom/documents/13327/attachments/1/translations/en/
renditions/native). In addition, more detailed assessments were recently done as well on remaining barriers and the 
economic potential of removing them in priority sectors business services and retail. These were published in the 
staff working document on the single market strategy (see Sections 2.3 and 2.4: http://ec.europa.eu/DocsRoom/
documents/13405/attachments/1/translations/en/renditions/native).

Recommendation	3
The Commission accepts the recommendation. It adopted the better regulation package on 19 May 2015 to ensure 
the effectiveness of the Commission’s action. The better regulation package also contains guidelines on how to 
conduct impact assessments so as to examine the potential economic, social and environmental consequences of 
proposed options for action. The Commission follows such guidelines. 

115
The Commission will continue to support MSs by giving guidance and issuing recommendations based on best 
practice.

116
The Commission has been working to increase access to the PSCs, e.g. with Your Europe Business. Under the COSME 
programme, it has proposed funding PSC cross-border awareness-raising projects, particularly focusing on online 
activities.

Recommendation	4
The Commission accepts the recommendation. Although the recommendation is addressed to MSs, the Commission 
will continue to support them by giving guidance and issuing recommendations based on best practices.

Reply	of	the	Commission	

59

117
The clarity and the quality of notifications sent via the IMI, and in particular of the proportionality assessment of 
national regulations required under the Services Directive, depend on the notifying Member State. In order to facili-
tate the assessment of notifications, the Commission provides a translation into English for all MSs, and makes this 
available in the IMI system. 

The Commission’s services assess all notifications submitted by the MSs in the IMI system. When the assessment of 
national requirements raises questions as regards compatibility with the Services Directive, the Commission’s ser-
vices send comments to the relevant Member State via the IMI.

It should be noted that, since there is no obligation under the Services Directive to notify about draft measures, in 
the majority of cases the notified measures are already adopted. In that context, the only effective tool for the Com-
mission to tackle those measures is an infringement procedure, whereas the action of the Commission would be 
more efficient at the draft stage. 

Recommendation	5
The Commission accepts the recommendation. 

118
Currently, the Commission has no means to make better use of the CPC regulation. This regulation needs to be for-
mally amended so that it can be used to enforce Article 20 of the Services Directive.

Recommendation	6
The Commission accepts the recommendation. 

119
EU pilot is a system via which the Commission and the MSs discuss possible violations of EU law concerning incor-
rect transposition or bad application of the EU acquis. An EU pilot case will be closed — if the discussions with the 
Member State bring a satisfactory outcome — or could give rise to an infringement procedure (by sending to the 
Member State a letter of formal notice) — if the Commission concludes that a violation of EU law by the Member 
State is in place. EU pilot is not a tool that offers remedies in individual cases but addresses general issues of appli-
cation of Union law.

Reply	of	the	Commission	

60

Recommendation	7
The Commission accepts the first part of the recommendation. The Commission is committed to limiting as far as 
possible the time needed to investigate, within EU pilot, alleged violations of EU law. As regards the second part 
of the recommendation, the Commission does not disclose whether an EU pilot on a particular subject matter is 
pending against a particular Member State. The Commission exchanges good practices with MSs on the application 
of Union law, including the functioning of EU pilot, in dedicated fora. The Commission publishes information on 
EU pilot in an aggregated manner in the annual report on monitoring the application of EU law (COM(2015) 329). If 
the Commission were to publish specific information on an EU pilot case, it would be contrary to the confidentiality 
obligations it has vis-à-vis the MSs in the context of pre-infringement action (which might undermine the trust of 
the national authorities in these and other cases). The Commission’s practice of handling ongoing EU pilot investiga-
tions confidentially has been confirmed by the Court of Justice (Petrie judgment (Case T-191/99), Spirlea judgment 
(Case T-306/12), ClientEarth v Commission (Cases T-424/14 and T-425/14)). These judgments were rendered in relation 
to access to documents requests. 

In light of the foregoing, the Commission considers that its current dissemination policy strikes an appropriate bal-
ance between the need to promote best practices on application of EU law and the Commission’s confidentiality 
relationship with the MSs. The Commission is committed to reflecting on the best ways to disseminate aggregate 
information on EU pilot.

120
Enforcement strategy in the area covered by the directive is based on different instruments: infringements, CSRs 
and dialogue with MSs. Action by the Commission has to consider all the different instruments. Since 2007, the 
Commission has set out its priorities via enforcement action, and the Commission set out its priorities in the 2012 
Communication. These priorities have been pursued, of course taking into consideration the obligation of the Com-
mission as guardian of the treaties.

Recommendation	8
The Commission accepts the recommendation. It considers the aim of the infringement proceeding to be to termin-
ate a violation of EU law and ensure compliance at the earliest stage possible, and it is committed to limiting as 
far as possible the time needed to reach this goal. The most effective way to reach this goal, though, is not always 
linked to the rapidity of an infringement proceeding, since sometimes going ahead with an infringement procedure 
without taking into consideration contingent situations can have counter-effective results.

Since the introduction of EU pilot the number of infringement procedures, and thus of referrals to the Court of Jus-
tice, has drastically diminished, due to the fact that solutions are often found within the framework of EU pilot. The 
primary goal of the Commission’s policy is to convince MSs to take action so as to address issues of compliance.

HOW TO OBTAIN EU PUBLICATIONS

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Priced publications:

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via EU Bookshop (http://bookshop.europa.eu).

 
The services market is widely recognised not to have 
achieved its full potential in terms of intra-EU trade. The 
Services Directive aims to reduce legal and administrative 
barriers to providers and recipients of services, but some 
years after the 2009 deadline for its implementation, 
unjustified barriers still persist. The audit found that, 
though the Commission has successfully identified 
problems in the Member States, it has not sufficiently 
challenged certain types of obstacles and the measures 
taken have not achieved results quickly enough. Service 
providers and consumers continue to be frustrated by not 
having the level of access to the internal market intended 
by the Directive.

EUROPEAN
COURT
OF AUDITORS