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# 52012SC0148

**COMMISSION STAFF WORKING DOCUMENT Detailed information on the implementation of Directive 2006/123/EC on services in the internal Market Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the Services Directive. A partnership for new growth in services 2012-2015 /\* SWD/2012/0148 final \*/**

  

COMMISSION STAFF
WORKING DOCUMENT

Detailed information on
the implementation of Directive 2006/123/EC on services in the internal Market

Accompanying the
document

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

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

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

CONTENTS

Introduction

Chapter
I —
Economic impact

1.     Results
of the economic analysis. 7

2.     Selection
of the most relevant sectors and requirements. 9

3.     Methodology. 9

3.1.       Data
gathering.. 9

3.2.       calulation
of the economic impact 11

4.     assessment of the economic impact of setting up the points of single
contact. 10

Chapter
II –
Points of Single Contact

1.     Introduction.. 13

1.1.       Legal
framework. 13

1.2.       Businesses’
expectations. 14

2.     Assessment
of the state of play. 14

2.1.       Information
provided by PSCs. 16

2.2.       Electronic
procedures. 17

2.3.       Usability
of portals. 20

3.     Awareness
and usage of PSCs. 20

4.     Conclusions
on the state of play of PScs. 20

Chapter
III –
Implementation and compliance with key provisions

1.     Introduction.. 23

2.     Streamlining
the regulatory environment for services. 24

2.1.       Prohibited
establishment requirements — Article 14 of the Directive. 25

2.2.       Requirements
subject to evaluation — Article 15 of the Directive. 30

2.3.       Tacit
approval of applications for authorisation — Article 13(4) of the
Directive  34

2.4.       Nationwide
validity of authorisations — Article 10(4) of the Directive. 35

2.5.       Total
prohibition of commercial communications — Article 24 of the Directive  37

3.     Boosting
cross-border trade — Freedom to provide services clause. 38

3.1.       Introduction.. 38

3.2.       Implementation
of the freedom to provide services clause by Member States. 39

3.3.       Issues
arising from the implementation of Article 16 of the Directive. 39

3.4.       Rules
on future legislation — Article 39(5) of the Directive. 41

3.5.       Use of
derogations provided for in Article 17 of the Directive. 41

3.6.       Imposing
specific requirements listed in Article 16(2) on cross-border service providers  42

Chapter IV — Summary of the analysis of the
implementation per Member State

Annex I: Technical annex

Annex II: Detailed country-specific
information

Introduction

The Services Directive is a major step
forward in making the single market for services a reality. It not only aims to
facilitate operators' freedom to provide services across national borders, but
also to ensure that the recipients of these services can easily enjoy the
opportunities brought about by the single market. The implementation of the Services
Directive set in motion huge efforts in the Member States to modernise their
administrations and the legal framework for the provision of services and to
facilitate establishment and exercise of service activities across borders.

Implementation of the Directive has been
challenging particularly because of its broad scope. It covers around 65 %
of service activities within the services sector. The activities covered
represent around 45 % of total EU GDP and employment. They include
business services (11.7 % of value added), real estate (11.8%), retail and
wholesale distribution (11.1 %), construction (6.43%) and tourism (4.4%).
Among the service sectors not covered by the Services Directive (or covered
only marginally, such as energy and postal services), most benefit from
specific and comprehensive regulatory frameworks at EU level. This is the case for
financial and insurance services (5.7 % of value added), network services
(4.7%, including telecommunications, postal services and energy) and transport
(3.1 %). The remaining service sectors are government services (14.4 %
of value added, such as defence and public education) — which in general
do not fall within the scope of application of EU law (as ‘non-economic’
services) — and health services (around 7.6 %), to which, even in
the absence of a comprehensive EU framework, a number of EU rules already
apply, ranging from the recognition of professional qualifications to patients’
rights.

Figure 1: Services covered by the Services Directive (darker part
on the right) and other sectors of the EU economy in terms of value added by
sectors, 2009[1]

Source: Eurostat, National Accounts Statistics, Gross value added, 2009

Furthermore, the Services Directive
required Member States not only to assess and where necessary adjust their laws
in many areas but also to take very concrete and practical steps such as
setting up Points of Single Contact and making administrative procedures
available in electronic form.

This report describes the significant
progress achieved but also what remains to be done. At this stage and given
that only two years have elapsed (the implementation deadline was 28.12.2009),
it is not feasible to report on all the details of the Services Directive. The
report therefore concentrates on those issues and sectors which have the most
significant impact or potential in economic terms: business services,
construction, real estate, retail and tourism. The implementation of the Services
Directive is an ongoing dynamic process.

This report builds upon the Handbook for
the implementation of the Services Directive[2]
which aimed to give Member States technical assistance by describing
appropriate approaches to implementation and on the Commission Staff Working Paper
setting out the results of the mutual evaluation process.[3] In addition, the assessment of the implementation in each Member State is based on the information notified to the Commission according to article 39 of the
Directive, the results of the mutual evaluation process and the studies[4]
that were carried out for the Commission. The economic analysis is based on an
economic study carried out by Commission services.[5]

Chapter I assesses
the Directive’s economic impact.

Chapter II
describes the state of play in the development of the Points of Single Contact.

Chapter III
gives an overview of the implementation of some of the most relevant parts of
the Directive, namely the provisions on administrative simplification
(nationwide validity of authorisations, tacit approval), facilitating
establishment (prohibited requirements, such as discriminations and economic
needs tests, and requirements to be evaluated as to their proportionality, e.g.
on legal form and shareholding, tariffs) and commercial communications.
Particular attention is devoted to the implementation of the freedom to provide
services clause and the situation with regard to cross-border trade.

Chapter IV
summarises the state of implementation of the Directive per Member State. A more detailed analysis per Member State is provided in Annex II.

Annex I
contains information about the sectors covered by the Services Directive as
well as technical information and data concerning the economic study.

Chapter I —
Economic impact

The broad scope of the Services Directive, in
terms of both service activities and legal/administrative requirements, means
that its economic impact is of particular significance.[6] The
economic assessment carried out by the Commission is the first analysis based
on information on actual implementation of the Services Directive by Member
States and the first study to deal not only with its effects on trade and
foreign direct investment (i.e. foreign establishment), but also with its domestic
effects via the increase in productivity of domestic firms. The assessment is still
a forecast since the actual impact of the changes introduced will produce
economic effects only over time. Effects of a more ambitious implementation
have also been estimated showing the significant additional gains to be reaped.
It is important to note that, although the results presented below cover the
main restrictions under the Services Directive, data limitations mean that they
provide only an estimate of the economic impact of another important provision
under the Directive, namely the setting up of the Points of Single Contact[7]. This is mentioned in part 4 of
this Chapter.

1.
Results
of the economic analysis

Based on the implementation measures
adopted so far by Member States, the Services Directive is generating an
additional 0.81 % of EU GDP, with the majority of effects
materializing during the 5-10 years following implementation (base-line
scenario). The impact at EU level within the sectors covered by the analysis is
estimated at more than 7 % for trade, close to 4 % for foreign direct
investment (FDI) and above 4.5 % for productivity. The domestic impact of
barrier reductions turns out to be greater than the international impact, at
least in the short run as the analysis does not take into account, due to data
limitations, the long-term effect that increased flows of trade and foreign
direct investment could have on GDP through productivity improvements.

In addition to the assesment based on real
implementation to date, a second scenario of a more ambitious implementation
of the Services Directive has been analysed. Under this scenario, each sector in
every country moves to an ‘ideal’ barrier profile where barriers
are equal to the EU average in that sector, or lower (if already achieved). In the
case of such ideal but still conservative implementation the cumulative long-term
impact on overall GDP reaches 1.23 %. The impacts on FDI, trade and
productivity would be about one and a half times larger than in the base-line
scenario.

The differences in impacts across countries
mainly reflect the extent to which barriers have been reduced: countries with
larger barrier reductions import more, attract more inward FDI, and have a
larger boost in productivity. Moreover, the results are influenced by the
geographic composition of the destination of exports and outward FDI, and the
barrier reductions in those destinations: more exports to or investment in
those countries which had larger barrier reductions increase the effects.
Finally, with regard to the overall impact on GDP, the sectoral composition of
the national economy explains some of the differences observed across Member
States: a greater share of services in the economy means that the removal of
barriers has a greater impact.

Finally, in a third scenario the
‘ideal’ barrier profile is even lower than in the second scenario: barriers
are reduced in each sector to the average level of barriers in the the five
countries with the lowest levels in that sector, or lower (if already
achieved). Under this third scenario close to the
abolishment of almost all restrictions within the scope of the Services
Directive, the additional gain could reach 1.8% of GDP compared to the
base-line scenario, representing total economic gains of 2.6% of GDP.

The following figure shows per Member State the effects on GDP of the actual implementation (base-line scenario), the
additional impact of the second scenario (assuming a more ambitious but still
quite modest implementation of the Services Directive) and the further effects
of the third scenario (close to full elimination).

Figure 2. The GDP impacts of the Services Directive
under the base-line scenario and the additional effects of the second and third
scenarios (in %)

Source: Commission services

Note: Yellow and
blue (aggregates for Euro Area and EU27) bars = effects of actual implementation
(base-line scenario); orange bars = additional impacts in the second scenario (assuming
a more ambitious implementation); red bars = additional impacts in the third
scenario (close to full elimination).

2.
Selection
of the most relevant sectors and requirements

For practical reasons and feasibility, it was
decided to focus the assessment on the following key sectors that are most
relevant in economic terms (GDP share, employment, growth) and in terms of the  impact
of the Services Directive:

– professional and business services (legal services, tax advisers,
accountants, engineers and architects);

– construction and crafts;

– real estate;

– retail;

– tourism.

Thus a number of
sectors covered by the Services Directive, representing approximately 20% of EU
GDP, were left out of the economic assessment. The GDP impacts presented above
have been obtained under the assumption of no barrier changes in those sectors.

A certain level of aggregation and
simplification, often requiring value judgments, was necessary in the data
collection within these ‘priority’ sectors. Thus, if a requirement
existed in a significant part of the activities comprised in the sector (for
example an authorisation requirement for large-scale retail outlets in the ‘retail’
category), it was considered applicable to the whole sector.

As regards the barriers to the internal
market in services, the Services Directive
addresses a wide range of aspects. The economic assessment focused on those
that have a direct impact on reducing the administrative burden and on
streamlining the regulatory environment for services since these are likely to
have the most significant economic impact. These are requirements dealing
directly with access to or the exercise of service activities: authorisation
regimes, prohibited requirements on establishment and requirements to be
evaluated and simplified, and the legal framework for cross-border service
provision (see the list of
assessed requirements in Annex I b)). The effects of simplifying administrative procedures (recognition
of foreign documents, tacit approval, etc.) have also been taken into account.

3.
Methodology

3.1. Data
gathering

3.1.1.
Data sources

The implementation of key provisions of the
Services Directive was assessed throughout 2010 during the process of ‘mutual
evaluation’ provided for by the Directive. Most data on barriers are based
on the results of the mutual evaluation. The information gathered in this
exercise was supplemented or corrected with data from external studies[8] and from other sources (performance checks, complaints and
infringement procedures, etc.).

The economic assessment also used sectoral data
from different sources, including Eurostat, for the other variables in the
analysis (e.g. trade flows, FDI, productivity).

3.1.2.
Transformation of qualitative information
into quantitative indicators

Qualitative information on barriers had to be
transformed into quantitative information for the assessment. The rule followed
was to assign 1 to requirements that existed before the implementation of the
Directive and 0 for those that did not. Three different values were used to
describe what happened to each individual requirement as a result of
implementation: 1if the requirement was kept; 0.8 if the requirement was made
less stringent (signifying a 20 % barrier reduction); and 0 if the
requirement was abolished. For Member States with decentralised administrations,
regional differences in implementation could not be dealt with separately. This
required some value judgments as to which requirements at regional level should
be considered as being sufficiently relevant to be taken into account.

3.1.3.
Description of aggregated data on
barriers

Using the collected dataset, the figures
below show the total absolute number of barriers maintained, reduced and
eliminated as a result of the Services Directive across sectors in the EU. The
highest number of restrictions before the Directive existed in the area of
legal services. The highest number of restrictions were abolished in the area
of travels agencies and hotels, with the lowest in legal services and
accounting.

Figure
3.
Barriers across sectors in the EU

Source:
Commission services

However, for the interpretation
of the data on barriers, it is important to stress that, as explained in
Chapter III, the Services Directive does not require Member States to abolish
all requirements. In many instances requirements can be maintained if they are
necessary to protect a public interest objective and are proportionate. If that
is the case keeping requirements or simplifying them (which would be marked
above as 'partially reduced') instead of full abolishment does not violate the
Services Directive. A requirement could be considered less stringent as a
result of administrative simplification (recognition of foreign documents,
tacit approval, Points of Single Contact etc.). In other cases, legal form and shareholding requirements were made less
stringent in some Member States by broadening the scope of available company
structures for certain professional service providers, without abolishing the
requirement by giving full freedom.

Looking at the results of barrier reduction
per Member State, there is a group of countries (Bulgaria, Cyprus, France, Germany, Greece, Italy, Luxemburg, Portugal, Romania, Spain, Sweden) where a particularly high number of restrictions were fully abolished or partially
changed. At the other end, Member States like Austria, Denmark, Ireland, Malta or the United Kingdom had a very low number of restrictions fully abolished
or partially reduced. There are various reasons for this. For example a high
number of restrictions abolished might mean that there was a high number of
barriers to start with (e.g. Greece) or that newly introduced horizontal
legislation affected many sectors (e.g. Sweden). On the other hand, a low
number of changed restrictions might mean that a low number of restrictions already
existed before the Services Directive (e.g. United Kingdom). For a detailed
picture on the restrictions per Member State, see Chapter IV of this document.

3.2. Calculation of the economic impact

Once data on barriers before and after the
Directive had been collected, the impacts on foreign direct investment, trade
and productivity were estimated with regression analysis.

Barrier reduction is expected to influence
productivity both directly (via its impact on domestic firms’
productivity) and indirectly, via its impact on foreign direct investment and
trade (see the conceptual framework of the economic assessment in Annex I c)). Gravity
models were used to estimate the effect of cross-border barriers on trade and of
barriers to foreign establishment on capital flows. Dynamic panel data models
were subsequently used to estimate the productivity effects of barriers to
domestic establishment, of trade and of capital flows.

The impact of barrier changes on productivity,
trade and FDI was calculated by multiplying the observed change in barriers(which
was sector and country-specific information) times the estimated elasticities (estimated
for the EU average) of each dependent variable (trade, capital flows and
productivity) to barriers. Finally, the impacts on GDP were
estimated using DG ECFIN’s computable general equilibrium model QUEST III
using as ‘shocks’ the productivity changes resulting from barrier
changes.

4.
Assessment
of the economic impact of setting up the Points of Single Contact

The aim of this part of the economic
assessment was to quantify the economic impact of the Points of Single Contact
(PSCs) in every Member State. It was carried out for two scenarios: the actually
achieved procedural streamlining effect linked to the PSCs and a future
"what-if" situation in which Member States make additional efforts to
reach an ideal best performer in the EU27 in terms of procedural burdens
related to setting-up service activities.

The methodology provides only a
conservative estimate of the actual economic impact of the PSCs due to the fact
that it covers neither the aspects of cross-border provision of services nor
some features of the PSCs which are difficult to quantify (e.g. technical
accessibility, multilingual platform, user-friendliness, etc.). In fact, the
main data used comes from the World Bank Doing Business 2012 database[9] for each EU27 Member State on
administrative burden related to starting a business (i.e. the number of
procedures to start up and operate a firm, the average time to deal with each
procedure in days, and the related external costs). The procedural streamlining
indicated for each Member State by the change in these data between the time
periods corresponding to before the Services Directive (2003 and 2004 data) and
after (2011) is assumed to be a result of setting up the PSCs. The economic
impact of this procedural streamlining effort is subsequently adjusted to take
into account a set of completion scores provided by the Commission Services,
computed on the basis of the findings of the Deloitte study[10] and own assessment.

Bearing in mind these limitations, the
economy-wide impact of the PSCs is estimated to be around 0.13% of GDP, while
an additional impact of further procedural streamlining in Member States could reach
up to 0.15% of GDP in the medium run (5-year horizon) and up to 0.21% of GDP in
the long run, taking into account that PSCs would have a positive effect on the
creation of new service businesses.

Chapter II — Points of Single Contact

1.
Introduction

The Points of Single Contact (PSCs) are a
very visible and concrete innovation of the Services Directive for businesses.
PSCs aim to give them access to clear, up-to-date information, together with an
easy means of completing administrative formalities both at home and abroad.

The creation of PSCs has proven to be a
highly ambitious project, both in terms of the innovation required to bring
paper-based systems online and in terms of the complexity and number of
authorities and procedures to be brought under PSCs.

1.1.
Legal framework

Article 6 of the Services Directive
requires Member States to establish PSCs through which service providers can
complete all procedures and formalities needed to access and exercise service
activities — such as declarations, notifications or applications
necessary for authorisation by a competent authority.

Article 7 sets out the information that
should be available to both service providers and recipients through the PSCs. These
include information on the requirements applicable to providers, the contact
details of competent authorities, the means of accessing public registers and
databases of service providers, the means of redress available and the contact
details of associations or organisations from which either providers or
recipients may obtain practical assistance.

Article 8 of the Services Directive
requires that businesses be allowed to complete all the procedures and
formalities related to the access to and exercise of a service activity at a
distance and by electronic means, be it nationally or in another Member State.

The cross-border completion of e-procedures
poses a significant challenge, due in part to the lack of interoperability and
differences in approach to online public services in Member States. In order to
facilitate cross-border access to e-procedures, the Commission has adopted
legal measures[11]
to improve the cross-border use of e-signatures by requiring Member States to
accept as a minimum certain e-signatures,[12]
and to put in place the necessary technical means to be able to validate these,
also on a cross-border basis.

1.2.
Businesses’ expectations

Business organisations have carried out
their own reviews of the functioning of PSCs[13].
These reviews insist on the importance of PSCs and call for Member States to
enhance PSCs by going beyond what is currently required by the Services
Directive. In particular, they expect PSCs to take a more business-friendly
approach by covering the whole business life cycle and by providing information
and possibilities for completion of administrative procedures also in other key
areas (such as VAT rules, labour law, social security) that are not covered by
the Services Directive.

Also, businesses would expect PSCs to provide
access to such information in foreign language(s).

In analysing the effectiveness of PSCs, it
is therefore important to look beyond the question of compliance with the
obligations under the Services Directive and take into account the perspective
of business users and their actual needs.

2.
Assessment
of the state of play

The deadline for putting the PSCs in place
was end 2009. This means that businesses should, as of that time, be able to
get all the necessary information to start or carry out their activities and to
complete the relevant formalities online (including to identify themselves,
sign their applications, submit required documentation and receive official
documents by electronic means), both within their own and in other Member
States. The PSCs should in particular make life easier for SMEs who can choose
to go through the procedures online saving some time and money.

The responsibility for the development of
PSCs lies with the Member State authorities, but the Commission has adopted
measures to facilitate the cross-border aspects of e-procedures where the major
challenges lie due to technological divergences. In addition to the relevant
legal measures that aim at enhancing the cross-border accessibility of
e-procedures via setting clear obligations on the acceptance of e-signatures,
making available information needed for cross-border validation of e-signatures
and obliging Member States to put in place technical solutions for common
formats of e-signatures, the Commission has been assisting Member States with
practical tools in the form of open source software for e-signatures, and
facilitating exchanges of best practices.

Against this background of expected
delivery of PCSs, an extensive benchmarking survey was carried out by Deloitte
Consulting[14]
in 2011 and Member States participated in a mutual test of each other’s
PSCs, organised by the Commission. The analysis set out in this report is
largely based on this fieldwork carried out in 2011, complemented by results
from other relevant studies[15]
and additional input from Member States. It cannot, in all cases, reflect all
ongoing improvements and developments[16]
as PSCs are a constant ‘work in progress. The primary focus of the
survey, studies and mutual testing was the key functions of the PSCs in terms
of how they are used by businesses. Although some of the information that is
required under Article 7 to be provided to service recipients through the PSCs
was indirectly covered by the analysis, it was not examined in depth. A more
focused analysis of the implementation of Article 7 will be undertaken in the
framework of future activities concerning the PSCs.

Taking into account the main aspects of
PSCs,[17]
namely the availability of information, availability of e-procedures and ease
of cross-border completion of e-procedures, and user-friendliness, the
Commission has established three broad categories of PSCs that reflect an
overall assessment of the state of play of PSCs in the Member States. The green
colour in the figure below indicates Member States with the most advanced PSCs
compared to others and the red colour indicates the most problematic ones,
where the development is substantially lagging behind the average. The biggest
number of Member States falls into the yellow category, which represents the middle
ground. Being the biggest group, it is rather heterogeneous and encompasses
both PSCs which are relatively advanced and score relatively well for many of
the main features and PSCs that underperform in certain categories but do
better in other areas, e.g. information availability can be very good but the
completion of the procedures is poor. It should be noted that the green colour
does not mean that these PSCs are fully compliant with the Services Directive
in absolute terms: for all PSCs further improvements are needed, but these may
be more or less considerable and may also vary as regards the areas where
currently the deficiencies exist.

Figure
1: Categories of PSCs overall (including the availability of information,
e-procedures, ease of cross-border completion of e-procedures and user-friendliness).
For Germany it should be noted that PSCs are set up and managed by each Land
with considerable differences between them as regards organisational structure.
There is a central portal directing businesses to the relevant PSC.

Looking at the PSCs from the businesses'
perspective the situation in the bigger Member States could be of particular
interest in terms of business opportunities. In this regard it should be noted
that in Spain and the United Kingdom the PSCs are well functioning and
user-friendly even if cross-border completion of procedures needs to be
enhanced in Spain. In Germany the situation is very divergent between the
Länder but on average relatively good. In France the PSC is well established
but not all mandatory information is available nor are all procedures covered
yet. A major disincentive for cross-border use is the lack of other languages
as the portal is in French only. Italy was late in setting up the PSCs but is
improving rapidly. In Poland the situation is relatively good above all for
national use, further improvements mostly regarding technical accessibility are
needed for cross-border access.

Sections 2.1 to 2.3 below give a more
detailed assessment of the degree of sophistication of the PSCs.

2.1.
Information provided by PSCs

The following figure gives the
categorisation of PSCs for the aspect "availability and quality of
information":

Figure
2: The categorisation of the PSCs for the aspect "quality and availability
of information".

2.1.1.
Scope and availability of information

As to the overall availability of
information, procedures falling under the Services Directive are well covered
(81 % of the procedures analysed, covering 6 business scenarios for 3
sectors). The best performing Member States according to the Deloitte study are
Estonia, Ireland, Finland, Latvia, Norway, Portugal, Spain, the Netherlands and the United Kingdom. The least information is available through the PSCs of Bulgaria, Romania, Slovenia and Lithuania.

Most information is given on company
registrations, permits and insurance issues (94 % coverage overall). The
recognition of professional qualifications is also relatively well covered
(more than 60 %). Requirements related to the location or the premises of
the provider are less well covered. These issues are often under the
responsibility of local authorities (around 55 %).

Even though it is not within the scope of
the Services Directive, information on taxes is very well developed (covered by
76 % of PSCs), as is information on employment (76 %) and social
security-related issues (64 %). Many PSCs also provide advice on funding
and intellectual property rights issues (67 % coverage). The three most
complete PSCs, when viewed from this wider perspective, are those located in Estonia, Luxembourg and the United Kingdom.

2.1.2.
Structure of information

The most common way of presenting the
information is either by a thematic index of procedures or service sectors.
Portals that offer the best search possibilities are those of Cyprus, Hungary, Luxembourg, Norway and Sweden. Information is
less easy to find on the PSCs of Austria, France, some German
Länder (such as Brandenburg and Hessen), Greece, Ireland and Italy.

Only 40 % of end-users found that the
PSCs clearly explained the requirements they had to fulfil. Less than half of
PSCs make a clear distinction between requirements that apply to establishment
and those applicable to cross-border service provision.

2.1.3.
Language support

Providing information in languages other than
the language of the Member State of the PSC is not a legal obligation under the
Services Directive. It is, however, highly useful for end-users. The PSCs of 20
Member States provide some information in other languages. Of these, 15 give
information on requirements in other languages and 8 allow application forms to
be completed in other languages. The Czech Republic, Poland and Portugal offer a tool for the online translation of their web pages.

2.2.
Electronic procedures

There are vast differences between Member
States in terms of coverage of procedures. The positive finding is that more
than one third of all PSCs provide a critical mass (more than 50 %) of
e-procedures.

Taking into account the number of
procedures available in Member States and the possibility for cross-border
users to complete the procedures (both for cases where no technical barriers
exist and for those where some support is provided also for cross-border
e-signatures and e-identification), Member States can be divided into the
following three groups:

Figure
3: The categorisation of the PSCs for the completion of e-procedures.

2.2.1.
Availability of e-procedures

Overall, out of the 81 % of procedures
on which information is available, at least some interaction is possible for 55 %
of them[18] (as a minimum, downloading forms and
submitting by email). For another 26 % of procedures only a very low level
of information is provided.

Out of the 55 % of transactional
procedures, 22 % are one-way interaction (meaning that forms can be
downloaded), 9 % are two-way interaction (forms can also be uploaded), and
24 % are full case-handling (the procedure can be completed entirely
online).

The four websites with the highest level of
transactional procedures are in Estonia, Italy, Liechtenstein and Sweden. As regards the types of procedures, it appears from the
Deloitte study that company registration is well covered. Less well covered are
procedures relating to the premises of the provider and to the place where the
service is carried out. This seems to be due, in many cases, to the fact these
types of procedures fall under the responsibility of local authorities, which
in many Member States have a varying, and often lower, level of e‑government
maturity. The degree of availability of procedures relating to the recognition
of professional qualifications differs significantly between Member States. In
some cases, the portals offer comprehensive information, including the
possibility to complete such procedures online (e.g. in Cyprus, Luxembourg and Sweden). In other cases, the information available is
still patchy and it is not yet possible to complete procedures electronically.

Tax and financial formalities and social
security formalities, which are not strictly required under the scope of the
Services Directive, are relatively well covered.

2.2.2.
Completion of e-procedures

Even where e-procedures are available, the
ease of their completion differs depending on the approach chosen in Member
States. In Member States[19]
where scanned copies of required documents are accepted and simple means are
used if identification is required (such as a simple username and password), no
technical barriers exist and the completion of procedures is facilitated for
businesses. This does not mean, however, that all procedures are necessarily
available. In a number of Member States scanned copies are not accepted and
more secure means are required to allow access to personal data or to ensure
data authenticity. In such cases official e-IDs (national government-issued or
-guaranteed) and e-signatures are required. The usability of e-procedures,
above all across borders, depends greatly on the capacity of the PSCs to deal
with e-signatures and e-identification from other Member States. According to
the Deloitte study and information provided by Member States, at least 14
Member States[20]
require the use of official e-IDs for online procedures, and 18[21] require (qualified)
e-signatures. However, only around half of these have solutions currently in
place that allow their cross-border use, at least from some other Member States,[22] but never from all other
Member States. In other words, none of these PSCs allows the completion of
procedures from all other Member States but at best from a limited number of Member
States. This means that in many cases businesses are unable to use PSCs in
other Member States.

In summary, 20 Member States make the
online completion of procedures available to foreign users to some extent,
either by relying on simple solutions that create no obstacles to cross-border
use or by relying on more complex solutions where no e-identification or simple
identification (login/password) is used and no e-signatures are required or by
using more complex solutions but having put in place at least some technical
support to allow also for limited cross-border use.

Possibility of completing procedures electronically
across borders (i.e. by users from abroad), based on Deloitte study and input
from Member States

|| Number of PSCs || Percentage of PSCs || List of PSCs

Online completion of procedures is possible for foreign users || 20 || 58 % || AT, BE, CY, CZ, DE, DK, EE, EL, ES, FI, FR, IE, IS, LI, LT, LV, NL, PL, PT, UK

By what means is online completion of procedures possible? || Number of PSCs || Percentage of PSCs (% of all) || List of PSCs

- No technical barriers (no e-ID or e-signature is required) || 9 || 47 % (27 %) || AT, BE, DE (for e-identification and depends on a Land) DK, FI, FR, IE, IS, NL, UK

- Official e-IDs issued in other Member States are supported (at least in part) || 7 || 37 % (21 %) || CY, EE, ES, EL, LI, LT, PT

- Qualified e-signatures issued in other Member States are supported (at least in part) || 10 || 50 % (30 %) || CY, CZ, EE, ES, EL, LI, LT, LV, PL PT

2.3.
Usability of portals

The usability of portals was assessed by
Deloitte, who gathered users’ feedback via end-user testing conducted in
summer 2011. Their analysis reveals that, overall, 40 % of businesses
found it very difficult to complete procedures online. Specifically, in 8
Member States, at least 50 % of users found the PSC easy/very easy to use
(only one quarter of PSCs were found to be predominantly easy to use); in 10
Member States, at least 50 % of users found the PSC satisfactory to use (one
third of PSCs, was found to be mostly satisfactory). In 12 Member States, at
least 50 % of users found the PSC difficult/very difficult to use (40 %
of PSCs were found to be difficult to use).

A composite usability index was used by
Deloitte to measure the user's experience of the PSCs. The index was composed
of four measures: effectiveness and efficiency (whether the users can successfully
achieve their objectives and, efficiency how much efforts and resource is
expended in achieving those objectives), satisfaction (whether the experience
was satisfactory), propensity for portal re-use and e-accessibility. The
composite index for usability was generated by combining the rankings for each
of the Member States studied against the fours measures. The index ranks Ireland, Slovakia, Czech Republic, Estonia and one German Land (Hessen) most highly for this criterion. Portugal, Austria, Greece, Slovenia and Lithuania have been
placed at the bottom of the ranking of usability[23].

3.
Awareness
and usage of PSCs

The actual usage of PSCs depends greatly on
the awareness of their existence and the services they offer to businesses.
Overall, the level of awareness among businesses appears to be rather low. As
an indicator, only 30 % of Deloitte focus group participants were aware of
the existence of the PSC in their country. Major efforts need to be made to
raise the awareness of PSCs among businesses at both national and EU level. The
activities already undertaken include promotional campaigns in Member States
and by the Commission, for example via leaflets or articles, which have often
been limited partly due to availability of resources. A common brand (EUGO) has
been created to give PSCs a coherent common identity, and activities are
ongoing to make it easier to find PSCs online. A more active role played by
business organisations in the promotion of PSCs among their members would
enhance the level of awareness.

The actual usage of PSCs is not easy to
measure due to differences between the methodologies used in Member States, but
the data gathered from Member States show that it is steadily increasing. The
figures vary between Member States (where statistics are collected) but for
example between 2010 and 2011 a very steep increase was noted in the Czech
Republic (more than 100 %) and Belgium (around 80 %), with
significant increases found in Italy, Latvia and the Netherlands.
Currently the rise is most manifest for domestic use except for cases where
domestic demand has reached a high level (e.g. in the Netherlands), further increases are expected from cross-border use.

4.
Conclusions
on the State of Play of PSCs

The establishment of PSCs has posed a huge
challenge to Member States. It has involved significant changes in
administrative procedures, in internal cooperation methods and in technical
developments.

The majority of the PSCs have been built on
existing e-Government business websites which provide services going beyond the
Services Directive and take a more holistic approach to business needs. In
seven Member States[24]
entirely new websites were created. Most of the PSCs serve primarily as
gateways to relevant competent authorities' websites. The level of
standardisation and integration of competent authorities varies between Member
States. PSCs are found to be easier to navigate and use in those Member States where
a consistent or more standardised approach exists between competent authorities
with regard to the provision of information and the completion of procedures.

With regard to information provision, the
overall picture of PSCs is relatively positive. A large proportion of
information is provided by the majority of PSCs at least for the most important
service sectors, and it often goes beyond the requirements of the Services
Directive. The level of detail and structure of the information however varies
and further efforts are needed to increase the user friendliness of the
information, including via a clearer structure, more search functions and more
language support. Work in this regard continues at national level and also via
the EUGO Network.

When it comes to online completion of
procedures, the current picture is less positive. Many administrative procedures
which are relevant are not yet online and possibilities for cross-border
completion of procedures are very limited. The cross-border completion is mainly
possible in Member States who do not require advanced e-identification or
electronic signatures. Main problems with online completion exist in Member
States who require electronic identification and electronic signatures but do
not technically support these from other Member States, and this number remains
relatively high with one third or even more.  At the same time there are signs
of progress in a number of Member States and clear plans in others to have the
necessary technical solutions in place in 2012 or over the coming two years.
The solutions mentioned rely in several cases on the results of projects
financed by the CIP[25]
Large Scale Pilots, above all for e-identification[26], and the tools
provided by the Commission for e-signatures[27] in support of Commission Decision 2011/130/EU
adopted under the Services Directive. The Commission will continue to assist
Member States with the technical aspects of PSCs to increase their cross-border
access, in particular via open source software and best practice sharing in the
EUGO network.

Finally, more impetus should be given to
the cross-border use of e-identification and e-signatures in a wider context
with the Commission proposal for a Regulation on electronic identification and
trust service for electronic transactions in the internal market.

Chapter III — Implementation and compliance with
key provisions

1.
Introduction

The Services Directive entails an ambitious
programme of administrative and regulatory simplification to remove unjustified
obstacles to cross-border service activities. The aim of this simplification is
to facilitate market access for businesses, in particular SMEs, across the EU,
and to offer consumers a broader choice.

The Services Directive should be seen as
opening up possibilities for service providers to develop their activities in a
more effectively functioning single market. Cross-border service activities
remain limited. The ambition of the Services Directive is to boost cross-border
trade and offer new opportunities to service providers.

Streamlining the regulatory environment for
service providers is beneficial for service providers intending to establish themselves
in a Member State by creating a new business or by opening, for example, a
subsidiary or a branch. These benefits accrue equally to service providers
seeking to become established in another Member Stare and to those setting up
business in their own country.

Service providers established in one Member State, and providing services in another, benefit from the ‘freedom to provide
services’ clause (Article 16 of the Services Directive). This clause requires
Member States to refrain from imposing their own requirements on cross-border service
providers except where their application is necessary for reasons of public
policy, public security, public health or the protection of the environment.

The Services Directive facilitates the
exercise of economic activity by EU companies operating in the services sector,
in particular for SMEs. Indeed, the provisions on administrative simplification
and those facilitating access to foreign markets have a significant positive impact
on SMEs which have limited resources and technical capacity to comply with the
administrative costs and various barriers to establishment and cross-border
provision of services. This is of particular importance given that out of 21
million of companies in the EU, over 99% are SMEs. Looking at the number of the
companies in the particular economic sectors, over 75 % of them operate in the
sectors covered by the Services Directive, again over 99% of these (over 16
million) are SMEs.

With a view to enhancing the rights of
recipients and strengthening their confidence in the internal market, the
Services Directive obliges Member States to remove obstacles for service
recipients wanting to buy services supplied by providers established in other
Member States, such as obligations to obtain a specific authorisation to
receive such services. It also obliges Member States to make general
information available to service recipients, including through the Points of
Single Contact, and to provide assistance on the legal requirements and redress
procedures applicable in other Member States. Finally, it lays down an
obligation on Member States to ensure that discriminatory requirements based on
service recipients' nationality or place of residence were put to an end. The
latter provision is subject to in-depth analysis in a separate document[28] (hereafter referred to as the
Staff Working Paper on Article 20(2)). Many Member States have introduced in
the horizontal laws transposing the Services Directive provisions reproducing
in full or in part the Services Directive's provision on non-discrimination.
Others relied on pre-existing legislation that achieves the same end (see Annex
I to the Staff Working Paper on Article 20(2)). The national provisions
implementing Article 20(2) of the Services Directive make the prohibition of
discrimination on grounds of nationality or residence binding on service
providers. It is then for relevant national competent authorities to ensure
compliance with this obligation. In order to perform this assessment, a
case-by-case analysis is required in all instances.

This Chapter does not examine
systematically the implementation of all the provisions of the Services
Directive. Member States have dedicated significant resources and efforts to
implementing the Services Directive in all its aspects. The Commission services
are monitoring the implementation process of the whole Directive. However on
this occasion, focus has been placed on certain provisions which are key to
improving the situation for establishment and cross-border service provision
with particular regard to important economic sectors with growth potential
(professional services, construction, crafts and certification services, real
estate, retail and tourism).

Chapter III provides an overview of the
implementation of these provisions in these sectors. Member States are quoted
and examples provided. Chapter IV provides a summary of the analysis of the
implementation of the Services Directive per Member State. Issues where action
is needed are identified for each of them. More detailed information on
individual Member States is given in annex II.

2.
Streamlining
the regulatory environment for services: freedom of establishment for service
providers

Prior to the implementation of the Services
Directive, service providers frequently had to be authorised or had to comply
with administrative formalities to exercise activities. The Services Directive
required Member States to eliminate authorisation schemes and other burdensome
requirements when they were not justified or to replace them with less
restrictive measures, for instance, notifications or declarations.

As a consequence of this requirement, Member
States have removed a significant number of authorisations schemes. Italy has established a general principle that all economic activities that
previously required an authorisation can be started upon filing a simple
declaration with the competent authorities. In Hungary more than 50
authorisation schemes have been replaced by declarations, for various
activities ranging from tourist guides, through private recruitment agencies to
property management. In Spain, more than 30 authorisation schemes at
national level, in the area of industrial services, have been replaced by
declarations, e.g. as regards installing high-voltage lines, high-pressure
equipment or lifting equipment. In Greece, Malta and Slovakia a wide range of authorisations have been replaced by declarations.

Furthermore, Member States had to
facilitate and streamline procedures in particular so that, (1) where no
response to a request for authorisation is provided within the deadline set in
the national legislation, authorisation is deemed to be granted (Article 13(4),
tacit approval of  authorisation) and (2) authorisations should allow providers
to exercise their activities throughout the national territory (Article 10(4),
nationwide validity of authorisations).

2.1.
Prohibited establishment requirements —
Article 14 of the Directive

Requirements
listed in Article 14 of the Directive are discriminatory or particularly
restrictive and thus have to be removed.

Before the
implementation of the Services Directive, the Court of Justice had already
found these requirements to be incompatible with Article 49 TFEU. As a
consequence, Member States had already removed them to a large extent from
their legislation.

Where such
requirements still existed, Member States have in general repealed them.
However, residence requirements, economic needs tests and the involvement of
competitors in individual decisions still apply in some Member States.

The
obligation imposed on Member States to remove these requirements is precise,
clear and unequivocal.

Where Article 14 violations are identified, they
must be corrected as a matter of priority.

2.1.1.
Prohibition of discriminatory
requirements based on nationality or residence (Article 14(1)

Member States have been active in removing requirements
based on nationality or residence which are clear violations of EU law.

For instance, Spain has removed
nationality and residence requirements for casual trading and the Netherlands for doorstep selling as well as for the inspection of certain heating
installations. Austria has removed a nationality requirement for chimney
sweeps. In Bulgaria, nationality requirements for cartographers and land
registry service providers and for industrial property agents are in the
process of being removed. Poland has removed a residence requirement for
service providers conducting training for drivers transporting hazardous goods.
Romania has removed a nationality requirement for tourist guides.

However, requirements based on nationality
or residence are still applied. This means that a service provider has to be a
national of the country of service provision or be resident in the country to
start a business or, in the case of a company that its registered office has to
be located in the Member State. This also concerns cases where the legislation
requires the service provider, its staff, persons holding the share capital or
members of the provider's management or supervisory bodies to be nationals or
to reside in the Member State.

In the professional services sector,
in Malta and Sweden patent agents must be residents in the
respective Member State.

In the crafts, construction and certification
sector, if a nationality requirement has been removed for chimney sweeps in
Austria, a residence requirement still applies.

In the real estate sector, both
natural and legal persons must have a registered office or place of business in
Cyprus.

In the tourism sector, residence requirements
have been identified in Italy for ski instructors and in Cyprus and Sweden for car rental services. In particular, Cyprus has introduced
this requirement with a new legislation adopted at the end of April 2012.

In the education sector,
discriminatory requirements have also been identified as regards driving
schools in Cyprus and Poland. A residence requirement was
identified in Lithuania for a natural person wishing to provide formal
vocational training.

2.1.2.
Prohibition of requirements limiting the
choice of the service provider between principal and secondary establishment —
Article 14(3)

Requirements limiting the choice of the
service provider have been repealed in certain regions of Austria and of Italy for ski instructors and in France for veterinarians.

However, service providers still face
restrictions as to the type of establishment they want to have in another Member State. This is the case in certain regions of Spain for travel agencies.

In Hungary, the activity of issuing hot meal and holiday vouchers (SZÉP Card) cannot be
pursued by a branch office of a foreign company.

In Romania, in the sector of education, a provider already established in another Member State can only choose to set up a branch but is not able to set up another form of
establishment.

2.1.3.
Prohibition of economic needs tests —
Article 14(5)

Access to an activity cannot be subject to ‘economic
needs tests’. Purely economic needs tests, i.e. tests that make the
granting of an authorisation subject to proof of the existence of an economic
need or market demand, an assessment of the potential or current economic
effects of the activity or an assessment of the appropriateness of the activity
in relation to the economic planning objectives set by the competent authority,
are banned.

The obligation for service providers to
prove the existence of an economic need or market demand, or to assess the
potential or current economic effect of their activity for instance on
competitors, or to assess the appropriateness of the activity in relation to
economic planning objectives, hinders or severely delays the establishment of
newcomers. The economic studies that service providers often have to have carried
out are costly and time-consuming.

These requirements were in force in
national legislation relating to the retail sector.

They have been removed in Belgium, France, Luxembourg, Italy, the Netherlands and most regions of Spain.

The Netherlands have explicitly introduced in their zoning legislation a ban on the application
of economic needs tests.

In France, economic needs tests previously imposed on retail operators in order to be
authorised to open new shops or extend existing ones have been abolished.

However, economic needs tests are still
applied in Romania, Austria, Greece and the Netherlands.

In Romania an economic needs test and the involvement of competitors in the
authorisation procedure are still applied for the opening of large retail
stores (exceeding 1 000 m2). Any applications for setting up large retail sale structures must
be accompanied by a market impact survey.

In Austria, an economic needs test has to be carried out before the relocation of a
tobacco shop can be authorised.

In Greece, the delivery of authorisations for open air casual trading is linked to an
economic test connected with the opinion of a committee involving potential
competitors.

In the Netherlands, economic criteria are applied for the establishment of certain retail
outlets at local level despite a clear prohibition in the zoning legislation.

The absolute prohibition contained in
Article 14(5) of the Services Directive does not concern planning requirements
that serve overriding reasons relating to the public interest. Sometimes these
planning requirements take into account economic data such as demand and supply
figures. The use of economic data and criteria as a means to attain other
objectives, such as the protection of the environment or town and country
planning (e.g. safeguarding of the vitality of city centres) does not constitute
an economic needs test within the meaning of Article 14(5) of the Services
Directive. In those cases, the use of economic data and criteria for the
purpose of serving other reasons in the general interest, such as safeguarding
the vitality of city centres or protecting the environment, can be justified if
the restrictions are necessary and proportionate and the overriding public
interests to be served are not purely economic (that is, they do not protect
existing competitors). Such requirements may have to be examined according to other
relevant provisions of the Services Directive and the Treaty.

2.1.4.
Ban of involvement of competing operators
in the decisions of competent authorities — Article 14(6)

The direct or indirect involvement of
competing operators, including within consultative bodies, in the granting of
individual authorisations or in the adoption of other decisions of the
competent authority is forbidden by Article 14(6) of the Services Directive.
This prohibition does not concern the consultation of organisations, such as
chambers of commerce or social partners, on matters other than individual
applications for authorisations, or the consultation of the public at large.
The involvement of competing operators in an individual decision, for instance
an authorisation, goes against the basic goal of favouring the market entry of
newcomers.

In the retail sector, legislation governing
the setting up of large-scale retail establishments in certain regions of Spain and in France have been amended to remove the involvement of competitors
in decisions concerning individual operators.

In France, competing operators were previously part of local committees granting
authorisations for the opening of retail shops. They have been replaced in such
committees by independent experts.

However this requirement has been
maintained in this sector in Austria, Romania and in Greece.

