Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the enforcement of the Directive 2006/123/EC on services in the internal market, laying down a notification procedure for authorisation schemes and requirements related to services, and amending Directive 2006/123/EC and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System
Date: 2017-01-10
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: administrative formalities, application of EU law, approximation of laws, disclosure of information, exchange of information, freedom to provide services, information system, right of establishment, service, single market

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   EUROPEAN COMMISSION  Brussels, 10.1.2017  COM(2016) 821 final 2016/0398 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the enforcement of the Directive 2006/123/EC on services in the internal market, laying down a notification procedure for authorisation schemes and requirements related to services, and amending Directive 2006/123/EC and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (Text with EEA relevance) {SWD(2016) 434 final} {SWD(2016) 435 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

A deeper and fairer internal market is one of the ten priorities of the European Commission. 
Building on its strength and exploiting its full potential is key to promoting jobs and growth in 
the  European  Union.  The  Commission  in  October  2015  adopted  a  Single  Market  Strategy 
with  a  series  of  actions  to  upgrade  the  single  market  for  more  opportunities  for  people  and 
business,  including  a  legislative  proposal  to  improve  the  enforcement  of  the  Services 
Directive  by  reforming  its  existing  services  notification  procedure.1  The  European  Council 
called  for  ambition  in  delivering  the  Single  Market  Strategy2  and  for  the  different  Single 
Market  strategies  to  be  completed  and  implemented  by  2018,  recalling  that  "better 
implementation and enforcement of existing legislation will further help to reap the benefits 
of Europe's Single Market ambitions"3. 

It  follows  from  the  Services  Directive4  that  certain  national  rules  restricting  the  freedom  of 
establishment and the freedom to provide services must be non-discriminatory with regard to 
nationality  or  residence,  proportionate  and  justified  by  overriding  reasons  relating  to  the 
public  interest.  To  make  sure  that  new  measures  imposed  by  Member  States  actually  fulfil 
these conditions and thus facilitate the competitiveness and integration of the single market in 
services, the Services Directive provides that Member States shall notify to the Commission 
new or changed authorisation schemes or certain new or changed requirements falling under 
the Directive. 

Commission assessments have shown, however, that the current notification procedure under 
the Services Directive does not always achieve its objective, despite efforts undertaken over 
the past  years to improve its implementation,  including guidance provided in the Handbook 
on the implementation of the Services Directive, exchange of experiences and best practices 
among  national  administrations  and  the  publication  of  data  on  the  use  of  the  existing 
notification procedure by Member States. As a result, 40% of structured dialogues which the 
Commission  had  to  launch  vis-à-vis  Member  States  in  2015  to  ensure  compliance  with  the 
Services  Directive  concerned  newly  introduced  national  measures.  Thus,  it  appears  that  the 
existing  notification  procedure  has  not  adequately  contributed  to  a  correct  and  full 
implementation of the Services Directive.5 

The  Commission  therefore  presents  a  self-standing  legislative  instrument  modernising  the 
current  notification  procedure  under  the  Services  Directive  in  order  to  improve  the 
enforcement of the existing provisions of that Directive, by establishing a more effective and 
efficient  procedure  preventing  the  adoption  by  Member  States  of  authorisation  schemes  or 
certain requirements not complying with the Services Directive. The provisions of the present 
Directive  do  not  amend  the  existing  Services  Directive  beyond  the  required  revision  of  its 
specific provisions on notification procedures. 

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5 

COM(2015) 550 final 
European Council Conclusions 18 December 2015, EUCO 28/15 
European Council Conclusions 28 June 2016, EUCO 26/16 
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 
The full economic potential of the Services Directive of 2.6% EU GDP growth has not been reached. 
Reforms implemented by Member States in 2006 to 2014 are estimated to yield only around one third 
of this potential (0.9% EU GDP growth). 

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More specifically, the objectives of this legislative instrument are to increase the efficiency of 
the notification procedure, to improve the quality and content of the notifications submitted, 
to  cover  additional  requirements  which  the  application  of  the  Services  Directive  has  shown 
can constitute important barriers to the internal market for services, and to enhance effective 
compliance with the notification obligation. 

A  more  effective,  efficient  and  coherent  notification  procedure  will  support  Member  States 
and prevent the introduction of discriminatory, unjustified and disproportionate authorisation 
schemes or requirements related to services covered by Services Directive. Such authorisation 
schemes or requirements result in a less open and less integrated economy, with higher prices 
and less choice for consumers. They may also curtail entrepreneurship and investment as they 
are likely to reduce the number of firms being set up and entering the European market. The 
proposed legislation is thus expected to contribute to more competitive and integrated services 
markets in Europe, benefitting consumers and entrepreneurs alike. 

• 

Consistency with existing policy provisions in the policy area 

This  Directive  complements  the  existing  notification  procedure  applicable  for  goods  and 
information  society  services  established  by  the  Single  Market  Transparency  Directive6.  The 
relationship between the two Directives is regulated under both legal instruments. 

This  Directive  also  complements  existing  reporting  obligations  under  the  Professional 
Qualifications  Directive7.  It  includes  an  article  clearly  defining  the  relationship  between  the 
two legal instruments and the obligations arising thereunder. 

This  Directive  will  be  implemented  using  the  existing  Internal  Market  Information  System 
established by the IMI Regulation8. 

• 

Consistency with other Union policies 

This  Directive  is  complementary  to  a  number  of  other  policy  initiatives  related  to  services 
announced  in  the  Single  Market  Strategy  and  in  particular  to  the  Directive  on  a 
proportionality  test.  The  latter  will  set  criteria  for  Member  States  when  preparing 
proportionality  assessments  of  draft  national 
the  Professional 
Qualifications  Directive.  Some  measures  falling  under  the  Professional  Qualifications 
Directive also fall under the Services Directive and its notification obligation. In such cases, 
the  information  on  the  proportionality  assessment  to  be  provided  under  the  present 
notification  procedure  would  have  to  meet  the  requirements  of  the  Directive  on  a 
proportionality test. Consistency between these instruments is being ensured. 

laws  falling  under 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Articles 53(1), 62 and 114 TFEU. 

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Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying 
down  a  procedure  for  the  provision  of  information  in  the  field  of  technical  regulations  and  of  rules  on 
Information Society services. 
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recognition of professional qualifications.  
8 

Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  of  7  September  2005  on  the 

Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on 
administrative cooperation through the Internal Market Information System and repealing Commission 
Decision 2008/49/EC ( ‘the IMI Regulation’ )( OJ L 316, 14.11.2012, p. 1). 

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Articles 53(1), 62 and 114 TFEU give the EU the competence to act with regard to the single 
market  for  services.  EU  rules  adopted  under  Articles  53(1)  and  62  TFEU  should  have  the 
objective  of  coordination  of  the  provisions  laid  down  by  law,  regulation  or  administrative 
action in Member States concerning the taking-up and pursuit of activities as self-employed 
persons, in order  to  facilitate those activities.  Article  114 TFEU  gives the EU under  certain 
conditions the competence to adopt EU legislation for the establishment and the functioning 
of the single market.  

The notification procedure established by the present Directive aims to protect the freedom of 
establishment  and  the  free  provision  of  services,  which  are  among  the  foundations  of  the 
Union.  In  particular,  it  aims  to  ensure  that  certain  national  restrictions  to  the  freedom  of 
establishment and to the freedom to provide services will comply with the Services Directive, 
contributing to its better enforcement. 

The  notification  procedure  established  by  the  present  Directive  allows  the  assessment  of 
national  laws,  regulations  or  administrative  provisions  and  provides  for  an  effective 
preventive  action  in  case  of  non-compliance  with  the  relevant  provisions  of  the  Services 
Directive.  The  Services  Directive  provides  in  particular  for  the  conditions  of  non-
discrimination,  necessity  and  proportionality  which  need  to  be  fulfilled  by  authorisation 
schemes  and  certain  requirements  related  to  services  in  the  Member  States.  It  also  sets  out 
specific rules related to authorisation schemes (for example as regards procedural guarantees) 
and to certain requirements (for example insurance requirements). 

The notification procedure will have the effect of preventing the introduction of single market 
barriers resulting from a heterogeneous development of national laws and of contributing to 
the  approximation  of  national  laws,  regulations  or  administrative  provisions  as  regards  the 
services covered by the Services Directive. This will improve the functioning of the EU single 
market for services and promote job creation and growth. 

• 

Subsidiarity (for non-exclusive competence)  

The overall objective of this legislative proposal is to ensure the smooth functioning of the EU 
single  market  for  services,  which  is  not  limited  to  the  territory  of  one  Member  State,  but 
covers the entire territory of the EU. Given the transnational nature of the EU single market, 
an  efficient  and  coherent  verification  of  draft  national  measures  with  the  provisions  of  the 
Services Directive, including the management of an appropriate IT tool for that purpose, can 
only be achieved at EU level. This Directive provides for a notification procedure replacing 
an already existing notification procedure established by the Services Directive. 

• 

Proportionality 

The  measures  introduced  by  this  Directive  are  proportionate  to  its  objective  of  a  more 
effective  notification  procedure  for  an  improved  enforcement  of  the  Services  Directive. 
Compared  to  the  existing  procedure,  this  Directive  establishes  a  more  clearly  described 
notification obligation that is closer aligned to the scope of the Services Directive, provides 
for  a  well-defined  and  efficient  consultation  procedure  on  draft  notified  measures,  makes 
notifications transparent to stakeholders, specifies and makes coherent the existing possibility 
for  the  Commission  to  adopt  Decisions  on  notified  measures  and  clarifies  the  legal 
consequences for non-notification. 

These measures do not extend beyond what is necessary to solve the identified problems and 
to  achieve  the  identified  objectives.  They  do  not  entail  any  obligation  on  service  providers. 

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Nor  do  they  impose  any  disproportionate  costs  on  Member  States:  public  authorities  of  the 
Member States are already obliged to comply with the Services Directive and to notify some 
measures  to  the  Commission  under  the  Services  Directive.  The  small  expected  increase  in 
administrative  costs  for  Member  States  could  in  practice  partially  be  compensated  by  a 
decrease  of  costs  otherwise  stemming  from  infringement  cases,  the  number  of  which  this 
initiative  is  supposed  to  reduce  as  it  aims  at  avoiding  certain  barriers  in  the  services  sector 
incompatible with the Services Directive. 

• 

Choice of the instrument 

The  coherent  and  transparent  notification  procedure  which  permits  the  verification  of  the 
compliance of authorisation schemes or requirements with the Services Directive prior to their 
adoption by Member States requires a legally binding instrument. 