In Greece the opinion of a committee is required for outdoor casual trading. The
requirement for participation of the Trade association in the authorisation
procedure was abolished, nevertheless other potential competitors, such as the
Federation of professionals and craftsmen of the Prefecture still have to be
involved.

In Romania a ‘socio-economic commission’ has to be involved in the examination
and approval of applications to set up large retail outlets. This commission
includes a representative of the economic operators in the closest neighbourhood
of the large retail outlet to be established.

In Austria, the regional commission of tobacconists, which consists also of competitors
of a service provider, has to be consulted.

In the professional services sector,
competitors are involved in individual decisions in Sweden and in France.

In Sweden, lawyers already established in Sweden have to confirm the good reputation of
candidate lawyers wanting to establish themselves in Sweden.

In France, committees granting authorisation to those organising and managing events
include competitors.

In the crafts, construction and
certification sector, in Germany boards consisting partly of
competing operators still have to confirm to the competent authority that an
applicant structural inspection engineers fulfils all the necessary application
requirements for being authorised.

2.1.5.
Ban of the obligation
to obtain a financial guarantee or insurance from an operator established in
the same Member State — Article 14(7)

This obligation requires service providers
established in one Member State to obtain a financial guarantee or insurance in
the Member State where they want to set up a secondary establishment. This may force
them to duplicate financial guarantees or insurance and could be very costly.

The obligation to obtain financial
guarantees in the Member State of establishment has been removed in Greece for the tourism sector and in numerous sectors in Portugal, such as
professional services, construction, real estate and tourism.

In Greece, in the tourism sector, the obligation to obtain an execution bond from the Public
Deposit and Loans fund or a bank established in Greece has been changed and bonds
issues by banks established in other Member States are equally accepted.

In Portugal, amendments to sector-specific legislation for construction, real estate
and tourism for example, systematically include clauses specifying that the
required insurance for established service providers can also be hired from any
insurance provider in the EEA. The implementation of Article 14(7) of the
Services Directive has also been ensured through the horizontal law.

In the professional services sector an
obligation for accountants, tax advisers and patent attorneys to obtain
insurance from an operator who is authorised to exercise in Austria has been identified.

In the tourism sector, in Cyprus the law provides that for the grant of a licence to establish and
operate a travel agency, a deposit of guarantee by the service provider is
required.

2.1.6.
Ban of the obligation to have been
previously registered or to have previously exercised the activity for a given
period in the same Member State — Article 14(8)

By nature, requiring previous experience
has the effect of hindering newcomers from entering the market.

This requirement has been identified in Greece in the professional services sector and in Hungary in the retail
sector.

In Greece, accountants and architects/engineers are required to have experience in Greece in order to be promoted from one category giving access to a level of activities to
another category giving access to more activities.

In Hungary, one of the conditions regarding the issuance of hot meal and holiday
vouchers (SZÉP Card) consists in the entity having exercised an activity
falling under the same category in the Hungarian Income Tax Law for at least
two years.

2.2.
Requirements subject to evaluation —
Article 15 of the Directive

Member
States had to assess a number of requirements that are frequently present in
national regulations applicable to services. These requirements have been dealt
with by the Court of Justice on numerous occasions. Some were found to be compatible
with the fundamental freedoms, depending on circumstances and sectors, in so
far as they were suitable to pursue valid public interest objectives and proportionate.

Member
States were required to asses those requirements. They could only maintain them
if they concluded that, in spite of their restrictive effects, the requirements
were justified and proportionate. Member States had to report to the Commission
and the other Member States on the results of their assessment.

Very often,
Member States chose to preserve the status quo and did not go for a more ambitious
implementation of the Directive which would have produced greater economic
impact.

The most common requirements maintained by Member
States are the obligation to take a specific legal form, often coupled with
limitations on shareholding, i.e. ownership of shares in companies is
restricted in varying degrees to members of the profession. This concerns in
particular the professional services sector. Quantitative and territorial
restrictions, mainly for retail are also frequent but they generally concern
the sale of very specific products (tobacco, alcohol) or certain types of selling
(casual trading, market stalls, doorstep selling).

2.2.1.
Quantitative and territorial restrictions
— Article 15(2)(a)

Quantitative and territorial restrictions have
been removed or replaced with less restrictive measures in the professional
services sector in France, in the retail sector in Greece and in
the tourism sector in certain regions in Italy (ski schools) and Austria
(ski schools). Restrictions have also been lifted in Spain (petrol
stations).

In France,
the profession of ‘avoué’
(specialised attorneys who were the only ones authorised to submit writs to the
appeals courts), for which quantitative restrictions were imposed, has been merged
with that of lawyer, where no such restrictions exist.

In the retail sector, however with
special reference to the sale of particular goods (mostly alcohol and tobacco)
or to certain types of selling, quantitative or territorial restrictions have
been maintained in Belgium, France, Greece, Hungary, Italy, Luxembourg, the
Netherlands and Spain.

In the tourism sector, requirements
of this kind have been identified in certain regions in Austria (ski guides), in Cyprus (catering) and in certain regions of Italy (ski schools).

2.2.2.
Obligation for the service provider to
take a specific legal form — Article 15(2)(b)

Requirements that service providers take a
specific legal form are serious obstacles to the establishment of service
providers from other Member States. They might be forced to change their legal
form or structure and adapt their business models. There is a wide diversity of
legal form requirements ranging from the obligation to exercise the activity as
a natural person to limitations regarding the legal form available for a legal
person. For example, in certain Member States, lawyers can only exercise as
natural person, in others they can also exercise under professional partnership
while in other Member States the setting up of law firms is possible. In Member
States where law firms are authorised, only certain legal forms may be
available.

Restrictions on legal forms are closely
related to shareholding requirements. For instance, when there is a requirement
that the activity can only be exercised as a natural person or in a partnership
between professionals, this amounts to requiring that 100% of the capital is
owned by the professionals thus excluding non-professional third parties.

Legal form requirements are often but not
exclusively found in the professional services sector where the
implementation of the Directive lead to the removal of legal form requirements,
such as the obligations imposed on providers of certain services to operate as
natural persons or under specific legal forms.

This is the case in Belgium for debt recovery activities, in Denmark for real estate agents and
accountants and in Portugal for real estate agents.

In other Member States, legal form
requirements have been made less stringent.

This is the case in Poland where lawyers and tax advisers may now exercise their activities as a
joint-stock limited partnership while previously they could only exercise them
as natural persons or partnerships. In Germany, architects and engineers
have now a free choice of corporate structure. In France, accountants
can now provide their services under any legal form except as commercial
companies. Changes are pending in Cyprus for architects and
engineers who can only exercise their activities as natural persons. The draft
legislation proposes that these activities can also be exercised as a company limited
by shares. Italy has made requirements less stringent for all regulated
professions: recent reforms make several legal forms available, among which
limited liability companies.

Requirements limiting company structures are
still in place in many Member States for professional services: Austria
(engineers, accountants, patent agents, tax advisers), Belgium (lawyers,
architects, accountants, tax advisers and driving schools), Bulgaria
(lawyers, architects, engineers holding specific company titles), the Czech
Republic (lawyers), Denmark (land surveyors, lawyers), France (lawyers,
veterinarians), Germany (patent agents), Italy (all regulated
professions even though requirements were made less stringent), Malta (architects,
engineers), Poland (lawyers), Portugal (lawyers), Romania (lawyers,
patent agents, mediators, insolvency practitioners, veterinarians), Slovakia
(lawyers, tax advisers, mediators), Slovenia (lawyers and collecting
societies) and the United Kingdom (lawyers).

For example,
in the United Kingdom, advocates in Scotland and barristers
in Nothern Ireland can only operate as sole practitioners, ruling out the
possibility to exercise this activity through partnerships or company
practices.

In Bulgaria, lawyers can only exercise their activity as sole practicioners, in a
partnership or through a law firm composed of lawyers.

In Slovenia, collecting societies must be non-profit organisation.

In the retail sector Italy (itinerant sales) and in the tourism sector Spain and Portugal (travel agents) have abolished such requirements.

In the crafts, construction and
certification sector, an obligation to take a specific legal form  has been
maintained in Austria (chimney sweeps), Bulgaria (maintenance, repair and modification of high-risk equipment) and Italy (crafts).

In the real estate sector, this requirement
applies for land surveyors in Belgium, Denmark, France and Slovakia.

2.2.3.
Requirements relating to the shareholding
of companies — Article 15(2)(c)

Such requirements refer for instance to the
obligation to have specific qualifications in order to hold shares in a
company. There is a wide ranging diversity of shareholding requirements ranging
from 100% capital requirement to be held by a qualified professional to 51% of
capital and/or voting rights to be owned by qualified professionals (leaving
then 49% to third parties, i.e. non-professionals). Sometimes, the capital or
part of the capital may be held by professionals having the same qualifications
or by professionals having related qualifications. For instance, in a law firm,
the capital may be owned by related legal professions.

Shareholding requirements are very often
closely linked to specific legal form requirements.

They are very often applied in the
professional services sector. However, Luxembourg abolished a
shareholding requirement in the craft/construction and certification sector
(before, the qualified person/owner needed to have a majority share).

In the professional services sector,
shareholding requirements have been made less stringent in certain Member
States. Major changes have been made to raise the amount of capital that can be
owned by third parties in companies providing professional services. For instance,
in France the part of the capital which can be held by third parties in
professional partnerships has raised to 49 % from the previous 25%. The same requirement
applies in Spain as regards professionals exercising their activities in
a professional partnership.

However, shareholding requirements still
apply in this sector in Austria (accountants, tax advisors, engineers, patent agents),
Belgium (lawyers, architects, accountants and tax advisors), Bulgaria (lawyers
and designers), Cyprus (lawyers), the Czech Republic (construction
engineers, architects), Denmark (lawyers), Estonia (lawyers), France
(lawyers, accountants, veterinarians, architects,
patent agents, land surveyors), Germany (lawyers, tax advisors, patent agents, architects, engineers), Greece (lawyers, accountants), Italy
(all regulated professions), Lithuania (lawyers),
Luxembourg (lawyers),
Malta (lawyers, accountants, auditors, architects, engineers) , the
Netherlands (lawyers, accountants), Poland (tax advisors and patent
agents), Portugal (lawyers, accountants exercising in a professional
partnership), Romania (lawyers, patent agents,insolvency practitioners),
Slovakia (lawyers, insolvency practitioners, tax advisors, architects,
engineers), Slovenia (lawyers), Spain (all regulated professions
exercising in a professional partnership), Sweden (lawyers, accountants)
and the United Kingdom (lawyers, auditors).

In the United Kingdom, 75 % of the shares in a Legal Disciplinary Practice (LDP) must
be held by legally qualified persons. Furthermore, in Scotland and Northern Ireland, all shareholders of a solicitor’s office are required to be
solicitors.

In Portugal, in professional firms providing legal and accountancy services, 100 %
of the capital must be held by lawyers or the respective professionals.

In Slovenia, only lawyers may be shareholders or owners of law firms.

In the real estate sector, capital requirements
have been identified in France where land surveyors have to hold
51% of the capital of the company.

In the crafts, construction and
certification sector, such requirements have been identified in Italy (crafts) and Portugal (construction).

Minimum capital requirements, i.e. the
obligation to have a minimum amount of capital in order to start a specific
activity (whereas a general minimum shareholding requirement such as for
limited liability companies of any kind does not fall into this category), have
been abolished in the tourism sector, for instance for travel agencies
in Belgium (except for the Flemish region), Ireland, Portugal and
Spain.

2.2.4.
Ban on having more than one establishment
— Article 15(2)(e)

Requirements limiting the provider to only
one establishment in a given Member State are rare. However, in Luxembourg, lawyers can only open one office (‘cabinet’) in the
territory.

2.2.5.
Obligation to apply fixed, minimum or
maximum tariffs — Article 15(2)(g)

Major progress has been made as regards
compulsory tariffs.

Malta
removed compulsory tariffs for all services activities.

Other Member States have removed tariffs
for specific service activities.

For professional services, in Italy and in Greece, fixed tariffs have been abolished by a horizontal law which may
need to be reflected in sector-specific legislation. In Spain professional associations are no longer allowed to set indicative tariffs
(compulsory tariffs had already been abolished). Fixed tariffs have also been
abolished for specific services such as architects’ services in Belgium and partly in Germany, for veterinary services in Romania, for financial
auditors in Bulgaria,

Fixed tariffs have also been removed for
diverse services: employment agency services in Ireland, waste
management services in Belgium, catering services in Hungary, and tourist and mountain guide services in Italy.

By contrast, fixed tariffs have been maintained
in the professional services sector in Bulgaria (lawyers,
architects, engineers in investment design, cartographers and cadastre service
providers, veterinarians), Cyprus (lawyers), Germany
(veterinarians, insolvency administrators, architects, engineers), Poland (lawyers
and patent agents), Slovakia (insolvency administrators), Slovenia
(lawyers, insolvency practitioners) and Sweden (professional housing
agents).

In the tourism sector, compulsory
tariffs have been identified in Cyprus and Italy, mostly in tourism related professions.

In the crafts, construction and
certification sector, in Germany, many expert services,
mainly related to the construction of buildings, have to respect specific
tariffs (‘Sachverständigentarife’).

2.3.
Tacit approval of applications for authorisation
— Article 13(4) of the Directive

Tacit
approval of applications for authorisation, i.e. silence from the
administration means approval, is an important way of cutting red tape as it means
that an authorisation will be deemed to have been granted if an application has
not received any response within a set time period.

Most Member
States have introduced the principle of tacit approval in their horizontal
legislation implementing the Services Directive. However, in order to provide
legal certainty and transparency to service providers, these Member States may have
to modify accordingly sector –specific legislation. Other Member States
have introduced this principle directly in sector specific legislation.

Irrespective
of the way this clause has been implemented; it is important that Member States
ensure that cases where tacit approval does not apply are limited to matters
duly justified by overriding reasons relating to the public interest.

Where Article 13(4) violations are identified,
they must be corrected as a matter of priority.

Tacit approval ensures that silence from
the administration means approval, In order to ensure that authorities have the
time necessary to take a decision, it is for each national legislator to set the
time period needed for examining an application, taking into account the
complexity of the application. In any event, the authorisation procedure must
be processed within a reasonable period. The Directive also allows Member
States to put in place different arrangements than the acceptance of an
application by tacit approval, if this can be justified by overriding reasons relating
to the public interest. However, different arrangements should be the exception
rather than the rule, and should not be applied on a case-by-case basis.

Most Member States have introduced the
principle of tacit approval in their horizontal legislation implementing the
Services Directive. Germany, Portugal, Romania, Slovenia and Spain have provided for tacit approval in other horizontal
legislation (e.g. on general administrative procedures). In some of these
Member States the clause introduced in the horizontal law should prevail over
sector-specific legislation that does not lay down any rules on tacit approval
or unless sector-specific rules contain explicit provisions to the contrary
(e.g. Estonia, Finland, Ireland and Latvia). In Italy, the principle of tacit approval has been set in the laws
regulating the administrative system as a horizontal general principle before
the adoption of the implementing law, which reiterates and confirms it. The
principle has a 'horizontal and national' set of exceptions, and some of them
are set out in special sectoral provisions derogating from the general
principle. The situation is however complicated by the fact that many sectors
fall under the competence of the regions where the principle is not
systematically provided for.

For other Member States the horizontal law
just lays down the principle of tacit approval, which then has to be made applicable
specifically in sector-specific legislation (e.g. Austria, the Czech Republic, Germany, Romania and Slovakia). Luxembourg has introduced in its horizontal law a list of sectors/laws to which the
principle of tacit approval does not apply (e.g. for waste management and the fight
against pollution). In the Netherlands: the law provides that the
decision will take effect on the third day after the deadline for the
administration to take a decision has expired.

Three Member States, namely Denmark, Fr ance and Sweden, have not adopted horizontal rules on tacit
approval and seem to apply the principle only partially or not at all. In Sweden sector-specific legislation has been amended in very few sectors in order to
provide for tacit approval. In Denmark several laws have been identified
where tacit approval does not apply such as in some construction or craft
related activities. In France, there are laws providing for tacit
approval (e.g. registration of travel agents and tour operators, collecting
societies and modelling agencies) but this principle is not imposed in a
systematic way.

2.4.
Nationwide validity of authorisations —
Article 10(4) of the Directive

The
Directive stipulates that the territorial scope of authorisations should extend
to the entire territory of a Member State. This is an important way of cutting
red-tape.

The
nationwide validity of authorisations is particularly relevant for Member
States with decentralised administrative structures. If, in a Member State, the granting of an authorisation for a given activity is within the remit of
regional or local authorities, the Directive does not require Member States to
change this. However, the mere fact that the competence to grant authorisations
lies with local or regional authorities is not in itself a valid reason
justifying a territorial limitation of the validity of the authorisations.

Rather,
once an authorisation has been granted by the competent regional or local
authority (for example of the place where the provider sets up his establishment),
the authorisation will, in principle, have to be recognised by all other
authorities of the Member State.

Member
States must ensure that cases where nationwide validity of authorisations does
not apply are limited to matters duly justified by overriding reasons relating
to the public interest.

Where Article 10(4) violations are identified,
they must be corrected as a matter of priority.

Authorisations that are not granted for the
entire territory of a Member State but only for a specific part are likely to
hinder the exercise of service activities. This is why, as a general principle,
the Directive stipulates that the territorial scope of authorisations should
extend to the entire territory of a Member State. However, Member States may
limit the territorial scope where justified by overriding reasons relating to
the public interest.

This requirement is particularly relevant
for Member States with decentralised administrative structures. The Commission has
therefore examined the implementation of this provision in the six Member
States of the Union with a federal or regional structure.

In Austria and Germany there
is no horizontal rule, but the nationwide validity of authorisations can be
found in sector-specific legislation, which mainly provides for automatic
recognition or the possibility of recognition of authorisations obtained in
another part of the territory.

Italy has expressly
stipulated the nationwide validity of authorisations in the horizontal law
implementing the Services Directive and the principle can also be found in
sector-specific legislation. However, a few provisions where the principle is
not applied have been identified in both national and regional legislation on
tourist guides and travel agencies. In Spain, the horizontal law implementing
the Services Directive also stipulates that the geographic validity of
authorisations can be limited to part of the Spanish territory only for
overriding reasons of public policy, public security, public health or the
protection of the environment. Other overriding reasons relating to the public interest
can, however, be relied on to limit the geographic validity of authorisations
linked to a physical establishment.

In Belgium, the principle of
nationwide validity has been introduced in the horizontal legislation, but does
not seem to be guaranteed throughout the country as an exception to this
principle is allowed for authorisations granted by authorities of the regions,
communities, provinces and municipalities. As a consequence, nationwide validity
only applies if the authorisation is granted by a federal authority. All
regional laws identified limit the scope of the authorisation to their own
territory and no mechanisms have been set up to recognise authorisations issued
in another part of the country.

In the United Kingdom the horizontal
law implementing the Services Directive contains an important exception whereby
the territorial scope of an authorisation issued by an authority whose
functions relate only to parts of the United Kingdom is limited to those parts.

2.5.
Total prohibition of commercial
communications — Article 24 of the
Directive

Providers
need to promote their services in order to access new markets. The Directive
requires that Member States remove all total bans on commercial communications
by regulated professions.

The Court
of Justice has ruled that Article 24 requires Member States to remove total
prohibitions on using one or more forms of commercial communication such as
advertising, direct marketing or sponsorship. However, Member States retain the
right to lay down targeted prohibitions related to the content or method of a
form of commercial communication provided that they are justified and
proportionate for the purpose of ensuring the independence, dignity and
integrity of the profession, as well as professional secrecy.

In the
light of the interpretation given by the Court of Justice, where a total ban on
a form of commercial communication is identified, it must be corrected as a
matter of priority.

Member States had to remove all total bans
on commercial communications by regulated professions, while at the same time
ensuring that commercial communications are compliant with the independence and
integrity of the professionals. Commercial communication within the meaning of
the Directive covers any form of communication designed to promote, directly or
indirectly, the goods, services or image of an undertaking, organisation or
person engaged in commercial, industrial or craft activity or practising a
regulated profession.

The Court of Justice  has ruled, in its first
judgment on a provision of the Services Directive (Case C-119/09), that Article
24 of the Directive precludes national legislation which totally prohibits the
members of a regulated profession, such as qualified accountants, from engaging
in canvassing. According to the Court, Article 24 requires Member States to
remove total prohibitions on using one or more forms of commercial
communication such as advertising, direct marketing or sponsorship. However,
Member States retain the right to lay down targeted prohibitions related to the
content or method of a form of commercial communication provided that they are
justified and proportionate for the purpose of ensuring the independence,
dignity and integrity of the profession, as well as professional secrecy.

Most Member States have adopted measures to
implement these obligations, mainly by implementing Article 24 in their
horizontal law.

In ten Member States questions concerning
compliance of the national legislation were identified. In nine of these Member
States, compliance issues concern the legal profession (Bulgaria, Cyprus, Estonia, Greece, France, Ireland, Lithuania, Portugal and the
United Kingdom), and three Member States have maintained restrictions on commercial
communications by veterinarians (Cyprus, France and Portugal). Furthermore, restrictions have been identified in Cyprus regarding
commercial communications by engineers, in France regarding the
accounting sector and in Germany in one Land regarding surveyors.

3.
Boosting
cross-border trade — Freedom to provide services clause

3.1.
Introduction

The freedom
to provide services clause contained in Article 16 of the Services Directive
ensures free access to and free exercise of a service activity in the territory
of a Member State for providers established in another Member State. This means that national requirements should not be applied to them unless they are
non-discriminatory, justified for reasons of public policy, public security,
public health or the protection of the environment and proportionate. Article
17 of the Services Directive contains a list of derogations from Article 16.

The vast
majority of Member States decided to implement the freedom to provide services
clause in a horizontal law and to amend sector-specific legislation, while some
Member States chose to implement it through sector-specific legislation only.

In Member
States that have opted for horizontal legislation to implement the Services
Directive, sector-specific legislation would, as a general rule, seem to
prevail over the horizontal implementing law. In order to provide legal
certainty and transparency to service providers, these Member States have to modify
accordingly sector –specific legislation. Most Member States have already
adopted or are in the process of adopting such amendments.

Irrespective
of the way the freedom to provide services has been implemented, there is a
need to ensure that the legal framework is adapted to facilitate cross-border
service provision and that there is legal certainty as to which requirements
apply to service providers who are established in another Member State and want
to provide cross-border services. This requires in particular that all relevant
service sectors have been addressed and barriers removed. .

The implementation of the freedom to provide
services clause is on-going with Member States still amending sector specific
legislation. Member States have, in general, taken a conservative approach to
the implementation of the freedom to provide services clause. Service providers
are often uncertain about the rules applicable to them or are required to
comply with virtually all the legislation of the Member State where they wish
to provide their services. The Directive would have a much greater economic
impact if the freedom to provide services is used to its full extent.

3.2.
Implementation of the freedom to provide
services clause by Member States

Member States can be grouped into two
categories depending on how they chose to implement the freedom to provide
services clause:

·
Member States that have introduced a freedom to
provide services clause in a horizontal law: Belgium (Walloon region and
Brussels Capital region), Bulgaria, Cyprus, the Czech
Republic, Denmark, Estonia, Finland, Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Luxembourg, Malta, Poland, Portugal, Romania, Slovakia, Slovenia,
Spain, Sweden and the United Kingdom.

·
Member States that have not introduced a freedom
to provide services clause in a horizontal law and chose to implement it through
changes to sector-specific legislation only: Austria, Belgium (Flemish region), France, Germany and the Netherlands.

3.3.
Issues arising from the implementation of
Article 16 of the Directive

3.3.1.
Member States that have introduced a
freedom to provide services clause in their horizontal law

The vast majority of Member States chose to
implement the freedom to provide services clause through horizontal
legislation.

In most cases, they copied almost literally
the text of Article 16, including the four overriding reasons relating to the
public interest that could justify imposing national requirements on
cross-border service providers: public policy, public security, public health
and the protection of the environment, and the principle of proportionality.

However, some Member States added public
interest objectives to the four ones listed in Article 16 or used different
terminology to implement Article 16. For example, Sweden added animal
protection to the four overriding reasons relating to the public interest. In
some Member States, the proportionality test is not explicitly mentioned (Hungary, Malta, Poland and Slovakia).

A horizontal clause is a positive signal
regarding the commitment of national authorities of the Member State concerned to give full effect to the principle of freedom to provide services and a clear
point of reference for the authorities and courts applying and enforcing
national law. While the Commission encouraged Member States to implement the
freedom to provide services clause through horizontal legislation, it likewise pointed
out to Member States that they may also need to adapt sector-specific
legislation to avoid conflicting national measures. Sector-specific legislation
should distinguish between requirements applicable to service providers wishing
to establish and those applicable to service providers not wishing to establish
in the host Member State.

The information available to the Commission
regarding national implementation confirms that in Member States
sector-specific legislation would generally prevail over the free movement
clause introduced by the horizontal law. In practice this means that, unless
sector-specific legislation is expressly amended, the free movement clause
would not be effective and cross-border service providers would, in principle, have
to comply with the same requirements as providers wishing to establish.

For instance in Italy, while
implementation at national level is satisfactory on the whole, most of the
legislation regulating economic activities lies within the competence of the
regions, and no specific provision for cross-border services has been
introduced by the regions. In many other Member States, legislation does not
always, if at all, state which requirements apply to service providers wishing
to become established and which to those wishing to operate on a cross-border
basis (e.g. in Bulgaria, Finland, Ireland, Latvia, Poland,
Romania, Slovenia and Sweden).

Some Member States have issued guidelines
on implementation at national level for their competent authorities (Sweden and the United Kingdom). However, it would seem that as a general rule it would
be difficult if not impossible for competent authorities to use the freedom to
provide services clause to set aside a conflicting legal provision in sector-specific
legislation. The final say on such matters would in general seem to rest with
the courts.

Other Member States decided to strengthen
the horizontal freedom to provide services clause by explicitly providing for
the horizontal clause to take precedence if sector-specific legislation conflicts
with it (Belgium (Walloon region and Brussels Capital region), the Czech Republic, Hungary, Malta, Portugal and Spain).

This approach is meant to ensure that an
administrative authority would be entitled to give priority to the freedom to
provide services clause over the conflicting rule unless otherwise stipulated in
the sector-specific legislation. In Belgium and the Czech Republic, guidelines to explain this mechanism have been issued.

However, to date there is no information
about the practical application of such a legal framework and some doubts
remain as to the effects of the power conferred on national authorities not to
apply a piece of national legislation on a case-by-case basis. Additionally, this
rather complex situation raises issues of transparency and legal certainty.
Again, it appears that a final decision as to whether a measure is justified or
proportionate could only be taken in a judicial procedure.

In order to address this problem of possible
conflict within a national legal order, most Member States, in parallel with
the horizontal clause, have adopted ‘omnibus’ laws amending sector-specific
legislation. Usually for activities within their scope these sector laws
distinguish between the requirements applicable to service providers wishing to
establish themselves and those providing cross-border services.

For example, Greece expressly stipulates
that cross-border providers of tourism services are not subject to the
authorisation required for established providers but to a declaration
requirement. In the Czech Republic and Malta cross-border
providers no longer have to obtain a trade licence. In the craft, construction
and certification sector Bulgaria, Estonia and Luxembourg have replaced authorisation schemes with notification or declaration
schemes for service providers from other Member States. Portugal is in the process of undertaking a major reform of all its sector-specific
legislation to specifically distinguish establishment requirements from those
imposed on cross-border service providers

3.3.2.
Member States that have implemented the
freedom to provide services clause exclusively through changes in
sector-specific legislation

The approach of implementing Article 16 solely
through changes in sector-specific legislation means that Member States had to
assess all relevant sector-specific legislation to decide whether the
requirements imposed on cross-border service providers were justified by one of
the public interest reasons set out in Article 16 and were proportionate.

As indicated above, a horizontal clause
does not by itself provide the required legal certainty. However, a purely
sector-based approach risks leaving unaddressed sector specific legislation, and
conflicting rules.

3.4.
Rules on future legislation —
Article 39(5) of the Directive

The Services Directive includes rules to
safeguard service providers’ rights in the future. Member States must
notify the Commission of requirements they intend to impose on cross-border
service providers and justify them under the four reasons stated in Article 16
and ensure that these requirements are proportionate. The Commission
communicates them to the other Member States.

This obligation is a constant reminder that
new legislation should not impose unjustified or disproportionate requirements
on cross-border service providers and should ensure the long-lasting effect of
the free movement principle.

Bulgaria, France, the Netherlands and Lithuania have adopted internal rules on
legislative drafting, which require the government bodies when drafting new
legislative proposals to ensure that new proposals comply with the freedom to
provide services clause

3.5.
Use of derogations provided for in
Article 17 of the Directive

Some Member States seem to have made broad
use of the derogations from Article 16 allowed by Article 17 in relation either
to specific services, such as services of general economic interest, or to
matters covered by other EU law instruments, such as Directive on the
recognition of professional qualifications (2005/36/EC) or the Statutory Audit
Directive (2006/43/EC).

Bulgaria has
excluded from the application of Article 16 all matters relating to financial
audit and services provided by persons with recognised qualifications, Slovakia has excluded all the services provided by auditors as well as services involving the
verification of measuring instruments, and Romania has excluded
architects and veterinarians. Sweden and Denmark have adopted a
broad interpretation of the derogation referring to intellectual property
rights by excluding from the scope of Article 16 a number of services related
to the management of intellectual property rights such as the services of
patent agents in Sweden or those of collective management societies in Denmark and Sweden.

3.6.
Imposing specific requirements listed in
Article 16(2) on cross-border service providers

The
examples of requirements listed in Article 16(2) have already been found
incompatible with the freedom to provide services by the Court of Justice in a
number of cases.

Member
States have made considerable efforts to abolish or replace these requirements with
less restrictive measures. However, obstacles to the freedom to provide services
still apply to many service activities.

Article
16(2) a) of the Directive prevents a Member State from requiring a service
providers to be established in its territory to provide a service. Such a
requirement makes cross-border provision of services impossible. This
requirement has a similar effect to the condition to be a national or a
resident of the Member State concerned prohibited by Article 14(1). Where an
obligation to have an establishment in the territory where the service is
provided is identified, it must be adressed as a matter of priority.

The most
common requirements imposed on cross-border service providers are authorisation
schemes. Horizontal authorisation schemes have been considerably reduced.
However, many sector-specific authorisation requirements still apply to a broad
range of services.

Notification and declaration requirements are in
general less restrictive than authorisation procedures. However, depending on
whether they have to be made prior to the actual service provision and on the
documentation to be provided, they may be as burdensome as an authorisation
requirement. In some Member States, general notification systems applying to
all cross-border service providers exist.

The following sections focus on two
requirements identified in Article 16(2), establishment requirements and authorisation
schemes.

3.6.1.
Obligation to have an establishment in
the territory of the Member State where the service is provided
— Article 16(2)(a)

Requiring service providers to be
established in the country before they can provide a service negates the
freedom to provide services. Where this obligation is identified, it must be adressed
as a matter of priority.

Major changes have been made by Portugal and Sweden, which have abolished cross-cutting obligations to be established
before being able to provide services.

Specific establishment requirements have
also been abolished in the craft/construction and certification sector
in Austria, Germany, Lithuania and Spain, in the professional
services sector in Greece (lawyers and law firms do not need to be
established any longer  in the seat of the Courts of Appeal where they want to
operate) and in the tourism sector for travel agencies in Belgium
(Flemish region), Slovenia and Spain.

Nevertheless, establishment requirements
continue to exist:

- in the professional services sector
in Belgium (driving instructors and collecting societies which need to
have a subsidiary in Belgium), Cyprus and Romania (for a broad range of
regulated professions), Lithuania and Slovakia (insolvency
administrators) and Sweden (patent agents).

In Cyprus and Romania, this requirement applies to a broad range of regulated
professions such as legal advisers, tax advisers and patent agents. In Slovakia and Lithuania it applies to insolvency administrators and in Sweden to patent agents;

- in the crafts, construction and
certification sector in Austria, the Netherlands, Romania (services involving certain equipment) and Slovenia (chimney sweeps).

In Austria and Slovenia, this requirement applies to chimney sweeps while in the Netherlands it applies to certification organisations and testing laboratories
performing certain tasks;

- in the real estate sector in Finland and Lithuania.

In Finland registration to provide real estate services can only be obtained by service
providers who have a registered branch in Finland.

In Lithuania property assessment services have to be carried out by entities that are
established in Lithuania. For the registration of an entity in Lithuania the same package of documents must be submitted for cross-border service
provision as for establishment;

- in the retail sector in Ireland, Hungary (issuance of meal vouchers), Lithuania (sale of alcohol
and tobacco) and Romania.

In Romania there is a general requirement that legal persons involved in retail must be
established in the country.

- in the tourism sector in Belgium (Walloon region — travel agents), Bulgaria (tour operator and tourist
agents), Portugal (car rental), Romania (travel agencies) and Sweden. However, it seems that this requirement is in the process of being amended in
Bulgaria, Portugal and Sweden.

In Sweden, a responsible person domiciled in Sweden must be appointed for car rental services.

3.6.2.
Obligation to obtain an authorisation,
including entry in a register or registration with a professional body or
association — Article 16(2)(b)

The obligation to be authorised is still
the most common one imposed on cross-border service providers. It is very
disruptive as it delays the start of service provision. Registration,
notification or declaration schemes or the obligation to hold a special ID
document are in general less restrictive but may amount to an authorisation
scheme depending on whether the requirements have to be fulfilled before
providing the service and the documentation required.

The prior declaration provided for under Title
II of the Professional Qualification Directive is not addressed under this
section since matters covered by Title II of that Directive are excluded from
the application of Article 16 of the Services Directive.

- Notification and declaration schemes

As a result of the implementation of the
Services Directive horizontal notification schemes, applicable to a whole range
of services, have been repealed in Germany and in Luxembourg.

Germany repealed its cross-cutting notification obligation for all service
providers. Luxembourg amended its legislation so that the previous broad
notification system applicable to all kinds of services, including
construction, is henceforth limited to professional services.

However, horizontal notification requirements
are still imposed on cross-border providers.

A horizontal
notification system requiring all self-employed service providers to notify the
national authorities before actually starting to provide the service has been
maintained in Belgium and is currently under scrutiny by the Court of
Justice (case C-577/10).

A similar
system has been introduced in Denmark after the implementation of the Services Directive.

- Authorisation schemes

The implementation of the Services
Directive has resulted in a reduction in the number of horizontal authorisation
schemes applicable to cross-border service providers, i.e. those which made the
exercise of a range of service activities subject to obtaining a licence. This
is the case in Belgium, the Czech Republic, Malta, Poland, Slovenia and Sweden.

In many cases, horizontal authorisation
schemes have been replaced by sector-specific notification or declaration
schemes as regards cross-border service providers. In these countries, a
distinction is made between the requirements applicable in an establishment
scenario and in a cross-border one.

In the construction, crafts and
certification sector in Belgium, Cyprus and Spain, authorisation requirements have been lifted for cross-border service
providers regarding certain specific activities. Bulgaria, Estonia, Luxembourg and Spain replaced authorisation schemes by notification or declaration
schemes for service providers from other Member States. Portugal is in the process of undertaking a major reform of all its sector-specific
legislation to specifically distinguish establishment requirements from those
imposed on cross-border service providers.

In the real estate sector
authorisations have been abolished in Germany for cross-border real
estate agents. In Slovenia, following the implementation of the Services
Directive, the cross-border providers of real estate
agency services do not have to be licensed.

In the retail sector, in the Czech Republic and Malta cross-border providers no longer have to obtain
a trade license. Luxembourg has amended its legislation to exempt cross-border
trade activities and in particular most retailers from registration or any
administrative authorisations to be granted by Luxembourg authorities. Germany has abolished an authorisation requirement for casual traders from other
Member States.

In the tourism sector, authorisation
requirements have been lifted in Belgium (Brussels Capital region),
France and Spain for travel agencies, Malta for tourist
guides and Portugal for car rental activities (in the process of being amended).
In Greece the legislation expressly states that cross-border providers
of tourism services are not subject to the authorisation required for
established providers but to a declaration requirement.

Greece has
abolished an authorisation requirement for employment agencies.

However, sector-specific authorisation
schemes have also been maintained.

In the professional services sector,
Article 16 of the Services Directive applies in addition to Title II of the
Professional Qualifications Directive. In accordance with that Directive,
Member States may require a prior annual declaration to and pro forma registration
with the competent professional organisation or body. However, authorisation
schemes can be found in Belgium (driving schools need a separate
authorisation for their operation, management personnel, teaching personnel and
location), Bulgaria (cadastre engineers, architects and engineers in
investment design), the Czech Republic (lawyers), Finland (registration
obligation for patent agents), Greece (engineers and lawyers), Romania
(legal advisers, architects, tax advisers and patent agents) and Slovakia
(architects and patent agents).

In France the cross-border provision of services by veterinarians as civil companies is
made subject to the acceptance of the statutes by the Veterinarian Order.

In the crafts, construction and
certification sector, authorisation schemes for various activities apply in
many Member States.

In Germany, many authorisation schemes have been abolished, modified or replaced under the
condition that the cross-border service provider possesses an equivalent
authorisation granted by another Member State. However, depending on how the
equivalence requirement is applied in practice and verified by the competent authority,
this may amount to an authorisation procedure.

In Bulgaria, providers carrying out technical supervision of high-risk equipment are
subject to licensing, while providers who carry out services on maintenance,
repair and modification of such equipment are subject to registration.

In Romania, authorisation and special registration requirements must be fulfilled for
authorised electricians, specialised technical staff, energy auditors,
designers.

In Portugal, an authorisation for cross-border service providers in the construction
sector has been simplified but maintained. It is in the process of further
revision.

In Slovenia, a craft permit is required by law but reported as not being requested in
practice. Authorisations schemes are in place for cross-border experts or
certifiers in environment (verification of environment reports), certification
and testing of fire protection systems, control and supervision of heating
system, certification and testing of technical equipment for spraying
pesticides, testing and analysis of plant protection products and analysers of
seed quality.

In the real estate sector,
authorisation schemes apply to cross-border service providers in Belgium (real estate agent), Bulgaria (providers of independent appraisal
cartography and land registry services), Denmark, Latvia (real estate valuers) and Slovakia (surveying/cartography
services). In Portugal, an authorisation scheme for real estate agents has
been replaced by notification, which is currently in the process of being further
reviewed.

In Denmark, cross-border land surveyors have to be registered.

In Bulgaria, providers of cartography and cadastre services must be registered. This
applies in addition to the nationality requirement in force for these
professions.

In the retail sector, such
requirements are applied in all Member States. These authorisation schemes
often apply to particular types of selling (casual trading, market stalls and
in some cases doorstep selling). Authorisations for market stalls aim to ensure
equal access to a stall (when their number is limited) for all providers —
those established in the Member State where the market takes place and those
established outside.

In Spain a municipal authorisation is required to start any activity concerning casual trading
(which can only take place in limited space designed for that purpose and to
which equal access needs to be ensured). In Bulgaria, due to the absence of distinction between establishment and cross-border
provision of services, authorisation schemes and registration requirements
applicable to established providers seem to be
also applied to cross-border providers.

In the tourism sector, authorisation
schemes exist in many Member States.

In Latvia and Poland cross-border tourist agents and operators need to be registered in
specific databases and in Estonia they need to be entered in the
commercial activities register. In Ireland cross-border tour operators
and travel agents have to hold a licence and are required to meet certain
capital thresholds and to take out a bond to cover them in the event that the
business is unable to meet contractual and financial obligations as soon as the
activity originates in Ireland. In Slovenia,
authorisation schemes are in place for all travel agencies, tour operators,
tourist guides (except for tourist guides which accompany tourist groups from
abroad) and for providers of sport activities for tourists. In the Netherlands, an authorisation is needed for all tours with motor vehicles or for
foreshore walking including when they are provided across borders.

3.6.3.
Obligation to obtain a special ID
document — Article 16(2)(e)

This requirement refers to the need to be issued
with a special identification document by the competent authorities of the host
Member State in order to be able to provide cross-border services. Depending
on the documentation required from the service provider to obtain such special
ID document, this requirement may amount to an authorisation scheme.

This
requirement has been lifted in France for real estate agents, who are no
longer required to hold a special ID card following an amendment to the
specific legislation.

This requirement does not appear to be very
common. However, it has been maintained in some Member States and in particular
in the crafts, construction and certification and tourism sectors.

In the crafts, construction and
certification sector, Germany requires inspectors of specific
buildings to have a specific identity card. In Romania, for some
activities in this service sector, the providers must present a specific
identification card and a special stamp (this obligation applies to
electricians, operators responsible for technical supervision and verification
for the use of installations/equipment, energy auditors for buildings,
specialists, experts and technical auditors in the field of the protection of
historic monuments).

In the tourism sector in Austria, Greece, Poland, Romania and certain regions in Italy and Spain, special ID cards are required for travel guides or tour guides. Very
often these cards have to be worn visibly while on duty.

In Greece, tourist guides need to hold a professional identity card when they
are pursuing their professional activity and to show it upon any conducted
control.

Chapter
IV — Summary of the analysis of the implementation of the Services
Directive per Member State

The assessment of the implementation in
each Member State is based on the information notified to the Commission
according to article 39 of the Directive, the results of the Mutual Evaluation
process[29]
and the studies[30]
that were carried out for the Commission.

This analysis does not prejudge the
assessment of the compatibility of other national rules with the Services
Directive or the Treaty.

   AUSTRIA

Austria adopted the last measures for the
implementation of the Services Directive in January 2012. A total of 52 measures
have been communicated to the Commission, some of them so called ‘omnibus
laws’ amending several sector specific laws.

However, despite great efforts undertaken in particular by the
Länder, the following concerns have been identified and must be addressed as a
matter of priority:

·
First of all, prohibited requirements like
establishment and seat requirements in the craft sector (chimney sweeps) need to
be addressed as well as an obligation for accountants, public accountants, tax
advisors and patent attorneys to obtain financial guarantees from operators
authorised to exercise in Austria.

·
Tacit approval of authorisations is foreseen in sector specific legislation, but not in the
horizontal acts implementing the Services Directive which contain a so called 'opt-in'-provision
to which sector specific legislation can refer. Although in many cases tacit
approval was introduced well before the adoption of the Services Directive, Austria has to make sure the instances in which tacit approval is not applied are limited
to duly justified matters.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures that raise
doubts of compatibility with Article 15 have been maintained. For instance
legal form and shareholding requirements exist for civil engineers,
accountants, patent attorneys and tax advisors and a legal form requirement
remains for chimney sweeps. Special attention will have to be paid to the fact
that certain requirements concerning mountain guides and ski schools have been
abolished in some of the Länder, but maintained and justified in others.

Concerning the cross-border provision of services, a wide
range of sector-specific amendments have been adopted in order to implement the
Directive. However, several remaining requirements hindering free provision of
services have been identified both at federal and at Länder level. This
concerns obligations to have an identity card issued by the authority in the
tourism sector for mountain, ski and cave guides, and authorisation
requirements with regard to the certification of construction products. Certain
requirements, like authorisation requirements for ski schools or mountain
guides have been abolished in some of the Länder, but maintained and justified
in others.

The Austrian Point of Single Contact (PSC) is
relatively well established. However the information provided is not very
clearly presented which makes it difficult to use for non-nationals. Language
support is currently very limited but a clear commitment exists to improve this
in the near future. Online completion of procedures is well developed,
including across borders where no technical obstacles exist, since neither
e-identification nor e-signature are required. Improvements should be made
above all to increase the clarity of information, to distinguish between
establishment and cross-border provision of services and to extend the
availability of other languages than German.

   BELGIUM

In Belgium, transposition led to a considerable number of
modifications in national laws as around 65 national measures were adopted
in order to implement the Services Directive.

Despite the efforts made, the following concerns
have been identified and must be addressed as a matter of priority:

·
Prohibited establishment requirements were maintained, namely for travel agencies who must have
premises that are publicly accessible (in Wallonia) as well as for driving
schools and collecting societies who must have an office in the territory.
These should be eliminated.

·
Although the different horizontal laws contain
provisions on the principle of tacit approval of authorisations, it does
not apply as a general rule but only in cases specified in sector specific
legislation. Belgium should ensure that the instances in which article 13(4) of
the Services Directive is not applied are limited to duly justified matters.

·
The obligation concerning the nationwide
validity of authorisations as laid down in article 10(4) of the Directive
has not been correctly implemented. This principle is only guaranteed for authorisations
that are governed by federal legislation while regional authorisations are in
general limited to the territory of the region. There are no mechanisms
foreseen to recognise authorisations issued in other parts of the country. This
situation should be corrected.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, a number of cases that
raise doubts of compatibility with article 15 of the Directive exist. For
instance, an obligation for real estate agents/surveyors, driving schools and
accountants/tax advisors to take a specific legal form as well as shareholding
requirements for lawyers, architects, accountants /tax advisors have been
maintained. These should be re-examined.

In general, Belgian legislation makes a
distinction between cross-border provision of services and
establishment. Some authorisation requirements for national providers are also
applied to cross-border service providers. It appears that they need to
register in the ‘Banque Carrefour des entreprises’ if they
have to file an application for an authorisation. Authorisations applied to
incoming service providers concern the activity of butchers, travel agents,
real estate agents and driving schools. In addition, a horizontal prior
notification (‘Limosa’) is required from all service
providers for commercial, crafts and liberal activities wishing to exercise
under free movement of services. In so far as this entails a general obligation
for self-employed persons, a case about the legality of this notification duty
is pending before the Court of Justice of the European Union.

The Point of Single
Contact (PSC) is relatively well established and
overall provision of information is good. Improvements
could however be made concerning the level of availability of information and
the degree of user friendliness. Online completion of procedures needs to be
enhanced and integration between the central portal and the 9 decentralised
business counters has to be improved.

   BULGARIA

Bulgaria implemented the Services Directive by
adopting a horizontal law which contained some amendments to specific legislation.
The Service Activities Act entered into force on 23 February 2010. The Act
includes some amendments to specific legislation such as the Tourism Act, the
Spatial Planning Act, the Chamber of Builders Act, the Chambers of Architects
and Engineers involved in Investment Design Act, the Energy Efficiency Act, the
Crafts Act and the Consumer Protection Act.

However, despite efforts undertaken to adopt the implementing
measures a number of restrictions still remain. A limited number of
sector-specific legislation has been amended in the context of the
implementation of the Directive and the horizontal law has no precedence over
sector specific laws in case of conflict.

The following concerns have been identified and must be addressed as
matter of priority:

·
Some prohibited discriminatory requirements
have been maintained, namely nationality requirements for industrial property
representatives, cadastre service providers and cartographers, as well as a
residence requirement for industrial property representatives.

·
Contrary to Article 24 of the Services
Directive, a total prohibition of some forms of commercial communication
remains for lawyers.

·
Tacit approval of
authorisations has not always been introduced in sector specific legislation,
but only in the horizontal implementing law. The relationship with
sector-specific laws is unclear.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures have been
maintained which should be reassessed. For instance, legal form and
shareholding requirements have been identified for lawyers, as only lawyers can
form partnerships or law firms. Fixed minimum tariffs are in force for lawyers,
architects, engineers in investment design, cartographers and cadastre service
providers.

Concerning the cross-border provision of services, in the
absence of a clear distinction in the sector-specific legislation between
requirements applicable to establishment cases and those applicable to
cross-border providers, it seems that authorisation requirements for domestic
providers are also applied to incoming service providers. A clear distinction
should be ensured in all sector-specific legislation.

As a result of bilateral meetings between the Commission and the
Bulgarian authorities, several draft laws are being prepared to amend
sector-specific legislation. They should be adopted by the National Assembly of
Bulgaria by the end of 2012.

The Bulgarian Point of Single Contact (PSC) mainly acts as a
signpost, providing information about administrative requirements and referring
users to the websites of competent authorities providing information on only a
limited number of procedures. Electronic completion needs to be significantly
improved. It is currently possible for a

limited number of procedures through the websites of the responsible
authorities (linked to the PSC portal). Improvements should be made concerning
the possibility to complete online procedures (notably to ensure the
recognition of e-signatures from other Member States), concerning the clarity
of information (distinction between establishment and cross-border provision of
services) and with regard to the availability of other languages than
Bulgarian.

   CYPRUS

Cyprus transposed the
Services Directive mainly by way of a horizontal law. Additionally, a
number of sector-specific amending laws and regulations are still pending
before the Parliament, for professional services (architects, engineers), for
the retail and for the tourism sector (tourist guides, tourist agencies). The
majority of amendments in sector specific legislation are mainly for the
purposes of safeguarding coherence with the horizontal law and providing for
exceptions, where this is justified, to the rules imposed by the Horizontal
Law. Serious concerns have been expressed by the Commission services with
regard to the length of adoption procedures.

The following concerns have been identified and must
be addressed as a matter of priority:

·
Prohibited residence requirements apply to real estate services and to opticians. These requirements
should be eliminated.

·
Contrary to Article 24 of the Services
Directive, a total prohibition of some forms of commercial communication
remains for lawyers and veterinarians.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures have been
identified, namely, legal form requirements for architects and engineers as
well as minimum tariffs for lawyers and fixed tariffs for tourist guides. These
requirements should be re-examined.

Concerning the cross-border provision of
services, it seems that the same authorisation requirements apply as for
establishment purposes. However, no authorisation requirement applies where the
relevant profession is also regulated in the Member State of establishment, for
example in case of architects and tourist guides.

The Cypriot Point of Single Contact (PSC)
provides a good level of information on procedures and formalities and the
portal is well structured. The PSC allows for the online submission of
application forms as well as the tracking of on-going procedures for some procedures
and formalities, including for horizontal procedures and temporary cross border
provision of services. The use of official e-IDs and qualified e-Signatures
issued in a number of other Member States is currently supported, but as e-IDs
are not yet issued in Cyprus, the option of using this system is not open to
Cypriot nationals. Further improvements are necessary to enhance access to
online procedures.

   CZECH REPUBLIC

The Czech Republic implemented the Services Directive through two
legislative acts: a horizontal framework law and an omnibus law amending
numerous sector-specific laws, mainly in order to introduce the concept of
tacit approval. The article on the freedom to provide services has been
implemented both in the horizontal law and in sector-specific legislation.

The review of the national legislation revealed that no prohibited
requirements existed in the Czech legislation. However, the following concerns
have been identified and must be addressed as a matter of priority:

·
Tacit approval of
authorisations is foreseen in the horizontal law implementing the Services
Directive. Furthermore, an omnibus law was adopted which amended numerous
sector-specific laws in order to include the concept of tacit approval. Areas
in which no tacit approval exists include the authorisation of those involved
in the restoration of historical monuments and operators of zoos. The Czech Republic has to ensure that the derogations to tacit approval are applied only in
duly justified cases.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory environment for the establishment of providers, some measures have been identified that raise doubts as to their
compatibility with Article 15 of the Directive. These concern specific legal
form requirements for lawyers and shareholding requirements for construction
engineers and architects. These requirements need to be re-examined.

Concerning the cross-border
provision of services, several remaining
requirements hindering free provision of services have been identified. Restrictions
exist on the service provision of lawyers with regard to real estate transfers
and the verification of signatures. Prior authorisation is required for land
surveyors (those responsible for the verification of survey outcomes) and
persons handling raw diamonds.

The Czech Point of Single Contact (PSC) was launched in
January 2010, and integrated into an existing government-funded portal. The PSC
rates highly in terms of the availability and quality of information provided.
It features a large number of the relevant procedures, and online forms which
are used as central access points to provide information for a variety of
purposes such as application for a business license and application for VAT and
income tax registration. In terms of language accessibility, the PSC makes some
information available in English, but this is not the same content as the
information available in Czech. Potential areas for improvement include a
clearer structure of the site, providing online support tools, increasing the
number of procedures that can be completed online through the acceptance of
e-signatures, and increasing the amount of information available in other
languages.

   DENMARK

Denmark transposed the Services Directive within
the transposition deadline. Denmark was the first Member State to adopt a horizontal
law for the transposition of the Services Directive (Law No 384 of 25 May
2009 on services in the internal market).

Denmark also amended a significant number of provisions
in several sectoral laws, such as the Law on the sale of real estate, the
Law on electricians, the Law on gas installation, the Law on trade, the Law on
maritime training, Law on professional diving activity and diving equipment,
the Law on copyright and the Law on marketing. These amendments resulted mostly
in the elimination and simplification of authorisation schemes. A legal
form requirement that was deemed to be unjustified was eliminated in the real
estate sector.

Despite the instances where simplification has been introduced, the
following concerns have been identified and must be addressed as a matter of
priority:

·  There is no general rule in Denmark which lays down the tacit
approval as a general principle for authorisation schemes. Examples of the
non-application of this principle (which allows for exceptions when justified
by overriding reasons and proportionate) have been identified mostly in the
areas of construction and real estate. The principle of general application of
tacit approval should be laid down and derogations limited to duly justified
cases

· Some restrictions in the services sector still remain for
cross-border service providers further to the implementation of the
Services Directive. These restrictions consist mainly of a general
cross-cutting notification obligation for any service provider from another Member State and in authorisation schemes which are applied to cross-border service
providers in the areas of construction and crafts and collective
rights management. These requirements need to be re-examined.

Denmark has an established and well-functioning
Point of Single Contact (PSC). The portal provides comprehensive information
on requirements, allows for a personalised approach and provides for a variety
of search functions. An entirely English version portal is available for
foreign users. Online completion of procedures is very well covered with a more
sophisticated approach for nationals and a simplified and user-friendly mode
for cross-border users. Some further improvements could be made for user
guidance and assistance.

   ESTONIA

Estonia has transposed
the Services Directive on time, via a horizontal law — the European Union
Services Directive Implementation Act, passed on 10 December 2009. A number of
sectoral laws have been modified with this Act (around 10 legal acts). The
amendments mostly simplify temporary service provision for service providers
who are legally established in another Member State.

Despite efforts undertaken, the following
concerns have been identified and must be addressed as a matter of priority:

· A total prohibition of commercial communications has been identified
for lawyers that should be eliminated.

· Concerning cross-border trade, the main requirement applied in
sectors which are subject to specific requirements, is a registration
requirement. In a number of laws this requirement has been replaced with a
notification procedure for cases of cross-border service provision (mostly in
construction sector related activities). However the registration requirement
for trade activities (covering retail, wholesale, and some personal services)
remains and should be re-examined. A more general concern is the lack of
clarity and legal certainty for sectoral laws where it is not explicitly stated
whether the relevant requirements are also applicable in cases of cross-border
service provision or not. New legislation is currently being prepared on all
economic activities (Specific Part of the Economic Activities Code), which
should provide for more clarity and also replace the registration requirement
for trade activities with a notification.

The Estonian Point of Single Contact (PSC)
provides comprehensive information for service providers, going beyond the
requirements of the Services Directive by covering also other relevant areas
for businesses (social security, taxation, labour law, financing, legal advice,
etc.). The information is presented in a clear and simple manner. Different
search possibilities are provided (based on sector, requirements, business life
cycle etc.). Most of the information is available both in Estonian and in
English, however many forms are in Estonian only, with some exceptions (like
for company registration). The completion of electronic procedures is very well
covered, above all at national level but also for service providers from a good
number of other Member States. Some further improvement could be achieved by
distinguishing between establishment and cross-border service provision. For
completion of procedures, completion from all Member States should be ensured
even if many Member States are already covered.

   FINLAND

Finland transposed the
Services Directive on time through the horizontal act Provision of
Services Act (1166/22.12.2009) which entered into force on 28 December 2009. No
sector-specific laws were modified. Some reforms had already been undertaken
with the Freedom of Enterprise Act, adopted in 1994.

Despite the efforts undertaken the following
concerns have been identified and must be addressed as a matter of priority:

· As regards requirements where the Directive left a margin of
appreciation to Member States to streamline the regulatory environment for the
establishment of providers, not many measures that raise doubts of
compatibility with Article 15 of the Directive have been maintained. The only
ones identified concern legal form requirements for bus and truck training
schools and vehicle inspection agencies which can be operated only by legal
persons.

· Concerning cross-border trade, even if the regulatory regime is in
general rather light, an incompatibility with the Services Directive has been
identified in the real estate sector where a registration to provide real
estate services can only be obtained by service providers who have a registered
branch in Finland. This needs to be corrected. Authorisations were identified
for the organisation of package travels where the travel manager needs to
register with the package travel registry and for patent attorneys who have to
register in order to provide their services. These requirements need to be
re-examined.

The Finnish Point of Single Contact (PSC)
is part of a wider enterprise Finland portal which provides information for
businesses for all stages of business life cycle. The amount of information
available through the portal is generally good and distinction is made for
temporary cross-border service provision, even if no requirement applies for
cross-border service provision. Information is generally available in both
official languages and in English. The forms are however in Finnish, with some
forms having also translations. The electronic completion of procedures is
currently limited as far as the completion is rather one way interaction
whereby forms can be downloaded and filled in on screen. The forms can be
submitted mainly via post or partly by e-mail. Improvements should be made to
increase the possibility of online completion of procedures.

   FRANCE

In France, transposition led to a considerable number of
modifications in national laws as around 80 national measures were adopted
in order to implement the Services Directive.

Despite the important efforts made, the following concerns have been
identified and must be addressed as a matter of priority:

· A prohibited requirement concerning the direct involvement of
competing operators in the granting of authorisations for event promoters needs
to be eliminated urgently.

· Contrary to Article 24 of the Services Directive, total prohibitions
of commercial communications remain in place  for lawyers and veterinarians.
Such was also the case for accountants before the European Union Court of
Justice judged it illegal (Judgment C-119/09).

· Although the principle of tacit approval of authorisations exists in
the French legal framework, it does not apply as a general rule but only in cases
specified in sector-specific legislation. France should ensure that the
instances in which article 13(4) of the Services Directive is not applied are
limited to duly justified matters.

· As regards requirements where the Directive left a margin of appreciation
to Member States to streamline the regulatory environment for the establishment
of providers, there are cases that raise doubts of compatibility with Article
15 of the Directive. For instance, although shareholding requirements for
architects, accountants, and land surveyors were modified in order to reduce
the share of the capital of a company that has to be owned by professionals to
51%, this has not been the case for lawyers or veterinarians. These should be
re-examined. Furthermore, regulation of the retail sector was only partly
simplified.

In general, French legislation makes a distinction between cross-border
provision of services and establishment. Several remaining requirements
applied to incoming service providers and hindering the free provision of
services have been identified. It appears, according to the information
available to the Commission, that a prior notification is imposed on
cross-border modelling agencies and event promoters. Legal form and
shareholding requirements as well as limitations on commercial communications
are imposed on veterinarians for the cross-border provision of services.
Requirements for both insurance and financial guarantees are imposed on
cross-border real-estate agents.

The French Point of Single Contact (PSC), "Guichet-entreprises.fr",
was launched in January 2010. Although the provision of information is very
good, important improvements must be made concerning the availability and
possibility for electronic completion of procedures, the user-friendliness of
the site and the facilitation of access to the portal especially for foreign
users (by increasing the amount of information available in other languages).

   GERMANY

The implementation of the Services Directive, in particular the
screening of legislation, was a complex exercise in the case of Germany, due to its federal structure and the involvement of multiple actors at all levels
of government (federal, regional, local, professional orders). Germany made considerable efforts to ensure correct transposition and has made a
substantial number of legislative and practical changes. Around 220 national
measures have been adopted in order to implement the Services Directive.

The main changes that Germany has made affecting providers
already established or those wanting to establish in Germany include the
abolition of certain residence requirements for different types of experts
mainly in the construction sector. Germany has also made requirements
concerning legal form and shareholding for architects and engineers less
stringent.

As regards cross-border trade and requirements imposed on incoming
service providers, Germany has made a number of considerable changes, such as
the abolition of the general notification obligation applicable to a wide
variety of service activities as well as the abolition of the obligation to
obtain an authorisation applicable to any kind of itinerant trade. In addition,
Germany has also abolished a number of authorisation schemes concerning
specific services notably in the real estate sector.

However, despite efforts undertaken the following concerns have been
identified and must be addressed as a matter of priority:

·
Tacit approval has
been introduced in the federal Administrative Procedures Act and is also
explicitly foreseen in the federal Trade and Crafts Act. However, certain
sector specific legislation foresee that tacit approval of authorisations does
not apply (e.g. in the construction sector the legislation on the recognition
as a testing, inspection or certification body). It further seems that the
rules differ between the Länder: some have foreseen a tacit approval of authorisations
in areas where other Länder do not accept tacit approval. Germany has to make sure the instances in which tacit approval is not applied are limited
to duly justified matters.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures that raise
doubts of compatibility with article 15 of the Directive have been maintained,
for instance fixed tariffs for expert services as well as for some regulated
professions like veterinarians. Shareholding and legal form requirements have
been maintained for regulated professions in various degrees of
restrictiveness.

·
In addition there are some doubts as to whether
authorisations applied to cross-border service providers can be
justified by one of the four reasons recognised by the Directive, i.e. public
policy, public security, public health or the protection of the environment,
and whether those requirements are proportionate. This concerns mainly
authorisations maintained for expert services in the construction and
certification sector, but also in the education sector, in particular for
vocational training.

The German Point of Single Contact (PSC) is well established
with each of the 16 Länder having its own portal. Solutions chosen for the
different portals vary a lot and there is obviously also a difference in
quality and development. In general improvements could be made concerning the
clarity of information, i.e. distinction between establishment and cross-border
provision of services scenarios, and with regard to the linguistic
availability. In addition there is a need to improve the availability of
on-line procedures through the Points of Single Contact.

   GREECE

Greece transposed the
Services Directive through a horizontal law, which gives multiple
delegations to the competent ministers to adopt the necessary implementation
measures.

Greece has adopted
changes to sector specific legislation in the area of retail, in the tourism
sector, for private employment agencies, for real estate agents and for
professional services (lawyers and architects). Also, different circulars and
ministerial decisions issued aim to interpret law 3919/2011 ‘On the
principle of professional freedom’ for professions such as tax advisors
and tourist guides. Measures on implementation are being monitored closely in
the context of the Memorandum of Understanding with the Greek
authorities.

Despite significant efforts undertaken by the
national authorities, the following concerns have been identified and must be
addressed as a matter of priority:

·
Prohibited establishment requirements have been maintained such as a
nationality requirement in the education sector. In the retail sector, a
priority in obtaining a licence for outdoor sales activities is given to
specific categories of persons with Greek nationality.

·
Contrary to Article 24 of the Services
Directive, a total prohibition of some forms of commercial communication
remains for lawyers.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, the maintained measures
concern legal form requirements in the retail sector, for casual trading.

Concerning the cross-border provision of
services, a wide range of sector-specific amendments have been adopted in
order to implement the Directive in the retail and tourism sector. Law
3919/2011 constitutes a more radical attempt to curb restrictive administrative
requirements, but its scope is general. However, several remaining requirements
hindering free provision of services still apply in the education sector. These
should be re-examined.

The Greek Point of Single Contact (PSC)
is limited to providing information only for the specific sector licensing
procedures and only serves as an intermediary between the applicant and the
various administrative authorities. Electronic completion of procedures is only
partly available even if it is gradually being implemented. Important
improvements are needed as to the availability of all relevant information and
of on-line procedures. Moreover, a clearly differentiation should be made
between the regime applying to established and cross-border service providers.

   HUNGARY

Hungary transposed the Services Directive through
a horizontal law. In addition to the horizontal law, an ‘omnibus’
act modified about 100 existing sectoral laws and an ‘omnibus’
decree amended more than 100 pieces of sector-specific secondary legislation.
Moreover an additional 100 pieces of sector-specific secondary legislation were
modified individually. The implementation process was completed, inter alia, by
the adoption of new legislation on the Points of Single Contact, on
administrative cooperation and on notification requirements. Hungary was among the first Member States to implement the Directive.

Overall the Directive has been successfully implemented in Hungary. For instance more than 50 authorisations schemes have been replaced by
declarations, maximum tariff for service fees imposed on restaurateurs has been
abolished.

However, since the second half of 2011, Hungary has significantly
restricted access to markets which were previously open and where many foreign
providers were present (big retail, sale of tobacco, meal vouchers, waste
management). For that reason and despite the efforts undertaken, the following
concerns have been identified and must be addressed as a matter of priority:

· As regards requirements prohibited by the Directive,
according to a recently adopted measure the activity of issuing hot meal and
holiday vouchers ('SZÉP Card') cannot be pursued by a branch office of a
foreign company. Moreover, one of the conditions regarding the issuance of the
SZÉP Card consists in the entity having exercised an activity falling under the
same category in the Hungarian Income Tax Law for at least two years. These
measures are incompatible with Article 14 of the Services Directive and must be
corrected.

· On the other hand, as regards requirements where the Directive
left a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, a few requirements which may
raise doubts of compatibility with Article 15 of the Services Directive have
been maintained. This concerns restriction of market access in big retail
(general ban on commercial buildings over 300 m2), sale of tobacco (legal form
and strict territorial restrictions), meal and holiday vouchers (the legislator
requires an infrastructure that only big nation-wide existing banks possess)
and waste management (at least 50% of the shares must be owned by the State).
These requirements need to be re-examined.

Hungary has transposed
provisions on the cross-border provision of services through a
horizontal law and by modifying sector-specific legislation. The selected legal
technique seems to create sufficient certainty for foreign service providers
with regard to applicable requirements. Only a few questionable notification
requirements can be found in the construction and in the education sector.

Finally, a Point of Single Contact (PSC) has been set up in Hungary. A lot of detailed information can be found on the website. The use and usability
is satisfactory. The connection to the competent authorities is relatively
good. However, not all required procedures are supported online. Users often
need to send supporting documents by post or to present themselves in person.
The search facility, FAQs and other information are

only available in Hungarian and there is only little information
aimed at helping cross-border service providers. Moreover, Hungarian electronic
signatures are needed to access services. Hungarian PSC is therefore of limited
use to cross-border service providers and thus need substantial further
improvement in this regard.

   IRELAND

Ireland implemented the Services Directive through
a horizontal framework law (‘ministerial regulation’). Since
its adoption, and in the context of its obligations under the Memorandum of
Understanding for the EU/IMF Programme of Financial Support for Ireland, Ireland is making changes to sector-specific legislation. These changes will include the
areas of the legal profession, in order to make it possible for lawyers to
participate in multi-disciplinary practices. In relation to the retail sector
caps on retail floor space have been raised.

Despite significant efforts undertaken, the following concerns have
been identified and must be adressed as a matter of priority:

·
Tacit approval of authorisations is foreseen in the horizontal legislation implementing the Services
Directive in Ireland, but sector-specific legislation to put alternative
arrangements in place has not been amended. Ireland has to make sure that
instances in which tacit approval is not applied are limited to duly justified
matters.

·
Contrary to Article 24 of the Services
Directive, a total prohibition of some forms of commercial communication
remains for lawyers.

· As regards requirements where the Directive left a margin of
appreciation to Member States to streamline the regulatory environment for
the establishment of providers, some requirements have been maintained
which should be reassessed. These concern the travel sector, in
particular requirements that travel agents and tour operators have a set
minimum capital investment in their business. The proportionality of these
requirements in achieving the objective of consumer protection should be
reviewed.

Concerning the cross-border provision of
services, it seems that authorisation requirements for national providers
are also applied to incoming service providers. For instance, tour operators
and travel agents operating in Ireland are obliged to hold licenses issued by
the Commission for Aviation Regulation. Vocational education providers such as
occupational first aid training provider, manual handling instructors and
lifeguard trainers are required to register with the relevant statutory bodies.
Licenses are required to engage in occasional and casual trading. These should
be re-examined.

Significant efforts have been made in establishing the Irish Point
of Single Contact (PSC) but important improvements need to be made in terms
of the electronic processing of procedures, expanding the range of procedures
beyond initial establishment of a business, enhancing integration with
information on offer from relevant bodies, increasing awareness of the portal
and improving the search function.

   ITALY

The Services Directive has been implemented in Italy through 'Decreto Legislativo 26 marzo 2010, n. 59'. The implementation law is
one legislative instrument of horizontal scope, which also includes
sector-specific changes.

Apart from some concerns regarding the completeness and thoroughness
of the transposition into sector-specific legislation, the transposition is
satisfactory at national level. However, under the Italian constitutional
system the subject matter of the Directive partly falls within the legislative
competence shared by the State and its Regions. National legislation sets the
main principles, whereas regional law regulates the details. This creates
issues of legal certainty because, even though the national law should prevail
over conflicting regional norms, this hierarchical relationship is only
implicit. Only national courts can set regional conflicting norms aside a
posteriori.

The following concerns have been identified and must be addressed as
a matter of priority:

·
The sector-specific analysis identified a few prohibited
requirements. In the tourism sector, authorisations for ski schools and instructors
are linked to residence requirements in Bolzano, Lazio, Lombardia, Abruzzo and
Emilia Romagna. These incompatibilities must be corrected as a matter of
priority.

·
The principle of tacit approval was set
in the laws regulating the administrative system as a horizontal general
principle before the implementing law, which reiterates and confirms it. The
principle has an horizontal and national set of exceptions. These exceptions
are not always based on overriding reasons of public interest. The situation is
complicated by the fact that many sectors fall under the competence of the regions,
which have introduced several unjustified exceptions to the principle,
particularly in the tourism (ski schools and instructors, hotels and guest
houses) and retail sector (large retail facilities and trade in public areas). Italy must therefore make sure that the instances in which tacit approval is not applied
are limited to duly justified cases.

·
The implementation law correctly transposes the
provisions of the Services Directive on nationwide validity of
authorisations in a horizontal way. This ensures nationwide validity in
most cases. However, the fact that regions are competent in regulating certain
sectors and in granting most authorisations creates legal uncertainty. A few
provisions where the principle is not applied have been identified in
connection with tourist guides and travel agencies. In this context, it's worth
stressing that recent legislative developments have provided a legal basis for
the Government to produce laws aiming at abrogating non-proportionate
restrictions, authorisations and prohibitions for the start-up of economic
activities.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, quantitative
and territorial restrictions were noted in the implementation law regarding
itinerant sales, trade activities in public areas, newsagent's shops. In Veneto
and in Bolzano, limitations linked to the number of existing ski schools in the
regional territory are still in place, Some restrcitions concerning
shareholding requirements remain, even after a few recent reforms which repealed
legal form requirements in the retail sector (itinerant sales) and also made
legal form and shareholding requirements less rigorous for all regulated
professions.

A number of authorisation, registration or
licensing requirements that also apply to cross-border providers were
identified, especially in the tourism sector. These authorisations have in many
cases been replaced by less burdensome notification obligations. However,
procedures through which requirements can be imposed on cross-border service
providers and authorities in charge of deciding on the imposition of these
requirements often remain unidentified.

As for Points of Single Contact (PSC), the
situation has considerably improved recently. The Italian portal provides a
good degree of information on required formalities although it does not yet
allow for the completion of all administrative procedures required by the
Services Directive. A particular issue is the lack of possibility to complete
procedures that fall under the competence of local or regional authorities. The
Italian Point of Single Contact is also difficult to use for cross-border
providers, both for linguistic and technical reasons. Further improvements are
needed here.

   LATVIA

Latvia adopted the
horizontal law transposing the Services Directive ('Law on the Free
Provision of Services') with some delay, on 20 April 2010. The horizontal
law transposes the main principles of the Services Directive. However the Law,
as first adopted, contained a number of provisions which did not transpose the
Services Directive correctly. Major amendments have been made to the law
(adopted on 15 March 2012) which ensure better compliance with the Directive.

Some modifications have been made to a number of
sectorial laws which above all simplify the administrative procedures.

Despite the efforts undertaken, the following
concerns have been identified and must be addressed as a matter of priority:

· Tacit approval of authorisations was
initially lacking in the horizontal law but has been introduced in the amended
version. Work is underway to have the provisions on tacit approval included
also in sectorial legislation (around 12 amendments foreseen). Lativa has to
make sure that the instances in which tacit approval is not applied are limited
to duly justified matters.

For cross-border provision of services,
Regulations of the Cabinet of Ministers still need to be adopted as foreseen by
the 'Law on the Free Provision of Services' but these may finally be replaced
by guidelines and specific amendments to sectoral legislation. Some concerns
exist as to a possibly wide use of declarations in cases that could not be
justified under the four reasons in Article 16. Compliance with the Services
Directive needs to be checked once these changes have been made. Currently,
requirements have been identified in the tourism sector where tourist agents
and operators need to be registered and in the construction sector where
economic operators who employ persons of regulated professions, i.e. builders
and architects, have to be registered. These requirements need to be
re-examined.

The Latvian Point of Single Contact (PSC)
provides relatively good information and goes beyond the Directive by offering
also information on other areas. The information is partially available in
English but not the forms. As for electronic completion of procedures, a good
portion of administrative requirements can be completed online but only at
national level. Efforts are still needed to enable cross-border completion of procedures,
as well as increasing the number of electronic procedures available.

   LITHUANIA

Lithuania transposed the
Services Directive on time via a horizontal law ('Law on Services No. XI-570
of 15 December 2009'). The law follows very closely the Services Directive
and covers almost all of its provisions, including the main principles relating
to the Points of Single Contact and administrative cooperation. It also sets
out conditions for exercising the freedom of establishment and the freedom to
provide services across borders and simplifies some administrative measures. The
horizontal law prevails over sectoral laws except when priority is explicitly
given to the provisions of other laws.

A number of sectoral laws have been modified in
the real estate, tourism and business services sector. However, the following
concerns have been identified and need to be addresses as a matter of priority:

·
A prohibited requirement was identified in the latest amendment to
the Law on Vocational Education, which foresees that in order to provide formal
vocational training a natural person from another Member States must have its
residence in Lithuania. This must be corrected.

·
Concerning cross-border provision of services,
an establishment requirement has been identified in the professional services
sector for administration of company bankruptcy and for company restructuring,
in the real estate sector concerning services for property assessment
activities, in the retail sector (for specific products like alcohol and
tobacco) and in the education sector for the provision of higher education
services. These requirements need to be corrected.

·
A total prohibition of commercial
communication has been identified for lawyers. This requirement should be
eliminated.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, only a few of the requirements
listed in Article 15 have been identified. A minimum number of employees is
still foreseen in the professional services sector for company restructuring and company bankruptcy administration. Legal from requirements exist in the tourism sector for tourism information service
providers which can be provided by a legal person only. A shareholding requirement
has been maintained for lawyers where the capital of professional partnerships
has to be owned 100 % by professional members.

Lithuanian Point of Single Contact (PSC)
was set up on time. Overall the information and structure of the
portal is good. The PSC could however be further improved, in particular with
regard to making forms available in another language than Lithuanian and by
putting in place solutions for cross-border access to electronic procedures.
For e-procedures the main problems are linked to the fact that only national
e-identification and e-signature solutions are supported, without any
alternatives for foreign users.

   LUXEMBOURG

The implementation of the Services Directive in Luxembourg changed the existing legislative framework on services considerably and major
efforts were undertaken to correctly reflect the principles of the Directive.
One of the most important changes is the new law regulating access to the
professions of craftsmen, traders, retailers, industrialists and other liberal
professions. By removing obstacles consisting of numerous formalities, Luxembourg opened up the market and made access easier for service providers from other
Member States.

Despite the efforts made, the following concerns have been
identified and must be addressed as a matter of priority:

·
Tacit approval of authorisations applies as a general rule and was introduced in the horizontal law.
A list of exceptions however was included where tacit approval does not apply
such as trade in weapons and in general for authorisations relating to the
protection of environment. Luxembourg has to make sure the instances in which
tacit approval is not applied are limited to duly justified matters.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures have been
identified which may raise doubts of compatibility with Article 15 of the
Directive. Quantitative restrictions have been maintained for places selling
alcoholic beverages and there is a ban on having more than one establishment
for lawyers. Shareholding requirements have been maintained for lawyers from
other Member States registered at the Bar in Luxembourg and belonging to a
company that includes non-lawyers: they are not allowed to set up a subsidiary
branch in Luxembourg. This situation should be corrected.

Concerning the cross-border provision of
services, Luxembourg amended its legislation to limit the previous broad
notification system applicable to all kind of services, including construction,
to professional services. However, the requirement to obtain an authorisation
in the education sector, e.g. for summer course as well as the need for an
authorisation for providers carrying out technical studies and verifications in
the field of the environment should be re-examined.

The Point of Single Contact (PSC) in Luxembourg is very well established. Information provided is comprehensive and goes beyond
the requirements of the Services Directive in terms of areas covered.
Interactive forms exist in many cases even in three languages.  The online
completion of procedures has been made rather simple and no advanced technical
solutions are used which makes the completion possible also across borders.
Some improvements can still be made concerning the availability of more on-line
procedures.

   MALTA

Malta transposed the Services Directive within the
transposition deadline leading to a considerable number of modifications in
national laws. Malta has adopted a mix of horizontal and sector specific
measures, in particular by a so called ‘omnibus-law’ containing a
horizontal law as well as amendments to 16 sector-specific pieces of primary legislation
and many other subsidiary pieces of legislation.

In particular, Malta has changed its trading system for activities which
are not covered by sector specific legislation by introducing a system of
notification within 30 days from start of activity, which should make it
simpler for business to start operating in Malta. Other sector specific
authorization schemes were reviewed and simplified. An important number of
changes also concern the introduction of new provisions to cater for situations
of cross-border provisions as those situations were in many cases not
specifically foreseen in the legislation. This should ensure easier access for
service providers from other Member States.

However, despite great efforts undertaken, the following concerns
have been identified and must be addressed as a matter of priority:

·
First of all, a prohibited residence requirement
was identified in the professional services sector for patent agents.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures have been
identified which may raise questions of compatibility with Article 15 of the
Directive. They concern notably. legal form and shareholding requirements for
architects and civil engineers and lawyers.

Concerning cross-border trade, it is not clear whether authorisations,
registration or licensing requirements foreseen in sector specific legislation
are also applied to incoming services providers. This concerns for instance
authorisation requirements in the tourism sector like the need of a licence for
a travel operator or the reservation of certain tourist guide services to
holders of a specific licence. This should be re-examined and clarified.

The implementation and
setting up of the Maltese Point of Single Contact (PSC) has taken a slow start and the first
portal set up did not live up neither to expectations nor to the legal
obligations as defined by the Services Directive. However in January 2012, a
new portal, Business first, has been launched and significantly improves the
performance of the Maltese PSC. Overall the information provision is good and
goes beyond the Services Directive by providing also other key services to
businesses (social security, tax related procedures). Information and forms are
available in English. Some information is however still missing. Online
completion of procedures is available for a big number of procedures but not
yet covering all the necessary procedures and mainly limited to nationals due
to lack of technical support for cross-border use of e-signatures where
required. Further improvements are necessary both in terms of information
coverage and availability and accessibility of online completion of procedures.

   NETHERLANDS

The Netherlands was one of the first Member States to achieve full
transposition of the Services Directive and they did so by using different ways
for its implementation. The general aspects were laid down by the Services Act
in order to create a general framework for services. This however did not
include transposing Article 14, 15 and 16 as such. Instead, national law was
thoroughly screened to remove provisions that were in violation with the Services
Directive. Together with an amendment of the non-binding Instructions for
legislation and the Amendment Decree Services Directive it is ensured that
future legislation respects the requirements of the Services Directive.

Despite great efforts undertaken, a number of concerns have been
identified mainly in the retail and professional services sector, and must be
addressed as a matter of priority:

·
First of all, these concern prohibited requirements
including a residence requirement for market stands at local level and
application of economic criteria for the establishment of certain retail
outlets at local level despite a clear prohibition in the spatial planning
Decree (BRO). These should be eliminated.

·
As regard requirements where the Directive left a
margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some requirements which may
raise doubts of compatibility with Article 15 of the Directive have been
identified. Shareholding requirements have been maintained for lawyers and
accountants such as the obligation for a majority of the shares of an
accountants 'office to be held by registered accountants. For lawyers, all
shares in the legal practice must be owned by lawyers who practice law in the
partnership in question except for holding companies, foundations and persons
employed by the legal partnership as non-lawyer and holding no more than one
tenth of the capital. This should be re-examined.

Concerning the cross-border provision of services, a wide
range of sector-specific amendments have been adopted in order to implement the
Directive. The Amendment Act and Amendment Decree Services Directive changed the
rules on doorstep selling and arbitration in civil procedures. In addition,
certain authorisation requirements and requirements on the use of equipment
were abolished in the construction and environmental legislation. Requirements
that are still remaining are the obligation to have an authorisation or
registration for cross-border service providers wanting to provide street
selling, the need for establishment of certification organisations and testing
laboratories and an authorisation for vocational education institutes. These
requirements should be re-examined.

The Dutch Point of Single Contact (PSC) is very well
established with a comprehensive provision of information, easy search
facility, and extensive assistance as key attributes. Language support for
general information is good, with some variations at the level of competent
authorities and with regard to forms. The possibility to complete procedures
online is relatively well covered, and accessible also cross borders, above all
where no e-signatures are required.  An active role was played by the Netherlands in supporting other member states to develop PSCs in a uniform and efficient
way by providing for instance software applications. In general improvements
could be made concerning the clarity of information, in particular the
distinction between establishment and cross-border provision of services
scenarios, and with regard to the linguistic availability. In addition the
availability of on-line procedures through the PSC could be further improved.

   POLAND

Poland transposed the Services Directive
through a horizontal legislation, the Act on Provision of Services (PSA)
in the Territory of the Republic of Poland which was adopted on the 4 of March
2010 and came into force on 10 April 2010. The PSA applies to all services,
except those explicitly excluded from its scope. Several sectoral laws were
modified by the PSA in order to make them compliant with the Services
Directive.

Despite the progress made, the following concerns have been
identified and must be addressed as a matter of priority:

·
A prohibited requirement has been
maintained in the education sector where driving schools can be operated only
by service providers having a seat or place of residence in Poland. This requirement must be corrected as the matter of priority.

·
The principle of tacit approval of
authorisations has been introduced by amending the Act on the Freedom of
Economic Activity, which is the main act governing the performance of economic
activities in Poland. Derogations to the principle can be made in specific acts
if justified for overriding reasons of public interest. The law provides for an
exception to the rule on tacit approval. Poland must make sure that the
instances in which tacit approval is not applied are limited to duly justified
cases. In addition Poland has to ensure that clear and binding time limits for
the authorities to take a decision are foreseen in the legislation.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, few requirements have been
identified in the Polish legislation. They concern notably legal form and
shareholding requirements for legal professionals and tax advisors. The changes
introduced by the means of the PSA made them less stringent. The provisions on
minimum tariffs were kept for advocates, solicitors and patent agents. These
requirements should be re-examined.

·
Concerning the cross-border provision of
services, the transposition of Article 16 into the Polish horizontal
legislation does not provide for legal certainty with regard to the
requirements that are applicable to cross-border service provision. The PSA
states only a general rule that service providers from other Member States may
temporarily provide services in the territory of Poland, without having to be
entered in any business register. They may however be subject to the
requirement to obtain a certificate, concession, licence, authorisation,
approval or enter into register of regulated activities. These are usually
stipulated in sectoral legislation. Poland has introduced provisions for the
temporary provision of services in only some sector specific legislation. Most
of the legislation analysed does not contain the distinction between the
establishment and cross border provision of services, leaving it open which
rules are applied to the cross border provision of services.  In most cases the
restrictions found in the Polish legislation concern the education, tourist and
crafts, construction and certification services sectors.

The Polish Point of Single Contact (PSC) is still undergoing
major changes and its full operability is expected by the end of 2013.
Currently the information provision is relatively good and goes beyond the
requirements of the Services Directive in terms of

areas covered but some mandatory information is still missing, and
the level of detail is not always satisfactory. Language support is provided
via unofficial translations (based on Google translate). Online completion of
procedures is available but limited to national users due to advanced
e-signature requirements where only national means are currently supported.
Several improvements must take place concerning the quality and organisation of
information, availability and possibility for electronic completion of
procedures, user-friendliness and enhancing access to the portal especially for
foreign users

   PORTUGAL

The main act transposing the Services Directive into Portugal is a horizontal law (Decreto-Lei 92/2010) whose provisions prevail
over sector-specific laws, either national, regional or local regulating
specific services. In addition, the Portuguese authorities are finalising a
very significant number of sector-specific amendments in the context of
the follow-up of the Memorandum of Understanding for Portugal on specific
economic policy conditionality (MoU). It is of utmost importance that
sector-specific amendments which have accumulated significant delay are
completed as soon as possible. The on-going state of these reforms does not
allow to give a clear-cut picture of the situation.

However the following concerns have been identified and must be addressed
as a matter of priority:

· Total prohibition of commercial communications can still be found in the statutes of professional orders (for
example, that of lawyers and veterinaries) and should be addressed in the
context of the on-going reform for professions whose regulation involves a
professional body which is currently under preparation in the context of the MoU.
An establishment requirement that existed in the car rental sector is in the
process of being eliminated.

· Tacit approval has become the general
rule. Exceptions to it, which may be justified by overriding reasons of general
interest, remain in the areas of construction and education. The principle of
national validity of authorisations has also become the general rule under
Decreto-Lei 92/2010. The Portuguese authorities are planning to extend the
national validity to other procedures such as the notifications foreseen in the
Professional Qualifications Directive in the context of reforms monitored under
the MOU.

· As regards requirements where the Directive left a margin of
appreciation to Member States to streamline the regulatory environment for
the establishment of providers, measures that raise doubts of compatibility
with Article 15 of the Directive have been maintained. Shareholding and legal
form requirements apply for certain highly regulated professions. These
requirements are to be reviewed in the context of the pending reform of the
regulated professions.

The Portuguese legislation has traditionally made no difference
between requirements that can be applied to established service providers and
those that can be applied to cross-border service providers. As a result
of the yet unfinished implementation of the Services Directive, the
cross-border provision of services is in the process of being rendered much
easier. A cross-cutting establishment requirement has been removed. An
authorisation for cross-border service providers remains in a simplified form
in the area of construction and needs to be eliminated. Similarly, several
authorisations previously applied to cross- border in the sector of real estate
and tourism have been replaced by declarations, some of which are in in the
process of further simplification. Insurance requirements applicable to
cross-border service providers are also being removed in some cases.

Work for the setting-up of the Point of Single Contact (PSC)
is currently being undertaken in the context of the follow-up of the MoU.
Information is available for many sectors and it gives a clear view of
requirements applicable to established and to cross-border service providers.
Online procedures are available for a number of services but work to extend
them further should be continued and enhanced.

   ROMANIA

Romania transposed the Services Directive within
the transposition deadline leading to a considerable number of modifications in
national laws. Romania has adopted a horizontal law as well as sector-specific
laws, mainly in the following service sectors: construction, services for
installations and equipment, tourism and some regulated professions.

Despite the efforts made, the following concerns have been identified
and must be addressed as a matter of priority:

·
Prohibited requirements in the retail sector with the existence of economic needs tests and
the involvement of competitors in the authorisation procedure for the opening
of large surface retail stores.

·
Although the principle of tacit approval of authorisation
has been introduced in some sector specific legislation, doubts remain whether
in most of the services sectors (where no specific provisions exist), the
general tacit approval principle provided in the horizontal law would be
applicable in practice.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, only a few of such
requirements remain except for the legal form requirement which seems to be
applied in cases of professional services that rely on the personal involvement
of the professional (such as services provided by lawyers or tax advisers) and
where they are doubled by shareholding requirements. These requirements should
be re-examined.

Regarding cross-border trade, concerns are raised by the fact
that, where sector-specific laws are silent about cross-border provision, it is
unclear which rules would be applicable and how the different competent
authorities should interpret the relationship between the different provisions
of the Romanian legislation, notably the relationship between the generally
applicable laws on company registration which would require an establishment
and registration with the Romanian trade register and the horizontal law
implementing Article 16 of the Services Directive. This concerns for instance
retail and travel agencies, A clear identification of rules applicable in case
of cross-border provision of service should be ensured in all sector-specific
legislation.

The Romanian Point of Single Contact (PSC) is not yet fully
operational: for the time being, only a limited number of procedures are
available online and mainly provide for downloading the forms. Moreover, online
completion of procedures is not accessible for users from other Member States
where advanced e-signatures are required. Even if
technically the PSC is in place, the major problem is the lack of content in
the PSC.  Significant improvements are needed to cover all the necessary
information and procedures and to ensure the cooperation of competent
authorities.

Memorandum of Understanding (MoU)

Romania has signed a MoU with the European Commission and the
International Monetary Fund, which provides, as part of the structural reforms
that need to be undertaken, the removal of the economic needs test and the
involvement of competitors for the opening of large retail stores as well as
the setting up of the Point of Single Contact.