The proposal is based on Articles 53(1), 62 and 114 TFEU. By this proposal the Commission 
puts forward the adoption of a Directive. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

In preparation of this Directive the Commission has carried out an evaluation of the existing 
notification  procedure  laid  down  in  the  Services  Directive.  It  revealed  a  number  of 
shortcomings of the existing procedure, in particular as follows: the possibilities for Member 
States, the Commission and stakeholders to intervene in a proactive manner prior to a national 
regulation being adopted are limited, the means to address notified requirements falling under 
this  procedure  are  incoherent,  there  is  a  lack  of  proper  proportionality  assessments  and  the 
legal effects of non-compliance with the notification obligation are not clear. Above all, not 
all Member States comply with the notification obligation. This is to the detriment of services 
providers and services recipients and is also liable to make the work of national administrative 
and judicial authorities more burdensome and complicated. 

• 

Stakeholder consultations 

The Commission carried out a public consultation of interested stakeholders in preparation of 
this  Directive  between  January  and  April  2016.  It  also  organised  in-depth  discussions  with 
institutional stakeholders (Member States and other EU institutions) directly concerned by the 
notification procedure and its planned reform. The  results of this  consultation exercise have 
been published and are included in the impact assessment. 

A  large  majority  of  stakeholders  that  responded  to  the  public  consultation  supported  a 
legislative  proposal  to  modernise  the  existing  notification  procedure  under  the  Services 
Directive (70% of public authorities; 60% of businesses). Stakeholders gave various reasons: 
to  bring  more  clarity  on  which  measures  are  to  be  notified  and  when,  to  introduce  the 
possibility for a national measure to be examined before it is officially adopted, to introduce 
clear  rules  in  order  to  ensure  compliance  by  all  Member  States  with  the  notification 
obligation, and to make the notifications transparent to the public. 

There was widespred support of stakeholders that responded to the public consultation for a 
legislative  proposal  clarifying  and  aligning  the  steps  of  the  notification  procedure  (80%  of 
public  authorities  and  80%  of  businesses),  making  notifications  transparent  (60%  of  public 
authorities  and  80%  of  businesses),  notifying  measures  at  draft  stage  (50%  of  public 

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authorities;  70%  of  businesses),  providing  information  on  proportionality  assessments  (60% 
of public authorities; 50% of businesses), expanding the scope of the notification obligation to 
other key requirements falling under the Services Directive (60% of public authorities; 75% 
of businesses), and enhancing compliance of Member States with the notitifaction obligation 
(80% of public authorities and 80% of businesses). 

Collection and use of expertise 

• 
The  results  of  a  mutual  evaluation  process  with  Member  States  in  2010-119,  performance 
checks carried out in 2011-1210 and peer review undertaken in 2012-201311 all contributed to 
the preparation of this proposal for a Directive. 

The Court of Auditors examined the existing notification obligation as part of its assessment 
of  the  effective  implementation  of  the  Services  Directive12.  It  identified  a  number  of 
shortcomings  including  a  lack  of  clarity  of  the  existing  procedure,  the  absence  of  an 
obligation to notify a measure at draft stage and a lack of transparency of the notifications. 

• 

Impact assessment 

An impact assessment was carried out in preparation of this initiative. Beyond the status quo 
(baseline scenario), four policy options have been considered in the impact assessment report. 
Non-legislative  guidelines  (option  2)  could  help  to  clarify  the  current  procedure  and 
obligations  stemming  from  it,  but  could  not  change  the  design  of  the  existing  procedure  to 
make it more effective and efficient. 

A  legislative  initiative  could  encompass  several  options.  It  could  aim  to  increase  the 
effectiveness, content and quality of the notification procedure, introducing the obligation to 
notify  draft  legal  acts,  making  the  system  transparent,  clarifying  steps  and  tasks  in  the 
procedure  and  improving  the  quality  of  the  information  submitted  as  part  of  a  notification 
(option  3).  To  make  it  more  effective  and  relevant,  the  notification  obligation  could  be 
extended  in  scope  to  cover  important  regulatory  requirements  falling  under  the  Services 
Directive  but  not  the  existing  notification  obligation  (option  4).  And  it  could  additionally 
include  instruments  to  enhance  the  compliance  of  Member  States  with  the  notification 
obligation– two sub-options exist in this regard (options 5a & 5b). 

The option to include services in the Single Market Transparency Directive was discarded due 
to  the  fact  that  the  regulation  of  goods  and  services  in  EU  law  differs  fundamentally.  The 
option  to  merge  the  obligation  under  the  Professional  Qualifications  Directive  with  the 
notification  obligation  of  the  Services  Directive  was  not  considered  given  that  the  two 
Directives differ in scope and subject-matter. 

The preferred choice is a combination of options 3, 4 and 5a. This would allow best for the 
identified  shortcomings  to  be  addressed  and  would  establish  an  effective  and  efficient 
notification  procedure  with  only  a  small  increase  in  administrative  costs  for  national  public 
authorities and the Commission. 