   SLOVAKIA

Slovakia implemented the Services Directive
through a horizontal framework law. Amendments were also made to relevant
sector-specific legislation in order to implement Articles 14, 15 and 16(2) of
the Services Directive. A specific issue for service providers wishing to
engage in cross-border service provision in Slovakia is an apparent conflict
between the country’s Commercial Code and the horizontal law implementing
the Services Directive, as the Commercial Code requires foreign legal persons
to register in the Slovak Commercial Register as branches or legal persons.

Despite significant efforts undertaken, some concerns have been
identified and must be addressed as a matter of priority:

·
Tacit approval of authorisations is foreseen in the horizontal legislation implementing the Services
Directive, which has left open the possibility for competent authorities to put
different arrangements in place. Areas in which there do not appear to be any
possibility for tacit approval include the authorisation of architects,
insolvency practitioners, patent agents, interpreters and translators, urban
planners and construction engineers, geological excavation and mining
practitioners, geodesists, cartographers and metrologists, education and
further education providers and driving schools. The public interest
justification for this should be reviewed.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory environment for the establishment of providers, some measures have been identified that raise doubts of
compatibility with Article 15 of the Directive. Specific legal form
requirements apply to lawyers (advocates), insolvency administrators and tax
advisors, land surveyors and cartographers and health and safety training
bodies. Specific shareholding requirements also apply to lawyers (advocates),
insolvency administrators and tax advisors, architects and engineers.
Insolvency administrators have fixed maximum tariffs. These should be
re-examined.

Concerning the cross-border provision of services, it seems
that authorisation requirements for national providers are also applied to some
incoming service providers. For instance, insolvency administrators are
required to register in the list of insolvency administrators. Authorisation is
required for architects and patent attorneys and for a variety of construction-related
crafts services. Authorisation is also required in order to provide vocational
training services on a wide variety of subjects

Slovakia was among the last Member States to
establish a functioning electronic Point of Single Contact (PSC), which was
made available to the public in January 2012. The new Point of Single Contact
features a large number of the relevant procedures, and very useful bilingual
online forms which collate relevant information and send it to the appropriate
competent authority. Potential areas for improvement include a clearer
distinction of the requirements applicable to cross-border service providers as
opposed to businesses considering permanent establishment, more information on
procedures managed by local authorities and on recognition of qualifications,
and further translation of important information into languages other than
Slovak.

   SLOVENIA

The Services Directive has been implemented in Slovenia via a horizontal law accompanied by amendments to sector-specific laws. Around 20
national measures have been notified as implementing measures. Changes adopted
concern notably construction, services for installations and equipment, real
estate and land surveying.

Despite great efforts undertaken, the following concerns have been
identified and must be addressed as a matter of priority:

·
The tacit approval of authorisations has been
introduced by the horizontal implementing law as well as in some
sector-specific legislation where it applies. However, doubts remain as to the
practical effects of this principle in sector-specific legislation when tacit
approval is not explicitly stated. Slovenia has to make sure that the instances
in which tacit approval is not applied are limited to duly justified matters.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures have been identified
which should be reassessed. They concern legal form and capital ownership
requirements where only lawyers may be shareholders or owners of a law firm, as
well as minimum tariffs for lawyers.

·
Concerning the cross-border provision of
services, concerns exist where the sector-specific legislation does not explicitly
provide for cross-border service provision and the sector-specific legislation is
applied in the same way to cross-border providers as for established providers.
Only 12 legal acts have been adopted to implement the distinction whereas 220
services are regulated activities in Slovenia. Concerns remain notably for industrial
property representatives, crafts and construction, tourism, operational
monitoring services. A clear distinction should be ensured in all
sector-specific legislation. Moreover, the establishment requirement that
remains for chimneysweepers should be eliminated.

The Slovenian Point of Single Contact (PSC) cannot be
considered as fully functioning yet. The PSC is based on the e-Government
portal available for online registration of businesses. The portal does not provide
a high level of information from the Services Directive point of view and it
also has a relatively low degree of readiness of e-procedures for domestic and
practically none for cross-border users. The portal supports information and
procedures for registration of businesses and most common supporting procedures
for domestic users. It also provides some basic information for cross-border
users. However, the new PSC under development is planned to profoundly modify
this situation and to provide full information for home and foreign users in
Slovene and English.

   SPAIN

Spain transposed the Services Directive within the
transposition deadline. Implementation of the Services Directive led to the
adoption of a horizontal law at national level (Ley 17/2009) and to a very
high number of legislative modifications in national and regional laws. The
task was undertaken ambitiously and the regulatory business environment in Spain has been significantly simplified to facilitate both establishment and access for
service providers from other Member States. However, it appears that the reform
of rules governing the profession issued by professional associations must be
completed as a matter of urgency to ensure their full compatibility with the
Services Directive and the national rules implementing it.

The obligations laid down in Articles 10(4) and 13(4) of the
Services Directive seem to have been correctly implemented in Spain. The authorisation schemes which have remained in legislation have been considerably
simplified. Tacit approval of authorisations which contributes to reduce
administrative burden was already of general application before the
implementation of the Services Directive but the principle has been reinforced
afterwards. The national validity of authorisations has been ensured by
means of the horizontal law. The horizontal law has opted for an ambitious
implementation of this principle and it only allows for reasons of public
policy, public security, public health and the protection of the environment to
limit the geographical scope of authorisations which are not linked to a
specific physical establishment. To ensure that this ambitious implementation
takes full effect, it would be desirable to reinforce this rule with internal
mechanisms for administrative cooperation between regions to ensure that the
complexity of the Spanish administrative structure does not result in
administrative burden for businesses. It is also important to ensure that all
the rules governing the professions issued by professional associations are
fully adapted to this principle.

Further to the implementation of the Services Directive, no relevant
examples of prohibited requirements are to be signalled in national
sector-specific legislation. However local regulations which in some cases
still require a Spanish identification card for the completion of some
procedures must be corrected. In the tourism area, a restriction could still
remain in one autonomous community related to the freedom of the provider to
choose between establishment in the form of an agency, branch or subsidiary.
Although the horizontal law would prevail over this provision, this
inconsistency must be corrected as a matter of priority to ensure legal
certainty for providers in the market.

A very significant degree of administrative simplification has been
achieved with the implementation of the Services Directive in Spain. Many authorisation schemes have been replaced by prior declarations, in particular
in sectors such as tourism or crafts. However, it is worth noting that there is
room for further simplification in administrative procedures at local
level, in particular as regards authorisations that affect amongst other the
small retail sector.

Cases of requirements that raise doubts of compatibility with
Article 15 remain in certain pieces of sector-specific legislation in particular
those related with shareholding requirements for professional partnerships in
certain activities such as real estate. Similarly, further to the
implementation of Article 16 of the Services Directive through a horizontal law
and through the amendment of sector-specific legislation, it can now be

concluded that a significant part of the Spanish legal order has
been simplified to reduce burden imposed on cross-border service providers.
Restrictions whose justification raises some concerns are still imposed on
cross-border service providers in sectors such as crafts and real estate.

The Spanish Point of Single Contact (PSC) is very well
established both in terms of information provision and completion of
procedures. The information provided is comprehensive and goes beyond the
Services Directive by covering the whole business life cycle. Clear distinction
is made between establishment and cross-border service provision and an
interactive search tool is available that is tailored to users' needs for
specific activities, legal form and geographical location. The Spanish PSC is
available also in other foreign languages, above all for information, and
sometimes also for forms. Online completion of procedures is available, as well
as a tracking system that allows progress of applications to be monitored. Work
should however be continued to facilitate cross-border completion of procedures
that currently is rather limited and to ensure that procedures to start a
business or to provide services have a sufficient degree of detail and of
electronic availability in all locations, types of activity and competent
authority.

  
SWEDEN

Sweden has transposed the Services Directive via a horizontal law
adopted in 2009, as well as via amendments to sector-specific laws. All in all,
around 60 national measures have been adopted in order to implement the
Directive. In particular, Sweden has modified its law on foreign branches. By
removing obstacles consisting of numerous formalities and a cross-cutting
establishment requirement, Sweden opened up the market and made access easier
for service providers from other Member States.

However, despite great efforts undertaken, some concerns have been
identified and must be addressed as a matter of priority. They seem to concern
in particular car rental activities, patent agents, real estate services and
driving schools.

·
Prohibited requirements were identified concerning residence requirements for car rental
services and patent agents.

·
Tacit approval
does not apply as a general rule in Sweden. If some sector specific legislation
was amended in order to specify where tacit approval applies, it seems that it
was a deliberate decision that tacit approval should not apply to the
construction sector in its entirety. Sweden has to make sure the instances in
which tacit approval is not applied are limited to duly justified matters.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers, some measures were
identified that raise doubts of compatibility with Article 15 of the Directive.
These concern shareholding requirements for lawyers and auditors. This should
be re-examined.

Concerning cross-border trade, it is not clear whether the
requirements that were maintained and will be applied to incoming service
providers can be justified by one of the four reasons recognised by the
Directive, i.e. public policy, public security, public health or the protection
of the environment, and whether they are proportionate. This concerns, for
instance, prior authorisation for cross-border providers offering real estate
or driving school services.

The Swedish Point of Single Contact (PSC) is very well
established. It takes a comprehensive approach and goes beyond the Services
Directive both with regard to areas covered and available procedures. The PSC
provides most of the information and forms also in English.  Online completion
of procedures is well covered but cross-border access is limited where
e-identification or e-signatures are required where only national means are
currently supported. Some improvements could be made concerning the clarity of
information, such as the search function and to enhance the ease of procedure
completion for foreign users, including developing means to accept
foreign-issued e-Identification and e-signatures.

  
UNITED KINGDOM

The United Kingdom implemented the Services Directive mainly by a
horizontal law covering the core provisions of the Directive (‘Provision
of Services Regulations 2009’).

In general, few sector specific amendments were made, the UK
claiming to have a light touch regulatory regime. A few changes have been
identified in the retail and professional services sectors. They concerned
mostly amendments regarding aspects of authorisation schemes and availability
of procedures electronically. Furthermore, the requirement that companies or
individuals doing business in the UK must have an address in the UK was
abolished.

However, the following concerns have been
identified and must be addressed as a matter of priority.

·
The obligation to ensure nationwide validity
of authorisations has not been correctly implemented. The horizontal law
explicitly limits the validity of authorisations granted by devolved
administrations (England and Wales, Northern Ireland and Scotland) to their
respective territory and there is no mechanism of recognition of authorisations
granted by one devolved administration by the others.

·
Contrary to Article 24 of the Services
Directive, a total prohibition of some forms of commercial communication
remains for lawyers.

·
As regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for establishment of service providers, some remaining
restrictions have been identified in the UK. The most severe ones concern the
legal form and shareholding requirements for lawyers in Scotland and Northern
Ireland: advocates in Scotland and barristers in Northern Ireland can only
exercise their activities as sole practitioners. Solicitors in Scotland can
form a limited liability company but all members and directors must be
solicitors; in Ireland solicitors can use a company structure in so far as it
is recognised to provide solicitor services and all members and shareholders
must be solicitors or recognised bodies.

The UK Point of Single Contact (PSC) is well established and
the UK belongs to the group of Member States with the best PSCs. It has a very
high degree of readiness for domestic and cross-border users. The advanced
search function is also a very important asset. However, improvements could be
made concerning the on-line availability of procedures.

Draft
report on the implementation of the Services Directive

ANNEXES

Annex
I – Technical annexes

Annex 
I a)   - EU Legislation applying to Services sectors

|| Main sectors covered by the Services Directive (2006/123/EC)

|| · Business Services including professional services (, lawyers, architects, accountants, tax advisers, consulting agencies, communication and marketing agencies, patent agents, certification services, sport intermediaries, artist managers, recruitment agencies, interpreters, veterinaries, land surveyors …) · Construction services and crafts acitivites · Retail · Real-Estate · Tourism (Hotels, restaurants, cafés, travel agents, tourist guides…) · Private Education

Services Sectors || Main EU legal instruments covering the sector

Energy || Internal market for natural gas · Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC. Internal market in electricity · Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (Text with EEA relevance). Internal market in gas · Directive 2009/73/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC (Text with EEA relevance).

Financial Services || Action plan for Financial Services and follow-ups (Directive 2006/43/EC, Directive 2006/46/EC, Directive 2007/63/EC, Directive 2007/44/EC, Directive 2009/14/EC, Directive 2007/36/EC, Directive 2007/64/EC, Directive 009/111/EC, Directive 2009/44/EC, Directive2010/76/EU, Directive 2009/49/EC, Directive 2011/61/EU, Directive 2011/89/EU)

Healthcare || · Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare. · Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications

Postal Services || · Directive 97/67/CE · Directive 2002/39/CE · Directive 2008/06/CE

Telecom || · Regulation (EC) No 1211/2009 of the European Parliament and of the Council of 25 November 2009 establishing the Body of European Regulators for Electronic Communications · Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002  on universal service and users' rights relating to the electronic communications networks and services as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 · Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services as amended by Directive 2009/140/EC of the European Parliament and of the Council of 25 November 2009 · Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services as amended by Directive 2009/140/EC. · Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities as amended by Directive 2009/140/EC. · Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector as amended by Directive 2006/24/EC and Directive 2009/136/EC

Transport || Road transport · Regulation (EC) No 1072/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international road haulage market · Regulation (EC) No 1073/2009 of the European Parliament and of the Council of 21 October 2009 on common rules for access to the international market for coach and bus services · Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 Maritime transport · Council Regulation (EEC) No 4055/86 of 22 December 1986 applying the principle of freedom to provide services to maritime transport · Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) Rail transport · Council Directive 91/440/EEC of 29 July 1991 on the development of the Community's railways, OJ L 237, 24.8.1991, p. 25. · Regulation (EU) No 913/2010 of the European Parliament and of the Council of 22 September 2010 concerning a European rail network for competitive freight Air transport · Regulation (EC) No 1008/2008 of the European Parliament and of the Council of 24 September 2008 on common rules for the operation of air services in the Community · Council Directive 96/67/EC of 15 October 1996 on access to the ground handling market at Community airports) Inland navigation · Council Regulation (EC) No 1356/96 on common rules applicable to the transport of goods or passengers by inland waterway between Member States with a view to establishing freedom to provide such transport services · Council Regulation (EEC) No 3921/91 laying down the conditions under which non-resident carriers may transport goods or passengers by inland waterway within a Member State

|| Sectors not covered as such by secondary EU legislation

|| · Gambling · Activities which are connected with the exercise of official authority (as set out in Article 51 of the Treaty) · Private security services · Notaries, bailiffs · Taxis and port services

Annex
I b)   - Requirements assessed for their economic impact

1) Article 9 authorisations

                a) Prior autorisation to access the activity?

                b) for retail only: licences relating to outlet siting?

                c) for retail only: specific authorisations linked to the sale of certain products?

                d) for retail only: economic needs test?

2) Article 14 requirements

                a) Knowledge of (abolished) discriminatrory or nationality/residence requirements?

                b) prohibition on having an establishmentin more than one member state?

                c) Involvement of competitors in granting of authorisations?

                d) obligation to provide or participate in a financial guarantee or to take out local insurance?

3) Article 15 requirements

                a) quantitative or territorial restrictions?

                b) legal form requirement?

                c) shareholding requirements?

                d) ban on having more than one establishment?

                e) requirements on minimum number of employees?

                f) minimum and/or maximum tariffs?

4) Article 16 requirements

                a) establishment requirement?

                b) prior authorisation?

                c) notification/registration?

                d) insurance requirement?

                e) tariffs?

                f) general free movement clause in horizontal law ?

5) Article 25 requirements

                Restrictions on multidisciplinary activities?

Annex I c)  - Conceptual framework of the
economic assessment

ANNEX II: Detailed analysis per Member States
("Country fiches")

The assessment of the implementation in
each Member State is based on the information notified to the Commission
according to article 39 of the Directive, the results of the Mutual Evaluation
process[31]
and the studies[32]
that were carried out for the Commission.

This analysis does not prejudge the
assessment of the compatibility of other national rules with the Services
Directive or the Treaty.

   AUSTRIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Austria has set up nine
points of single contact, one for each of the nine Länder. All of them are
connected to the national PSC portal (www.eap.gv.at)
which offers access to the nine portals following the geographical locations
selected by the end-users. PSCs can be contacted by phone or in person.

The degree of
information offered on the Austrian PSC is good, although an improved search
function could help users to find the relevant information easier and faster. 
This seems particularly important for service providers from other Member
States which are generally less familiar with the legal or administrative
system in Austria.

The development of the
PSC has also led to standardisation and simplification of processes and to the
development of more than 100 new e-forms. This is a very good example of
administrative simplification for businesses which benefits both national and
foreign service providers.

The most important
procedures are available online and procedures for online completion are also
accessible to users from abroad. Certain improvements on-line completion of
procedures can still be made, but it has to be noted that, where available, the
usability of online forms is very good and highly developed.

An electronic
assistant, the so called "Dienstleistungsassistent" is
available at the general portal and guides providers through the different
steps of the procedure in German and English. However it seems that it was
difficult to locate and use this function for users who started their search
directly in one of the geographical PSC.

Concerning the
linguistic availability the study[33]
established for the Commission clearly indicated that the use of the PSC was
considered rather difficult for service providers not familiar with German.
However, it seems that in the meantime some of the nine PSC provide all the
information available in English and there is a formal commitment of all PSC to
provide the information in English. Depending on the geographical location,
some of the PSC also offers information in other languages.

In addition, direct
assistance to users is provides by phone and by mail in German and English and
if possible also in other languages.

The overall use and
usability of the Austrian PSC is above average. However, improvements could be
made concerning the distinction regarding information on permanent
establishments or temporary provision of services even if some progress has
been noted.

II.        Implementation of and compliance with key provisions

After a very promising start, the implementation work got seriously
delayed mainly for political reasons not linked to the Services Directive.[34] Austria finally adopted the last measures for the implementation of
the Services Directive in January 2012.

A horizontal (federal) law was adopted in November 2011,
however without covering the core provisions of the Directive on the freedom to
provide services. Austria considered that these provisions were better
implemented by amending existing laws at federal and Länder levels.

In general, few legislative changes were made to federal legislation[35],
whereas with 45 measures adopted to implement the Services Directive changes at
Länder level were more substantial. The most important matters which are within
the legislative and executive power of the Länder and where changes were made
concern the following sectors: construction and certification sector and the
conduct of certain professional activities (e.g. ski instructors, mountain
guides, chimney sweeps, dancing schools).

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Austria (articles 14 and 15 of the Services Directive)

The evaluation of the implementation of the Services Directive has
revealed, on the one hand, that requirements prohibited by article 14 of the
Directive can still be found in Austrian legislation, in sectors of economic
importance as well as for economically less important activities. On the other
hand, as regards requirements where the Directive left a margin of appreciation
to Member States to streamline the regulatory environment for the establishment
of providers and which are mainly dealt with in article 15 of the Directive, a
few of such requirements have been maintained. They concern basically the same
sectors where prohibited requirements still exist.

Concerning professional services, there is an obligation for
accountants, public accountants, tax advisers and patent attorneys to obtain
insurance from an operator who is authorised to exercise in Austria. This
requirement could in its factual consequences raise issues of compatibility
with article 14(7) of the Directive, which prohibits any obligation to obtain
financial guarantee or insurances from operators established in the same Member
State, given that it is highly likely that insurance companies authorised in
Austria are also established in Austria.

In addition an obligation for service providers to take a specific
legal form has been maintained for civil engineers, accountants, patent
attorneys and tax advisors. Shareholding requirements have been maintained for
the same professions. The fact that in the same sector and for the same professions
prohibited requirements as well as requirements which had to be evaluated by
Member States have been maintained, might lead to the conclusion that the
screening has not been done thoroughly concerning the laws and regulations
governing those professions or that requirements have been maintained on
purpose.

Concerning crafts, in particular chimney sweeps, the
situation is quite similar. First of all the requirement to have a seat in
Austria as well as the requirement for established chimney sweeps to restrict
the core activities to a certain area was not abolished. In addition the need
for a specific legal form for the activity of chimney sweeps was maintained.
The justification for keeping these requirements has to be put in question.

As far as the retail sector is concerned, prohibited
requirements have been found notably in the legislation concerning the so
called "Tabakmonopol": tobacco shops, where an economic needs
test might be carried out and where the regional Commission of Tobacconists
which consists also of competitors of a service provider has to be consulted
for the authorisation or relocation of a tobacco shop.

In the tourism sector, the assessment of the implementation
revealed the interesting fact that some Länder have abolished requirements
which have been maintained and justified by other Länder. This concerns in
particular ski schools and mountain guides. In two Länder ski schools may
accept clients only in the territory where the ski resort/territory is located.
One Land foresees an obligation of a ski school to inform another ski school
prior to providing ski education in the ski school area of the latter, whereas
this requirement has been abolished by other Länder. And finally in one Land
there is still a ban on having more than one establishment as a permit for
running a ski school may be granted only if the person is not yet holder of a
ski school permit in this Land. Concerning mountaineering schools one Land has
kept the obligation that the school needs to be managed by the holder of the
permit himself which might constitute a requirement contrary to article 15(2)
e) of the Directive. In any case, similar provisions were abolished by other
Länder. It is equally interesting to note that while several prohibited
requirements concerning the need for an establishment or for the indication of
an address have been abolished in the tourism sector, the federal law on crafts
remains ambiguous as to whether there is an establishment requirement for
tourist guides. This might need clarification.

The situation in the education sector concerning dancing
schools is similar to the tourism sector. Whereas some Länder have changed the
legislation on dancing schools to bring it in line with the Services Directive,
others have maintained the requirement that training in dancing skills shall be
provided personally by the natural person who is theoretically and practically
sufficiently skilled. This requirement could be considered a legal form
requirement as it seems to exclude the provision of service by legal persons.

2.         Nationwide validity of authorisations (article 10(4)
of the Services Directive)

Authorisations which are not granted for the whole territory of a
Member State but only for a specific part are likely to hinder the exercise of
service activities. Austria is a federal State with nine Länder and it is thus
important that, as a general rule, the authorisation received by one Land is
also valid or can be recognized in another Land.

There is no horizontal rule concerning the nationwide validity
of authorisations.

Article 10(4) of the Services Directive has not been transposed by
the federal horizontal law, which means that nationwide validity of
authorisations has to be foreseen in sector specific legislation.

Some of the Länder have included the nationwide validity as a general
principle in the horizontal legislation transposing directive 2005/36/EC on
the recognition of professional qualifications which applies to most of the
important economic sectors. For those Länder which have not adopted a
horizontal act for the implementation of Directive 2005/36, there are basically
two possibilities foreseen in different legislations: either automatic
recognition of qualifications acquired in another Land or other Member
State is explicitly foreseen or the law provides for the possibility to have
those qualifications recognized.

3.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval, an important mean to cutting red tape as it foresees
that an authorisation will be deemed to have been granted to the provider in
case an application has not received any response within the set time period,
is not foreseen in a horizontal act of law, but in sector specific
legislation.

For example, tacit approval has been specifically foreseen for
authorisations in the following sectors and legislations: opening of a
kindergarten in the education sector or issuing certificates in the
construction sector.

However, it has to be noted that in many cases tacit approval has
been introduced in the legislation well before the adoption of the Services
Directive.

At the same time, sector specific legislation has been identified
where tacit approval has not been specifically foreseen (e.g. use of
explosives, funeral facilities). It is also interesting to note that
differences between the Länder have been identified with regard to sector
specific legislation: comparable legislation foresees or does not foreseen
tacit approval of authorisations (e.g. in the tourism sector there are differences
concerning the authorisations of ski schools). The justification of such
differences will have to be verified.

4.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

The core
chapter of the Directive on the freedom to provide services has not been
introduced in the horizontal law which was adopted to implement the Services
Directive. As a matter of fact, Austria considered that a horizontal provision
would not have any additional value and that rules concerning the cross border
provision of services had to be implemented by amending existing laws at the
federal and the Länder levels.

The probably most important rule applying to cross border services
is contained in the Federal Commerce and Industry Regulation Act
(“Gewerbeordnung”) which covers the majority of commercial
and crafts activities. As a general rule, service activities in the scope of
the Act must be notified to the competent authority which has to assess whether
the legal requirements (e.g. legal age, professional qualification for
regulated professions) for the specific commercial activity are fulfilled. The
operator can start the activity on the day of registration, provided that the
documents required by law are submitted in full. This was considered in
compliance with EU law and therefore maintained. For certain sectors, such as
master builder, chemical laboratories, gas and sanitation installations
engineering, debt collection services, chimney sweeps, commercial and financial
consultants and arms trade, which are considered sensible acitivites among 
“regulated professions” an authorisation is necessary in order to
legally start that activity. However the Act also contains a specific rule
for the provision of cross border services which has been introduced in
order to implement Directive 2005/36/EC. According to this provision, nationals
of an EU Member State or EEA country, who are established in another Member
State of the EU or EEA and are providing services there on a legal basis, can
provide services on a non-permanent and occasional basis under the same
conditions as domestic traders. So far there is no jurisprudence concerning the
interpretation neither of “non-permanent and occasional basis” nor
about what has to be understood under “the same conditions as domestic
traders”.

Similar rules as the one concerning commercial and craftsmen
activities can be found in other sector specific laws at federal level, like
the Act on Public Accountants and Tax Advisors, the Act on Balance Accountants
or the Act on Civil Engineers.

2.         Distinction between freedom of
establishment and free provision of services

A part from the examples mentioned above, legislation in general
does not distinguish between a service provider that wants to establish a
business in Austria and a service provider wishing to provide temporary cross
border services.

3.         Issues with the free provision
of services clause

The federal legislator did not consider that a lot of legislative
changes were needed to achieve compliance with the Services Directive. On its
website the Ministry of Economy, which was coordinating the implementation
work, states that in Austria the need for amendments was assessed as being low.[36]

Examples of requirements that have been
maintained

Finally in the professional services sector the relevant law
only provides for rules for cross-border activities of balance accountants and
not for other accountants which seem to imply that all the requirements applied
for established providers will also apply to incoming services providers.

In the construction, certification and crafts services sector,
all Länder laws foresee authorisation requirements with regard to the
certification of construction products. An establishment requirement for
chimney sweeps has been identified which implies that the cross border
provision of such services is prohibited in Austria. The obligation of house owners
to contract chimney sweeps exclusively from their respective territory in some
Länder may also constitute a prohibited restriction in terms of the Services
Directive.

Concerning the retail sector, products with medical effects
might only be sold after having obtained a specific authorisation.

Most requirements which have been maintained concern the tourism
sector, where it can be observed that requirements and justifications seem
to differ between the Länder. Service providers from other Member States
wishing to provide temporary cross border services in some Länder still need to
have an authorisation, e.g. for running ski schools and engaging as ski, cave
or mountain guide, whereas in other Länder for those same activities a
notification regime has been maintained. For some of those activities there is
also an obligation to wear special badges or to have a special identity card.

Finally, there is also an establishment requirement for tourist
guides or at least an ambiguity in the legislation which should be clarified.

As far as the education sector is concerned authorisations
are needed for training in dancing.

   BELGIUM  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Belgian point of single contact consists of a central PSC website,
called www.business.belgium.be
and nine so-called ‘enterprise counters’, which have online portals
and physical offices. Those enterprise counters are managed by private
operators, but are recognized/mandated by the Belgian authorities. This cluster
of business counters was developed already before the adoption of the Services
Directive in order to execute a number of tasks for businesses that previously
were performed by different authorities.

The provision of information is generally good because of the
assistance by the 'procedure guide'. Improvements could
however be made concerning the availability of information by providing a real one-stop source for information and procedures
instead of being obliged to visit other sites for transactions. The structure
and overview of the website could be improved in order to allow users to find
back quickly relevant (sector-specific) information. Another improvement could
consist in a clear differentiation for all administrative formalities
applicable to businesses wanting to enter Belgium on a temporary basis.

The electronic
completion of procedures is the weakest point of the Belgian PSC. The purpose
of the business.belgium portal is rather to give information and to redirect
users to other websites, and therefore does not allow for documents and forms
to be retrieved electronically, or for the submission of signed electronic
documents. This is the case for some procedures on some of the business counter
portals. Furthermore, the required infrastructure to ensure compliance with the
Commission Decisions governing cross-border acceptance of eSignatures is
currently not foreseen on the business counter portals. This is however not
problematic since eSignatures are at any rate not required of service providers
at the moment.

Assistance to PSC users
is provided by the ‘procedure guide'. Here anyone
can find information about applicable procedures and requirements by filling in
the business activity, the sector and the location. For individual assistance
businesses have to turn to the business counters.

The portal is available
in Dutch, French, English and German. It should be noted that not all
information is available in those four languages. English is not always
supported and foreign businesses that find English information on the
business.belgium portal might then be referred to French or Dutch webpages at
the level of the business counters.

The overall use and
usability of the Belgian PSC is above average.[37]
However, improvements could be made concerning the availability of information
(more user friendly), enhancing online completion of procedures, integration
between the central portal and the 9 decentralised business counters, and
promoting awareness of the PSC among business users.

II.        Implementation of and compliance
with key provisions

The federal as well as regional levels have adopted a horizontal
law, containing the general provisions, as well as sector-specific laws, which
should align existing legislation with the Services Directive.

A horizontal federal law was adopted in 26 March 2010 which serves
as a framework law; together with a vertical law of 22 December 2009 which
amends around 10 existing acts in conformity with the Services Directive.

At the level of the Communities and Regions, all regional
authorities opted for horizontal as well as sectorial texts in order to ensure
correct transposition of the Services Directive,

In general, most legislative changes were adopted on regional level
apart from some substantial changes on Federal level. The most important
changes were made in the following sectors: travel agencies in Flanders and
Wallonia, obligatory registration of building contractors, registration in the
commercial register (CBE) and commercial establishments (licence).

A.        Streamlining the regulatory environment for services

1.
        Requirements applying to providers established or wishing to
establish in Belgium (articles 14 and 15 of the Services Directive)

Concerning professional services, shareholding and legal form
requirements were found to exist in the legislation governing lawyers,
architects, accountants and tax advisors.

For architects, natural persons who are mandated to exercise the
profession of architect and who are registered with the Body of Architects must
have, directly or indirectly, at least 67 % of the shares (the Act of 20 July
2006) as well as the voting rights of an architectural company. Only persons
whose profession are compatible with the profession of architects and who must
be notified to the Body of Architects can hold the other shares. For lawyer, the
majority of capital must be held by qualified lawyers.

In order to use the title of accountant or tax advisor, the majority
of voting rights and shares must be in the possession of accountants or tax
advisors who are members of the Institute of Accountants. There is also an
obligation for the accountants/auditors and tax advisors to take the specific
legal form of a civil company established in the form of a commercial company
in accordance with Belgian law, or a company established under foreign law and
authorised to provide accountants/auditors or tax advisors services in the
Member State of establishment

Other requirements which have been removed or made less stringent
concern the legal form requirement for recovery of debt services and tariffs
for architects in Belgium.

No requirements have been identified in the crafts, construction
and certification services sector. Tariffs for waste management services
for instance have been abolished.

In the real estate sector, the Act on the protection of the
title of surveyor foresees that only natural persons can exercise the
profession of surveyor. There is however, a possibility for legal persons to
exercise the profession, but the professional liability arising from the duties
is reserved to the surveyor personally and cannot be restricted.

As regard the licence for commercial establishments in the retail
sector, Belgium has made many efforts to bring this legislation in line
with the Services Directive and, in particular, to eliminate economic need tests
such as the assessment of impact on existing retail stores. It is still to be
assessed whether the decision to regionalise the licensing system would bring
further simplification.

In addition accreditation is needed for natural and legal persons
that want to provide services creating new jobs, mainly for long-term
unemployed persons that meet local needs. One of the criteria for this
accreditation is ‘the integration of the service provider in local social
and economic life’. It is worth noting that a high degree of integration
is possible almost exclusively for natural and legal persons already
established for a long time in Belgium, a condition which could be considered
discriminatory against incoming service providers.

With regards to exercise and organisation of fairs and ambulant
activities, the Mayor may determine the location, days, hours and
specialisation of ambulant activities and might even reduce the number of
pitches per company to maintain the diversity of the supplied services. This
could be considered as a territorial/quantitative restriction. In addition, the
establishment and operation of night shops and private telecommunications
offices can be restricted by the Mayor to certain parts of the municipality.
Also, the accreditation of a service that creates jobs for long-term unemployed
persons (“local service economy”) may only be granted to those
entities specified in the Belgian legislation, which could be considered to be
an obligation to take a specific legal form.

No forbidden requirements were identified in the legislation in
Flanders, Wallonia and Brussels, regarding the tourism sector. Recently
a shareholding requirement for every person wanting to start a travel agency[38]
has been abolished for the Flemish region[39].
This requirement has also been abolished for the Walloon Region[40]. However this
restrictive requirement is still in place for the Brussels-Capital Region. A
minimum capital requirement for travel agents has been abolished in Belgium,
except for the Flemish region.

A number of requirements reserving an activity to a particular
service provider and placing an obligation on a provider to take a specific
legal form were identified in the education sector. These relate to vocational training courses for continuing education for SMEs where
there is the obligation that courses have to be organised by an appointed
Institute by the Government. Driving schools need to be run by natural persons
or commercial companies, excluding civil companies. There is also the
requirement to take the form of a non-profit organisation, which was found to
apply in relation to organisations verifying the quality of education in the
Flemish region, and centres offering adult education in the German-speaking
Community.

Driving instructors are obliged to have an establishment unit in
Belgium. In addition a driving school is obliged to have an authorisation for
the operation, its management personnel, its teaching personnel and the
location.

2.         Nationwide validity of authorisations (article 10(4)
of the Services Directive)

Belgium is a federal state with political power spread into three
levels: federal level, Community level and the level of the Regions. From a
legal point of view, all levels are equal and each of the Belgian legislators
is competent to implement the Services Directive to the extent that the matter
falls within its responsibilities.

Consequently, nationwide validity of authorisations is guaranteed by
authorisations that are governed by federal legislation while the validity of
regional authorisations is in general limited to its territory. The horizontal
decrees of the Flemish Region and the Wallonia Region for example ensure right
of access and exercise of services activities throughout the territory of the
Flemish Region and the Wallonia Region[41].
The German-speaking Community however guarantees nationwide validity of their
authorisations as the service provider has the right to exercise the activity
throughout the Belgian territory.

3.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The different horizontal laws have implemented the principle of
tacit approval of authorisations, but it does not apply generally. Sector
specific legislation was amended in order to specify where tacit approval
applies.  For example, it has been explicitly introduced for the authorisation
to operate as a travel agent in the Flemish region.

Considering that an exception could be justified by overriding
reasons of general interest, tacit approval does not apply in the following
sectors: construction sector, travel agents, tourist accommodation and camping
parks in Wallonia, food and beverage, education services, debt collecting
activities.

However, in sectors where the principle of tacit approval does not
apply there are general commitments that the application process should be
easy, as quickly as possible and at a reasonable cost.

4.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

The federal
government and each regional authority implemented Article 16 of the Services
Directive by means of horizontal legislation together with changes in some
sector-specific laws. The Flemish government however has only introduced
sector-specific changes.

The Walloon
region and Brussels Capital region expressly provided that the horizontal
decree on services will prevail over sector specific legislation in case of conflict.
In this case cross-border service providers can rely on the freedom to provide
services clause even if sectorial provisions say otherwise.

2.         Distinction between freedom of establishment and free
provision of services

Concerning cross-border trade, it seems that some authorisation
requirements for national providers are also applied to incoming service
providers. In general, Belgian legislation makes a distinction between the two.
In addition, it seems doubtful whether those authorisations applied to incoming
services providers can be justified by one of the four reasons under Article 16
(public policy, public security, public health or the protection of the
environment) and whether they are proportionate. This concerns for instance,
authorisation for ambulant and fair activities, authorisation for the activity
of butcher, obligation for travel agents to have premises in the territory,
authorisation for real estate agents, establishment and authorisation
requirements for driving schools, and authorisation and shareholding
requirements for architects, accountants and lawyers.

3.         Issues with the free provision of services clause

In Belgium, a general requirement for business registration at the 'Banque
Carrefour des enterprises' exists for the establishment of service
providers. Enterprises (natural and legal persons) that want to establish in
order to provide services on the Belgian territory have to be registered
at the CBE. It appears, according to the information of the Commission, that
cross-border service providers need to register in the CBE if they have to file
an application for an authorisation that is covered by the Services Directive.

A horizontal prior notification (‘Limosa’) is
required from all service providers for commercial, crafts and liberal
activities, including activities in the construction sector, wishing to
exercise under free movement of services. The Limosa notification entails a
horizontal obligation also for self-employed persons providing cross-border
services in Belgium to file a prior notification with the Federal Service for
Social Security. A case about the legality of this notification duty is pending
before the Court of Justice of the European Union.[42]

Examples of requirements that have been maintained

In the professional services sector, collecting societies
must be established in Belgium.

Concerning the construction and crafts sector there is an
authorisation requirement for contractors.

Real estate agents are allowed to
provide their services on occasional and temporary basis in Belgium only after
they have obtained permission from the Professional Institute for Real Estate
Agents. Each real estate agent is obliged to make note of his number of
permission obtained from the Professional Institute on all his documents and on
his website. No justifications for this authorisation requirement were provided
in the legislation. For surveyors, registration at the Federal Council of
Surveyors is needed for all service providers.

As far as the tourism sector is concerned, in the Wallonia
and Brussels-Capital Region, travel agents must have premises in their
territory, which must be accessible to the public. The former authorisation
requirement for travel agents has been replaced by a less stringent
notification system.

Finally, in the education sector, driving
schools are required to have at least one establishment unit in Belgium and
must obtain several authorisations such as for the operation, the managing
personnel, the teaching personnel and its location and physical premises. As
such, cross-border provision of services for driving schools does not seem to
be possible in Belgium. Centres providing training to environmental specialists
and laboratories that analyse water, air and soil in the Flemish region, need
to be accredited.

  
BULGARIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Bulgarian portal
does not give access to the electronic services, but provides information to
complete the relevant types of administrative requirements. It mainly acts as a
signpost, providing information about administrative requirements and referring
users to the websites of competent authorities and provides information on only
a limited number of procedures. The level of information provided is low and
can be considered not sufficient for the services providers.  There is no
physical point of single contact.

On-line completion of
procedures needs to be significantly improved. Electronic completion is
currently possible for a limited number of procedures through the websites of
the responsible authorities (linked to the PSC portal). In many cases, however,
the use of paper forms and non-electronic procedures is
still required. Electronic signatures are required for the submission of forms
and related documentation, however only the Bulgarian electronic signature is
accepted.

The Bulgarian PSC
provides some facilities to help users obtain information. When users encounter
problems a telephone number and e-mail are provided. However they are not easy
to detect on the website. Moreover the contacts provided are not the ones
responsible for the content of the website, but mainly for technical questions.

Regarding the
linguistic availability, the PSC is accessible only in Bulgarian. Improvements
in this area are necessary to enable foreign users the access to the content
and the use of the portal.

The overall use and
usability of the Bulgarian PSC is perceived to be average.[43] However, improvements
could be made concerning the availability of procedures and information, the
clarity and accessibility of the information provided (notably ensure a clear
and distinct information on requirements applicable in case of establishment
and the ones applicable in case of cross-border provision of services). Another
area noted for improvement is the lack of information on municipal regulation
and specifically the registration regimes.

II.        Implementation of and compliance with key provisions

The Bulgarian horizontal implementing law, the Service Activities
Act, entered into force on 23 February 2010. The Act includes some amendments
to specific legislation such as the Tourism Act, the Spatial Planning Act, the
Chamber of Builders Act, the Chambers of Architects and Engineers involved in
Investment Design Act, the Energy Efficiency Act, the Crafts Act and the
Consumer Protection Act.

In general, few legislative changes were
made to sector-specific legislations with the amendments of only the 7
sector-specific laws mentioned above.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Bulgaria (articles 14 and 15 of the Services Directive)

The evaluation of the implementation of the Services Directive has
revealed, on the one hand, that some requirements prohibited by Article 14 of
the Directive can still be found in Bulgarian legislation in the area of
professional services. On the other hand, as regards, requirements where the
Directive left a margin of appreciation to Member States to streamline the
regulatory environment for the establishment of providers and which are dealt
with in Article 15 of the Directive, a few of such requirements have been
maintained in the area of professional services.

Concerning professional services, the most striking
requirement prohibited by the Directive and maintained in Bulgaria is the
nationality requirement for cartographers and cadastre service providers, as
well as industrial property representatives. In addition, industrial property
representatives must have their residence in Bulgaria. Those requirements are
clearly against article 14(1) of the Services Directive which prohibits
requirement based on nationality and residence. However, those laws are
currently under review and should be amended in the course of the year.

In addition, an obligation for service providers to take s specific
legal form and to respect rules relating to the shareholding of companies has
been maintained in the legal profession, as well as in
architectural/engineering professions holding specific company titles only.
Fixed minimum tariffs are still in force for lawyers, architects and engineers
in investment design, cartographers and cadastre service providers whereas the
Professional Organisation of Veterinarians is entitled to determine the minimum
prices for carrying out veterinary activities. Minimum tariffs for independent
financial auditors were abolished through the implementation of Services
Directive.

Concerning crafts, construction and certification services,
an obligation for service providers to take a specific legal form has been
maintained for persons who carry out technical supervision of high-risk
equipment and persons who carry out services on maintenance, repair and
modification of such equipment. According to the Technical requirements of
Products Act, the providers must be legal persons, registered in the Commercial
Register (Article 34a and 36).

In the area of education, an obligation to take a specific
legal form has been maintained. Bulgarian private schools with foreign
participation may be opened by associations registered in Bulgaria between
Bulgarian and foreign individuals and/or legal persons; foreign private schools
may be opened only by foreign legal persons. In addition, only legal entities
can open vocational training centres. The vocational centres can be opened by
associations registered in Bulgaria between Bulgarian and foreign individuals
and/or legal persons or in cases of foreign vocational centres, by foreign
legal persons.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval has been implemented via the Services activities Act
(the horizontal implementing law of the Services Directive). However, sector
specific legislation was not always amended in order to specify where tacit
approval applies.

Tacit approval does not apply in the following sectors in their
entirety: tourism, construction, education, crafts and business services. This
raises some doubts as to the use of the exception under Article 13(4) of the
Directive and the relationship between the horizontal implementing law and
sector-specific laws.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No amendment has been adopted to sector-specific legislation. Rules
applicable to commercial communications for regulated professions are not
known. Prohibitions for some forms of commercial communications remain for
lawyers and constitute thereof an infringement of Article 24, paragraph 1 of
the Services Directive.

B.        Boosting cross-border trade

1.         National implementation

The core chapter of the Directive on the freedom to provide services
has been implemented in the horizontal implementing law. Article 19 of the
Services Activities Act implements the principles set out in Article 16 of the
Services Directive, i.e. that requirements can be imposed on incoming service
providers only if such requirements are non-discriminatory, are justified for
reasons of public policy, public security, public health, or the protection of
the environment, and are proportionate to the pursued objectives.

In addition, the Transitional and Final Provisions of the Services
Activities Act require that national competent authorities undertake all those
measures necessary to ensure that existing authorisation schemes and
requirements for service providers are in conformity with the provisions of the
Services Activities Act within two months from its entry into force.

A specific provision in the horizontal implementing law lays down a
mechanism to control the process of creating new statutory instruments that
introduce requirements for access to services or the exercise of service
activities.

2.         Distinction between freedom of
establishment and free provision of services

The transposition approach in the sector-specific legislation is
rather divergent.  Some of the Acts (the Tourism Act, the Spatial Planning Act,
the Chamber of Builders Act, the Chamber of Architects and Engineers involved
in Investment Design Act, the Energy Efficiency Act, the Crafts Act and the
Consumer Protection Act) have been amended by the Transitional and Final
Provisions of the Services Activities Act itself while others (like the Professional
Qualifications Recognition Act and Independent Appraisers Act) were
subsequently amended. Thus, special provisions on the freedom of establishment
and on cross-border service providers have been introduced. However, even
though most of the necessary changes are being prepared, the majority of the
relevant sector-specific legislation has not yet been amended. As a result,
these Acts make no distinction between the requirements applicable to the
cross-border service providers and those established in the territory of
Bulgaria. Thus it seems that these requirements (authorisations, registrations)
could apply for both categories of service providers.

3.         Issues with the free provision
of services clause

Serious concerns are raised by the fact that it seems that the
sector-specific legislation does not distinguish between requirements
applicable to establishment and to cross-border provision of services.

Bulgaria has interpreted the provision in Article 17(6) of the
Services Directive by excluding from the scope of the freedom to provide
services clause all the services provided by regulated professions whereas the
exclusion foreseen in the Services Directive covers only matters linked to the
recognition of professional qualifications (title II of Directive 2005/36).
Similarly, the exclusion of audit services is broader than the one foreseen
under Article 17(13) by excluding all audit services and not only matters
covered by Directive 2006/43.

The scope of the derogation foreseen for intellectual property
rights (Article 17(11)) has also been broadened by excluding services in the
field of intellectual property rights.

Examples of requirements that have been
maintained

In the sector of professional services, there are no specific
provisions concerning cross-border provision of services in sector-specific
legislation, neither in the Services Activities Act for regulated professions.
The implementation of Article 16 of the Services Directive for regulated
professions and matters not covered by title II of Directive 2005/36 is lacking
in the Bulgarian legislation. Some sector-specific laws are in the process of
being amended such as the veterinary law. However, in other laws such as the
law on architects and engineers in the investment design or the Bar Act, a
clear distinction between establishment and cross-border provision of services
is still missing but is foreseen in the draft amendments to the laws.

Concerning crafts, construction and certification services,
the Chamber of Builders Act was amended and now the registration of service
providers in registries in their Member State of establishment is recognized as
equivalent to the registration required under the Bulgarian law. Similarly, for
crafts, the authorisation scheme that was in place for cross-border service
providers in the area of crafts was removed and was replaced by an obligation
to notify. Notifications must include details such as the address of the
service provider in the Member State of establishment; the address where the
craft activity will be carried out in Bulgaria; evidence of the formal
qualification as craftsperson. Providers carrying out technical supervision of
high-risk equipment are subject to licensing, while providers who carry out
services on maintenance, repair and modification of such equipment are subject
to registration.

In the real estate sector, persons providing independent
appraisals, cartography and cadastre services must be registered. Cross-border
providers are prevented from providing services by the nationality requirement
currently in force for cartographers and cadasters. This legislation is under
review and should be amended in the course of this year.

In the retail sector, authorisation
schemes and registration requirements applicable to established providers seem to
be also applied to cross-border providers in the absence of clear distinction between the provisions applicable to established providers and
cross-border service providers. Authorisation schemes or registration requirements are set out for
the sale or distribution of a number of specific products such as grain, veterinary products, tobacco, alcohol, precious metals and
stones, plant protection products, cultural objects, trade of ferrous and
non-ferrous metal waste, duty free trade. There is also
an obligation to register merchandisers and branches of foreign merchandisers
in Bulgaria, as well as commercial sales.  The municipalities have also laid
down requirements for the provision of retail services in their territory
through the adoption of local ordinances. Authorisation schemes are set out for
outdoor sales in local markets and public areas (ambulant sales) as well as for
the sale of tobacco articles; some municipalities have laid down notification
schemes for wholesale and retail services.

As far as the tourism sector is concerned, some issues with
requirements prohibited by Article 16(2) were noted. They concern the
requirement for a tour operator or travel agents, established in a Member State
of the European Union or EEA country, also to be established in the territory
of Bulgaria. The registration procedure foreseen for tour operators and travel
agents has been repealed and replaced by an obligation to register ex
officio upon submission of documentation, certifying their right to carry out
such activities in another Member State and a certificate or document issued by a credit institution or insurance company,
containing evidence of professional insurance. But
cross-border tour operators and tourist agents carrying out activities in Bulgaria
must enter into agreements with registered tour operators and travel agents,
licensed insurers and carriers, guides, animators, mountain guides, ski
teachers, etc. as well as with persons, who carry out tourist activities in
categorized tourist sites.  However, the Tourism Act is currently under review
and expected to be adopted by mid-2012.

In the education sector, a decision of the
Parliament is necessary to open higher education institutions. Similarly, a
decision of the Council of Ministers is necessary to open private schools. The
vocational training centres are subject to licensing by the National Agency on
professional education and training. An authorisation from the Minister of
Transport is necessary to operate a driving school (the applicant should have
the necessary expertise and knowledge to provide driving lessons and practice).
Those requirements seem to be applicable to cross-border service providers in
the absence of explicit provisions on cross-border services in the
sector-specific laws.

  
CYPRUS  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The
PSC in Cyprus has been established based on the decision of the Council of
Ministers of the 16th of December 2009 and the articles 6-9of the law for the free establishment of
service providers and the free movement of services (16/07/2010),and operates
within the auspices Ministry of Commerce, Industry and Tourism.

The
PSC Cyprus portal provides information and application forms regarding
procedures and formalities needed for the access to and exercise of service
activities that fall within the scope of the Services Directive and information
regarding the horizontal procedures and formalities related to the setting up
of a business in the Republic of Cyprus (income tax registration, VAT
registration, social security registration, registration of companies,
temporary residence and employment permits). Furthermore application forms for
some procedures required for the access to, and exercise of, service activities
and for some horizontal procedures related to the establishment of a business
in the Republic of Cyprus (social insurance) can be submitted online.

Overall,
information regarding the application procedure (application forms, list of
supporting documents, onsite inspections – examinations, applicable
deadlines, applicable fees, licence duration), eligibility criteria, contact
details and link to competent authority, obligations and supervision, contact
details of related professional associations, legislation, Public Registry
where applicable, and links related procedures are included in the information
content.

One
of the most positive aspects of PSC of Cyprus use the numerous navigation tools
for searching procedures (i.e. drop down menu by service sector, index by
alphabetical list of procedures, index by service sector, search engine for
procedures, general site search engine) whereby a clear distinction of
procedures related to establishment and cross border service provision is
provided. Also, the provision of customized online tracking, through the
personal space, of the on-going procedures (applications submitted
electronically) is well-structured and sufficient; supporting documents can be
submitted along with the online application forms. Specifically, registered users
can electronically submit application forms online through direct data entry
attach supporting documents including the receipt of payment and electronically
sign the whole package. Through the "Personal Space", service
providers can view the application form submitted as well as track the
progress of their on-going procedures.

Potential
areas for improvement include online payment via enabling e-signatures and
certifying users digitally and the development of the site in the Greek
version, since now it is only available in English. In parallel, the launching
of electronic submission of application forms and electronically tracking the
on-going procedures through the personal space of the Cypriot PSC, is expected
to contribute to simplification of procedures and reduction of administrative
burden.[44]

II.        Implementation of and compliance with key provisions

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Cyprus (articles 14 and 15 of the Services Directive)

The evaluation of the implementation of the Services Directive has
revealed that quite a number of requirements prohibited by article 14 of the
Directive can still be found in Cypriot legislation, in sectors of economic
importance as well as for economically less important activities. As regards
requirements where the Directive left a margin of appreciation to Member States
to streamline the regulatory environment for the establishment of providers and
which are mainly dealt with in article 15 of the Directive, a number of such
requirements have been maintained. Although the Commission services have been
in contact with the Cypriot authorities in order to eliminate those
requirements, draft legislation concerning most of the requirements has been
communicated to this end but it has not been adopted yet.

Concerning professional services, shareholding requirements
have been maintained also for lawyers, where only lawyers can be shareholders
of a lawyers’ company. For lawyers minimum tariffs seem to have been
maintained as well.

Concerning crafts and construction services, no evidence has
been found of the existence of such requirements.

In the real estate sector, both natural and legal persons
must have a registered office or place of business in the Republic of Cyprus.
The registration of a legal person as a real estate provider is done separately
from the registration of a natural person that is also required in parallel.

As far as the retail sector is concerned, prohibited
requirements have been found notably in the legislation concerning opticians
where there is an obligation to have a permanent establishment in Cyprus.

In the tourism sector, the Travel Agencies and Travel Guides
Law provides that for the grant of a licence to establish and operate an
agency, a guarantee of 20.500 EUR must be deposited by the entrepreneur. For
the renewal of an existing operation licence, it is required that the guarantee
already in force for the said equal amount, be valid in accordance with the
following provisions:  Provided that, in the case of a licensed Office which
takes over the organization, the promotion and the execution of programs of
organized excursions and tours abroad, by any means of transportation, the
deposit of an additional guarantee of twelve thousand pounds shall be required.

Regarding car rental services, obligation for a permanent
residence in Cyprus still apply after the legislation adopted at the end of
April 2012.

Finally, with regard to private universities in the education
sector, the person establishing the university must be a legal person
registered in Cyprus. Also, there are a number of requirements in place with
regard to legal form (only by legal person) and shareholding, where for the
preliminary registration of the private universities it is required to include
at least seven (7) persons proposed as members of the Temporary Governing Body.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The concept of tacit approval was introduced in the horizontal law
and more specifically in Article 13(4) of Law 76(I)/2010 provides that any
other laws may provide for different arrangements when this is justified by
overriding reasons relating to the public interest, including a legitimate
interest of third parties. Areas in which the provisions of Article 13(4) of
the Directive are not directly transposed, are those involving gas stations,
real estate agents, travel agencies and tourist guides, car rental services,
hotels and rooms for tourists, private schools, private universities (the Law
on higher education refers to a time limit of four months within which the
Ministry of Education and Culture is obliged to reply), protection of beaches,
protection of animals. The above mentioned areas do not foresee the tacit
approval.

Nevertheless, for most service sectors no specific provisions on
tacit authorisations were adopted and serious doubts remain as it is not clear
how the general tacit authorisation principle mentioned in the horizontal act
would be applicable in practice.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

A number of total prohibitions of
commercial communication were identified. Following contacts between Commission
services and the Cypriot authorities draft legislation to eliminate most of the
requirements has been communicated but it has not been adopted yet.

Regarding lawyers, the law prohibits any advertising to be made in
newspapers or magazines, on the radio or television and to appear in posters or
on advertising board.

The current code of conduct for engineers
prohibits any direct or indirect advertisement.

Also, for veterinarians, advertising via the
press or via any other means is prohibited with the exception of some limited
circumstances.

B.        Boosting cross-border trade

1.         National implementation

Cyprus transposed Articles 16(1) and (2) through sections 16(3) and
16(4) of the horizontal law of 2010, Law 76(I)/2010 (the Law).

The transposition of Article 16 of the Services Directive is, in
general, literal. The only apparent difference in wording is the fact that
Article 16(1)(b) has not been literally transposed and the relevant transposing
section of the national law (section 16(3)(b)) does not use the wording
‘public policy’ as an overriding reason, but the words
‘public order’ instead.

Where the requirement to obtain a licence is concerned, the
legislation does not make a distinction between established or cross-border
providers. The applicable Horizontal Law is drafted in a general manner; it
applies to any service and does not provide for a list of requirements to be
applied by competent authorities to cross-border services in specific areas,
such as retail, tourism, etc. According to section 5(3) of the Law, the
provisions of the Law, unless otherwise provided, prevail over any contrary
provision of any other law in the Republic.

As the situation now stands, other national laws have not yet
undergone any legislative changes in order to clearly specify which rules do or
do not apply to specific cross-border services.  Thus, it appears that it is
for the competent authorities to decide in each case whether a rule complies
with these requirements or not. This would seem problematic in view of legal certainty
and effectiveness of the implementation.

2.         Distinction between freedom of
establishment and free provision of services

In the vast majority of legislation no difference is made between a
service provider that wants to establish a business in Cyprus and a service
provider wishing to provide temporary cross border services. The PSC gives a
clear indication either about the rules that apply for an establishment in
Cyprus and the rules for temporary services provision, however very often the
same rules apply.

3.         Issues with the free provision
of services clause

As regards the Article 16 requirements, a number of authorisation,
registration or licensing requirements that presumably apply also to
cross-border providers apply in the retail, tourism, education, construction
service sectors and in the professional services. However, it is noted that
with respect to those activities that are classified as regulated professions
in Cyprus, the relevant requirements are generally equivalent to those foreseen
by Article 7 of Directive 2005/36/EC and benefit from the derogation from
Article 16 of the Services Directive as provided by Article 17(6) of the
Services Directive.

Examples of requirements that have been
maintained

In the construction sector, as far as the planning, design,
installation and maintenance of electrical and mechanical machinery and systems
are concerned, licence or authorisation requirements are maintained for the
purpose of preserving the quality of services to be provided by qualified
persons having adequate education and experience.

Real estate agents from an EU Member
State, wishing to provide cross-border services in Cyprus may provide such
services subject to a prior written notification to the registration Council of
Real Estate Agents.

Concerning the retail sector, obligation to obtain an
authorisation or a registration apply to the marketing of veterinary products,
sale of firearms and explosives, trade in motor vehicles and general
establishment of a business or trade in a municipality.

In the tourism sector, for tourism services on beaches
licence or authorisation requirements remain in place for cross-border service
providers.

For car rental services, the new legislation adopted at the end of
April 2012 provides that for the temporary provision of cross-border services
an authorisation (approval) is required together with the obligation to be
established in Cyprus. A minimum number of the cars, which have to be
registered in Cyprus, is required (more than 15).

  
CZECH REPUBLIC  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points
of Single Contact

The Czech electronic Point of Single
Contact was launched in January 2010, and integrated into an existing
government-funded portal providing advice to businesses, BusinessInfo.cz. The
Czech PSC is above average in terms of the availability and quality of
information provided.

The Czech PSC offers comprehensive
information on the majority of procedures that businesses would need to
complete, even going beyond the requirements under the Services Directive to
meet businesses' needs in providing information on social security and tax
formalities. Only in the provision of information to the restaurant and
catering sector, which falls largely under the responsibility of local
authorities, is the situation with regard to information provision less
positive.

As regards language accessibility, the
Czech PSC makes some information available in English, but this is not the same
content as the information available in Czech. Google Translate is used as a
support tool.

The PSC features online forms which are
used as central access points to provide information for a variety of purposes
such as application for a business license and application for VAT and income
tax registration. In terms of electronic completion of formalities, the
integrated online forms are used to centralise the information collected and to
forward it on to the relevant competent authorities for further processing.
This system is perceived as very user-friendly. Some electronic procedures
(e.g. for architects) are dealt with on websites linked to the PSC, but the
user is automatically redirected to them. Procedures that cannot be dealt with through
the online form system and for which there is no electronic support concern
mainly those dealt with by local authorities, which offer one-way interaction
through downloadable forms. E-signatures are not implemented as an internal
application for services in the portal and thus cannot be used to complete
electronic procedures via the portal. However, e-signatures can be used while
submitting a completed form via e-mail to the PSC or competent authority.
Electronic payment is not supported.

In terms of user-friendliness, the sheer
volume of information on the Czech PSC portal can be confusing for users, and
the planned clearer structuring of the site will be beneficial. Furthermore,
user testing of the PSC[45]
indicated that there is no clear distinction made between foreign businesses
considering permanent establishment and those considering temporary
cross-border service provision.

Potential areas for improvement include a
clearer structure of the site, providing online support tools, increasing the
number of procedures that can be completed online through the acceptance of
e-signatures, and increasing the amount of information available in English.

II.        Implementation
of and compliance with key provisions

The Czech Republic implemented the Services
Directive in 2009 through two legislative acts; a horizontal framework
law and an omnibus law amending numerous sector-specific laws, mainly in order
to introduce the concept of tacit approval. The article on the freedom to
provide services was implemented both in the horizontal law and in
sector-specific laws. The Czech authorities also produced guidance on the
national implementation of the Services Directive, including on the
interpretation of the principles of non-discrimination, necessity and
proportionality set out in the Directive.

A.        Streamlining
the regulatory environment for services

1.         Requirements applying to providers established or
wishing to establish in the Czech Republic (articles 14 and 15 of the Services
Directive)

As regards requirements where the Directive
left a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers and which are mainly foreseen in
article 15 of the Directive, there are a number of requirements in place in the
Czech Republic with regard to legal form and shareholding, particularly in the
professional services sector.

For instance, in the professional
services sector, legal services can only be provided by attorneys (natural
persons) or by unlimited companies, limited partnership companies or limited
liability companies established by attorneys. Other forms of legal person, such
as joint stock companies or cooperative societies are prohibited from providing
legal services. Similarly, cooperative societies are prohibited from providing
the service of patent attorney.

However, it seems that legal persons
established on other EU Member States can provide the services of lawyer or
patent attorney regardless of legal form, so these restrictions are applicable
only to Czech firms. But established "foreign companies" must meet
another requirement, namely that the provision of legal services be their only
activity.

Requirements that limit the shareholding by
third parties have been identified in the Czech legislation on the legal
profession, on certified architects and engineers, and on patent attorneys,
whereby only lawyers can be partners of companies providing legal services, and
only authorised architects or authorised engineers can be partners of unlimited
companies providing services in their profession. Other, but less stringent,
requirements apply to architects and engineers as partners in limited
partnership companies.

2.         Tacit approval of
authorisations (article 13(4) of the Services Directive)

Tacit approval, an important mean to
cutting red tape, as it foresees that an authorisation will be deemed to have
been granted to the provider in case an application has not received any
response within the set time period, is was introduced in the horizontal law
amending implementing the Services Directive in the Czech Republic.
Furthermore, an omnibus law was adopted which amended numerous sector-specific
laws in order to include the concept of tacit approval. Consequently, tacit
approval has been introduced in the approval process for energy auditors,
construction safety specialists, those responsible for geological works, those
involved in nature and birdlife conservation, experts in the calibration and
repair of metrology instruments

Areas in which there do not appear to be
any possibility for tacit approval include the authorisation of those involved
in the restoration of historical monuments and operators of zoos. Furthermore,
given the fact that entry to the profession relies on the passing of
examinations organised by professional chambers, tacit approval of architects,
engineers, construction technicians  and the regulated profession
‘verifier of land survey outcomes’, it is not practically possible
to apply the principle of tacit approval.

3.         Total prohibition of commercial communications
(article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting
cross-border trade

1.         National
implementation

The article on the freedom to provide
services was implemented in the Czech Republic both in the horizontal law and
in sector-specific laws. The competent authorities in the field of services,
and their competences in each relevant area, are defined in the sector-specific
legislation. The Czech Ministry of Industry and Trade has published guidelines
to assist service providers and responsible public authorities in the
interpretation of the principles of non-discrimination, necessity and
proportionality.

2.         Distinction
between freedom of establishment and free provision of services

A distinction is made between the
requirements applicable to foreign service providers wishing to establish in
the Czech republic and those wishing to offer their services on a temporary
cross-border basis, as the horizontal law states that requirements imposed by
the Czech legislation on cross-border service providers are considered as met
if the provider meets equivalent or essentially comparable requirements in
another Member State.

3.         Issues
with the free provision of services clause

The Czech horizontal law implementing the
Services Directive states that a provider is entitled to provide cross-border
services on the basis of authorisation granted by the Member State of
establishment. However, it also states that other national legislation may
regulate otherwise, without mentioning the specific justification reasons of
defines the principles of public policy, public security, public health or the
protection of the environment. The specific justification reasons are defined
in detail in binding guidance on the national implementation of the Services
Directive.

Examples
of requirements that have been maintained

In the real estate area,
cross-border service providers in the area of verification of land-survey
outcomes for the purpose of exercise of public authority (land register,
administrative proceedings in construction, maps for defence purposes) (a
regulated profession in the Czech Republic) must apply for an official license,
rather than simply notify their intention to provide services, as is the case
for other activities in this sector.

In the retail sector, persons
wishing to handle raw diamonds must register, or prove that they have an
equivalent license issued by another EU Member State. Persons involved in the
handling of sources of ionizing radiation, including the selling, export and
distribution of such nuclear products, must obtain a license from the Czech
State Office for Nuclear Safety, even if they already have an authorisation for
the same kind of activities issued by the Member State of establishment.

  
DENMARK  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Danish Point of
Single Contact is well established.

A business portal (www.virk.dk)
had already been established in Denmark in 2003 and it has been upgraded
several times since then. This portal is almost entirely in Danish, although
forms are sometimes available in English and in other languages. The portal is
primarily was made for entrepreneurs established in Denmark, with the aim of
having a one-stop shop for businesses in dealing with the government.

With a view to fully
implementing the Services Directive, a separate portal integrated in ww.virk.dk
was launched on 31 December 2009, BusinessInDenmark (BID) (www.businessindenmark.dk). This portal is
entirely in English and is directed at foreign companies looking to do business
in Denmark. BID carries the EUGO logo and is part of the EUGO network.

In terms of information
provision, it would seem that the Danish PSC performs well and it even goes
beyond the minimum legal requirements. It also offers information on for
example tax requirements. However, it would seem that there is room for improvement
of the search function.

There are also a very significant number
of online procedures available. Completion of these procedures is easy and
involves no barriers for cross-border providers. A tool
for signing documents with e-signatures as well as a validation tool for the
e-signatures will be implemented on the portal during May 2012.

Finally, the content of a form or information on an
obligation/procedure in the Danish PSC are the responsibility of the relevant
authorities. Overall, the administration, organization and back office of the
points of single contact seem to be good but efforts should be continued to
enhance the integration of all relevant authorities in the portals.[46]

II.        Implementation of and
compliance with key provisions

The main act transposing the Services Directive in
Denmark is a horizontal law (Law No 384 of 25
May 2009 on services in the internal market).

The Danish implementation of the Services Directive has
also required amendments to a substantial number of sector-specific legal
acts, such as the Law on the sale of real estate,
the Law on electricians, the Law on gas installation, the Law on trade, the Law
on maritime training, Law on professional diving activity and diving equipment,
the Law on copyright and the Law on
marketing. In particular, a legal form requirement regarding real
estate agents was abolished, an authorisation requirement for land surveyors
providing their services on a temporary basis was lifted, a ban on issuing
discount coupons for "temporary service providers" was lifted, and an
obligation for providers of certain types of commercial flying activities to
have their principal establishment in Denmark was abolished.

A.        Streamlining the regulatory environment
for services

1.
        Requirements applying to providers established or wishing to
establish in Denmark (Articles 14 and 15 of the Services Directive)

The implementation of the Services Directive has led to the
elimination of administrative burden in several authorisation schemes
applicable to providers established in Denmark. While authorisation
schemes for stockbrokers, auctioneers and shipping agents were abolished, other
authorisation schemes were simplified (a limitation in time of
electricians authorisations was removed, the requirement that gas-fitters and
professional divers may not have any debt to the public authorities was
abolished).

As regards Article 14 of the Services Directive, Article 10
of the horizontal law implementing the Services Directive (Law 384/2009)
reproduces the list of prohibited requirements laid down in that provision. It
would appear that currently no other prohibited requirements of this type have
been identified in sector-specific legislation.

As regards Article 15 requirements, which need to meet the
tests of justification on overriding reasons of general interest and
proportionality, the Danish legislation has chosen not to transpose Article 15
of the Services Directive in the horizontal law itself.
The requirements have been put down in an administrative act instead (Adm. Act
1361/2009). It would appear that certain Article 15
requirements have been maintained in the Danish legislation.

In the field of professional services, a requirement for law
firms to take a special legal form as well as a shareholding requirement for
law firms has been maintained.

In the construction/crafts sector services provided by
authorised energy consultants carrying out energy labelling of buildings and
services provided by boiler and by heating system consultants have been
maintained.

In the real estate sector a requirement on land surveying
businesses to take special legal form and a shareholding requirement have been
maintained. A requirement for real estate agencies to take a special legal form
was however abolished.

In the tourism sector a quantitative and territorial
restriction applies to renting of holiday homes, but the justification would
appear to be related to the Danish reservation pursuant to Protocol 32 on the
Acquisition of Property in Denmark.

2.         Tacit approval of
authorisations (article 13(4) of the Services Directive)

Tacit approval for authorisation requests does not apply as a
general rule in Denmark. The horizontal law has not implemented the provisions
of Article 13(4) of the Directive.  Instead the
principle of tacit approval has been implemented in sectoral legislation where
relevant. In future legislation, competent authorities are instructed on the
principle through the law making process.  Considering
that an exception could be justified, tacit approval does not apply for the
following sectors: for certain authorisation schemes
applicable in the construction sector and for certain
environmentally hazardous activities.

3.         Total prohibition of commercial communications
(article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

The horizontal law implementing the
Services Directive (Law 384/2009) contains a provision which implements Article
16(1) of the Services Directive. The Act does however not list all the
prohibited requirements mentioned in Article 16(2) of the Services Directive, as this follows indirectly from the relevant provision in the
horizontal law.

As regards the derogations to Article 16 of the Services Directive,
it would appear that Denmark has interpreted the provision in Article 17(11) of
the Services Directive on intellectual property rights broadly. The potential
conflict of these provisions with Article 16 of the Services Directive was
addressed explicitly by the Danish Minister for Culture in her explanatory
notes to the proposal for amendment of the Copyright Act, which aimed at
transposing the Services Directive. The view expressed by the Danish
authorities on this derogation are incompatible with both Articles 16 and
17(11) of the Services Directive. As a result of this interpretation, Article
75a(1) of the Danish Copyright Act (LBK202/2010) requires representatives of copyright
owners who – on a commercial basis – make agreements regarding the
public performance of musical works to obtain a prior authorisation from the
Danish Minister for Culture.

2.         Distinction between freedom of
establishment and free provision of services

There is no evidence indicating that this distinction is problematic
in Denmark. Law 384/2009 contains definitions which should ensure a correct
application of the concept of cross-border service provider/provision in line
with the Services Directive.

3.         Issues with the free provision
of services clause

Despite the implementation of Article 16 in the Danish legal order
by means of a horizontal provision and by means of sector-specific amendments
(for example, the obligation for providers of certain types of commercial
flying activities to have their principal establishment in Denmark was
abolished in the context of the implementation of the Services Directive), a
number of requirements applicable to cross-border service providers have
remained in sector-specific legislation despite the fact that their
justification and proportionality could be questioned.

The first requirement concerns a cross-cutting notification
obligation, the extension to self-employed service providers established in
other Member States of the obligation to send a prior notification to the
Danish Registry of Foreign Services (RUT) at the latest by the time they start
providing services in Denmark pursuant to LBK256/2011. The Danish authorities
have justified the obligation on the need for a possibility to carry out
effective control to supervise compliance with certain rules on taxes as well
as on health and safety at work that apply to the self-employed ensuring both
public security and public safety.

Several authorisation requirements that are applied both to
established and to cross-border service providers have also been identified in
the area of construction and crafts for certain specific activities that
are regulated professions. The authorisation schemes would appear however to go
in some instances beyond the requirements allowed by the Professional
Qualifications Directive. The common denominator of these requirements is that
they seem to have been justified on the protection of the service recipient.

Finally, the Danish Copyright Act requires representatives of
copyright owners who – on a commercial basis – make agreements
regarding the public performance of musical works to obtain a prior
authorisation from the Danish Minister for Culture. A similar authorisation
requirement applies to performing artists and record companies. These groups
may only raise claims for payment related to the public use of their works
through a collective organization authorised by the Danish Minister for
Culture.

  
ESTONIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Point of Single
Contact in Estonia http://www.eesti.ee/eng/topics/business, is part of the general e-government portal in Estonia www.eesti.ee.

The Estonian portal
provides comprehensive information and services to fulfil the requirements
falling under the Services Directive and beyond, in terms of areas and topics
covered. The portal takes a business perspective and covering the whole
business life cycle (from starting to winding up), and covering also
information on social security, taxation, labour law, legal and financial aid
etc.

Information about the
applicable requirements and on how to complete administrative procedures can be
accessed or searched in a number of different ways which include
searching/access by type of user, stage in the business life cycle, by a
thematic index of procedures (company registration, tax, etc.), by sector and
by an index of competent authorities. Information per sector is presented in a
clear and easy manner, and contains information from legal requirements to
details on the procedures to be followed, including payment of state fees and
contact details for submission of applications, where applicable.

The majority of the
information is available also in English, besides Estonian. Some interactive
tools that are meant to assist users (like a portal guide) are available only
in Estonian. Web forms exist partly in English (e.g. for company registration,
registration in the economic activities register). Official forms are mainly
available in Estonian, but a limited number of forms are also available in
English.

For completion of
procedures, e-identification and e-signatures are often necessary, mainly for
authorisation procedures. eID is mainly required for fully interactive online
services which facilitate the completion of procedures (company registration).
With respect to the eID cards, currently e-identification from 11 Member States
is available, in addition to various e-identification means available in
Estonia. Web forms can be signed online and electronically signed documents can
be sent to the authorities via e-mail (editable PDF forms). Tracking
possibilities are available for obtaining information on the state of submitted
applications/forms and sent forms are accessible in a secure environment.

Online assistance to
service providers is available in a variety of ways (downloadable guides and
demos). The available sources of help are generally good and easy to use.
Online help is available by email and at the end of sector specific information
contact details are given for further assistance.

Overall the Estonian
PSC seems to have the required information available, to a large extent also in
English, and allows the majority of procedures to be completed online. The
completion of procedures is nearly 100% available nationally. For cross-border
cases a good number of non-national e-identification tools are supported and
electronic signing is possible either on web forms or on documents that can
also be submitted, e-signed, via email to the competent authorities.

More than 120 competent
authorities are linked to the PSC.

According to the
Deloitte study[47],
which carried out some user testing of PSCs, the overall use and usability of
the Estonian PSC was perceived to be high.

Most of the user group
found that the way the information was provided (in terms of layout and web
design) was of good quality and user friendly. Navigating the portal was
generally thought to be easy. It was noted that there was sufficient
information on where to find more information (and links to other websites were
provided).

Further improvements
could be done above all for cross-border service provision, to make a clear
distinction between establishment and cross-border service provision even if no
requirements apply to the latter.  Some further efforts should also be
undertaken for cross-border access to e-procedures.

II.        Implementation
of and compliance with key provisions

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Estonia (articles 14 and 15 of the Services Directive)

No prohibited requirements were identified in
Estonian legislation.

In the education sector, a legal form requirement exists for
private schools (which cover all types of education institutions from nurseries
to higher education, adult education institutions) which have to be either an
agency of a public limited company or a private limited company registered in
the Commercial Register or an agency of a foundation or non-profit association.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The principle of tacit approval has been implemented via the
horizontal law transposing the Services Directive (European Union Services
Directive Implementation Act). In some laws the principle of tacit approval is
clearly stated but in some sectoral laws where authorisations exist, no
specific mention of tacit approval is made. In these cases the tacit approval
should be applicable via the horizontal law. In some cases a different approach
has been taken, justified by protection of environment and public security, and
tacit approval does not apply.

3.
        Total prohibition of commercial communications (article 24 of the
Services Directive)

A total prohibition of commercial communications has been identified
for lawyers.

B.        Boosting cross-border trade

1.         National implementation

Article 16 has been implemented by way of a clause in horizontal law
(Section 17 of the European Union Services Directive Implementation
Act/EUSDIA), without copying the list of prohibited requirements of Article
16(2). It also provides that restrictions to the freedom to provide services
may be established by law, that these must be non-discriminatory, justified for
reasons of public policy, public security, public health or the protection of
the environment and be proportional. Exceptions in Article 17 of the Services
Directive are directly referred to.

2.         Distinction between freedom of
establishment and free provision of services

However there are a number of relevant laws that impose
authorisation, registration or notification procedures. Some of these laws do
not explicitly state whether the relevant requirements are also applicable in
cases of cross-border service provision or not.

3.         Issues with the free provision
of services clause

The horizontal law provides for the principle of freedom to provide
services, but due to the hierarchy of legal norms specific requirements would
still apply (based on the lex
specialis derogat lex generali principle). Some of these laws therefore
may not respect the conditions for imposition of an authorisation requirement
on cross-border service providers. This concerns for example the Trading Act,
the Weapons Act, the Tourism Act, laws on safety (mostly those linked to crafts
and construction services where notification is required).

More clarity and better transposition of the Services Directive,
including for cross-border service provision, will be ensured however, via the
General Part of Economic Activities Code (GPEAC) which has been adopted in
February 2011, but will only enter into force on 1 January 2014. This Code is a
framework law and establishes the principle that its provisions apply in all
service sectors, not only those covered by the Services Directive, unless the
sector-specific legislation provides otherwise. The GPEAC codifies the general
requirements (including licensing or registration requirements) imposed by the
Economic Law in Estonia. Article 16 of the Services Directive is covered by
GPEAC. GPEAC (Article 22) specifies that cross-border service providers who
provide temporarily services in Estonia are excluded from the obligation to
obtain a licence or register the activity and no restrictions referred to in
Article 16(2) of the Services Directive can be imposed.

Examples of requirements that have been
maintained

A number of requirements apply to incoming service providers.

In the crafts, construction and certification services sector,
the transposition of the Services Directive led to the abolition of the
registration requirements under the Building Act[48], the Pressure
Equipment Safety Act, the Lifts and Cableway Installations Safety Act, the
Gaseous Fuel Safety Act, the Electrical Safety Act, and the Machinery Safety
Act. These were replaced in each case by a simplified notification procedure.
The notification procedure requires a formal notification of the Technical
Surveillance Authority, without any legally binding form of notification. It is
not clear whether this notification procedure is linked to professional qualifications.

In the Pressure Equipment Safety Act, the Lifts and Cableway
Installations Safety Act, the Gaseous Fuel Safety Act, the Electrical Safety
Act, and the Machinery Safety Act, different safety requirements related to the
use of equipment have been maintained due to health and safety considerations,
which could fall under the exemption in Art 16(2)f.

In the retail sector a general requirement for traders exists
to be registered in the Register of Economic Activities. As far as nothing is
specifically said on cross-border service provision with regard to that
requirement, it could be deduced that it may be applied also to cross-border
service provision despite the horizontal law that establishes the freedom to
provide services.

The Act covers retail and wholesale of goods and personal services
(like hairdressers) in its different forms, including street selling, markets.
Street and market traders need to obtain a trading permit and must perform
their activities at locations authorised by the local government.

Some special requirements are maintained as regards trade in some
specific products, like alcohol, tobacco, weapons, food, liquid fuel. All these
trade related requirements apply both to domestic and cross-border providers.

In the tourism sector, an undertaking may only operate as a
travel undertaking in Estonia if it is registered in the commercial activities
register. This requirement applies also for cross-border service provision.
Tour guides and guide interpreters need to prove their professional competence,
but how this is to be done is not very clearly specified.

In the education sector, an activity licence is required for
training drivers of power-driven vehicles including for cross-border service
provision in the traffic act and they need to be registered.

  
FINLAND  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of
Single Contact

The PSC in Finland is a
part of the Enterprise Finland (http://www.yrityssuomi.fi/web/enterprise-finland)
portal which is structured based on the company lifecycle. The PSC takes a
comprehensive approach and provides information on the entire business life
cycle, except social security formalities. Information on service activities on
the PSC is presented on the basis of sectors and the type.

One aspect that could
be improved is to indicate the absence of requirements where appropriate, as
this is also a valuable information for service providers.

The PSC portal is
available in the official languages, Finnish and Swedish, and to a large extent
in English. Official forms are available in Finnish and Swedish (only forms in
the official languages can be submitted) but for some forms translations are
available as comments on the online form that do not appear when printing the
form out (particularly for those required to establish a company). On the
municipality level no additional language assistance is provided.

In general the only
possibility to complete procedures online consist of downloading a PDF format
(from eForms repository), which can be electronically filled in but needs to be
sent via regular mail or in some cases via e-mail to the competent authority.

Most procedures are
free of charge, except for company registration where no direct e-payments are
available. Users have to pay through a web-bank or other means, and attach a
proof of payment with their registration documentation.

Currently no tracking
system is available and businesses receive replies from the authorities via
e-mail.

However, basic
e-procedures are currently under development, which would include an e-Office
for businesses that contains also e-identity and e-delivery functions.

The Finnish PSC
provides assistance to users through a dedicated phone service and a Service
Request form. The phone service is available in Finish and English. Additional
information can be requested through the Service Request form.

According to the
Deloitte study[49],
which carried out some user testing of PSCs, the overall use and usability of
the Finland PSC was perceived to be average.

Further improvements
should be undertaken to allow electronic completion of procedures. From the
users' perspective, an interactive search tool would be useful helping to find
information specifically needed for a particular case and the PSC could have a
less “bureaucratic” feel.

II.        Implementation
of and compliance with key provisions

A.        Streamlining the regulatory environment for services

1.
        Requirements applying to providers established or wishing to
establish in Finland (articles 14 and 15 of the Services Directive)

No prohibited requirements were identified for mainland Finland. For
Åland, service providers must be residents or have their domicile when they
want to provide services in retail and food and beverages
sectors.

In retail, despite the 2011 law on land use planning and
construction, there is still scope for further simplification through a less
restrictive zoning and planning regime.

In the education sector, a legal form requirement exists for
bus and truck training schools which can be operated only by legal persons.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The principle of tacit approval has been implemented via the
horizontal law transposing the Services Directive (Services Act). No specific
mention of tacit approval has been made in sectorial laws. At the same time no
clear exceptions or provisions going counter to the tacit approval principle
seem to have been established either. In the majority of cases where
authorisations exist the legislation does not specify the applicable conditions
for authorisation and the horizontal law is applicable.

3.
        Total prohibition of commercial communications (article 24 of the
Services Directive)

No total prohibitions of commercial communications have been
identified.

B.        Boosting cross-border trade

1.         National implementation

Implementation of Article 16 is done by way of a clause in the
horizontal law (Section 5 of the Provision of Services Act) which contains the
principle of freedom of service provision. It also provides that restrictions
may be established, if compliant with the conditions set in Article 16, by a
court or competent authority who could only restrict temporary provision of a specified
service under specific powers granted to them. The powers of the authority
concerned must therefore be based on a provision laid down elsewhere in
legislation.

Article 16(2) or the prohibited requirements, has not expressly been
transposed.  However, it seems that Finnish legislation does not contain any
prohibited requirements.

2.         Distinction between freedom of
establishment and free provision of services

Sectorial laws imposing obligations on economic operators do not
make a distinction between establishment and cross-border service provision.

3.         Issues with the free provision
of services clause

The main issue is the compliance of sectorial laws with Article 16
of the Services Directive. Namely, as sectorial legislation does not distinguish
between establishment and cross-border service provision, these should contain
only restrictions that can be justified in cases and under conditions set out
in Article 16 which may not always be the case.

The Provision of Services Act (1166/22.12.2009) refers to the
Business Act and explicitly declares that the same business rights apply to
cross-border services.  Both the Business Act and the Provision of Services Act
are horizontal by nature and they have an equal hierarchical value. The
Business Act declares in Section 3 that certain listed business activities
(like services related to electrical installations and equipment, housing
agents, entertainment services, accommodation and restaurant services etc.) are
submitted to additional sector-specific laws. These activities as a rule
require a licence or a permit. Since Section 3 of the Business Act does not
distinguish between establishment and cross-border service provision services,
it applies, with all the sector-specific laws listed in this provision, to both
cases.

The provincial horizontal legislation in Åland consists of the
Business Act (Landskapslag 1996:47 om rätt att utöva näring). This Act
limits the right to carry out a business to natural persons having a
residential status and to legal persons having their domicile in the Province.

Examples of requirements that have been
maintained

In real estate, providing real estate services is subject to
registration. The application for registration must also include information on
the registered branch in Finland and its location. It seems therefore that only
service providers who have a registered branch in Finland can apply for
registration.

In the Province of Åland, only registered agents can provide
services in the real estate market. The registration implies that the applicant
has passed a professional examination and represents a company with a
registered branch in Finland. The real estate office must appoint a responsible
manager with a qualification of a registered agent.

In the tourism sector the organisation of package travels
requires registration of the travel manager with the package travel registry,
which is kept by the Consumer Agency.

The Province of Åland has a permit obligation for non-residential
service providers to enter the market in the tourism sector.

   FRANCE  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Point of Single Contact

The French
authorities have chosen to implement both a physical Point of Single Contact
("PSC"), system (through the network of Business Formalities Centres
"CFE / Centre de Formalités des Entreprises") and an
electronic PSC called "Guichet Entreprises" (www.
guichet-entreprises.fr), which has been in place since January 2010.

The "Guichet
Entreprises" website provides a high quality information service.
Comprehensive information on the rules applicable to the establishment and the
exercise of service activities is available on "Guichet Entreprises".
The information is classified by occupations and professions and therefore
easily understood by operators wishing to establish or do business on a
temporary basis in France. Specific headings indicate the obligations imposed
on operators wishing to provide a temporary service.

Moreover, this
site is accessible by individuals and businesses living in France as well as by
those from other EU Member States, allowing for the online completion of the
business creation procedure and a number of other administrative procedures but
their number is quite limited.

However,
improvements could be made in terms of usability: the information provided is
almost complete but the sorting and search functions could usefully be improved.
It is often difficult to access the relevant information. In addition, the
site's accessibility to cross-border providers is not optimal, with information
available only in French.

Regarding the
assistance provided to users, since France has chosen to establish a physical
PSC network throughout its territory, personalised assistance is possible, at
least within France. These PSCs (the so called "Centre de Formalités
des Entreprises") are able to accommodate and guide service providers
in the completion of procedures both for establishing and exercising their
activities in France. However these physical PSCs are only partly operational.
Better visibility of the support tools available to users on the
"Guichet-Entreprises.fr" website would be beneficial.

Overall,
although French PSCs offer comprehensive information on a very wide range of
service activities, significant improvements could be made in terms of
user-friendliness and the provision of information in other official languages
​​of the European Union. The roll-out of new procedures that can be
completed online will also have to be accelerated significantly.

II.        Implementation
of and compliance with
key provisions

A.        Streamlining the regulatory
environment for services

Unlike the
majority of Member States, France has not transposed the Directive through a
horizontal law. Certain provisions of a horizontal nature (information
obligations towards service recipients, provisions on administrative
cooperation and the use of IMI, and the implementation of Points of Single
Contact), whose applicability covers the entire field of the Services
Directive, were adopted on the occasion of the adoption of certain sectoral
laws. The assessment of compliance with the Services Directive has been done
through a review of sectoral laws governing service activities.

As the French
legal and administrative system is based on a significant degree of
centralisation, service activities are governed by rules with national scope.
There has been no regulatory intervention at the local or regional level.
However, as part of the implementation of the Directive, close to 80 regulatory
measures (including 13 legislatives acts) were adopted as part of the
transposition of the Services Directive and over a hundred business services
have been reformed.

France made
considerable efforts to ensure consistent implementation of the Directive and
has carried out major legislative or administrative changes. The regulation of
some activities has been substantially reformed or their exercise considerably
simplified. For instance, in the field of professional services, the
profession of "avoués" has been abolished by a merger of its
activities with those performed by lawyers. Also, the minimum level of a
company's capital that has to be controlled by professionals has been reduced
to 51% for land surveyors, accountants and architects. In the retail sector,
legislation regarding store opening was relaxed. In the tourism sector,
the specific authorisation required to open hotels was eliminated. Travel
agents' activities and the classification of tourist accommodations have been
significantly simplified: the four authorisation schemes that existed before
(license, "habilitation", approval and authorisation) have been
replaced by a new, simplified system and the obligation for travel agents to
exercise their activity on an exclusive basis has been done away with.

In general, it
appears that the screening process was carried out in an efficient and
systematic way. The entire scope of service activities was covered. However,
regarding the effects of this screening process, although French authorities
reformed many professions and simplified numerous services activities, these
simplifications were not always carried out to the maximum extent. Therefore,
the proportionality and necessity of certain remaining requirements can be
debated. For instance, in the retail sector, regarding the authorisation for
store opening, although the "loi de Modernisation de l’Economie n°
2008-776 du 4 août 2008" raised the threshold above which an authorisation
is still required from 300 m2 to 1000 m2, a derogation was introduced in order
to give municipalities with less than 20,000 inhabitants the possibility to
maintain the authorisation procedure for premises over 300 m2.

1.         Requirements applying to providers established or
wishing to establish in France (articles 14 and 15 of the Services Directive)

The screening
and elimination of prohibited requirements seems to have been done in a
thorough way. The only such requirement identified concerns the direct
involvement of competing operators in the granting of authorisations for event
promoters. This requirement needs to be eliminated urgently.

As regards
requirements where the Directive left a margin of appreciation to Member States
to streamline the regulatory environment for the establishment of providers,
cases that raise doubts of compatibility with Article 15 of the Directive
exist. For instance, regarding professional services, although
shareholding requirements for architects, accountants and land surveyors were
modified in order to reduce the share of the capital of the company that has to
be owned by professionals to 51%, this has not been done for lawyers or
veterinarians. These should be re-examined. Legal form requirements are also
imposed, again notably on lawyers and veterinarians.