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12 
Directive?” http://www.eca.europa.eu/en/Pages/DocItem.aspx?did=35556 

COM(2011) 20 final 
SWD(2012) 147 final 
SWD(2013) 402 final 
Special  report  No  5/2016:  “Has  the  Commission  ensured  effective  implementation  of  the  Services 

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On  24  June  2016,  the  Regulatory  Scrutiny  Board  issued  a  positive  opinion  on  the  Impact 
Assessment carried out by the Commission on this initiative. The Board's recommendations to 
explain in more detail the shortcomings of the existing notification procedure, to improve the 
justification for the proposed scope of  the revised procedure, to explain better how problem 
definition  and  options  interlink  and  to  spell  out  in  more  detail  the  content  of  the  preferred 
option and how it would solve the identified problems were fully taken on board.13 

• 

Regulatory fitness and simplification 

The proposed Directive will contribute to regulatory fitness and simplification by improving 
the uniform enforcement of existing EU legislation in the single market and by assisting in the 
prevention  of  the  introduction  of  certain  discriminatory,  unjustified  or  disproportionate 
barriers in the field of services. It will replace the existing notification procedure established 
by the Services Directive with a clearer, more coherent, effective and efficient procedure. It 
will  contribute  to  a  more  stable  regulatory  environment  as  it  allows  the  verification  of 
compliance with the Services Directive of authorisation schemes and certain requirements at 
draft stage and before their adoption, thus minimising the risk of certain national measures not 
complying with the Services Directive and necessitating further legal adaptations. 

• 

Fundamental rights 

This  proposal  promotes  rights  enshrined  in  the  Charter  of  Fundamental  Rights  and  in 
particular in Article 16 on freedom to conduct a business. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no impact on the European Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The Directive foresees a Commission report on the results of the application of the Directive 
every three years. 

• 

Explanatory documents 

This proposal does not require explanatory documents for the transposition into national law 
given  that  it  introduces  limited  changes  to  an  already  existing  notification  procedure 
established  by  the  Services  Directive.  The  Commission  may,  however,  where  necessary 
present guidance on the application of the revised notification procedure. 

• 

Detailed explanation of the specific provisions of the proposal 

Article 1 specifies the subject matter and the scope of the proposed Directive. The aim of the 
Directive  is  to  ensure  the  compliance  with  the  Services  Directive  of  Member  States'  laws, 
regulations  or  administrative  provisions  introducing  authorisation  schemes  or  certain 
requirements falling under the scope of the Services Directive. The services sectors covered 
by this Directive are thus those covered by the Services Directive. 

13 

The results of the public consultation, evaluation report, impact assessment and opinion of the 
Regulatory Scrutiny Board can be found under 
http://ec.europa.eu/smart-regulation/impact/ia_carried_out/cia_2016_en.htm#grow  

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Article 2 lays down the relevant definitions, in line with both, the definitions under the Treaty 
as interpreted by the CJEU, and the Services Directive. 

Article 3 builds on the notification obligation set out in the Services Directive. It provides for 
a specific and unconditional obligation for Member States. It also specifies which measures 
need to be notified and when, what accompanying information must be submitted as part of 
any  notification  and  the  consequences  of  not  respecting  certain  obligations  under  this 
Directive.  In  order  to  make  the  notification  procedure  efficient  and  effective  and  in  the 
interest of all parties concerned, the applicable time limits are set out both in Article 3 and in 
Article  5.  To  avoid  legal  uncertainty  and  to  ensure  the  smooth  operation  of  the  procedure, 
such time limits start running once the notification has been declared to be complete. 

Article 4 specifies which requirements and authorisation schemes falling under the scope of 
Directive  2006/123/EC  are  covered  by  the  notification  obligation.  It  provides  that  Member 
States  have  to  notify  authorisation  schemes,  certain  establishment  requirements,  certain 
requirements  affecting  the  freedom  to  provide  services  and  requirements  concerning 
professional liability insurance and multidisciplinary activities. 

Article 5 establishes a consultation period of three months following the notification of a draft 
measure.  The  Commission  and  other  Member  States  have  a  maximum  of  two  months  to 
comment  on  a  notified  measure,  followed  by  a  maximum  of  one  month  for  the  notifying 
Member  State  to  respond  to  such  comments.  The  need  for  speed  and  efficiency  must  be 
reconciled  with  the  need  for  the  parties  involved  to  be  in  a  position  to  make  in-depth  and 
constructive comments and for the notifying Member State to address the concerns raised. All 
parties  must  implement  the  procedure  in  a  spirit  of  sincere  cooperation  and  respect  for  the 
other  parties'  legitimate  needs,  in  the  interest  of  the  smooth  and  effective  operation  of  the 
notification procedure. 

Under Article 6 the Commission may issue an alert to the notifying Member State where after 
assessing  the  notified  measure  it  has  concerns  about  its  compliance  with  the  Services 
Directive. The issuing of an alert implies that the Member State concerned shall not adopt the 
notified measure at issue for three months. 

After an alert has been issued, the Commission may pursuant to Article 7, and in line with  the 
existing  provision  in  the  Services  Directive,  adopt  a  legally  binding  Decision  finding  the 
notified measure to be incompatible with the Services Directive and requesting the notifying 
Member State to refrain from adopting it. 

Article 8 provides for transparency to third parties of notified draft measures, accompanying 
information and the final adopted measures. Given their knowledge of the markets concerned 
and the impact of laws, regulations and administrative provisions on them, it is important that 
third parties can be informed of notified draft measures. 

Article  9  provides  for  the  designation  of  an  authority  in  each  Member  State  responsible  at 
national  level  for  the  functioning  of  the  notification  procedure  laid  down  in  the  present 
Directive. 

Article 10 clarifies the relationship between this Directive and Directive (EU) 2015/1535 as 
well as Directive 2005/36/EC. 

Article 11 establishes a periodic review of the application of the Directive.  

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Article 12 provides for amendments of the Directive 2006/123/EC. 

Article 13 provides for an amendment of the Annex to Regulation (EU) No 1024/2012. 