2.         Tacit approval of
authorisations (article 13(4) of the Services Directive)

Although the principle of tacit approval of
authorisations exists in the French legal framework, it does not apply as a
general rule but only in cases identified in sector specific legislation.
France should ensure that the instances in which article 13(4) of the Services
Directive is not applied are limited to duly justified matters.

3.         Total prohibition of commercial communications
(article 24 of the Services Directive)

Contrary to Article 24 of the Services
Directive, total prohibitions of commercial
communications remain for lawyers and
veterinarians.

For accountants, in 2011 the Court
of Justice of the European Union made ​​its first judgment[50]
on the provisions of the Services Directive in the context of a preliminary
ruling aiming at clarifying the scope of Article 24 of the Directive on
commercial communications and its application to regulated professions. The
issue in question was to clarify whether a Member State (France) could maintain
a total ban on canvassing for a regulated profession (accountants). In light of
the provisions of the French legislation in question, the Court noted that it
included a total ban on any canvassing activity regardless of its form, its
content or the means employed. So this ban corresponded to the prohibition of
all means of communication. The Court held that the provisions in question were
covered by Article 24(1) of the Services Directive prohibiting a total ban to
perform acts of solicitation for regulated professions. In France, the legal
consequences of this judgment do not seem to have been applied to regulated
professions other than accountants, notably veterinarians or lawyers.

B.        Boosting cross-border trade

1.         National
implementation

Certain authorisation procedures that are still imposed on
cross-border providers raise doubts as to their proportionality and their
justification with regards to the four compelling reasons of general interest
listed in Article 16 of the Services Directive (public order, public safety,
public health and environmental protection). This particularly concerns the
obligations of insurance or financial guarantee imposed on cross-border operators
(in the real estate sector) or prior declaration requirements that
remain in force (for modelling agencies or event promoters).

2.         Distinction
between freedom of establishment and free provision of services

In general, French legislation makes a distinction between the
cross-border provision of services and establishment. The French authorities'
decision not to implement the Directive through a horizontal law but to ensure
compliance with the Services Directive through a revision of the various sectoral
laws regulating the activities of services allowed for a clear legal
distinction to be made between the situations of establishment and the
temporary cross-border provision of services.

Indeed, each national law governing a service activity has been
specifically modified and the two legal situations have been addressed
specifically. It is thus possible to know which provisions are applicable to
operators wishing to establish themselves and which rules apply to operators
willing to engage in cross-border provision of services in France. The legal
clarity and predictability are thus fully insured. Moreover, the French Point
of Single Contact ("Guichet Entreprises"), on its website,
provides comprehensive information on the legal requirements applicable to the
professions in which the situations of establishment and cross-border of
services are clearly distinguished.

It is highly important to ensure long-term compliance with the
obligations set up by the Services Directive regarding the freedom to provide
services. If national laws had to be modified during the implementation
process, it is also necessary to guarantee that future legislation will not
contravene the principles of the Directive (particularly when the possibility
to appeal to the administration or judge appear relatively limited). In this
perspective, the French authorities have adopted an inter-ministerial circular
to ensure that new legislation and regulations that have to be notified to the
Commission and Member States (under the procedure provided by Articles 15(2)
and 39(5) of the Directive) are subject to a centralised review to ensure
proper compliance with the requirements of the Directive. It can therefore be
reasonably estimated that the compliance of new legislation will be ensured.

3.         Issues with the free provision of services clause

In the construction sector, the main requirement imposed on
cross-border service providers is an obligation to have insurance that provides
ten-year liability cover for buildings.

In the real estate sector, a requirement for a financial
guarantee is also imposed for certain activities (involving money management).

For professional services, professional liability insurance
requirements are imposed on architects, land surveyors, accountants, lawyers
and veterinarians. Restrictions with regard to legal form and capital ownership
and prohibitions on commercial communications are also imposed on cross-border
veterinarians. A prior notification requirement is also imposed on modelling
agencies and event promoters performing cross-border services.

   GERMANY

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Germany has one portal
(www.dienstleisten-leicht-gemacht.de)
that links to the portals of the 16 Länder which each has its own portal
solution. The various portals differ quite substantially, some of them are part
of a larger e-governement portal, others are managed by regional councils.

The level of
information available has generally been considered very good and the structure
of the information provided as well as the quality of the navigation and
assistance facility have been praised for more than one portal.

It seems that
eSignatures of other Member States might be used to sign an application but
that it not yet always guaranteed that the signature can actually be verified.
In case of doubt, applicant might therefore have to be contacted to send a
signed application by post or mail.

The development of the
PSC has also led in general to standardisation and simplification of processes
which has resulted in more use of eSignatures and improvement in operational
processes.

Assistance to users
varies according to the portal, but some of the portals tested have been
praised for their assistance to users, for instance by providing a checklist to
providers helping them to address problems or to find further information.
Other portals offer guides, FAQ's and downloadable guides. Assistance has
generally been qualified good, easy to use and comprehensive. There is also
assistance by phone or by mail.

The overall use and
usability of the German PSC is above average.[51]
However, improvements could be made concerning the presentation of different
business situations, i.e. in particular the distinction between establishment
and cross border provision of services, which is of special importance for
users of the portal from other Member States and less familiar with the German
legal and administrative system.

Other necessary
improvements concern the availability of on-line procedures as on-line
completion of procedures is in general only ensured for a limited number of
procedures.

And finally, the
linguistic availability of the Point of Single Contacts could be improved even
if some of the portals offer already information in languages of other Member
States (for instance the Point of Single Contact of Rhineland-Palatinate offers
information in French and English, the portal of Brandenburg provides
information in English and Polish).

II.        Implementation of and compliance with key provisions

In general, Germany made considerable efforts to ensure correct
implementation of the Services Directive and has made a substantial number of
important legislative and practical changes. In particular the screening of
legislation was a complex exercise due to the federal structure and the involvement
of multiple actors at all levels of government (federal, regional, local,
professional orders). Germany made a major coordination effort by using its own
on-line tool.

In contrast to the majority of Member States, Germany decided to not
adopt a horizontal law implementing the general principles of the Directive but
opted to implement those principles through modifications to existing sector
specific legal acts.

Around 220 national measures have been adopted at federal level, by
the Länder as well as by professional associations in order to implement the
Services Directive and as many of them were so called “omnibus
acts” (“Artikelgesetze”), each of which amending a
series of sector-specific laws, the actual number of legislative acts having
been modified amounts to around 400 acts.

Germany has also adopted new general procedural instruments in the
Administrative Procedures Act (Verwaltungsverfahrensgesetz) in
particular concerning the points of single contact, the rules on administrative
cooperation and tacit approval.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Germany (articles 14 and 15 of the Services Directive)

In the professional services sector no prohibited
requirements have been identified, but shareholding and legal form requirements
have been maintained for lawyers, tax advisors, patent agents, architects and
engineers. In addition there are also fixed tariffs for veterinarians,
insolvency administrators, architects, engineers.

In the crafts sector, the Trade and Crafts Code determines
which occupations pertain to the crafts sector. The so called Annex A lists the
occupations for which in general a master craftsman’s examination (Meisterprüfung)
is required for self-employment. Case law permits such requirement only for
crafts (particularly) susceptible to dangers (public health).

As far as the construction and certification services sector
is concerned there is still a certain involvement of competitors in the
decision making process whether or not to grant an authorisation, although
rules have been rendered less stringent as those bodies now only have to
confirm to the competent authority that the applicant fulfils all the necessary
application requirements. Moreover, many expert services in relation to the
construction of buildings and a few in relation to other expert services still
contain specific tariffs ("Sachverständigentarife").

2.         Nationwide validity of authorisations (article 10(4)
of the Services Directive)

There is no horizontal rule on nationwide validity of
authorisations.

Nationwide validity however can be found in sector specific
legislation in different ways:

Certain legal acts explicitly state that the authorisation granted
is valid for the whole national territory (e.g. federal law concerning
inspection bodies for wastewater discharge). Other texts clearly foresee that
the recognition of an expert in another part of the country is ensured (e.g.
law of the Land Baden-Würtemberg or of the Land Berlin concerning the
authorisation of a testing engineer and testing expert in the construction
sector).

In other legislation nationwide validity is assured by registration
of a professional in one professional Chamber which gives the right to exercise
the activity in the entire national territory (e.g. the registration of a
veterinarian in one regional chamber of veterinarians enables him to exercise
activity anywhere in Germany).

According to the information of the Commission a sort of "mutual
recognition" applies within Germany, e.g. an applicant will be registered
in the professional list without any further exams if he is already registered
in a professional list of another Land which has comparable conditions (e.g.
requirements for the registration in the list of consulting engineering) or
authorisations of another Land might only be accepted if they are
"comparable" (regulation on experts in the building sector).
Depending on how this system of mutual recognition is applied in practice with
regard to cross border situations, but also within Germany, three scenarios can
be distinguished: i) recognition of an authorisation without further
examination, ii) recognition of an authorisation if the authorisation
has been granted under similar/comparable conditions and iii) an authorisation
is not recognized at all and the service provider has to apply for a new
authorisation. Depending on how authorities examine what are
"similar/comparable" conditions, this might also be qualified as
imposing a new authorisation which might also raise questions as to the
application of the freedom to provide services clause.

3.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval as a general rule has been introduced in the Federal
Administrative Procedures Act ("Verwaltungsverfahrensgesetz des Bundes").
This law provides first of all for a general deadline of 3 months for the
administration to take a decision. This general deadline applies unless a
specific legislation provides for a different deadline. Furthermore it foresees
that "the authorisation applied for is deemed to be granted after the
expiry of a deadline set for the decision (tacit approval) if this is provided
by law and if the application is sufficiently precise." [52]
The federal administrative procedures act is therefore the basic provision for
tacit approvals. Whereas the Länder of Berlin, Niedersachsen, Rheinland-Pfalz
and Sachsen refer to the Federal Administrative Procedures Act , the other
Länder have their own Administrative Procedures Act.

Another important horizontal act, the federal trades and craft acts
("Gewerbeordnung und Handwerksordnung") also explicitly
foresees the tacit approval of authorisations.

Concerning the sector specific legislation (at Länder level), tacit
approval of authorisations can be found in all the sectors examined mostly with
a reference to the Federal Administrative Procedures Act.

In certain legislation it is explicitly foreseen that tacit approval
of authorisations does not apply (e.g. in the construction sector the
legislation on the recognition as a testing, inspection or certification body).
It further seems that the rules differ between the Länder: some have foreseen a
tacit approval of authorisations in areas where other Länder do not accept
tacit approval. This raises some doubts in particular with regard to the
justifications invoked by the Länder not granting a tacit approval of
authorisations. Other examples where tacit approval does not apply have been
found e.g. in the food and beverage sector for the opening of a restaurant or
the recognition of universities in the education sector.

4.         Total
prohibition of commercial communications (article 24 of the Services Directive)

Total prohibition of commercial communications still exists for
officially appointed surveyors ("öffentlich bestellte
Vermessungsingenieure") in the Land of Nordrhein-Westfalen. It seems
that the German authorities justify this restriction with reference to article
51 TFEU (exercise of public authority).

B.        Boosting cross-border trade

1.         National implementation

Germany has no horizontal provision implementing the freedom to
provide services clause as there is no horizontal law implementing the Services
Directive. The Directive, including the freedom to provide services clause, has
therefore been implemented by way of amendments to sector-specific legislation
at all levels of government.

As a main implementation measure, federal legislation abolished the
cross-cutting notification requirement and various authorisation requirements
under the Federal Trade Act (Gewerbeordnung) so that for cross-border
services many of these requirements were removed in the field of retail,
tourism, food and beverages, real estate and crafts.

The Länder mainly abolished, modified or replaced authorisation
schemes that were linked to catering services, expert services under the
Federal Consumer Goods and Food Act and, in the construction sector, to
services such as services of structural inspection engineers, services to
present building documents, services to verify the stability of a building or
its fire safety, expert services under the federal soil protection act, expert
services in relation to water management, interpretation and translation
services for courts and authorities and services by training facilities for
harbour safety officers.

2.         Distinction between freedom of
establishment and free provision of services

When regulating cross-border services, the federal and the Länder
legislation follow different approaches to distinguish between established
providers and cross-border services.

The term ‘establishment’ is only defined under the
Federal Trade Act, as ‘fixed office (feste Einrichtung) on the
basis of which businessmen actually exercise their commercial businesses on a
self-employed basis and for an undefined time’. This definition does not
explicitly apply to services not regulated under the Federal Trade Act.
However, since the sector-specific legislation implementing the freedom to provide
services clause refers to the term ‘establishment’ without
separately defining it, it seems that the sector-specific legislation should be
construed so that the definition of ‘establishment’ under the
Federal Trade Act is analogously applicable to the sector-specific legislation.

In general sector specific laws distinguish the exercise of an
activity according to the case law of the European Court of Justice and refer
to the provision of 'occasional and temporary services'.

3.         Issues with the free provision of
services clause

As set out above a significant number of requirements concerning
incoming service providers have either been abolished or modified to render the
national legislation compliant with the freedom to provide services clause.
However, it seems that many requirements have been maintained which might not
comply with the core provisions of the Directive concerning cross-border trade.

Examples of requirements that have been
maintained

Most requirements that were maintained were identified in the crafts,
construction and certification services sector.

Many federal authorisation requirements for experts in the field of
the environment and many authorisation schemes under the Länder legislation
were abolished, modified or replaced under the condition that service providers
from other Member States already possess an equivalent authorisation granted by
another Member State. For instance, rules have been changed in some Länder
concerning different experts active in the construction sector such as engineers
verifying the stability of buildings or certifying fire safety, and their
obligation to be registered in a list (i.e. of the Chambers of Engineers) has
been rendered less stringent in the way that providers having to comply with
equivalent requirements in their country of establishment do not have to be
registered on the list in Germany. Similar rules apply to environmental experts
(i.e. for instance supervision of use of certain products, emission water and
soil measuring and control): procedures have been rendered less stringent and
only ask for an authorisation under certain conditions (i.e. for instance if
equivalent authorisation was granted in the home Member State).

In this context there are often differences between the Länder.
Whereas some have rendered authorisation procedures for cross-border services
providers less stringent, others have maintained the rules and apply
authorisation procedures without taking into consideration whether comparable
authorisations have been obtained by service providers in their Member States
of establishment. In addition it is often not clear from the text of the
legislation, whether and when (before or after the start of the service) the
equivalence of the authorisations is checked. If the competent Länder authorities
check the equivalence of the authorisations before the service provider is
entitled to carry out his service, then, de facto, this could have the effect
of an authorisation procedure and hence would have to be justified under the
freedom to provide services clause of the Directive. It will also have to be
verified how the requirement of equivalence of authorisations will be applied
in practice.

Other authorisation/registration requirements of the Bund and the
Länder, for instance registration requirements for the service to present
building documents (Bauvorlageberechtigung) under the Länder
legislation, were replaced with notification requirements. Notification
requirements are, in general, less restrictive than an authorisation
requirement. However, service providers still need to notify their services to
the competent authorities and provide the requested documents before they can
commence their services.

Another example in the construction sector concerns the need for
inspectors of specific buildings to have a specific identity card that is
handed out to them as part of the authorisation procedure and to present this
identity card on request to the competent authorities.

In some Länder authorisation procedures still include the
verification of equipment. As those rules have not been changed they also apply
to cross-border service providers (e.g. certain Länder laws regulating expert
services carried out under the Federal Equipment and Product Safety Act).

Concerning the retail sector, authorisation requirements have
been identified concerning the sale of sensitive goods (germs, explosives), the
collection of wild plants and for the sale of goods at cemeteries (as laid down
in             municipality cemetery ordinances with reference to public
order).

As far as the education sector is concerned, authorisations
are required for driving schools as well as for educational training for
psychologists, psychotherapists, training for veterinarians and pharmacists,
specialist and advanced training for architects and engineers, training for
nurses.

   GREECE  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Greek Point of Single Contact (PSC) was built on an existing
e-government website, namely ERMIS Infrastructure hosts the official Greek
portal for Public Administration providing citizens and businesses alike a
central information and e-services hub.

As far as business start-up and activity in Greece are concerned,
the Greek PSC mostly covers the licensing procedures, whereas the business
launching and registration procedures are covered by different governmental
sites, such as 'Start Up Greece' (www.startupgreece.gov.gr) that shares
information about starting a business in Greece and funding opportunities, and
the General Commercial Registry (www.businessportal.gr).

The Greek PSC is linked to a network of 54 physical PSCs, which have
been selected to serve the Services Directive purposes– KEP- that have
been operating in Greece for about a decade. The electronic PSC serves as a central
hub, transferring information and applications to the physical PSCs, according
to their geographic area of responsibility. The Greek PSC has a Greek and an
English version, although the English version is not fully developed.

In terms of information provision, the portal is restricted in
providing information only for the specific sector licensing procedures.

One of the good features of the Greek portal is the interactive
search tree that provides checklists by service sector as well as the navigation
environment, which is accompanied by graphics. The portal has a well operating
search machine (in Greek – searching in English depends on the degree of
specific procedures translation).

The Greek PSC portal has incorporated a STORK functionality, which
allows for e-ID holders from a number of other Member-States to use them.

The quality of the content varies, since there are procedures
missing and procedures which have not been updated according to the latest
simplifications of the regulative framework and to the latest circulars and
Ministerial Decisions issued. Full case handling of administrative tasks is not
possible, even though several procedures can be fully completed online. The
content of the PSC portal regarding licensing procedures for cross-border
service providers has been enhanced during the period of the PSC initial
operations. However, there is still need for this content to be enriched,
including more licensing procedures. Moreover, there is also need for the
existing content to be updated, since the regulative framework implementing the
Services Directive is under constant modification and simplification.

Overall the Greek PSC portal offers a relatively satisfactory level
of services online but there are still things to be done to improve its
efficiency and to make it a real tool that will be used by service providers
and public administration.

II.        Implementation of and compliance with key provisions

The Services Directive was mainly implemented into Greek law by law
3844/2010 (Gov. Gaz. A' 63, 3-5-2010).[53]
This is a general text, transcribing into Greek law the text of the Services
Directive. Furthermore, this law provides the competent Ministers with the
necessary delegation of powers for the adoption of, at least, sixteen sets of
implementation measures. On this legal basis, several ministerial decisions
have been adopted in retail sector, tourism sector and professional services;
most of them are of a sector-specific/vertical nature and are intended to
implement Articles 14, 15 and/or 16 with respect to specific service
activities.

A number of laws, ministerial decisions and presidential decrees
have been issued, together with circulars as guidance aim to implement the new
provision in practice.

In March 2010, however, Greece has entered into the Memorandum of
Understanding with the European Commission/European Central Bank/International
Monetary Fund, which is being updated and its application monitored on a
three-monthly basis, and which imposes quite precise and demanding obligations
of trade liberalisation, rationalisation and reduction of red tape.

Several obligations undertaken by Greece under the Memorandum
correspond to requirements that according to the Services Directive should be
abolished or, at least, evaluated. The sanction for failure to comply with the
Memorandum undertakings is much more drastic and immediate than any of the
sanctions likely to be imposed under EU law, since breach of the Memorandum may
lead to a termination of the funding of Greece’s sovereign debt.
Therefore, as far as the implementation of the Services Directive is concerned,
there is a clear synergy with the application of the Memorandum.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Greece (articles 14 and 15 of the Services Directive)

The evaluation of the implementation of the Services Directive has
revealed, on the one hand, that a number of requirements prohibited by article
14 of the Directive can still be found in Greek legislation, in the retail and
education sectors. On the other hand, as regards requirements where the
Directive left a margin of appreciation to Member States to streamline the
regulatory environment for the establishment of providers and which are mainly
foreseen in article 15 of the Directive, a number of such requirements have
been maintained and they concern basically the same sectors where prohibited
requirements still exist.

Regarding professional services, some requirements which have
been maintained in Greece concern shareholding requirements for chartered
accountants and for lawyers, where only lawyers can be shareholders of a law
firm. Before the adoption of Law 3919/2011 almost all professions had a system
of fixed prices, and after its adoption all the minimum and fixed tariffs were
repealed. However, sector specific legislation is still needed. Pricelists are
maintained but only to serve as ‘reference prices’ or as the basis
for the calculation of pre-paid tax and/or social charges due by the
professionals for lawyers and engineers.

Furthermore, for accountants and architects/engineers experience is
required in order to be promoted from a grade to another.

In the construction and crafts sector, no particular
prohibitions apply.

In the real estate sector, no particular prohibitions apply
and the real estate sector is set by the 'Business Friendly Greece law',
adopted the 11th of April 2012, which abolished the restrictions in
place.

As far as the retail sector is concerned, the legal
form requirement for ambulant trade in the retail sector (only for natural
persons) is maintained and other prohibited requirements have been found
notably in the legislation concerning outdoor sales which were amended in order
to comply with the Services Directive's requirements; however, a numerus
clausus system for the delivery of authorisations upon the opinion of the
committee has been maintained, itself connected to an economic test. The
requirement of prior residence for two years has been abolished, but priority
to obtain a licence is given to specific categories of persons (Greek Romas,
repatriated Greeks from North Epirus and Pontus). Furthermore, the system of
delivery of authorisations is characterised by both quantitative and territorial
restrictions.

In the tourism sector several amendments took place and fixed
tariffs and a number of restrictions were abolished. Furthermore, the
simplification of yacht brokering agencies is already provided in a Joint
Ministerial Decision.

In the education sector Greek nationality is required for
founders of private schools and the majority shareholding should also belong to
Greek nationals.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval, an important mean to cutting red tape, as it
foresees that an authorisation will be deemed to have been granted to the
provider in case an application has not received any response within the set
time period, is foreseen in article 14 (4) of the law 3844/2010. Additionally,
it is provided by law on administrative performances that if the administration
does not reply to an application within 50 days, the authorisation is deemed to
have been granted.

In February 2011 the Greek legislator passed Law 3919/2011 on the
“principle of professional freedom, elimination of unnecessary
restrictions for the access to and exercise of professions”, which came
into force on 2 July 2011. Its scope is to enforce some of the provisions of
Directive 2006/123/EC. Article 3 of Law 3919/2011 foresees that the requirement
for an administrative license is abolished and a person is considered to
legally exercise a profession if three months have passed from the date he/she
has submitted the notice of initiating the professional activity and has
submitted all the necessary documents that certify that he/she satisfies all
legal requirements connected to the professional activity in question.

The administration would have three months from the date the notice
of initiation was submitted to issue a decision prohibiting the exercise of the
profession. The professions excluded from the above provisions are those of the
notary, lawyer, engineer, pharmacist and professions in the field of public
transport (i.e. taxi drivers). The second paragraph of Article 3 of Law
3919/2011 foresaw, that until the 2 July 2011, on the initiative of each
Minister, presidential decrees should have been issued, when necessary,
instituting derogations from the above rule. At the time Law 3919/2011 was
published, the Ministry of Economy issued a list of 136 professions considered
to be “liberalised”
by virtue of the provisions of Article 3.

The very general and on occasion vague formulation of Article 3 of
Law 3919/2011 has raised serious legal concerns as to its interpretation but
mostly as to the way it can practically be enforced. A number of
sector-specific circulars have been issued in order to interpret the
implementation of Article 3.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

Article 25 of law 3844/2010 almost literally transposed the
provisions of Article 24 of the Services Directive. However, total prohibitions
of commercial communications still exist for lawyers after the latest adoption
of law 4038/2012 in the TV, the radio and the billboards.

B.        Boosting cross-border trade

1.         National implementation

Greece has adopted a horizontal transposition law (law 3844/2010)
which may serve only as a reference document because it gives multiple
delegations to the competent ministers, for them to adopt the necessary
implementation measures. So far, however, the implementation measures adopted
are scarce and concern very few economic activities.

2.         Distinction between freedom of
establishment and free provision of services

After the latest legislative amendments and the adopted circulars
distinction take place between a service provider that wants to establish a
business in Greece and a service provider wishing to provide temporary cross
border services with retail sector, ambulant trade, education sector and
tourism sector (sector specific amendments through the adoption of ministerial
decisions, laws and circulars). The Point of Single Contact gives an indication
about the rules that apply for an establishment in Greece and the rules for
temporary service provision but the lack of update lead to uncertainty.

3.         Issues with the free provision
of services clause

Examples of requirements that have been
maintained

In the professional services sector, most of these are likely
to come under the deregulatory effect of law 3919/2011, which abolished most of
the restrictions. A number of circulars for the implementation of this law have
been issued but cross-border provision of services is not specifically dealt
with. An issue which may need some clarification is the way that experience
acquired in other Member States is to be taken into account in order for the
various classifications to be applied to foreign professionals such as for tax
advisers.

Construction, crafts and certification services sectors are not subject to any of the requirements foreseen in Article
16(2) of the Services Directive, and the same applies for cross-border service
providers.

In the real estate services there was a registration requirement,
which was abolished by the by the 'Business Friendly Greece law', adopted the
11th of April 2012, where it is specified that cross-border
providers of real estate services do not need to register with the General
Commercial Registry as the Greek counterparts should do, as long as they fulfil
the requirements for the profession in their country of establishment.

The most important development in relation to Article 16 of the
Services Directive has been done in the tourism sector. The
authorisation and registration requirements imposed on established service
providers do not apply to cross-border service providers and a mere declaration
requirement has been put in place.

Moreover, it has been clearly set that cross-border service
providers from other Member States are not subject to certain requirements, and
the requirement that tourist guides had to be in a fixed employment
relationship with the tour operators they were working with, is abolished.

Finally, most requirements which have been maintained concern the education
sector, where no cross-border services are foreseen without establishment. 
Also, natural persons need to have the Greek nationality, while legal persons
need to fulfil the double condition of being established in Greece and having
Greek majority shareholding. Therefore, service provision, in the sense of
Article 16 of the Services Directive, does not seem to be possible at the level
of educational institutions. A Joint Ministerial Decision foresees the free
cross-border provision of some educational services, such as teachers in
training schools, private tutoring at home, and teaching foreign languages.

   HUNGARY

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points
of Single Contact

The PSC portal was
built on an existing eGovernment portal, launched in September 2003, the scope
of which is much broader than the Services Directive, addressing both
businesses and citizens and covering also procedures related to tax and social
security formalities. There are two portals linked to
the PSCs in Hungary.

1.
www.magyarorszag.hu
is for all users. It is mostly providing information or downloadable documents
to users and does not require identification.

2.
www.ugyfelkapu.magyarorszag.hu,
the so-called Client Gate, is a
sub-site to magyarorszag.hu. The site provides a platform for diverse
electronic services (e.g. tax-return, notifications). Users have to sign up to
complete processes, for which users first have to pay a visit in person to one
of the Hungarian Registration Offices or a Hungarian
embassy. Alternatively e-signature issued in Hungary
can be used for the services available online.

The information
provided on the PSC is comprehensive and thorough. The quality of the search
facility is generally good, however, that facility, FAQs and several other user
support elements are only available in Hungarian and their use require an
already good knowledge of the legal background.  There is little information
targeted specifically on cross-border service providers.

Overall the Hungarian
PSC still has a long way to go to be fully functioning for both Hungarian and
foreign users. Although the scope of procedures covered by the portal is quite
comprehensive, the level of maturity of eGovernment is still relatively low for
many procedures since several competent authorities do
not use the technical infrastructure to provide electronic completion of
procedures through the PSC. Therefore users are still
often required to send supporting documents by post or to present themselves in
person in order to use the electronic portal.

The barriers for
foreigners are extremely high, for linguistic reasons and because of the
obligation to obtain Hungarian electronic signatures or
to register. The same holds true for other components
related to the completion of procedures, notably the use of online payment
tools, tracking methods and the submission/ storing of supportive documents.

In its study[54],
Deloitte rated the Hungarian portal lower than the average of all portals. The
biggest weakness is its limited usability for foreign businesses, much
improvement is needed on this front.

II.        Implementation of and compliance with key provisions

The Services Directive was implemented by the Hungarian Services Act[55],
which lays down the general rules applicable to all service sectors and
establishes provisions on the exercise of the freedom of establishment and the
free movement of services. This framework law of general application entered
into force on 1 October 2009.

In addition to the horizontal law, an "omnibus" act
modified about 100 existing sectoral laws and an "omnibus"
decree amended more than 100 pieces of sector-specific secondary legislation. Moreover an additional 100 pieces of
sector-specific secondary legislation was modified individually. Notably more than 50 authorisation schemes have been replaced by
declarations.

Hungary was among the first Member States to implement the
Directive. The Hungarian transposing legislation covers the same scope as the
Directive. The legislative technique and the large number of amendments of
sector-specific laws indicate that the Hungarian legislator aimed to implement
the Directive thoroughly. However, since the second half of 2011, Hungary has
significantly restricted access to markets which were previously open and where
many foreign providers were present (big retail, sale of tobacco, meal
vouchers, waste management).

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Hungary (Articles 14 and 15 of the Services Directive)

The legislator seems to have removed all requirements prohibited by
Article 14. However, according to a recently adopted measure the activity of
issuing hot meal and holiday vouchers ("SZÉP Card") cannot be
pursued by a branch office of a foreign company.
Moreover, one of the conditions regarding the issuance
of the SZÉP Card consists in the entity having exercised an activity falling
under the same category in the Hungarian Income Tax Law for at least two years.
These measures are incompatible with Article 14 and must be corrected as a
matter of priority.

On the other hand, as regards requirements where the Directive left
a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers and which are mainly dealt with
in Article 15 of the Directive, a few of such requirements have been maintained
which raise doubts as to their compatibility with the Directive.

Most of such cases were identified in the retail sector. An
issue of particular importance concerns the so-called "Plaza stop
law", which bans generally and everywhere the construction of commercial
buildings over the size of 300 m2, unless special exemption is
given. The territory where small-scale producers of agricultural products can
sell their produce is also restricted, and small-scale producers must be
natural persons. Legal form requirements were also identified with regard to
the sale of natural gas, which can only be performed by legal persons. Through
legal form and strict territorial restrictions, a recent law on tobacco sale
limits access to the market, and the conditions for getting a license based on
social policy considerations might discriminate indirectly against foreign
operators.

Regarding professional services, a recent law has imposed
conditions to issue meal and holiday vouchers that are too restrictive and
unjustified, since they require an infrastructure that only big nation-wide
existing banks possess. A new shareholding requirement for companies (at least
50% of the shares must be owned by the State) foreclose private operators
(including foreign ones) previously present on the market of waste management
without justification.

2.         Tacit approval of authorisations (Article 13(4) of the
Services Directive)

Tacit approval applies by virtue of a horizontal provision and
sectorial provisions. Based on the Services Act, tacit approval must be used
for all services falling under the scope of the Service Directive, unless it is
expressly excluded by a sectorial legislation.

Thus, tacit approval seems to have been successfully implemented in
Hungary. The only identified exception is the case of the accountants, where
tacit approval is explicitly excluded.

3.         Total
prohibition of commercial communications (Article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Hungary has transposed Article 16 of the Directive also through the
horizontal Services Act and by modifying sector-specific legislation. The Act
states that only the following requirements can be applied to cross-border
service providers: authorisation requirements, notification requirements and
the obligation to possess an identity document specific to the exercise of a
service activity. Moreover, these requirements can only be applied to
cross-border services if the specific rules are justified for reasons of public
policy, public security, national security and defence, public health and the protection of environment, and if the
relevant sector-specific legislation explicitly states that the requirement is
applicable to cross-border services. This seems to create sufficient certainty
to foreign service providers as to when a requirement applies to them.

2.         Issues with the free provision
of services clause

With respect to the Article 16 requirements, apart from the
cross-border aspects of the cases concerning Articles 14 and 15 mentioned
above, only some questionable notification requirements can be found in some
sectors.

In the field of construction, foreign building contractors
must notify their activities in Hungary. In the notification of this measure by
Hungary, it was claimed that the system is justified by public policy.

Similar concerns may be raised against notification obligations
concerning cross-border adult education services.

   IRELAND  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Irish Point of Single Contact is a
relatively basic website that
relies largely on offering links to the relevant websites where detailed
information on each of the procedures can be found. For instance, in testing,
only 10% of the information on the required procedures was to be found on the
PSC portal itself, while 90% was covered by the websites of the competent
authorities linked to by the portal. Although users can ultimately find the
information that they need, there is no single registration or login to the
PSC, therefore users have to register to each agency to which they are
re-directed, and there is no basic search function to locate relevant
information on the site.

As regards the electronic completion of
procedures, a positive aspect for the Irish PSC is that it does not present any
technical obstacles to the completion of procedures for users coming from
another Member States. However, this is in the context of a portal through
which very few transactions can be carried out by electronic means. A
particular issue concerns the fact that documents and forms cannot be submitted
electronically, e-payment tools are not used and there is no way to track a procedure
electronically. Even on the linked websites, there are only a few instances
concerning company registration where two-way interaction is possible.
Otherwise, forms are simply downloaded and need to be submitted separately.
Article 8(1) of the Services Directive states that it should be possible to
complete all necessary procedures and formalities at a distance and by
electronic means through the PSC and the relevant competent authorities. In Ireland, although electronic procedures are utilised in terms of
certain registrations, applications etc. there is, in fact, no statutory
obligation on competent authorities to necessarily adhere to electronic
procedures. Therefore, imposing these obligations on competent authorities
continues to be challenging.

In terms of usability, the Irish PSC does
not score very highly[56].
While the presentation of information on the site has been found to be clear
and useful and the site easy to navigate, much remains to be done in order for
the Irish PSC to act as a truly useful source of information for entrepreneurs
within and outside of Ireland, particularly through better integration of the
PSC with the other government or agency sites to which it redirects users.

The Irish PSC is not easy to find if one
doesn't know its exact web address, and efforts need to be made to improve
this, as well as in promoting the existence of the PSC with bodies that provide
support to businesses in Ireland. Information on the site should also be
extended to procedures to be followed in the life of a business after
establishment. Assistance to users is very limited, and information is
available only in English. Continued efforts will be needed to enhance the user
experience when accessing the site and to improve the wider e-Government capability
of the portal.

II.        Implementation of and compliance with key provisions

Ireland implemented the Services Directive
through a horizontal framework law ("ministerial regulation") which
was adopted some 11 months after the transposition deadline[57]. There is no
evidence that Ireland has amended sector-specific legislation to bring it into
line with the provisions of the Services Directive. If sector-specific
legislation is domestic in origin (i.e. not implementing EU rules), then the
horizontal legislation implementing provisions of the Services Directive, for
instance article 16 on the freedom to provide services, will prevail over
sector-specific legislation in cases of conflict.

A.        Streamlining the regulatory
environment for services

1.         Requirements applying to providers established or
wishing to establish in Ireland (articles 14 and 15 of the Services Directive)

As regards requirements where the Directive
left a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers and which are mainly foreseen in
article 15 of the Directive, a few of such requirements have been maintained.
They concern the tourism and the retail sector.

In the travel sector, there is a
requirement for travel agents and tour operators to set minimum capital
investment in their business. They are especially required to take out
particular bond that such businesses are required to take out to protect their
customers. In putting another financial burden on businesses, it may act as an
obstacle to growth in the travel agency and tour operator sector. The guideline as to the minimum capital investment in the business
is a practical approach directed towards protecting the customer.

Caps on the size of retail outlets
can act as an impediment on new entrants wishing to enter the market, such as
operators of large hypermarkets that are more common in some EU Member States. In this regard the draft Retail Planning
Guidelines, taking into account recommendations of a recent study[58],
will revise the floor space caps with different limits for different retail
activities and depending on location of the outlet.

2.         Tacit approval of
authorisations (article 13(4) of the Services Directive)

Tacit approval, an important tool for the
cutting of cutting red tape, as it foresees that an authorisation will be
deemed to have been granted to the provider in case an application has not
received any response within the set time period, is foreseen in the
horizontal law implementing the Services Directive in Ireland.

Following the wording of the Services
Directive, the Irish horizontal law has left open the possibility for competent
authorities to put different arrangements in place. Sector-specific legislation
has not been amended to specify such different arrangements. The horizontal
legislation, and the possibility for tacit approval, exists for patent and
trade mark agents and copyright licensing bodies, casual trading near a
harbour, the registration of hotels, guest houses and other tourist accommodation,
the use of premises for an activity involving the
contained used of genetically modified organisms and
surf training.

Competent authorities may decide to check
the professional qualifications of service providers in the health, social care
and veterinary professions who are not eligible for automatic recognition under
Articles 21 to 49 of the Professional Qualifications Directive. In such cases,
in the absence of a reaction from the competent authority within the deadlines
set, the service may be provided.

Sector-specific legislation containing the
procedures for authorisation of tour operators and travel agents, vocational
education and training providers, those involved in the health and safety of
workers in the construction and other related industries, and driving
instructors describe such approval processes without reflecting any
arrangements for tacit approval. In the absence of the different arrangements
provided for in the horizontal law, the possibility for tacit approval can be
deemed to apply, but this may not be implemented in practice.

3.         Total prohibition of commercial communications
(article 24 of the Services Directive)

No total prohibition of commercial
communications has been identified. However, there are currently strict
limitations placed on the possibility of barristers to advertise their
services. However this issue is to be revisited with the establishment of a new
Legal Services Regulatory Authority as set out in the Legal Services Regulation
Bill 2011.

B.        Boosting cross-border trade

1.         National implementation

The core chapter of the Directive on the
freedom to provide services was introduced in the horizontal law which was
adopted to implement the Services Directive. Article 16(1) and 16(2) are
transposed into Irish law by means of Regulation 6 of the 2010 Regulations
which are largely compliant with the letter and spirit of the Services
Directive.

2.         Distinction between freedom
of establishment and free provision of services

The 2010 Regulations acknowledge the
freedom of cross-border service providers to operate within Ireland, subject to
constraints whereby competent authorities can impose requirements on
cross-border service providers where justified under the four core criteria of
public policy, public security, public health, or protection of the
environment. These provisions are therefore in conformity with the principle of
the freedom to provide services.

However, with the exception of some of the
professional services sector (particularly lawyers and auditors that are subject
to a specific EU legal framework), the distinction made between the
requirements applicable to foreign entrants wishing to enter the Irish market
through freedom of establishment and those wishing to offer their services on a
temporary cross-border basis may not always be clear. Business users involved
in the testing of Ireland’s Point of Single Contacts highlighted this
point as being confusing to those wishing to assess their obligations.

3.         Issues with the free
provision of services clause

In principle, cross-border service
providers have the right to provide services in Ireland if they comply with the
conditions set in their Member State of establishment. However given that
sector-specific legislation co-exists with the horizontal legislation, service
providers would need to verify if additional requirements apply in the
sector-specific laws (which may only be permitted for reasons of public policy,
public security, public health or environmental protection).

Examples of requirements that have been
maintained

With regard to the construction and
crafts sectors, electricians and gas installers in Ireland generally
register with the relevant designated body (RECI or ECCSA for electricians and
RGII for gas installers), which in turn ensure that their members comply with
quality and safety standards. It is not compulsory for all electricians and gas
installers to register with these bodies, but it may be very difficult for them
to secure work unless they do so. Cross-border gas installers who wish to carry
out work on with liquid petroleum gas may be subject to criminal sanctions
unless they are registered with RGII.

As mentioned above, in the travel
sector, tour operators and travel agents operating in Ireland, and involved in
the provision of tourism and travel services to destinations outside of Ireland
are obliged to hold licenses issued by the Commission for Aviation Regulation.
This requirement does not allow travel agents or tour operators active in other
EU Member States to provide services on the basis of the authorisations
obtained in their Member State of establishment. Furthermore they are obliged
to meet certain capital thresholds and to take out a bond to cover them in the
event that the business was unable to meet contractual or financial obligations. These requirements are supposed to protect the consumer.

As regards the education sector,
vocational education providers such as occupational
first aid training providers, manual handling
instructors and lifeguard trainers are required to register with the relevant
statutory bodies.

  
ITALY  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Given the large amount of legislative instruments stemming from the
different national and local authorities, and the absence of a centralised
system of publication of laws or an online database of the legislation in
force, points of single contact are essential to help cross-border or
established service providers in Italy.

Points of single contact have been set up by local authorities in
every city hall in Italy, or within the premises of the competent Chamber of
Commerce. These local physical points can be traced using the central website,
through a specific search.

Generally speaking, the degree of information offered on the website
is quite good and comprehensive. Support tools for users are provided, which
also provide assistance in English. However, the portal is not well known, so
more communication and promotion activities will be necessary.

The website enables users to carry out procedures through one single
communication which allows them to handle several administrative requirements
altogether. However, this is not always possible across all business sectors.
In some cases, users are allowed to complete the requirements through the web
site, in other cases they will only be able to acquire information without the
possibility to submit an online application. Electronic identification and
electronic signatures are required to gain access to the private area and to
submit the filled forms. Online completion of procedures is easy, and the
number of forms required has been reduced.

One of the main problems lies in cross-border procedures. In fact,
the website lacks information regarding cross-border provision of services as
well as online forms in English. Electronic logins and signatures can also
constitute an obstacle for cross-border providers.[59]

II.        Implementation of and compliance with key provisions

The subject matter of the Services Directive partly falls within the
legislative competence shared by the State and its Regions. This means that the
central State has the power of setting the legislative principles the regions
will need to comply with when laying down more detailed provisions. Regional
norms passed before the implementation law and conflicting with the national
law should therefore be considered abrogated and Regions have a constitutional
duty to finalise the implementation of the Directive. However, this
hierarchical relationship is only implicit and this undermines legal certainty.
In fact, in this situation, Italian courts would be the only authorities
entitled to set aside conflicting regional rules, becoming the only guarantee
for the correct application of the principles set out in the Directive.
However, the implementation law has introduced a mechanism that aims to prevent
future inconsistencies by requiring local and national authorities to notify
any bill containing new requirements. Failure to do so will result in the
requirement being considered nil and void.

It must be emphasised that with the entry into force of the national
law implementing the Services Directive, Italy has dropped its previous system
of authorisation schemes in favour of a lighter system of notifications and
declarations. The Italian legislator has introduced the SCIA (Certified
notification on the commencement of activity). According to the new rules, each
act of authorisation, licence, concession, permission, is replaced by a
notification made by the provider.  The notification can be made by mail or
online and the activity can be commenced on the same day in which the
notification is made.

The provisions on liberalisations and administrative simplification
contained in a law recently adopted (January 2012) introduce some relevant
changes in this respect. In fact, this law empowers the government to propose
new legislation with the aim of repealing unjustified restrictions and
authorisations on economic activities, removing any discrimination or obstacle
to new economic actors and promoting fair competition in the market.
Furthermore, the text of the law expressly refers to EU principles. The exact
content of these forthcoming reforms should be disclosed gradually up until the
end of 2012.

A.        Streamlining the regulatory environment for services

1.
        Requirements applying to providers established or wishing to
establish in Italy (Articles 14 and 15 of the Services Directive)

The Italian legislator has transposed in the horizontal
implementation law all provisions contained in Article 14. It has also removed
all provisions imposing on service providers the burden to prove the existence
of economic need or demand or to assess the economic impact of the activity on
the market through economic tests. However, a sector-specific analysis of the
regional laws identified a number of requirements which are prohibited under
Article 14, notably in the retail and tourism sectors. Regarding art. 15
requirements, and in particular fixed tariffs, it is worth stressing that art.
9 of the recent d.l. 1/2012 abrogates all legislation imposing fixed tariffs in
the field of regulated professions. However sector specific legislation may
still be needed.

Quantitative or territorial restrictions were also noted in the
retail and tourism sectors. Requirements reserving access to particular
providers were identified in the tourism, and education service sectors. Legal
form and shareholding requirements have been maintained in the education sector
for the professional services and for the crafts sector.

As for professional services, shareholding and legal form
requirements are always connected in the Italian system, and they are
applicable to all professions. Recent reforms have opened the possibility for
professionals to choose from a wider variety of legal forms, notably limited
liability companies with non-professional members. A few limitations have been
maintained, some of which, interestingly, are linked to the age of the members
(who must be no older than 35) and the amount of shares which can be held by
non-professionals (no more than 1/3).

In the retail sector, authorisations to open a newsagent's
shop are subject to specific assessments carried out by the competent local
authority and approval of trade unions. A number of national and regional laws
set quantitative and territorial restrictions for retail activities,
particularly those linked to large retail facilities or those which take place
in public spaces. They are often justified by the need to promote the
sustainable development of local economies. Reforms abrogating legal form
requirements for itinerant retailers, which started in 1998, have now been completed
through the implementation law, which states that all types of legal person can
obtain an authorisation for itinerant retail activities.

The tourism sector falls within the scope of regional
competences, therefore the national implementing law has little impact on this
sector. A number of regional instruments containing prohibited requirements
were identified. Residency within the region where the service is provided is
required for ski instructors, and travel agencies need to prove that their
activity is insured and that they have obtained financial guarantees for
reimbursing consumers, although they are not forced to obtain these guarantees
in Italy. As for requirements to be evaluated, territorial or quantitative
restrictions and fixed tariffs difficult to justify can be found. For example,
obtaining an authorisation to open a ski school can sometimes depend on the
number of ski schools existing in the region, or the amount of tourists coming
in the region. Fixed tariffs in the field of ski instructors and mountain
guides and restrictions connected to the distribution of ski schools and
resorts are especially common (Veneto, Trento, Emilia Romagna, Lazio). However,
requirements limiting the choice of the ski instructors between principal and
secondary establishment have been removed.

The national implementing law of the Services Directive does not
make any change to the education sector. National laws on education and
vocational training do not pose significant problems, but it should be stressed
that they require legal persons established for educational purposes to be
non-profit oriented without giving any justification.

As for the crafts and construction sector, restrictions on
legal form and shareholding of companies were identified in relation to
craftsmen: the majority of shares must be held by members who can be qualified
as craftsmen. Chimney sweeps in the province of Bolzano have to comply with
tariffs imposed by the local authorities.

2.         Nationwide validity of authorisations (Article 10(4) of
the Services Directive)

The Italian implementation law transposes the wording of Article
10(4) almost literally, therefore ensuring validity of authorisations
throughout the whole country. However, given the specificities of the Italian
legal system, it is up to the regional and local authorities to grant
authorisations for several activities (e.g. carpenter, social operator,
gardener, amongst others).

All the qualifications regulated by the Regions have a nationwide
validity. A few exceptions have been mostly identified in services related to tourism:
in a few regions (Puglia, Friuli, Lazio, Lombardia, Marche) specific
authorisations are required to transfer a branch or the headquarters of travel
agencies. Furthermore, the qualification for the profession of tourist guide is
only valid in the Region which issued the qualification, because a
qualification of "national tourist guide" does not exist yet.

3.         Tacit approval of authorisations (Article 13(4) of the
Services Directive)

The principle of tacit approval of authorisations has been correctly
transposed in the Italian implementation law as a horizontal rule applicable in
all cases where a licence, approval or other authorisation is needed for the
provision of services. It should be noted that this principle already existed
in the Italian administrative legal system since it had been introduced by the
1990 law on administrative procedures and is widely applied in a way which
fully complies with the Services Directive.

Most activities can now be started following the aforementioned SCIA
notification, and where an authorisation is still required, the principle of
tacit approval applies as a general rule. However, there are several cases,
both in the national and regional laws, where the principle is not mentioned:
when this occurs, the principle does not apply. In some cases, the absence of
tacit approval is duly justified by overriding reasons of public interest,
which is particularly the case in the construction and the food sector. For
example, the national law requires an explicit authorisations from public
authorities to build gas pipelines and cableway structures due to public safety
and environmental protection. Under the implementation law, most activities
involving the sale of food and beverages must receive an explicit
authorisation by public authorities, which is justified by health reasons.
Relocation and transfer of ownership of the activity, instead, are subject to a
regime of tacit approval.

However there are still numerous cases where no justification
compliant with art.13(4) of the Services Directive can be found and where Italy
must make sure that the instances in which tacit approval is not applied are
limited to duly justified matters.

Furthermore, the problem of legal certainty in Italy, described
above, comes into play once again: the provisions contained in the Italian
implementation law set principles for the regional law to abide. As such, it
prevails over any contrary regional provisions. However only a judge can set
aside regional laws which do not comply with principles established at national
level.

In the tourism sector, several regional laws require an
explicit authorisation to open travel agencies (Lazio, Puglia), various type of
touristic accommodations such as hotel and guest houses (Liguria, Veneto,
Abruzzo, Sardinia) and agriturismo (Piemonte, Trento, Abruzzo). Ski schools
(Bolzano, Piemonte, Liguria), ski instructors (Valle d'Aosta, Toscana,
Lombardia, Bolzano, Trento, Umbria, Marche, Veneto, Liguria, Campania, Molise,
Basilicata, Calabria) and alpine guides (Lombardia, Bolzano) are very often
subject to an explicit authorisation regime. In the business sector, the
issue of a lack of tacit approval is mostly linked with the activity of
beautician (Piemonte, Lombardia, Liguria, Lazio, Basilicata, Sicily) and with
social services (Tuscany, Veneto, Friuli). As for the retail sector, the
issue is often connected with the set-up, the relocation and the enlargement of
large retail facilities (Liguria, Sardinia, Lombardia, Friuli, Trento, Veneto,
Abruzzo, Sicilia, Basilicata), a domain where even national laws do not foresee
the principle of tacit approval.  While eliminating the residence requirement,
the implementation law has also maintained an explicit authorisation regime for
trade in public areas, which is regulated in detail by the regions.

4.         Total
prohibition of commercial communications (Article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

The Italian implementing law does not contain at first sight a
specific provision on cross-border services. However, a systematic reading of
its provisions provides a satisfactory definition of cross-border service
provider, making sure the principle is implemented. Furthermore, a number of
provisions stress the fact that a service provider is someone exercising a
profession or an economic activity in Italy on a temporary and occasional
basis.

The horizontal nature of the Italian implementing law on the one
side, and the hierarchic superiority of the Italian implementing law over
conflicting norms should ensure, in principle, a sound implementation of the
free movement of services. However, this technique does not exclude the
possibility of the erroneous application of conflicting norms that have not
been expressly abrogated. Moreover, the fact that regional laws are not
published in the national official journal could create considerable and
serious uncertainty for analysts and operators in the market.

As for the grounds of public order, public safety, public health or
protection of the environment, it is still unclear how they will be identified.
Since they are not defined by the implementation law, their assessment can only
take place a posteriori by looking at the rules implementing the
Directive in the different sectors and activities. It is also difficult to tell
which authority will have the power to determine if one of the four grounds
should apply.

2.         Distinction between freedom of establishment and free
provision of services

As previously stated, the implementation law provides for an
indirect definition of cross-border services, and a definition of
establishment, therefore clarifying the distinction between the two. Service
providers established in another Member State do not need to comply with the
requirements usually applicable to service providers established in Italy. But,
again, the national law does not specify when and which authorities are in charge
of deciding whether one of the four grounds justifying administrative
requirements should apply. This uncertainty is aggravated by the absence of any
specific provision for cross-border services in the different laws regulating
the access to professions and other economic activities.

It's worth stressing that following the entry into force of the
Services Directive, many regions amended their legislation on retail activities
to ensure compliance with the free provision of services clause. The obligation
to have an establishment where the service is provided has been repealed in all
regions.

3.         Issues with the free provision of services clause

The main problems here are again linked with the complexity of the
Italian legal system and the existence of regional provisions conflicting with
the Services Directive and the implementation law.

Examples of requirements that have been maintained

Concerning professional services, the national implementing
law allows requirements applicable to professionals established in Italy to be
imposed on service providers only for reasons related to public policy, public
security, public health or protection of the environment. Neither the
implementing law, nor other sector-specific instruments however explain which
requirements and which authority can decide to make those requirements
applicable to service providers that are not established in Italy.

A similar situation can be observed in the tourism sector
where most activities are also subject, to a certain extent, to authorisation
schemes. It should be noted however that the pre-existing requirements have
been translated to a mere declaration of commencement of the activities ('Dichiarazione
Inizio Attivita’), which serves as both registration and
authorisation. It's worth mentioning the peculiar case of agriturismi.
Here the authorisation is linked to a quality of the person seeking to provide
the agriturismo service: i.e. the status of imprenditore agricolo
(agricultural entrepreneur). This condition basically requires establishment in
Italy to own an agriturismo. Furthermore, special ID cards are
compulsory for tourist guides and ski instructors in Veneto.

  
LATVIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Latvian PSC was set
up in 2009 and was built on the existing government e-services portal www.latvija.lv, with a specific part
implementing the PSC (https://www.latvija.lv/EN/WebLinks/Portal/services.htm).
The portal goes beyond the requirements of the Service Directive.

The Point of Single
Contact in Latvia provides in general a good level of information. Information
is lacking however for cross-border service provision and may vary depending on
the geographical location or municipality. Information can be accessed or
searched in a number of different ways (by service sectors, thematic index of
procedures, licenses; company registration; etc.). Key information and general
information is available in foreign languages (English and Russian) but
practically no forms exist in other languages.

The state portal offers
the possibility to complete a relatively high number of procedures
electronically (downloading, filling in and sending forms, mainly by e-mail).
There are still procedures that are not yet available online. E-ID is mainly
required for fully interactive online services and e-signatures are required to
complete the procedures online. eDocuments can be signed through an online
application and sent by e-mail to the competent authorities, or in some cases
uploaded directly. Even if legally accepted, e-signatures and e-identification
from other Member States are not yet supported technically but developments are
underway.

The portal provides a
variety of online and offline support and a number of advice tools: guidelines,
help documents – user assistance; frequently-asked-questions, demos or
video. Information on general procedures and step by step instructions are
available in English. In addition, an e-service Helpdesk is available, which
can be contacted by phone or email.

According to the
Deloitte study[60],
which carried out some user testing of PSCs, the overall use and usability of
the Latvian PSC was perceived to be average.

Further
improvements are necessary to put in place missing electronic procedures as
well as technical solutions to allow for cross-border use of e-identification
and e-signatures. From the users' perspective, online content and information
availability in foreign languages should be enhanced.

II.        Implementation
of and compliance with key provisions

A.        Streamlining the regulatory
environment for services

1.         Requirements
applying to providers established or wishing to establish in Latvia (articles
14 and 15 of the Services Directive)

No prohibited requirements or requirements where Member States have
some margin of appraisal were identified in the Latvian legislation.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The principle of tacit approval was missing in the horizontal law as
adopted in 2010 but has been introduced in the horizontal law via the
amendments adopted in March 2012. Some work is still on-going on sectorial
legislation to have it included there as well and to identify if different
arrangements need to be put in place, if justified.

3.
        Total prohibition of commercial communications (article 24 of the
Services Directive)

The removal of total prohibition of commercial communications was
not transposed by Latvia in the original version of the horizontal law but is
now transposed via the amendments adopted in March 2012. However, no total
prohibitions of commercial communications have been identified in Latvian
sectorial legislation.

B.        Boosting cross-border trade

1.         National implementation

Article 16 has been implemented by way of a clause in horizontal law
(the Law on the Free Provision of Services). Some principles of Article 16 have
not been fully compliant with the Services Directive, in particular with regard
to the principles of necessity and proportionality which have however been
corrected via the amendments adopted in March 2012.  The same applies to some
provisions of Article 16(2) of the Directive, which were initially transposed
in a deficient manner, but have been corrected via the amendments of March
2012.

Section 15 of the Law on
the Free Provision of Services foresees that the criteria for temporary
cross-border services and applicable requirements are to be provided by the
Regulations of the Cabinet of Ministers (RCM).[61]
However, the need for the Regulations is under revision and alternatively
necessary amendments could be made in sectoral legislation, and guidelines
drawn up for administrative use.

2.         Distinction between freedom of
establishment and free provision of services

No distinction is made in sectorial legislation between
establishment and cross-border service provision. The Regulations on the
cross-border provision of services, as foreseen under Section 15(3) of the Law on the Free
Provision of Services have not yet been adopted but it can be seen from the wording of Section 15 (3) that a
declaration will be foreseen with an indicative list of service to which it
would apply. Depending on the exact nature and required documentation as well
as the services that will be covered, this requirement may raise concerns with
regard to its compatibility with Article 16 of the Services Directive.

Currently the absence of these Regulations creates some legal
uncertainty as to applicable requirements to cross-border service provision.
The Law on the Free Provision of Services should in principle take precedence
over sector specific requirements because most of the sector specific
requirements are laid down in Regulations that have a lower hierarchical status
in the Latvian legal system than laws. When it comes to laws that have the same
status as the Law on the Free Provision of Services, the latter is considered to
be lex specialis but this is still subject to the interpretation by the
court where some additional insecurity may rise from the wording of Section
3(2) of the Law on the Free Provision of Services which could interpreted as
giving precedence to sectorial laws over the Law on the Free Provision of
Services.

3.         Issues with the free provision
of services clause

The main problem is the above mentioned lack of clarity as to
applicable provisions due to the missing Regulations, still to be adopted.

Examples of requirements that have been
maintained

In case of professional services, real-estate evaluators and
geodetic work performers must be certified that seems to amount to an
authorisation in essence. This requirement is currently under revision to provide
for a mutual recognition principle.

In the construction sector, a service provider
employing at least one person who has the right to run an independent practice
(builder’s practice or architect’s practice) must be registered in
the Construction Merchants' Register.

In the retail sector an authorisation is required for sales
in markets and street selling (authorisation from local-governments).

In tourism, tourism agents and operators need to be
registered in the specific database of tourist agents and tourist operators.

   LITHUANIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

There is one Point of
Single Contact in Lithuania, i.e. www.verslovartai.lt for users based in
Lithuania and for users from outside Lithuania. The portal is linked to a
physical infrastructure of the PSC. The Lithuanian PSC thus goes beyond the
minimum requirements set by the Services Directive (the thematic areas covered
by the portal include starting up a business - encompassing both advice on
grants, loans, funding, intellectual property, and advice on legal structures,
company registrations, permits, insurance -, employment, taxes and social
security issues).

The portal home page is
in Lithuanian with a button linking directly to the English version. However
the portal in English is less detailed than the one in Lithuanian.

The Point of Single
Contact in Lithuania does not yet cover all the necessary information. The PSC
is good at information for company registration, permits, tax and social
security formalities, but lacks information on requirements related to
premises/location of the service provider and cross-border procedures. For
cross-border service provision, the availability of information varies by
business sector, especially when it comes to detailed information (guidance on
what forms and supportive documents have to be submitted as part of an
application, whether originals or simple copies are accepted, etc.).

A good practice is the
use of interactive questionnaires that provide checklists for starting a
business or applying for a license. Questionnaires are developed by certain
field of activity, when starting a business or verification questionnaires,
helping business to check, whether there activity is exercised in according
with the requirements as well as helping get ready for the visits of the controlling
authorities.

The Lithuanian portal
provides information in English language however, all forms which are required
to be filled in are in Lithuanian only.

The portal does not provide a clear distinction for foreign
businesses considering permanent (i.e. an establishment) and cross-border
service provision.

Overall, the electronic
procedures provided by the Lithuanian portal are the same for permanent
establishment of a business and for temporary provision of services, if any
requirements are applied for the latter. A good part of the covered procedures
can be completed online, except for some licences and registrations. Online
availability is lower (if not absent) for procedures relating to the premises
of the providers and the place the service is carried out (downloadable forms).

For completion of
procedures, eID and e-signatures are required. Only national tools are
supported, and no cross-border identification is currently available.

Payments can be
conducted via online e-bank transfers; credit and debit cards are not
supported. Proof of payment is to be provided by scanning the transfer
confirmation.

No tracking
services exist which would enable users to monitor the progress of
their procedures.  Information by competent authorities is provided to service
providers via e-mail or phone call.

Solutions for
supporting cross-border eIDs and e-signatures are under development.

The portal provides
interactive tools to obtain information (downloadable guides, videos and demos
or case studies). These are generally good, easy to use and comprehensive.

If no answer can be
found in the provided tools, a help message in the portal can be used.  A user
can choose a topic from a drop-down list and write a question to the PSC.

Overall the usability
of the Lithuanian PSC[62]
by end-users was deemed to be very good with some wishes for improvements  to
extend the coverage of interactive tools to all sectors and also make it
overall available in EN, improve the structure of information including by
making a clear distinction between requirements and procedures for permanent
establishment and cross-border provision of services, implementation of web
forms, allow service providers from other MS to use their eID and e-signs and
translate forms.

II.        Implementation of and compliance with key provisions

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Lithuania (articles 14 and 15 of the Services Directive)

The new version of the Law on Control of
Weapons and Ammunition entered into force on 1 March 2011 and abolished the
requirement based on nationality and residency.  On the contrary, the latest
amendment to the Law on Vocational Education, which entered into force on 10
June 2010, foresees that in order to provide formal vocational training a
natural person from another Member States must have its residence in Lithuania.
According to Article 14, requirements that discriminate on the bases of
residence are prohibited and need to be abolished.

The requirement that service providers have to take a specific legal
form was abolished in significant number of sectorial laws. . Nevertheless, the
latest amendments to the Law on Tourism introduced a specific legal form
requirement for the tourism information service providers which can only be
operated by a legal person. Moreover, the requirement fixing a minimum number
of employees still remains for some areas, namely – company restructuring
administration and company bankruptcy administration. The shareholding
requirement has been identified in the Law on the Bar for the professional
members  whereby lawyers have to own 100 % of the capital of professional
partnerships.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The principle of tacit approval has been implemented via the
horizontal law transposing the Services Directive, namely Article 7(3) of the
Law on Services. In addition tacit approval has been
included explicitly in majority of sectoral laws. The horizontal Law on
Services also foresees that derogations for tacit approval could be
introduced, but only in laws and if justified by overriding reasons relating to
the public interest, including legitimate interest of the third parties. For
example, such derogations have been introduced in the Laws
on Control of Circulation of Civil Pyrotechnic Means, on Vocational Education, on Maintenance of Potentially Dangerous Equipment.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

Article 15 of Law on Services literally transposes the provisions of
Article 24 of the Directive. One total prohibition has been identified for
lawyers in Article 42 of the Law on the Bar which contains a total prohibition
on commercial communications. The type of information that can be communicated
can merely be informative and is therefore narrower than a commercial
communication as defined by the Directive.

B.        Boosting cross-border trade

1.         National implementation

Article 16 has been implemented by way of horizontal legislation with
additional sector-specific laws. The Law on Services seems to transpose most of
the requirements covered by Article 16 of the Services Directive correctly and
completely. The transposing legislation does not contain provisions expressly
transposing Article 16(2) of the Services Directive; however, the Law on
Services does not allow any restrictions on freedom to provide services in
Lithuania, except cases foreseen in the Law on Services or other laws. Such laws
must follow the principles of non-discrimination, necessity and proportionality
referred to in Article 16(1) of the Services Directive. The four reasons
justifying the imposition of Lithuanian requirements on cross-border service
providers established in other Member States namely, public policy, public
security, public health and protection of the environment are laid down by
Article 9, section 3, paragraph 2, of the Law on Services.

2.         Distinction between freedom of
establishment and free provision of services

The Law on Services enables service providers established in other
Member States to provide services in Lithuania without having to comply with
additional requirements, unless specific requirements are established by laws.
This means that only laws, not secondary legislation, may impose additional
requirements on service providers from other Member States. Such laws, in so
doing, must meet the principles of non-discrimination, necessity and
proportionality.

3.         Issues with the free provision
of services clause

Examples of requirements that have been
maintained

In the professional services sector there remain a number of
requirements, applied to incoming service providers. The Law on Company
restructuring and the Law on Company bankruptcy foresee an establishment
requirement for the legal persons and an obligation on the all service
providers to obtain an authorisation from the competent authority.

In the crafts, construction and certification services
sector, the Law on Construction foresees an examination of legal knowledge
under the programmes approved by the body authorised by the Lithuanian
Government for engineers intending to exercise temporary service activity in
Lithuania.

In the real estate sector property assessment services have to
be carried out by entities that are registered in Lithuania. For the
registration of an entity in Lithuania the same package of documents must be
submitted for cross-border service provision as for establishment.

In the retail sector the Law on Alcohol Control as well as
the Law on Tobacco Control still contains establishment requirement.

   LUXEMBOURG  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Luxembourg has set up
one virtual point of single contact, http://www.guichet.public.lu,
which is aimed at citizens and businesses users based in or outside Luxembourg.
Physical PSCs are run by the Chamber of Commerce and the Chamber of Trades, the
so called "Espace Entreprises" and "Contact Entreprises".

The degree of
information offered on the PSC of Luxembourg is generally very good. A simple
and advanced search function is offered to help users find the relevant information
easier and faster. This seems particularly important for service providers from
other Member States which are generally less familiar with the legal or
administrative system in Luxembourg.

The establishment of
the PSC has also led to the development of an interactive form, available in
French, German and English, where the provision of occasional services in
Luxemburg can be notified to the relevant authority by simple mail.

On-line completion of
procedures is in general good but can however still be improved by the
Luxembourg PSC in order to avoid documents to be send by post.

Several support tools
are being offered to users such as online help through FAQs, search function
and email to the physical PSCs. For technical questions and business permits
helpdesks are being offered.

The linguistic
availability of the information offered on the PSC in Luxembourg is considered
well as it offers for instance most electronic forms, the search facility, the
FAQs and several other user support elements in English and French.

The overall use and
usability of the Luxembourg PSC is above average.[63] However, some areas
of improvement could be made such as the set-up of an improved search function
to assist users in finding the relevant information. Another improvement that
would benefit service providers is the provision of more online services and
the use of marketing activities to increase awareness about the point of single
contact website.

II.        Implementation of and compliance
with key provisions

In May 2011, Luxembourg adopted the law related to services in the
internal market. It is a framework law of horizontal application transposing
almost literally the provisions of the Services Directive. Relevant sectorial
laws were checked as well and adapted to be aligned with the requirements of
the horizontal law. The number of sector-specific laws to be amended was
relatively small because most economic activities are covered by the new law
regulating access to the professions of craftsmen, traders, retailers, industrialists
and other liberal professions. The legislative process is on-going for the law
on alcohol serving establishments.

A.        Streamlining the regulatory environment for services

1.
        Requirements applying to providers established or wishing to establish
in Luxemburg (articles 14 and 15 of the Services Directive)

Concerning professional services, several restrictions still
exist with regard to the profession of lawyers such as the shareholding in law
firms. The establishment of a branch in Luxembourg of a law firm established in
an EU Member State that includes non-lawyers is prohibited. A lawyer can open
only one office in Luxembourg. Concerning legal form, the law of 16 December
2011 concerning the exercise of the legal profession as a legal entity has
broadened the possibilities for the legal profession making it possible for
European law firms to provide services in Luxemburg without having to modify
their original legal form.

No forbidden requirements in crafts, construction and
certification services as Luxembourg abolished the obligation to have the
opinion of a committee, including persons from the same profession, on the
application for authorisation of a profession in this sector. Other
requirements were abolished in the course of the transposition of the Services
Directive such as a shareholding requirement obliging the qualified person to
have a majority share and a ban on having more than one establishment in the
crafts/construction sector.

No forbidden requirements in real estate sector. To be noted
that in the case of real estate agents Luxembourg abolished a procedure
including competitors in the decision making process. Before, when deciding on
an application for authorisation the authorities received the opinion of a
committee that included among others competing real estate agents. This
forbidden requirement was removed by the new Law regulating certain
professions.

Under the former law regulating certain professions a market study
had to be provided in the application for authorisation of retail spaces
of more than 2000 square metres. This requirement was abolished by the new 2011
Law regulating certain professions. Authorisations for these retail spaces
however are still subjected to specific criteria regarding the quality of urban
planning and consumer protection such as the equilibrium between activities in
city centres and urban zones.

In the other sectors examined, i.e. the tourism and education
sector no such requirements have been identified.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval applies as a general rule and was introduced in the
horizontal law. A list of exceptions however was included where tacit approval
does not apply to aspects of public interest and public security such as
weapons trade and protection of environment. Consequently, the laws that are
not mentioned in the list should be understood as providing for a tacit
approval scheme.

In practice, it seems that Luxemburg has set a term of three months
for administrations to reply on the submission of a complete request. If they
do not respond within this deadline the authorisation should considered to be
given.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

Luxemburg has abolished all total prohibitions on commercial
communications by regulated professions in his horizontal law implementing the
Services Directive.

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Luxembourg implemented the freedom to provide services clause
foreseen by article 16 of the Services Directive by way of a horizontal law as
well as by sector-specific legislation. The horizontal law related to the services
in the internal market literally reproduced Article 16(1) and Article 16(2) of
the Services Directive. With regard to article 16(3), no mention is made of
overriding reasons of general interest other than public policy, public
security, public health or the protection of the environment. The exemption for
labour conditions was also included in the general law on services in the
internal market.

2.         Distinction between freedom of establishment and free
provision of services

Even before the adoption of the law related to services in the
internal market, the Government started to align its legislation to the freedom
to provide services clause. The authorisation for electricians, for established
as well as foreign entrants, to work in installations of the electricity
distribution grid was abolished as this was considered to be a restriction to
the freedom to provide services. Other requirements such as accreditation for
auditors, horizontal authorisation for the establishment of economic activities
were brought in line with the letter and spirit of the Services Directive.

3.         Issues with the free provision of services clause

However, cross-border service providers will still need to apply for
an authorisation for child welfare and assistance to persons in need, technical
studies and verifications in the field of environment and accreditation for
institutes of higher education. In addition, the selling of alcoholic drinks
outside the premises can only be carried out in the territory of a municipality
by the persons established there, excluding incoming service providers.

Examples of requirements that have been maintained

Regarding crafts, construction and certification services,
individuals or private or public entities other than the State which carry out
technical studies and verifications in the field of the environment must apply
for an authorisation. Cross-border service providers undertaking these
activities in Luxembourg are not exempted from this authorisation. No explicit
justification is provided by the legislator, though this authorisation may
however have been maintained following screening on grounds of environmental
protection.

In the retail sector several requirements have been
abolished. Before the entry into force of the new law on regulated professions,
there was no derogation from the requirement for an authorisation for
cross-border service providers hawking certain goods (e.g. bread, milk, sugar)
temporarily and occasionally in Luxembourg. Furthermore, there was a
notification obligation for all kinds of (trade) services, including
construction. Now, the new law on regulated professions exempts incoming
service providers from any administrative authorisation such as registration
with the trade register.

In the other sectors examined, i.e. the professional services,
real estate, tourism and education sector no such requirements have
been identified.

   MALTA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The first portal that was set up in order to implement the Services
Directive contained the relevant information in English and Maltese language,
but was lacking a search facility as well as a distinction between permanent
establishment and cross border activity scenarios. The possibility to complete
procedures on-line was only available for a very limited number of procedures.

However in January 2012, a new portal, “Business
first”, was launched and significantly improves the performance of the
Maltese PSC. It is still too early for a more detailed analysis of this new
site, as the new portal has not been tested in the same way as was tested the
old version and the PSCs from other Member States.

As far as it can be evaluated so far, the new portal provides
generally very good and complete information and the information offered goes
well beyond the scope of the Services Directive and covers also procedures like
VAT registration, social security contributions, residence permits, employment
licences. All applications are available in English and some in Maltese too.

Improvements could still be made concerning the on-line availability
of procedures and the distinction between establishment and cross-border
scenarios.[64]

II.        Implementation of and compliance with key provisions

Malta adopted a mix of horizontal and sector specific implementing
measures. The horizontal law which was enacted as an omnibus act included amendments
to sixteen pieces of primary sector specific legislation, mainly in the general
trade, tourism, regulated professions and education sector.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Malta (articles 14 and 15 of the Services Directive)

Article 14 of the Services Directive has been almost literally
transposed in the general horizontal implementation act. It provides that
competent authorities are expressly prohibited from making access to or the
exercise of a service activity in Malta subject to compliance with any of the
requirements listed in the Directive as being prohibited. This implies that in
principle the prohibited requirements can never be imposed in any service
sector. However, such requirements have been identified in sector specific
legislation and even if the horizontal law should prevail, there is some legal
insecurity for service providers whether or not to they have to fulfil those
requirements.

Concerning professional services, legal form and shareholding requirements for architects and civil
engineers and auditors as well as for lawyers have been maintained.

As far as the retail sector is concerned, it seems
that for selling of alcoholic beverages there is an economic needs test which
has been maintained.

Furthermore quantitative and territorial restrictions concerning
timeshare and timeshare like products promotion have been maintained as the
number of licences issued by the authority is limited to any one marketer to a
maximum of eight operators. Timeshare representatives also have to display
prominently the identity document issued by the authority. In addition a whole
series of other requirements still apply, like special qualification training
from recognised training institution or at least two years' experience in the
management of a similar business activity as a condition to obtain a licence
for tourist accommodation, catering establishments, incoming tourism agencies,
organised excursion operator and travel agencies. And finally, for special
designated locations (such as prehistoric sites and UNESCO Heritage sites)
tourist guides have to possess specific knowledge of the designated location
which is recognised by the authority.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval, an important mean to cutting red tape, as it
foresees that an authorisation will be deemed to have been granted to the
provider in case an application has not received any response within the set
time period, has been implemented by the horizontal law implementing the
Services Directive.

The horizontal law also foresees that different arrangements may be
made if justified by overriding reasons relating to the public interest. In
this respect a quite considerable number of those exceptions have been
identified. For instance the Trading License Regulation, the Building (Price
Control) Act, the Malta Travel and Tourism Act for the operation of a tourist
accommodation or a catering establishment, the Timeshare Regulations, the
Travel Operators Regulations, the Recreational Diving Services Regulations do
not foresee tacit approval of certain authorisations where it is deemed that
there are overriding reasons relating to the public interest.

Tacit approval has been specifically foreseen in sector specific
legislation for instance concerning the licensing of tourist guides, the
authorisation for car rental services or the authorisation for the temporary
provision of services as a civil and structural engineer in Malta.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Malta implemented the freedom to provide
services clause in the horizontal Services Act.

The Services Act uses very similar wording to the Directive and
states that incoming service providers cannot be prevented from providing
services by the imposition of requirements which are discriminatory,
unnecessary or disproportionate.

2.         Distinction between freedom of
establishment and free provision of services

In general there is no systematic distinction between freedom of
establishment and free provision of services.

However, Malta has introduced specific provisions for cross-border
providers in some sector specific legislation (e.g. accountancy profession,
architects and veterinarians). Where no such distinction is made, the competent
authority will have to decide on a case by case basis whether or not a
requirement imposed on a service provider complies with the free provision of
services principles as laid down in article 16 of the Directive.

For example, the Trade Licensing Act, which covers those commercial
activities that are not otherwise governed by any other sector specific law,
provides for the possibility of the regulatory authority to impose requirements
with regard to the provision of a particular service activity, where these are
justified for reasons relating to public policy, public security, public health
or the protection of the environment. In order to establish whether a service
provider is established or exercising his freedom to provide services the
competent authority "shall assess and decide each case on its
individual merits and in conformity with EU law and Court of Justice case-law".

3.         Issues with the free provision
of services clause

In general Malta has removed establishment requirements and replaced
authorisation schemes for cross-border service providers such as tourist
guides, employment agencies and sellers of time-shares by less restrictive
notification requirements.

Examples of requirements that have been
maintained

In the professional services sector, no requirements applying
to incoming service providers have been identified.

Concerning the retail sector, a certain number of
authorisation schemes have been replaced by notification or information
obligations and a prohibition on regulatory authority from imposing
discriminatory, unnecessary or disproportionate requirements on incoming
providers except where these are justified for the four reasons mentioned in
the Directive.

In the tourism sector, prior notification is still required
for time share promotion services and for tour operators and recreational
diving services.

However for certain activities requiring a licence the legislation
does not distinguish between establishment and cross border provision of
services. It is not clear how this legislation interacts with the Services Act
and how it is applied in practice to incoming service providers.

   NETHERLANDS  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Netherlands has one
portal which leads to all the information and
transactions that entrepreneurs need when starting up or running a business in
the Netherlands. It was built on the existing portal Answers for Business. This
portal aims to integrate the public authorities on all levels including
Ministries, municipal authorities, provincial authorities and water boards. Because of the decentralized governmental
system in the Netherlands, the website contains basic information and links
towards specific information, forms and transactions which are made available
on the websites of more than 600 Competent Authorities.

The level of
information available is considered very good as a clear guiding facility is
being offered. Direct assistance and advice via a chat function is also seen as
best practice as it significantly improves the usability of the Point of Single
Contact.

Improvements can be
made in general on the presentation of different business situations, i.e. in
particular the distinction between establishment and cross border provision of
services, which is helpful for users of the portal from other Member States who
are less familiar with the Dutch legal and administrative system.

The development of the
PSC has led to the offer of a relatively high number of electronic procedures.
Most of them can be submitted by means of two-way interaction using the Message
Box while the documents can only be obtained through the websites of the
competent authorities.

Consequently, on-line
completion of procedures can still be improved by offering more full electronic
case handling.

The Dutch PSC portal
provides for a number of highly praised interactive tools to assist PSC users
to obtain information. Online help and guidance is provided by email, chat,
Twitter and an easy search facility. A telephone number is also at the disposal
of users.

The linguistic
availability of the PSC however could be improved as user support elements on
the linked sites of competent authorities were frequently only offered in Dutch
and therefore provide insufficient support for foreign visitors.

The overall use and
usability of the Dutch PSC is above average[65].
However, improvements could be made concerning the clarity of information
(distinction between establishment and cross border provision of services
scenarios), the linguistic availability and the availability of full on-line
procedures.

II.        Implementation of and compliance
with key provisions

In general, the Netherlands made considerable efforts to ensure
correct implementation of the Services Directive and has made a substantial
number of important legislative and practical changes. In particular the
screening of legislation was a complex exercise due to the existence of more
than 600 competent authorities including local authorities such as
municipalities and provinces.

In contrast to the majority of Member States, the Netherlands
decided not to transpose specific provisions of the Services Directive through
horizontal rules, and instead amended non-binding instructions on legislation
on the one hand and relied on adapting those pieces of sector-specific
legislation that conflicted with the Directive on the other hand. Around 20 national
measures have been adopted in order to implement the Services Directive.

The general framework included in the Services Act contains
important parts on the Point of Single Contact such as rules on information,
(electronic) assistance, and legal remedies for service providers, business
customers and consumers. Also, guidelines are being given to competent
authorities on how to proceed with authorisations and to provide mutual
assistance to guarantee a good administrative cooperation. Several Acts have
been amended by the Services Act for instance the general Act on administrative
law, the Civil Code, the Act on enforcement of consumer protection and the Code
on Civil procedures.

A.        Streamlining the regulatory environment for services

1.
        Requirements applying to providers established or wishing to
establish in the Netherlands (articles 14 and 15 of the Services Directive)

No forbidden requirements were identified in the professional
services sector; however, some requirements subject to the evaluation of
Member States have been identified like requirements relating to the
shareholding of companies for lawyers and accountants. For lawyers all shares
of the legal practice must be owned by lawyers who practice in the partnership
in question except for holding companies, foundations and persons employed in
the legal partnership as non-lawyers and holding no more than 1/10 of the
capital. Concerning accountants the majority of shares of an accountant office
has to be held by registered accountants.

The requirement that inspection of certain heating machines has to
be performed only by companies established in the Netherlands has been
abolished in the crafts and certification sector.

In retail sector, persons that want a licence for a market
stand should have their legal residency in the Netherlands. The system of
spatial planning still allows for zoning schemes in which rules regulating the
establishment of certain retail outlets (such as large stores, stores selling
do-it-yourself commodities etc.) take economic considerations into account for
the granting of the relevant licence, despite a clear prohibition in the
spatial planning decree (BRO).

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval of authorisations which contributes to cut red tape
is foreseen in the general Act on administrative law. In addition the Services
Act includes provisions on good administration and assistance to service
providers, for instance information and assistance should be given by competent
authorities as quickly as possible in an up-to-date, clear and transparent
manner. The law provides that the decision shall take effect on the third day
after the time period for the administration to take a decision has ended.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Dutch legislation generally does not make a distinction between, on
the one hand, a situation where a service provider is established in the
Netherlands or will establish itself in the Netherlands and, on the other, a
situation involving the temporary provision of a cross-border service by a
service provider from another Member State. Thus the Netherlands decided not to
transpose Article 16 of the Services Directive in general through horizontal
rules, and instead assessed much of their legislation against the strict
requirements of Article 16 and relied on adapting those pieces of
sector-specific legislation that conflicted with these rules. In addition. The
Netherlands amended non-binding instructions for the legislator. According to
the Dutch legal order the national government is empowered to require regional
or local authorities to correct their regulation in case of non-compliance with
EU legislation.

The most important legislation applying to cross border services is
contained in the Trade Registry Decree and in an Act of Parliament modifying
the General Administrative Law Act, the Services Act and several other Acts
where the principle of tacit approval is included.

Other amendments of provisions applying to cross border services are
for instance rules on exclusion of arbiters based on nationality in arbitration
cases, provisions in the retail sector, the abolition of the permit for
assessors dealing with damage from disasters/major accidents and a requirement
regarding construction waste.

2.         Distinction between freedom of establishment and free
provision of services

The use of sector-specific amendments on the one hand and the
Instructions for legislation on the other hand sets the distinction between a
service provider that wants to establish a business in the Netherlands and a
service provider wishing to provide temporary cross border services. This means
that a vast majority of the legislation should be in conformity with the free
provision of services clause as it must be either included in the legislation
or covered by the Instructions. The Netherlands decided to screen and asses its
legislation against the strict requirements of article 16 for cross-border as
well as for domestic providers. The maintained requirements will therefore
usually apply to both these scenarios.

3.         Issues with the free provision of services clause

The specific way in which the Netherlands has implemented the free
provision of services clause seems to provide a sufficient transposition of the
obligations of the Services Directive. However, the Instructions on legislation
do not form binding legislation and give competent authorities the right to
deviate from the instructions if careful explanations are being given for that.
In addition, those Instructions do not apply to local authorities but in order
to ensure that municipalities would comply with the Services Directive, model
decrees have been issued by the Association of Netherlands Municipalities.
Internal remedies can be imposed in case local authorities do not comply with
those instructions.

Examples of requirements that have been maintained

In the Crafts and certification sector several requirements
can be identified such as certification organisations and testing laboratories
performing certain tasks need to have an establishment in the Netherlands.
Inspectors of heating machines must be appointed by the Minister of
Infrastructure and Environment. Noise emission inspectors for materials used
outdoors need to obtain an accreditation. Certification organisations and
testing laboratories where tasks regarding construction guidelines are
concerned have to be appointed
by the Minister (but service providers from other Member States are also
eligible for appointment and accreditation).

In the retail sector, the Doorstep Selling Act (Colportagewet)
used to impose on salespersons not residing in the Netherlands an obligation to
date stamp contracts in Rotterdam while salespersons residing in the
Netherlands could do this in the municipality where they sold the goods. The
date stamp duty has been deleted altogether. Also, the certification of
personal equipment and machines sold in supermarkets was abolished. The
obligation to have an authorisation or registration for incoming service
providers still exists for street selling in The Hague, to trade in live
animals, to organise a flea market.

The obligation to have an authorisation or registration for incoming
service providers still exists in the tourism sector such as for tours
with motor vehicles and Foreshore walking.

   POLAND  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Polish
Point of Single Contact consists of an online portal (eu-go.gov.pl) created as
a common initiative of the Ministry of Economy (coordinator), the Polish
Chamber of Commerce and the Institute of Logistics and Warehousing.  The PSC
portal is developed within an e-government project called UEPA, which aims to
simplify administrative procedures and make them electronically available till
the end of 2013. The PSC is integrated to the ePUAP platform (electronic
platform for public services).  Whereas the PSC page provides the relevant
information on requirements and procedures, the actual completion of procedures
is carried out through the ePUAP portal.

In terms of
information provision, the Polish PSC goes beyond the minimum requirements of
the Services Directive. Information provision is in general good but not fully
satisfactory as some information is still missing, is not sufficiently detailed
(e.g. deadlines, means of redress, supportive documents to be submitted) or too
detailed. Information can be access or searched in number of different ways: by
type of users, service sectors, thematic index of procedures.

The scope of
procedures available online varies and online completion in most cases is not
possible yet, but the process of implementing online procedures is still
on-going. E-signatures or national solution (so called trusted profile) are
required to complete most procedures online, ePUAP platform does not support
the foreign e-signatures. The tracking of the procedures and online payment are
not possible on PSC portal.

The number of
assistance services is available to PSC's users (e.g.FAQ, Helpdesk). These are
generally good and easy to use.

The focus
groups taking part in the Deloitte's assessment of the PSC expressed a
relatively low level of satisfaction with the content on the portal mostly due
to the problems with the completion of procedures. Therefore the extension of
the scope of available procedures and the possibilities for their full
electronic completion is highly recommended.

Improvements
should be made also for cross-border provision of services. Although the PSC
provides a separate section for temporary provision of services, it is
difficult to understand different requirements applicable to foreign service
providers.

The test users
expressed more positive outlook about the portal's accessibility and in general
they found it is easy to use[66].
The Polish PSC is easily accessible and its positioning is very good in search
engines. Nevertheless the awareness about the portal is low and needs to be
improved in order to increase its uptake by business.

Polish PSC is
not translated into other languages, but provides an electronic translation
facility. This does not seem to be problematic for the access to information
but completion of procedures for foreign user is difficult as they are only
available in Polish.

II.        Implementation of and compliance with key provisions

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Poland (articles 14 and 15 of the Services Directive)

Implementation of the Article 14 and 15 of the Services Directive
was done through sector specific legislation. The evaluation of the
implementation of the Services Directive has revealed that most of the
requirements prohibited by Article 14 of the Directive have been removed by
changes in the sector specific laws. The requirement still maintained in the
Polish legislation concerns the education sector: a driving school can
only be operated by the entrepreneur having a seat or place of residence in
Poland, which constitutes a requirement contrary to article 14 (1) of the
Services Directive.

Some requirements where the Directive left a margin of appreciation
to Member States to streamline the regulatory environment for establishment of
providers and which are foreseen in article 15 of the Directive have been identified.
The obligation for the legal professionals and tax advisors to be exercised by
natural persons or partnerships has been made less stringent by allowing
additional option of a joint-stock limited partnership. For patent agents and
tax advisors additional legal forms of joint stock and limited liability
companies are available (those are coupled with the shareholding requirements:
majority of votes and shares must belong to the members of the relevant
profession, the majority of the members of the management board need to be the
members of the profession, the sale of the shares requires the approval of the
management board). For patent agents, solicitors and advocates minimum tariffs
have been identified.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Poland introduced a tacit approval of authorisations
through Article 46 (7) of the horizontal law, which amends the Act of 2 July
2004 on the Freedom of Economic Activity (FEA).  FEA is the main act governing
the performance of economic activity on the territory of Poland. According to
this change tacit approval constitutes a general rule unless the law stipulates
otherwise.  If the authority fails to decide on the application within the
indicated time limit set, it is deemed that the authority has decided as
requested by the entrepreneur, unless the provisions of specific acts provide
otherwise due to overriding reason relating to the public interest. The Polish
code on administrative conduct stipulates the general rule that the bodies of
public administration should deal with the matters without unnecessary delay.
This is not however a fixed and clear period.

The Act of 4 March 2010 foresees also exceptions to the rule on
tacit approval for specific activities. The exception to the rule on tacit
approval concerns: training services for the aviation personnel, provision of
aviation services other than air transport, wholesale sale of alcoholic
beverages above and below 18%, sale of alcohol for inside and outside
consumption, authorisation for the sale of alcohol for the reception
organizers.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

Article 8 of the Act of 4 March 2010 conforms to the provisions of
article 24 of the Directive, which does not contain any prohibitions on the
commercial communications by the regulated professions. In Poland rules on
commercial communication are often stipulated in the rules issued by the
professional association.

B.        Boosting cross-border trade

1.         National implementation

Poland implemented Article 16 of the Services Directive in Article 4
of the PSA (horizontal legislation). The article introduces a general rule that
service providers from other Member States may temporarily provide services in
the territory of Poland, without having to be entered in any business register.
The same Article specifies that temporary provision of services may be subject
to the requirement to obtain a certificate (certyfikat), concession (koncesja),
licence (licencja), authorisation (zezwolenie), approval (zgoda),
entry in the register of regulated activity (wpis do rejestru
działalności regulowanej) or to other appropriate register if the
provision of the specific law imposes such obligation on the grounds on public
policy, public security, and protection of public health or the environment.