Article 14 specifies the period for the transposition of the Directive by Member States. 

Article 15 deals with entry into force and application. 

Article 16 specifies the addresses of the Directive. 

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2016/0398 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on the enforcement of the Directive 2006/123/EC on services in the internal market, 
laying down a notification procedure for authorisation schemes and requirements 
related to services, and amending Directive 2006/123/EC and Regulation (EU) No 
1024/2012 on administrative cooperation through the Internal Market Information 
System 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Articles 53(1), 62 and 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee14,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The Treaty on the Functioning  of the European Union (TFEU)  guarantees to  service 
providers  the  freedom  of  establishment  in  other  Member  States  and  the  freedom  to 
provide services between Member States. 
Directive 2006/123/EC of the European Parliament and of the Council15 specifies the 
content of the freedom of establishment and the freedom to provide services as regards 
certain services. It provides, inter alia, that authorisation schemes and certain types of 
requirements related to services must be non-discriminatory with regard to nationality 
or  residence,  justified  by  an  overriding  reason  related  to  the  public  interest  and 
proportionate. 

Directive  2006/123/EC  provides  for  an  obligation  for  Member  States  to  assess  and 
adapt  their  legislation  on  authorisation  schemes  and  certain  requirements  related  to 
services, in order to bring it in conformity with the rules laid down in that Directive. 
Furthermore,  with  a  view  to  facilitating  the  verification  of  future  compliance  by 
Member States, Directive 2006/123/EC provides for an obligation for Member States 
to notify new laws, regulations or administrative provisions which set out certain new 
requirements falling within the scope of that Directive, or any substantive changes to 
such requirements.  

14 
15 

OJ C , , p. . 
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). 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

16 

The  Commission  has  received  an  increasing  number  of  notifications  from  Member 
States  regarding  newly  introduced  requirements  under  Directive  2006/123/EC. 
However, not all of those national requirements are non-discriminatory with regard to 
nationality  or  residence,  justified  and  proportionate,  thus  resulting  in  a  significant 
number of structural dialogues launched by the Commission vis-à-vis Member States. 
This  shows  that  the  existing  notification  procedure  is  not  sufficient  to  avoid 
discrimination  on 
residence,  unjustified  or 
disproportionate  requirements.  This  is  to  the  detriment  of  citizens  and  businesses  in 
the  internal  market  for  services.  Moreover,  it  appears  that  some  new  or  modified 
requirements  related  to  services  falling  within  the  scope  of  Directive  2006/123/EC 
have not been notified at all. 
For  these  reasons  the  Commission,  in  its  Single  Market  Strategy16,  announced  an 
initiative  to  improve  compliance  with  Directive  2006/123/EC,  by  reforming  the 
notification procedure provided under it. 

the  grounds  of  nationality  or 

The effective enforcement  of the rules governing the internal market for services set 
out  in  Directive  2006/123/EC  should  be  enhanced  by  improving  the  existing 
notification procedure established by that Directive in respect of national authorisation 
schemes  and  certain  requirements  concerning both  access  to  self-employed  activities 
and their exercise. The prevention of the adoption of national provisions establishing 
requirements  and  authorisation  schemes  that  would  be  contrary  to  Directive 
2006/123/EC  should  be  facilitated.  This  Directive  is  without  prejudice  to  the 
Commission's powers under the Treaties and the Member States' obligation to comply 
with the provisions of Union law.  

The  notification  obligation  established  by  this  Directive  should  apply  to  regulatory 
measures  of  Member  States,  such  as  laws,  regulations,  administrative  provisions  of 
general nature or any other binding rule of general nature, including rules adopted by 
professional organisations to regulate in a collective manner access to service activities 
or the exercise thereof. The notification obligation should on the other hand not apply 
to individual decisions issued by national authorities.  

The obligation for Member States to notify draft measures laying down authorisation 
schemes or requirements referred to in Article 4 of this Directive at least three months 
before their adoption is designed to ensure that measures to be adopted comply with 
Directive  2006/123/EC.  In  order  for  the  notification  procedure  to  be  effective,  a 
consultation  on  notified  measures  should  take  place  sufficiently  in  advance  of  their 
adoption. This is appropriate to foster good cooperation and transparency between the 
Commission  and  Member  States  and  to  further  develop  exchanges  between  the 
Commission  and  national  authorities  on  new  or  amended  authorisation  schemes  and 
certain  requirements  covered  by  Directive  2006/123/EC,  in  accordance  with  Article 
4(3)  of  the  Treaty  on  European  Union  (TEU).  With  a  view  to  ensuring  the 
effectiveness  of  the  procedure,  breach  of  the  obligation  to  notify  or  to  refrain  from 
adopting  a  notified  measure,  including  during  the  period  following  the  receipt  of  an 
alert, should be considered to be a substantial procedural defect of a serious nature as 
regards its effects vis-à-vis individuals. 

In the spirit of transparency and cooperation, where substantive amendments are made 
to  a  draft  measure  that  is  subject  to  an  ongoing  notification  procedure  under  this 

Communication  from  the  Commission  to  the  European  Parliament,  the  Council,  the  European 
Economic  and  Social  Committee  and  the  Committee  of  the  Regions,  Upgrading  the  Single  Market: 
More opportunities for people and business (COM (2015) 550 final). 

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Directive,  the  Commission,  other  Member  States  and  stakeholders  should  be  made 
aware of such amendments by the notifying Member State in due time. Modifications 
of merely clerical nature should not be communicated. 

(10)  The information to be submitted by the notifying Member State should be sufficient to 
assess  compliance  with  Directive  2006/123/EC  and,  in  particular, the  proportionality 
of a notified authorisation scheme or requirement. Therefore, in  accordance  with  the 
case-law  of  the  Court  of  Justice  of  the  European  Union  (CJEU),  such  information 
should  clarify  the  public  interest  objective  pursued,  set  out  how  the  notified 
authorisation scheme  or requirement  is  necessary and justified to  meet this objective 
and explain how it is proportionate in doing so; thus, it should include explanations on 
why it is suitable, why it does not go beyond what is necessary and why no alternative 
and less restrictive means would be available. The reasons which may be invoked by 
the  Member  State  concerned  by  way  of  justification  should  be  accompanied  by 
appropriate evidence and by an analysis of the proportionality of the notified measure. 

(11) 

In  order  to  ensure  an  effective  exchange  of  information  between  the  Member  States 
and  the  Commission,  the  Internal  Market  Information  System  set  up  by  Regulation 
(EU) No 1024/2012 of the European Parliament and of the Council17 should continue 
to be used under this Directive. 

(12)  The notification obligation set out in Directive 2006/123/EC requires Member States 
to  inform  the  Commission  and  other  Member  States  of  requirements  covered  by 
Article 15(2), the third subparagraph of Article 16(1) and the first sentence of Article 
16(3)  of  Directive  2006/123/EC.  The  application  of  that  Directive  has  shown  that 
authorisation  schemes  or  requirements  related  to  authorisation  schemes,  professional 
liability  insurance,  guarantees  or  similar  arrangements,  and  multi-disciplinary 
restrictions are common and can constitute important barriers in the single market for 
services. They should hence also  be covered by a notification obligation to  facilitate 
the compliance of relevant Member States' draft laws, regulations and administrative 
provisions with Directive 2006/123/EC. The requirements mentioned in Article 16(2) 
of Directive 2006/123/EC are covered by the notification obligation to the extent that 
they fall under Article 16(3). 

(13)  The  present  Directive  establishes  a  consultation  of  three  months  to  allow  an 
assessment  of  notified  draft  measures  as  well  as  an  effective  dialogue  with  the 
notifying  Member  State.  In  order  to  make  the  consultation  work  in  practice  and  to 
allow  Member  States,  the  Commission  and  stakeholders  to  effectively  provide  their 
comments, Member States should notify draft measures at least three months prior to 
their adoption. Notifying Member States should take into account the comments made 
on the notified draft measure, in compliance with Union law. 

(14)  Where  following  the  consultation  the  Commission  still  has  concerns  about  the 
compliance with Directive 2006/123/EC of the notified draft measure, it may alert the 
notifying  Member  State,  giving  it  the  opportunity  to  bring  its  draft  measure  into 
conformity  with  EU  law.  That  alert  should  include  an  explanation  of  the  legal 
concerns  identified  by  the  Commission.  Reception  of  such  an  alert  entails  that  the 
notifying Member State shall not adopt the notified measure for three months. 

17 

Regulation (EU) No 1024/2012 of the European Parliament and of the Council of 25 October 2012 on 
administrative cooperation through the Internal Market Information System and repealing Commission 
Decision 2008/49/EC ( ‘the IMI Regulation’ )( OJ L 316, 14.11.2012, p. 1). 

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(15)  Failure  to  comply  with  the  obligation  to  notify  draft  measures  at  least  three  months 
prior to their adoption and/or to refrain from adopting the notified measure during this 
period  and,  as  the  case  may  be,  during  the  3  months  following  the  reception  of  an 
alert, should be considered to be a substantial procedural defect of a serious nature as 
regards its effects vis-à-vis individuals. 

(16)  To ensure the efficiency, effectiveness and coherence of the notification procedure, the 
Commission should retain the power to adopt Decisions requiring the Member State in 
question  to  refrain  from  adopting  notified  measures  or,  if  already  adopted,  to  repeal 
them, where they violate Directive 2006/123/EC. 

(17) 

Interested third parties should be given access to notifications sent by Member States 
in order to make them aware of planned authorisation schemes or certain requirements 
related  to  services  in  markets  in  which  they  actually  or  potentially  operate  and  to 
enable them to provide comments thereon. 

(18)  This  Directive  does  not  affect  the  obligations  of  Member  States  to  notify  the 
requirements related to information society services under Directive (EU) 2015/1535. 
In  order  to  avoid  duplications  of  notifications,  a  notification  carried  out  under  that 
Directive and in compliance with the relevant obligations laid down in this Directive 
should  be  deemed  to  equally  fulfil  the  notification  obligation  established  under  this 
Directive. 

(19)  For the same reason, a notification completed under this Directive should be deemed 
to  fulfil  the  reporting  obligations  of  Member  States  under  Article  59(5)  of  Directive 
2005/36/EC of the European Parliament and of the Council18. 

(20)  As  a  consequence  of  the  establishment  of  the  notification  procedure  provided  for  in 
this  Directive,  the  provisions  of  Directive  2006/123/EC  concerning  notification 
procedures  should  be  deleted.  Regulation  (EU)  1024/2012  should  be  amended 
accordingly. 

(21)  Since the objective of this Directive, namely establishing a notification procedure for 
the  better  enforcement  of  Directive  2006/123/EC  facilitating  the  freedom  of 
establishment for services providers and the freedom to provide services in the single 
market, cannot be sufficiently achieved by action at the level of Member States alone 
and  can  by  reason  of  its  scale  and  effect  be  better  achieved  at  the  Union  level,  the 
Union may adopt measures, in accordance with the principle of subsidiarity as set out 
in  Article  5  TEU.  In  accordance  with  the  principle  of  proportionality  this  Directive 
does not go beyond what is necessary in order to achieve its objective. 

18 

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). 

EN 

13 

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HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter and scope 

This Directive lays down rules on the notification by Member States of draft laws, regulations 
or administrative provisions introducing new, or amending existing authorisation schemes and 
certain requirements falling under the scope of Directive 2006/123/EC. 

Article 2 

Definitions 

For the purpose of this Directive, the definitions set out in Article 4(1), (2), (3) and (5) to (9) 
of  Directive  2006/123/EC  and  in  Article  5  second  paragraph  of  Regulation  (EU)  No 
1024/2012 shall apply. 

In addition, the following definitions shall apply: 

(a) 

(b) 

1. 

2. 

3. 

4. 

5. 

'draft measure' means a text laying down an authorisation scheme or a requirement, 
within  the  meaning  of  Article  4(6)  and  (7)  of  Directive  2006/123/EC,  respectively, 
formulated with the view of having it enacted as a law, regulation or administrative 
provision  of  a  general  nature,  the  text  being  at  the  stage  of  preparation  at  which 
substantive amendments can still be made by the notifying Member State; 

'adoption'  means  the  decision  in  a  Member  State  making  the  law,  regulation  or 
administrative  provision  of  a  general  nature  final  according  to  the  applicable 
procedure. 

Article 3 

Notification obligation 

Member States shall notify to the Commission any draft measure that introduces new 
requirements  or  authorisation  schemes  referred  to  in  Article  4,  or  modifies  such 
existing requirements or authorisation schemes. 

Where  a  Member  State  modifies  a  notified  draft  measure  with  the  effect  of 
significantly  extending  its  scope  or  content,  or  shortening  the  timetable  originally 
envisaged  for  implementation,  or  adding  requirements  or  authorisation  schemes,  or 
making  those  requirements  or  authorisation  schemes  more  restrictive  for  the 
establishment, or the cross-border provision of services, it shall notify the modified 
draft measure previously notified under paragraph 1 again, including an explanation 
of  the  objective  and  content  of  the  modifications.  In  such  a  case,  the  previous 
notification shall be deemed to be withdrawn. 

Draft measures referred to in paragraphs 1 and 2 shall be notified to the Commission 
at least three months prior to their adoption. 

The breach of one of the obligations set out in Article 3(1), (2) and (3) or in Article 
6(2) shall constitute a substantial procedural defect of a serious nature as regards its 
effects vis-à-vis individuals. 

Member States shall, as part of any notification, provide information demonstrating 
the  compliance  of  the  notified  authorisation  scheme  or  requirement  with  Directive 
2006/123/EC. 

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That  information  shall  identify  the  overriding  reason  relating  to  the  public  interest 
pursued and give the reasons why the notified authorisation scheme or requirement is 
non-discriminatory  on  grounds  of  nationality  or  residence  and  why 
is 
proportionate. 

it 

That  information  shall  include  an  assessment  demonstrating  that  less  restrictive 
means are not available as well as specific evidence substantiating the arguments put 
forward by the notifying Member State. 

In  the notification, the Member State concerned shall also communicate  the text of 
the legislative or regulatory provision that underlies the notified draft measure. 

Member States concerned shall communicate the adopted measure within two weeks 
following its adoption. 

For  the  purpose  of  the  notification  procedure  established  by  this  Directive  and  to 
ensure  the  exchange  of  information  between  the  notifying  Member  State,  other 
Member States and the Commission, the Internal Market Information System set out 
in Regulation (EU) No 1024/2012 shall be used. 

6. 

7. 

8. 

Authorisation schemes and requirements subject to the notification obligation 

Member States shall notify the following authorisation schemes and requirements: 

Article 4 

(a) 

(b) 

(c) 

(d) 

(e) 

authorisation  schemes  within  the  meaning  of  Article  9(1)  of  Directive 
2006/123/EC; 

requirements referred to in Article 15(2) of Directive 2006/123/EC; 

requirements affecting the freedom to provide services referred to in the third 
subparagraph  of  Article  16(1)  and  in  the  first  sentence  of  Article  16(3)  of 
Directive 2006/123/EC; 

requirement  to  subscribe  to  a  professional  liability  insurance,  guarantee  or 
similar arrangement as referred to in Article 23 of Directive 2006/123/EC; 

requirement to exercise a given specific activity exclusively or which restricts 
the  exercise  jointly  or  in  partnership  of  different  activities  as  referred  to  in 
Article 25 of Directive 2006/123/EC. 

Article 5 

Consultation 

1. 

2. 

3. 

Upon  receipt  of  a  notification  from  a  Member  State  referred  to  in  Article  3(1)  and 
(2), the Commission informs the notifying Member State of the completeness of the 
notification received. 

As  from  the  date  of  the  Commission  informing  the  notifying  Member  State  of  the 
completeness  of  a  notification  received,  a  consultation  of  maximum  three  months 
shall  take  place  among  the  notifying  Member  State,  other  Member  States  and  the 
Commission. 

The Commission and Member States may, within a period of two months as of the 
beginning of the consultation period referred to in paragraph 2, submit comments to 
the notifying Member State.  

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4. 

5. 

1. 

2. 

The  notifying  Member State  shall  respond  to  comments  submitted  by 
the 
Commission or other Member States within one month after their reception and prior 
to the adoption of the notified measure, either explaining how those comments will 
be  taken  into  account  in  the  notified  measure  or  indicating  the  reasons  why  those 
comments cannot be taken into account. 

Where neither the Commission nor other Member States have submitted comments 
to  a  notified  draft  measure  within  the  two  months  referred  to  in  paragraph  3,  the 
consultation period shall end immediately. 

Article 6 

Alert 

Before  the  closure  of  the  consultation  period  referred  to  in  Article  5(2),  the 
Commission  may  alert  the  notifying  Member  State  of  its  concerns  about  the 
compatibility  with  Directive  2006/123/EC  of  the  draft  measure  notified  and  of  its 
intention to adopt a Decision referred to in Article 7.  

Upon receipt  of such  an  alert, the notifying Member State shall  not  adopt  the draft 
measure for a period of three months after the closure of the consultation period. 

Article 7 

Decision 

Where the Commission has issued an alert in accordance with Article 6(1), it may, within a 
period  of three  months after the date of the closure of the consultation period referred to  in 
Article  5(2),  adopt  a  Decision  finding  the  draft  measure  to  be  incompatible  with  Directive 
2006/123/EC  and  requiring  the  Member  State  concerned  to  refrain  from  adopting  the  draft 
measure  or,  if  such  measure  has  been  adopted  in  breach  of  Article  3(3)  or  Article  6(2),  to 
repeal it. 

Article 8 

Information to the public 

The  Commission  shall  publish  on  a  dedicated  public  website  the  notifications  made  by 
Member States under Articles 3(1) and (2) and the related adopted measures. 

Article 9 

Designation of competent authority 

Member  States  shall  designate  a  competent  authority  responsible  at  national  level  for  the 
operation of the notification procedure established by this Directive. 

Article 10 

Link to other notification or reporting mechanisms 

1. 

Where  a  Member  State  is  required  to  notify  a  measure  under  Article  3  of  this 
Directive and under Article 5(1) of Directive (EU) 2015/1535, a notification carried 
out  under  that  Directive  and  which  complies  with  the  obligations  laid  down  in 
paragraphs  3,  5,  6  and  7  of  Article  3  of  this  Directive  shall  be  deemed  to  have 

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satisfied also the notification obligation established under Article 3(1) and (2) of this 
Directive. 

Where  a  Member  State  is  required  to  notify  a  measure  under  Article  3  of  this 
Directive  and  to  inform  the  Commission  in  accordance  with  Article  59(5)  of 
Directive  2005/36/EC,  that  notification  shall  be  deemed  to  have  satisfied  also  the 
information obligation set out in Article 59(5) of Directive 2005/36/EC. 

Article 11 

Report and review 

By  [36  months  after  the  date  for  transposition  of  this  Directive]  and  at  the  latest 
every  five  years  thereafter,  the  Commission  shall  present  a  report  to  the  European 
Parliament,  the  Council  and  the  European  Economic  and  Social  Committee  on  the 
application of this Directive. 

Following  the  report  referred  to  in  paragraph  1,  the  Commission  shall  regularly 
evaluate this Directive and submit the evaluation results to the European Parliament, 
the Council and the European Economic and Social Committee. 

Where  appropriate,  the  reports  referred  to  in  paragraphs  1  and  2  shall  be 
accompanied by relevant proposals. 

2. 

1. 

2. 

3. 

Article 12 

Amendments to Directive 2006/123/EC  

Directive 2006/123/EC is amended as follows: 

1. 

2. 

Article  15(7)  is  deleted  with  effect  from  [one  day  after  the  deadline  for  the 
transposition]. 

In  Article  39(5),  the  second  and  third  subparagraphs  are  deleted  with  effect  from 
[one day after the deadline for the transposition]. 

Article 13 

Amendments to Regulation (EU) No 1024/2012 

The Annex to Regulation (EU) No 1024/2012 is amended as follows: 

1. 

point 1 is replaced by the following: 

"1.  Directive  2006/123/EC  of  the  European  Parliament  and  of  the  Council  of  12 December 
2006 on services in the internal market: Chapter VI."; 

2. 

the following point 11 is added: 

"11. Directive (EU) XXXX/XXXX of the European Parliament and of the Council of XX on the 
enforcement of the Directive 2006/123/EC on services in the internal market, laying down a 
notification procedure for authorisations schemes and requirements related to services, and 
amending  Directive  2006/123/EC  and  Regulation  (EU)  No  1024/2012  on  administrative 
cooperation  through  the  Internal  Market  Information  System,  unless  a  notification,  as 
provided for in that Directive, is made in accordance with Directive (EU) 2015/1535.". 

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Article 14 

Transposition 

1. 

2. 

3. 

Member States shall adopt and publish, by [calendar date one year as from the date 
of  the  entry  into  force  of  that  Directive]  at  the  latest,  the  laws,  regulations  and 
administrative provisions necessary to comply with this Directive.  

The  provisions  adopted  to  transpose  this  Directive  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

Member States shall communicate to the Commission the text of those provisions. 

Member States shall apply those provisions from [calendar date one year as from the 
date of the entry into force of that Directive + one day]. 

Article 15 

Entry into force 

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

This Directive is addressed to the Member States. 

Article 16 

Addressees 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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