Only one of the principles listed in article 16(1) of the Services
Directive, the principle of necessity is mentioned in the PSA. The horizontal
legislation does not mention the principle of proportionality and
non-discrimination. No examples of provisions that would directly or indirectly
discriminate against service providers from another Member States were found in
Polish legislation. As regards the principle of proportionality, there are
still provisions in the Polish legislation which contradict it.

2.         Distinction between freedom of
establishment and free provision of services

The legislation does not provide for a clear distinction between a
service provider that wants to establish a business in Poland and a service
provider wishing to provide temporary
cross- border services. Poland has introduced provisions for temporary
provision of services in some sector specific legislation (e.g. Act on
Detective Services, Postal Law, Act on Plant Protection). However in most cases
this distinction is missing.

3.         Issues with the free provision
of services clause

The implementation of the Article 16 raises certain doubts regarding
the interpretation of the implementing provision especially in reference to the
provision stating that temporary provision of services may be subject to the
requirement to obtain a certificate, concession, licence, authorisation,
approval, entry in the register of regulated activity or to other appropriate
register if the provision of the specific law imposes such obligation on the
grounds on public policy, public security, and protection of public health or
the environment. Two possible interpretations emerge. First interpretation is
straightforward and requires an explicit statement in the specific law that a
rule also applies to cross-border services. The second possible interpretation
stresses that certain rules can be applied to cross–border services,
irrespective of whether relevant law states explicitly that the rule also
applies to such services. It has been noted that this may lead to confusion and
also different interpretation and arbitrarily application by the authorities to
cross–border service providers. Taking into account that most of sectoral
legislation does not make a distinction between the establishment and temporary
provision of services, it is probable that competent authorities will apply the
same rules to national and cross – border service providers.

Examples of requirements that have been
maintained

Most requirements which have been maintained concern the education,
the tourism and the  crafts, construction and certification services sectors.

In the crafts, construction and certification services, the
authorisation is required for the provision of the services of repairing or
modernisation of technical devices as well as manufacturing of materials and
elements used in the modernization or repair by service providers from other
Member States. This requirement was added by the horizontal legislation
implementing the Services Directive (PSA).

As for the tourism sector, requirements regarding
registration and possession of a special identity document could be identified.
Travel operators and travel agencies are required to enter into register of
regulated activity maintained by voivodship marshal. The entry into register
(register of organizer of trainings for candidates for tourist guide and tour
guide) is also required for providers of training to travel guides and tour
guides.[67]
Obligation to possess special card ("legitymacja") and ID
("identyfikator") is foreseen for tourist guides and tour
guide. These documents should be displayed by the tourist guide and tour guide
when performing their duties as a confirmation of their competences.

In the education sector driving schools operators have an
obligation to have establishment and enter into register of regulated activity
maintained by starosta. A number of requirements have been identified in
particular for the provision of vocational training leading to professional
qualifications. The requirement to enter in the relevant register have been
identified for service providers : conducting additional training for drivers
licence, conducting training for the purpose of road transport and providing
training on plant protection.  Service providers wanting to provide training to
recreational managers and camp counsellors must obtain approval from the
regional educational authority ("kuratorium oświaty").
Providers of special courses for the trainers (first degree, second degree and
master degree trainer) are required to obtain the approval of the Minister of
Physical Education.[68]
Additionally service providers providing training to drivers for the purpose of
road traffic, service providers conducting additional training for driving
licence holders, service providers providing training for drivers transporting
hazardous goods, services providers providing training for the railway carriers
transporting hazardous goods, and service provides conducting trainings for
operators of machines and other technical instruments for soil moving,
construction and road –building works are obliged to have facilities and
teaching equipment, which seems to be contradictory to the rule of
proportionality provided in Article 16 (1) of the Services Directive.

  
PORTUGAL  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The setting up of the Portuguese point of single contact (www.portaldampresa.pt) is progressing
well. Work for the setting-up of the Point of Single Contact is currently being
undertaken in the context of the follow-up of the “Memorandum of
Understanding for Portugal on specific economic policy conditionality”
(MoU) dated 3 May 2011.

Portugal had well-established business portal for the creation
and registration of companies (Portal de Empresa). This portal provides
well-functioning handling services related to company registration, As regards
information and completion of other procedures granting access to a service, it
appears that at the time of the assessment commissioned externally and which
has been integrated in this report the point of single contact was undergoing
some restructuration and the procedures under the Service Directive could not
be assessed properly. As of the end of October 2011 however, information on
procedures governing access to services have been available for many sectors.
The lay-out of the information presentation has been recently modified to give
a more clear view of requirements applicable to established and to cross-border
service providers. Updates on the legal framework applicable shall be updated
as soon as all the pending sector-specific amendments are adopted in the months
to come. For the moment, information is presented in Portuguese and automatic
translation tools into other languages are offered to users. Work is to be
undertaken to improve the quality of these translations.

Online procedures are available for a number of services but work to
extend them further should be continued and enhanced. This work needs to await for sector-specific amendments that are to
be adopted in the next months. Work should be continued to facilitate
cross-border completion of procedures and to ensure that procedures to start a
business or to provide services have a sufficient degree of detail and of
electronic availability in all locations, types of activity and competent
authority.

The PSC authorities cooperate with competent authorities (at
national and at local level) to ensure that the workflows of the procedures are
correctly transposed into the PSC, in particular in the context of the Zero
Licensing Project for retail and food and beverages. For this purpose
authorities are also receiving training on the application that supports the
back-office, to empower the different authorities with the necessary knowledge
to make small changes in the workflow, when required due to changes in
legislation. This collaboration needs to be stepped up as a matter or urgent to
allow for the faster integration of procedures in the PSC.[69]

II.        Implementation of and compliance with key provisions

The implementation of the Services Directive in Portugal required a
very significant amount of legislative work, which is currently still on-going
within the context of the financial aid monitoring under close scrutiny from
the Commission services.  Due to the on-going state of the reforms, the picture
below may not be updated.

The main act transposing the Services Directive into Portugal is a
horizontal law, Decreto-Lei 92/2010, whose provisions prevail over sector
specific laws, either national, regional or local, regulating specific services

The Portuguese authorities are still in the process of completing a very
significant number of sector-specific amendments to ensure that
requirements in sector-specific legislation are adapted to the Services
Directive. These sector-specific amendments were partly contained in the
horizontal law but are mostly being carried out through amendments of specific
acts.

·
Firstly, the Portuguese horizontal law expressly
amends legislation in the following sectors: thermal management (DL 142/2004);
activity of dolphin and whale watching in the waters of Portuguese mainland (DL
9/2006); quality of drinking water (DL 306/2007); municipal services of public
water supply, wastewater disposal and urban waste management (DL 194/2009);
multi-municipal services of public water supply and urban waste management (DL
379/93); and incineration or co-incineration of waste (DL 85/2005).

·
In addition, a significant number of
sector-specific amendments has been adopted by specific acts which have amended
the Corporation Code (DL 49/2010) with a view to removing an establishment
requirement which applied in a cross-cutting manner, the industrial property
agents (Law 17/2010) to allow for the provision of services in Portugal to
providers established in other Member States, leisure activities (DL 32/2011),
holiday products (DL 37/2011); the “Zero Licence” (DL 48/2011),
travel and tourism agencies (DL 61/2011), construction and real estate agents
(DL 69/2011), waste landfills, cartographic production and abstraction of
groundwater (DL 84/2011) and funeral services (DL 109/2010),     DL 77/2011 on
marketability of natural gas in free market, amending DL 30/2006, DL 78/2011 on
marketability of electricity in free market, amending DL 29/2006,  DL 99/2011 amending
DL 64/2007 on Social Support Institutions, nature tourism establishments
(Portaria 47/2012, water parks (DL 86/2012) and EMAS Auditors (DL 95/2012).

Finally, it is worth noting that under the above-mentioned MoU of 3
May 2011, the Portuguese authorities agreed to adopt the remaining necessary
amendments at the time with a view to modifying the sector-specific legislation
to fully implement the Services Directive. Portugal committed to adopt new
legislation in the first semester of 2012. It is of utmost importance that
all the pending reforms which have accumulated significant delays are completed
as soon as possible.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to establish
in Portugal (Articles 14 and 15 of the Services Directive)

The implementation of the Services Directive is resulting in general
in a very significant reduction of administrative burden in Portugal. A very
significant number of authorisations have been transformed into prior
declarations and a considerable number of requirements applicable to the access
and exercise of an activity have disappeared.

As regards Article 14 requirements, Article 11 of Decreto Lei
92/2010 which prevails over sector-specific legislation reproduces the
prohibition contained in the Directive. Further to the on-going implementation
of the Services Directive, it would appear that this type of requirements can
no longer be identified in sector-specific legislation. In particular, it
appears that numerous requirements that did not recognize insurance acquired in
other Member States have been removed from sector-specific legislation
(construction, real estate, tourism).

As regards Article 15 requirements, which need to be subject
to a necessity and proportionality criterion, many examples of them can still
be found in sector-specific legislation.

The obligation to take a specific legal form in Portugal is
applicable to sectors like tourism (car rental), pending elimination, and private
higher education. A legal form requirement formerly applied to real estate
agents was eliminated.

Requirements on capital shareholding have been identified for
certain highly regulated professions (regulated professions, in particular
lawyers and accountants).

In Portugal, a minimum number of employees is required for
construction, technical services (inspection and maintenance of lifts, skip
hoists, escalators and moving walkways), installation of gas networks,
placement agencies (all in the process of being amended) and also for diving
services, holidays camps and whale watching.

Maximum tariffs exist for the servicing
of lifts, escalators and moving walkways and for the inspection of gas
distribution networks and premises in buildings.

2.         Nationwide validity of authorisations (Article 10(4)
of the Services Directive)

For the authorisations that remain in the Portuguese legal order,
simplification has been ensured by the horizontal law transposing the Services
Directive. For example, the national validity of authorisations has become a general
rule through Article 17, paragraph 1 of Decreto-Lei 92/2010. The regime for
tourist guides in the autonomous regions has however not been adapted to this
requirement so the application of the principle will need to be ensured through
the horizontal law.

The Portuguese authorities are planning to go beyond the rule
foreseen in the Services Directive and to extend national validity to other
procedures such as the notifications foreseen in the Professional Qualifications
Directive in the context of reforms of Lei 9/2009 on the recognition of
qualifications which is being monitored under the MOU. Also the notification
shall be valid indefinitely in time, except for those professions belonging to
the security sector.

3.         Tacit approval of authorisations (Article 13(4) of the
Services Directive)

Tacit approval has become the general rule under Article 9, 2
(b) of the Decreto-Lei 92/2010 unless an overriding reason of general interest
justifies the contrary. Article 9(2) of DL 92/2010 cross-refers to the tacit
approval regulated in the Portuguese Administrative Procedure Code. Examples of
non-tacit approval remain in sector-specific legislation, in particular in the
area of private higher education, aerial services and weapon sales.

4.         Total
prohibition of commercial communications (Article 24 of the Services Directive)

The prohibition of total bans on commercial communications has been
laid down in Article 14, paragraph 1 of Decreto-Lei 92/2010. Article 14(1) of DL
92/2010 bans the conditions which impose an absolute prohibition of commercial
communication with regard to the regulated professions. There may be still be some cases of total prohibition of
commercial communications laid down in the statutes of professional orders
(for example, that of veterinaries). These remaining restrictions should be
addressed in the context of the on-going reform for professions whose
regulation involves a professional body which is currently under preparation in
the context of the MOU.

B.        Boosting cross-border trade

As a starting point, it should be indicated that Portuguese
legislation made no difference at all between requirements that can be applied
to established service providers and those that can be applied to cross-border
service providers before the implementation of the Services Directive (with a
notable exception in law governing tourism services). This resulted in a high
administrative burden which rendered the provision of services in the
Portuguese territory very difficult. Several examples of this were challenged
successfully before the European Court of Justice.

1.         National implementation

Once the implementation of the Services Directive will be completed
in Portugal, the structure of Portuguese legislation shall adequately reflect
the two freedoms foreseen in the Treaty. Sector-specific legislation in the
area of services shall clearly distinguish between requirements applicable to
established service providers and to cross-border ones. This novelty should be
welcome as a very significant progress in the alignment of Portuguese
legislation with the internal market principles.

As regards the implementation of Article 16 of the Services
Directive in Portugal, it is being ensured both through the horizontal law transposing
the Services Directive and through exhaustive sector-specific amendments.
Certain doubts were raised at some point as to whether the implementation of
Article 16, paragraph 1 is clear enough in the text of the horizontal law.
While the implementation of the general principle and of its application to
requirements listed in Article 16, paragraph 2 of the Directive leaves no doubt
as to its correction, questions may therefore arise as to whether the
implementation of Article 16 of the Services Directive also extends to any
other conditions on the exercise of the activity, such as insurance
obligations, tariffs, and restrictions on the provision of multidisciplinary
services or legal form requirements, for example, when these are not checked
through a prior authorisation or declaration[70].
The theoretical question of whether such requirements can be applied to
cross-border service providers and, if yes, under what conditions remains.
However, to the extent that sector-specific legislation is being exhaustively
amended in Portugal this margin of doubt should have a very limited impact or
none.

2.         Distinction between freedom of
establishment and free provision of services

The horizontal law implementing the Services Directive in Portugal
contains definitions which correspond to those of the Services Directive and
which should largely ensure a correct distinction of the situation of
established and cross-border service providers. Furthermore, most
sector-specific legal frameworks currently differentiate between provisions
applicable to established service providers and to cross-border service
providers, which should help guarantee a correct understanding of the
distinction by competent authorities called to implement requirements laid down
in those regimes.

3.         Issues with the free provision
of services clause

As indicated above, sector-specific amendments currently on-going
are bringing significant changes to the Portuguese legal framework applicable
to cross-border service providers.

An important amendment that has an impact in all sectors has been
the elimination in the Código das Sociedades Comerciais (Corporate Code)
of the obligation that previously applied to companies that were not
established in Portugal but want to provide services there for more than one
year to open up a representation (a branch or agency) in Portugal. This is no
longer the case for cross-border services. An establishment requirement in the
tourism sector (car rental) is in the process of being abolished.

Authorisations were applied for
cross-border provision amongst others in following sectors construction,
real estate, aerial photography, ticket sales, market salespersons, car rental
without a driver, placement services and driving schools. Insurance
requirements have also been reported as being applicable to both
established and cross-border service providers alike in respect of several
service activities, such as accountants and statutory auditing, construction,
real estate agencies, servicing of lifts, escalators and moving walkways,
travel agencies.

Further to the implementation of the Services Directive,
authorisations for travel agencies have been lifted. Authorisation for
cross-border service providers in the areas of construction, real estate and
placement services are in the process of being replaced by prior declarations.
Authorisations for ticket sales, market salespersons and car rental without a
driver are to be eliminated altogether. Some authorisations for cross-border
services shall, however, be maintained in very sensitive areas such as weapon
sales, whale watching, aerial services and private higher education. Insurance
requirements in the area of construction and travel agencies are also being or
have been significantly simplified with the purpose of rendering cross-border
service provisions easier. In other instances they are being removed entirely
(real estate).

   ROMANIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Romanian Point of Single Contact even
if technically operational cannot be considered as fully functioning at the
moment: the e-identification requirements are such that it is only accessible
to Romanian entities or individuals. Furthermore, the content is rather basic.
Currently there are 45 procedures available online.

For the time being, only the use of the
Romanian language has been envisaged, with assurances from the authorities that
translation in other languages will be provided and gradually added. The user's
guide in English is available on the PSC but it is difficult to locate as it
needs to access through links in Romanian.

In addition, the Romanian authorities are
not in compliance with the relevant Commission Decisions with regard to the
establishment, maintenance and publication of trusted lists of certification
service providers supervised/accredited by Member States.[71]

The major obstacle to the completion
of the Romanian Point of Single Contact has been the lack of designation of a
coordinating entity and the lack of buy-in to the process from the relevant
competent authorities. However, such ownership is crucial if the staff in
the related competent authorities are to be trained and instructed to input and
update the relevant information on the Point of Single Contact site. So far
this issue seems not to be resolved in a satisfactory manner, which is delaying
the development of the PSC.

The portal was not available at the time of
the testing done by the Deloitte therefore its usability has not been assessed.[72]

These issues have been raised repeatedly
with the relevant Romanian authorities and have been included in the Memorandum
of Understanding but to date without much success.

II.        Implementation of and compliance with key provisions

Romania has adopted a horizontal law (Government Emergency Ordinance
49/2009 approved by Law 68/2010) as well as sector-specific laws. A total of 62
national measures have been adopted, mainly in the following sectors:
construction, services for installations and equipment's, tourism and some
regulated professions.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Romania (articles 14 and 15 of the Services Directive)

Concerning prohibited requirement, two were
identified in the retail area: an economic needs test and the involvement of
competitors in the authorisation procedure for the opening of large surface retail
stores. This issue has been raised with the Romanian authorities who have
communicated draft legislation addressing this failure. The required
legislative amendments have not been adopted yet. The elimination of these
requirements has also been included as a condition in the MoU. In the area of
education, a provider established in another Member State can only choose to
set up a branch in Romania and is not able to set up another form of
establishment.

As regards requirements where the Directive
left a margin of appreciation to Member States to streamline the regulatory
environment for the establishment of providers only a
few of such requirements remain in the Romanian legislation except for the
legal form requirement, which seems to be applied both in cases of professional
services that rely on the personal involvement of the professional (such as
services provided by lawyers or tax advisors) and where they are doubled by
shareholding requirements.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Romania had adopted a generally applicable
law introducing the principle of tacit authorisation in respect of
administrative authorisations prior to the implementation of the Services
Directive by a horizontal act in order to cut red tape and to facilitate the
operation of businesses in Romania.

However, this legal act states that each
administrative authority should publish at its main office and also on the
website the specific cases of authorisation where the tacit approval procedure
is applicable. Taking into account this provision, it may be considered that
the tacit approval procedure is not enforced automatically, but that each
relevant authority should decide and communicate upon how it envisages applying
the said procedure.

Sector specific legislation was amended in
order to specify where tacit approval applies (for example in the case of works in the field of fight against fire).
Moreover, a reference to the authorisation procedure
provisions of the horizontal law implementing the Services Directive was explicitly introduced for external
services for the prevention and protection of labour health and safety and
legal metrology, which would presumably mean that tacit authorisation applies. In addition, some sector specific acts (especially in the tourism
sector) make a special reference to the application of the general rules of the
horizontal law implementing the Services Directive, which would complete the
sector specific legislation. In this case, it can be assumed that the tacit
authorisation would also apply.

Nevertheless, for most services sectors no
specific provisions on tacit authorisations were adopted and serious doubts
remain as it is not clear how the general tacit authorisation principle mentioned
in the horizontal act would be applicable in practice.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Romania reproduced in its horizontal
legislation the text of Article 16(1) and (3), which seems to imply that, if
sector specific legislation does not make a distinction between established and
cross-border providers, a case-by-case analysis (implying justification and
proportionality) is needed.

However, according to the information
available to Commission services, concerns remain as to the practical
implementation of this provision. Actually, in Romania, a general principle of
legal interpretation says that sector-specific legislation would prevail over
the free movement clause introduced by the horizontal law (lex specialis prevails).
It would seem that in case the specific law is silent over certain aspects, the
general law could be used to complement the specific regulation but could not
reverse conflicting provisions. However, general laws are also other laws than
the one transposing the Services Directive such as the law on the trade
register, which requires an establishment. No information has been provided as
to the relationship between the different laws and how the competent
authorities implement in practice the freedom to provide services principle.
Nevertheless, it should be pointed out that the Romanian legislation recognises
in Article 148 of its Constitution the primacy of EU law. Thus, an horizontal law implementing a
European directive would take precedence over conflicting provisions contained
in national legislation.

No information is currently available on
which of these interpretations would be followed in practice by competent
authorities or Romanian courts.

2.         Distinction between freedom of
establishment and free provision of services

The Romanian legislation does not provide for a text making a clear
distinction between services provided through an establishment or cross-border
on temporary basis so the principles set by the European Court of Justice would
apply.

Specific legislation sometimes includes
separate provisions for the cross-border providers but without indicating
specific means of identifying them. Nevertheless, no problems seem to be
arising in practice due to this distinction.

3.         Issues with the free provision
of services clause

Concerning cross-border trade, serious
concerns are raised by the fact that it seems that for any services in all
sectors where the sector specific legislation does not expressly provide
for cross-border service provision, the specific rules will be complemented
with the rules set out in the general transposition rules which could lead to
requiring an establishment and registration with the Romanian trade register.

Examples of requirements that have been
maintained

In the professional services sector,
a special identity card is required for fiscal advisers. An establishment
requirement and an authorisation are requested for legal advisers, architects,
tax advisors and patent lawyers. Separate rules exist when these services are
provided by professionals organised as a company.

In the crafts, construction and certification services sector,
there establishment, authorisation and legal form requirements have been
maintained, coupled with a restriction for the self-employed, for services that
involve boilers, pressure vessels and hoisting equipment as well as for providers
that design, execute, audit and exploit the electrical installations from the
electro-energetic system. Moreover, for individuals performing the actual works
in some technical professions that involve boilers, pressure vessels and
hoisting equipment, the person has to have previous experience in Romania. A
special identity card  is required for authorised electricians, operators
responsible for the technical supervision and verification for the use of the
installations or equipment, specialised technical staff, energy auditors and
technical auditors in the field of the protection of historical monuments.

No specific law exists for the real estate sector and thus
service providers (national and cross-border) have to comply with the general
provisions imposing, amongst others, an obligation on services providers to
have an establishment in Romania in order to be registered in the Romanian
trade register.

Concerning the retail sector, Romania requires that legal
persons involved in retail are established in Romania.

In the tourism sector, an
establishment is required for travel agencies and a special identity document
for tourist guides. In Romania, authorised tourist
guides must wear a special and customized badge. However, this requirement does
not apply to foreign tourist guides accompanying groups of foreign tourists.

As far as the education sector is
concerned establishment and authorisation in Romania are required for education
in general, as well as for professional training for adults (authorisation
required only for those wishing to issue certificates with national
recognition) and driving schools (in addition to requirements affecting the use
of equipment).

Use of exceptions article 17

In respect of the scope of application of
Article 16, Romania excluded the services of architects and veterinarians
from the application of Article 16, in contradiction with the limited
exceptions provided in Article 17 of the directive.

   SLOVAKIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Although Slovakia has had physical PSCs in
place since 2007 its online Point of Single Contact (PSC) has only been
available to the public since January 2012, therefore any assessment of the
availability and quality of information and procedures on the site can only be
a preliminary one.

The Slovak PSC offers a wide range of
information on the majority of procedures that businesses would need to
complete. With regard to language support, only general information is
available in English. While the online forms are very helpfully provided in a
bilingual form, business users may find it difficult to identify the
appropriate procedures and find the relevant forms as most of the detailed
information is available in Slovak only.

In terms of electronic completion of
formalities, the Slovak PSC makes use of integrated online forms which are used
to centralise the information collected and to forward it on to the relevant
competent authorities for further processing. This system is perceived as very
user-friendly. Procedures that cannot be dealt with through this system and for
which there is no electronic support concern mainly those dealt with by local
authorities. Where necessary, scanned documents can also be attached to the
relevant forms. E-signatures are required for the submission of forms and the
completion of procedures, and currently Slovak and Czech e-signatures can be
accepted. Electronic payment is not supported, but instructions for credit
transfers are given.

However while it largely fulfils the
requirements under the Services Directive it does not entirely meet businesses'
needs in that it does not include information on social security and also on
procedures that fall under the responsibility of local authorities, which are
particularly important in the restaurant and catering sector. User testing of a
pilot version of the PSC[73]
indicated that there is no clear distinction made between foreign businesses
considering permanent establishment and those considering temporary
cross-border service provision, but improvements have been made to the site in
recent developments.

II.        Implementation of and compliance with key provisions

Slovakia transposed the freedom to provide
services provision of the Services Directive through both horizontal and
sector-specific legislation. The horizontal law contains general provisions
regulating the performance of the specific activities, the procedure for
submitting applications for authorisation, the procedure for the granting of
authorisation, and the performance of supervision. This law applies to all
circumstances unless otherwise provided by sector-specific legislation.

Slovak legislation provides that a
cross-border service provider may provide services in the territory of the
Slovak Republic if he/she complies with the conditions set under the laws of
the Member State of establishment, unless the relevant Act provides otherwise,
and that a service provider shall be obliged to ensure that the same conditions
of access to services apply to all recipients of such services regardless of
their nationality, place of permanent residence or registered office. In line
with the Services Directive, it further sets out that the imposition of
requirements for the provision of services by cross-border services providers
may only be justified for reasons of public policy, public security, public
health or environmental protection.

A.        Streamlining the regulatory
environment for services

1.         Requirements applying to providers established or
wishing to establish in Slovakia (articles 14 and 15 of the Services Directive)

The evaluation of
the implementation of the Services Directive has revealed that there do not
seem to be any prohibited requirements in Slovakia.

As regards
requirements where the Directive left a margin of appreciation to Member States
to streamline the regulatory environment for the establishment of providers and
which are mainly foreseen in article 15 of the Directive, a few of such
requirements have been maintained with regard to legal form and shareholding,
particularly in the professional services and education sectors.

In the professional
services sector, lawyers from other EU Member States operating in (but not
established in) Slovakia cannot be members of associations, partners of public
commercial companies or limited partnership companies, and cannot be partners
and representative agents of limited liability companies. Tax advisors in the
form of legal persons can only be in the form of public commercial companies or
joint-stock limited partnerships where registered tax advisors have at least
75% of the capital or voting rights.   Architects and engineers are subject to
shareholding requirements, whereby they may establish companies to provide
their services only if they hold a majority of the shares of the company.
Insolvency administrators have fixed maximum tariffs. Only natural persons can
act as mediators.

In the real estate sector, only
natural persons can provide the services of land surveyor and cartographer,
where the result serves for public or municipal/local authorities.

And as regards education, entities
providing certain training services in the area of health and safety in the
workplace must be established as legal persons.

2.         Tacit approval of
authorisations (article 13(4) of the Services Directive)

The concept of tacit approval was
introduced in the horizontal legislation implementing the Services Directive in
Slovakia. In accordance with the wording of the Services Directive, the Slovak
horizontal law has left open the possibility for competent authorities to put
different arrangements in place but sector-specific legislation does not appear
to have been amended to specify such different arrangements.

As a result, areas in which there do not
appear to be any possibility for tacit approval include the authorisation of
architects, insolvency practitioners, patent agents, interpreters and translators,
urban planners and construction engineers, geological excavation and mining
practitioners, geodesists, cartographers and metrologists, education and
further education providers and driving schools.

3.         Total prohibition of commercial communications (article
24 of the Services Directive)

No total prohibition on commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Article 8(1) of Slovakia's horizontal law
implementing the Services Directive (Act 136/2010) provides that a cross-border
service provider may provide services in the Slovak Republic if he complies
with the conditions set in his Member State of establishment, unless the Act
provides otherwise. It further sets out that the imposition of requirements for
the provision of services by cross-border services providers may only be
justified for reasons of public policy, public security, public health or
environmental protection. However although cross-border provision is dealt with
in sector-specific legislation, there are a number of authorisation schemes
which also seem to apply to cross-border service providers. These include: tax
advice, insolvency administration, mediation, interpretation and translation
services, surveying/ cartography, pollution prevention and control,
environmental management and audit, and real estate activities.

2.         Distinction between freedom
of establishment and free provision of services

A distinction is made between the
requirements applicable to foreign service providers wishing to establish in
Slovakia and those wishing to offer their services on a temporary cross-border
basis, whereby businesses establishing in Slovakia must notify the authorities,
and unless stated differently in the applicable sector-specific law, can start
providing their services on the day of notification. This obligation does not,
in principle, apply to cross-border service providers, unless provided for in
sector-specific legislation, in which case cross-border providers can use using
a specific notification form available on the website of the Ministry of the
Interior.

3.         Issues with the free
provision of services clause

In principle, cross-border service
providers have the right to provide services in Slovakia if they comply with
the conditions set in their Member State of establishment. However given that
sector-specific legislation co-exists with the horizontal legislation, service
providers would need to verify if additional requirements apply in the
sector-specific laws (which may only be permitted for reasons of public policy,
public security, public health or environmental protection).

Examples of requirements that have been
maintained

As regards the professional services
sector, insolvency administrators are obliged to register in the list of
insolvency administrators in order to act in bankruptcy and rescheduling
proceedings. Architects are required to register. Patent attorneys are subject
to a notification procedure in which they are obliged to disclose the presumed
time during which they will provide their services.

Most construction-related services
are considered to be regulated professions in Slovakia and rules applicable to
them are set out in sector-specific legislation. Constructions safety
coordinators must pass an examination for construction manager, construction
inspector or safety technician. It is not clear whether foreign entrants need
to pass such examinations or if they can benefit from recognition of their
qualifications. Prior authorisation or registration is required for
construction-related services including gas installation and technical
certification of building products. The restoration of cultural monuments and
works of art is also subject to prior registration.

In the education sector, there are
authorisation requirements in the area of vocational training with regard to
mining safety, worker safety, fire prevention, environmental management and
audit and industrial accident prevention. Furthermore driving schools are
obliged to register.

   SLOVENIA  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Slovenian PSC
cannot be considered as fully functioning at the moment: it is based on the
e-Government portal available for online registration of businesses.

The current Slovene
portal provides very limited information and services to complete the relevant
types of administrative requirements. In general the portal offers on-line
registration of a company and it provides limited information necessary for the
start-up of the business.

The current Slovene PSC
allows the full online completion of some administrative tasks, connected to
registration of a company and most common supporting procedures. However, the
required infrastructure to ensure compliance cross-border acceptance of e-ID
and e-Signatures still has to be implemented. Currently, foreign business
cannot submit online applications, if they do not obtain Slovenian tax number
and a digital certificate of the certification authority of Republic of Slovenia. The Ministry for
Justice and Public Administration, responsible for horizontal measures and
central key-enablers in the field of e-government, is developing a Central
authentication system to support authentication of foreign users, taking into
account also the solutions from the large scale pilot STORK.

The current portal
offers several email contacts based on different competent authorities. Areas
covered are registration, business license, taxes and social security, crafts
and construction. Online help is available by email and phone. In order to take
into consideration the user needs, the portal collects regularly their
feedbacks and experiences through different methods.

The overall use and
usability of the Slovenian PSC is perceived to be below the average[74]. 
The foreign users cannot use the portal while for domestic users it is simpler
to go to the physical contact point. Improvements could be made concerning the
availability and completeness of procedures and information, the structure, the
clarity and accessibility of the information provided and user-friendliness,
especially for the foreign users. However, the new PSC under development is
planned to profoundly modify this situation and to provide full information for
domestic and foreign users in Slovene and English.

II.        Implementation of and compliance
with key provisions

After a promising start with the adoption of the horizontal
implementing law, the implementation work got seriously delayed regarding the adoption
of all amendments to sector-specific legislations.

A.        Streamlining the regulatory environment for services

1.         Requirements
applying to providers established or wishing to establish in Slovenia (articles
14 and 15 of the Services Directive)

No prohibited requirement has been identified in the Slovenian
legislation for any of the assessed sectors.

As regards requirements, where the Services Directive left a margin
of appreciation to Member States to streamline the regulatory environment for
the establishment of providers and which are mainly dealt with in Article 15 of
the Directive, a number of such requirements have been maintained. They concern
professional services and the real estate sector.

Concerning professional services, requirements relating to
shareholding of companies can be found for lawyers: the ownership of
lawyers’ offices is reserved only to lawyers. Collecting societies must
also be organised as non profit organisation. In addition, lawyers are subject
to minimum tariffs while insolvency practitioners must respect minimum and
maximum tariffs.

In the real estate sector, the law prescribes maximum tariffs
to be complied with by real estate agency services[75].

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval, an important mean to cutting red tape, as it
foresees that an authorisation will be deemed to have been granted to the
provider in case an application has not received any response within the set
time period, has been implemented via the Act on services in the Internal
Market (horizontal implementing law of the Services Directive) and in certain
areas of sectoral legislation (10acts), where it actually applies. However,
where sector specific laws have not been amended, certain doubts remain as to
the practical effects of the tacit approval principle provided in the Act on
services in the Internal Market

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

The Slovenian horizontal implementing law has implemented this
article of the Services Directive. In addition, the Act on Media lays down a
general presumption that advertisement activities should be free for all
professions unless limited by law. No total prohibition on commercial
communications for regulated professions has been identified in sector-specific
legislation.

B.        Boosting cross-border trade

1.         National implementation.

The core chapter of the Directive on the freedom to provide services
has been transposed into Slovenian law by the combination of a horizontal law
(the Act on the Services in the Internal Market) and amendments to
sector-specific legislation.

The Act on the Services in the Internal Market implements generally
the principles set out in Article 16 of the Services Directive, i.e. that
requirements can be imposed on incoming service providers only if such
requirements are non-discriminatory, are justified for reasons of public
policy, public security, public health, or the protection of the environment,
and are proportionate to the objectives pursued. However, this Act does not
amend directly sector-specific legislation.

Only 15 legal acts seem to have been amended to implement the
freedom to provide services clause, but the rest of the Slovenian
sector-specific legislation has not been modified.

2.         Distinction between freedom of establishment and free
provision of services

The implementation approach in the sector-specific
legislation might be incomplete. Actually, the proper implementation of the
freedom to provide services clause requires the conformity of sector-specific
legislation with the Services Directive since the horizontal law has no
precedence over sector-specific legislation.

3.         Issues with the free provision of services clause

Most sector-specific legislation does not seem to distinguish
between establishment and cross-border provision of services. Thus it seems
that the requirements in force (authorisations or registrations) could apply
for both categories of service providers. In addition, in some sectors
(chimney-sweepers, operational monitoring), it seems that providers from other
Member States cannot provide cross-border services. They are reserved to
selected providers in Slovenia.

According to the results of the study, in the sector of crafts, the
competent authorities seem to abstain from requiring craft permits required in
the sector-specific legislation in order to comply with the freedom to provide
services clause.

Examples of requirements that have been maintained

In the sector of crafts, construction and certification services,
the law does not make any distinction between established and cross-border
providers: both have to acquire a craft permit to provide craft services[76].
However, in practice it seems that the Small Crafts Chamber does not require
craft permits or registration in case of cross-border provision of service.
Regarding the certification services, the legal acts again do not provide
specific provisions for the cross-border provision, implying that the same
requirements are applicable as those for established providers.

As far as real estate services are concerned, the legislation
in the real estate sector was amended to implement the Services Directive. An
easier access for cross-border providers is foreseen: the providers of real
estate agency services do not have to be licensed, whereas for the cross-border
provision of land-surveying services, the registration is an automatic result
of notification of service. However, every provider – even cross-border
providers – must observe the prescribed tariffs foreseen for real estate
activities.

As far as tourism is concerned, authorisation schemes are in
place for travel agencies, tour operators, tourist guides (except for tourist
guides which accompany tourist groups from abroad) and for providers of sport
activities for tourists. For tourist guides, municipalities can provide special
conditions for the providers providing services in designated tourist
locations.

   SPAIN  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The Spanish point of single contact (www.eugo.es)
is well established. Its setting up has involved the coordination of numerous
competent authorities at different levels of government. Most of the regulatory
requirements related to the establishment and provision of services involve
national, regional and local authorities. In Spain, there are 17 autonomous
communities, 2 autonomous cities and more than 8,000 local entities.

As regards the presentation of applicable requirements, the information
on the legal framework with which service providers have to comply has been
standardised and organised on three starting steps (location, activity and
method of provision) and is perceived as generally good.

The Spanish point of single contact acts mainly as a gateway to
online procedures from other competent authorities, which are responsible of
the electronic availability of their own procedures. That means that the availability
of electronic procedures depends mainly on the development of e-government
within each public administration and the level of e-government services
differs from one territory or city to another. Work should be continued to
ensure that procedures to start a business or to provide services have a
sufficient degree of detail and of electronic availability in all locations,
types of activity and competent authority.

Services provided through the Spanish point of single contact,
except for accessing general and specific information, require identification
tools such as e-identification, e-signatures or user login. Those tools are
needed especially when starting an online procedure or when logging in the
personal area of the portal. Regarding cross-border users, the Spanish point of
single contact –EUGO.es portal- permits access to
the  Personal Area to service providers who are in possession of European
Digital Credentials that can be checked in its national supplier of identity
through STORK network (Iceland, Austria, Estonia, Spain, Italy, Liechtenstein,
Lithuania, Portugal, Slovenia, Finland or Sweden).

General information is generally available in Spanish, Catalan,
Basque, Galician, English and Portuguese. However, specific documentation for
the completion of procedures under the responsibility of competent authorities
are often only found in Spanish, and sometimes even only in one of other
Spanish co-official languages. Efforts should be continued to enhance availability
of information in other languages with a view to facilitating use of the
PSC.[77]

II.        Implementation of and compliance with key provisions

Implementation of the Services Directive in Spain entailed a very
significant amount of legislative work given its complex administrative
structure.

The main act transposing the Services Directive into Spanish Law is a
horizontal law adopted at national level, whose provisions prevail over
regional laws regulating sector-specific services (Ley 17/2009, de 23 de
noviembre, sobre el libre acceso a las actividades de servicios y su ejercicio[78]). 
The content of the horizontal law is ambitious in its approach.

The Spanish authorities also undertook a very significant number
of sector-specific amendments to ensure that requirements in
sector-specific legislation are adapted to the Services Directive. An omnibus
law (Ley 25/2009, de 22 de diciembre, de modificación de diversas leyes para su
adaptación a la Ley sobre el libre acceso a las actividades de servicios y su
ejercicoi[79]),
adapts the State laws, most of them sectoral, to Law 17/2009 and it also
extends the principles of good regulation to sectors not affected by the
Services Directive. Two other laws with sector-specific amendments were passed
at the Central Government level: one for retail[80] and one for environmental
impact assessment[81].
In addition to the amendments to national laws, adaptations were necessary at
the level of State regulations.  By April 2010, 118 Royal Decrees (RD) and 21
Ministerial Orders had been amended through 51 Royal Decrees and one Ministerial
Order. 24 Royal Decrees had been fully repealed. At the Autonomous Communities
level, the adaptation took place through amendments to sector-specific laws
introduced (either by regional omnibus laws or by sector-specific regional
legislation) and amendments affected mostly retail and tourism service
activities.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Spain (Articles 14 and 15 of the Services Directive)

The implementation of the Services Directive has resulted in a very
significant reduction of administrative burden in Spain. Numerous
authorisations have been transformed into prior declarations and a considerable
number of requirements applicable to the access and exercise of an activity
have disappeared.

As regards prohibited requirements for access to an activity,
Article 10 of Ley 17/2009 (the horizontal law implementing the Services
Directive) does no longer allow for the application of requirements listed in
Article 14 of the Services Directive. A significant amount of prohibited
requirements has been eliminated from sector-specific legislation (such as for
example, economic tests required for the granting of authorisations for
large-scale commercial surfaces or the intervention of competitors in the
granting of individual authorisations, which were requirements previously found
in retail legislation) and from the statutes of professional associations. It
can thus be concluded that further to the implementation of the Services
Directive, no relevant examples of these prohibited requirements are to be
signalled in sector-specific legislation although it may well be that there are
cases of local regulations that still require a Spanish identification card for
the completion of some procedures. In the tourism area, some restrictions could
still remain in some autonomous communities related to the freedom of the
provider to choose between establishment in the form of an agency, branch or
subsidiary. Most of the autonomous communities where this problem appears,
allow travel agents to establish branches leaving no other options although the
horizontal laws would prevail over this restriction.

Sector-specific amendments in the Spanish legal order have also considerably
reduced administrative burden by eliminating unjustified and disproportionate
requirements. In accordance with Article 15 of the Services Directive, Article
11 of Ley 17/2009 (the horizontal law implementing the Services Directive) only
allows for sector-specific legislation to impose these requirements if
justified by an overriding reason of general interest and proportionate. A very
significant review of sector-specific legislation has been carried out to
ensure that Article 15 requirements were conformed to Article 11 of Ley
17/2009. Certain Article 15 requirements relating to the shareholding of
companies have been maintained in legislation in a mitigated form, such as
shareholding requirements for professional associations[82].

There are still, however, cases of requirements that raise doubts of
compatibility with Article 15 in certain pieces of sector-specific legislation.
For example, the obligation for the service provider to take a specific legal
form in the regulation of land and real estate agents and requirements
to have a specific qualification in order to hold share capital can still be
found in certain professional association rules would not appear to be
justified. As a result, reforms of the statutes of some professional
associations still appear to be necessary to ensure that providers have legal
certainty. However, the horizontal law would prevail
over those restrictions.

2.         Nationwide validity of authorisations (Article 10(4)
of the Services Directive)

As indicated above, numerous authorisations have been transformed
into prior declarations. The remaining authorisations have been generally
simplified. In a country with a regional structure as complex as the Spanish
one, the implementation of Article 10, paragraph 4 of the Services Directive
was of particular relevance to reduce business barriers. The Spanish
authorities opted for an ambitious implementation of the principle by means of
a general rule laid down in Article 7 of Ley 17/2009. This provision
only allows for reasons of public policy, public security, public health and
the protection of the environment to limit the geographical scope of
authorisations which are not linked to a specific physical establishment. For
authorisations linked to a physical establishment other overriding reasons of
general interest can be invoked. The Spanish authorities are considering reinforcing mechanisms to guarantee the
right application of this provision in practice such as internal administrative
cooperation.

3.         Tacit approval of authorisations (Article 13(4) of the
Services Directive)

Before the implementation of the Services Directive tacit
approval was already a principle of general application in administrative
procedures in Spain in light of Ley 30/1992 on administrative procedures. In
this regard, the implementation of the Services Directive has not introduced a
significant change in the Spanish legal order. Nonetheless,
the horizontal law (Ley 17/2009) modified Ley 30/1992 to reinforce the positive
silence principle (negative silence has to be settled in laws and only in
general interest exceptional circumstances).

4.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Further to the implementation of the Services Directive, it can be
generally said that the structure of Spanish legislation at national and
regional level adequately reflects the two freedoms foreseen in the Treaty,
without prejudice to possible remaining isolated cases of bad implementation.
This novelty should be welcome as a very significant progress in the alignment
of Spanish legislation with the internal market principles.

Article 12(3) of Ley 17/2009 implements Article 16 of the Services
Directive. Law 17/2009 produced an automatic derogation from provisions of
equal or inferior hierarchical level that conflict with its provisions. As a
direct consequence of the repealing provision, an administrative authority may
decide not to apply provisions of equal or inferior hierarchical level
conflicting with provisions of Law 17/2009. In addition, taking into
consideration that this Law was adopted in accordance with the exclusive
competences of the State to develop basic legislation in the fields it covers,
regional legislation must respect its provisions[83]. As a result Article
12(3) of Ley 17/2009 prevails over conflicting provisions of equal value at
regional level.

However, rules on the conflict of laws are not the only way with
which the Spanish legal system relies upon to ensure compliance of
sector-specific legislation with Article 16 of the Services Directive. In
addition to the prevailing horizontal law, sector-specific legislation at
national and regional level has been reviewed and when necessary amended to
eliminate requirements that do not comply with Article 12(3) of the Spanish
horizontal law.

2.         Distinction between freedom of
establishment and free provision of services

Law 17/2009 includes definitions which should ensure a correct
application of the concept of cross-border service provider/provision in line
with the Services Directive. Furthermore, most sector-specific legal frameworks
currently differentiate between provisions applicable to established service
providers and to cross-border service providers, which should help guarantee a
correct understanding of the distinction by competent authorities called to
implement requirements laid down in those regimes.

3.         Issues with the free provision
of services clause

Despite the implementation of Article 16 in the Spanish legal order
by means of a horizontal provision and by means of sector-specific amendments,
a number of requirements applicable to cross-border service providers have remained
in sector-specific legislation despite the fact that their justification and
proportionality could be questioned. It has to be added that many of these
would be no longer applicable in principle in view of the tacit derogation
operated by Ley 17/2009 but their existence in paper does not contribute to
legal certainty for service providers.

In the area of crafts, sector-specific legislation has been
amended to implement the Services Directive. However, certain requirements such
as certain registration obligations or requirements on the exercise of the
activity remain applicable for cross-border services.

In the real estate sector, some
restrictions still remain and require amendment to ensure conformity with the
horizontal law transposing the Services Directive which prevails in any event.
In some autonomous communities, for example, the statutes of the professional
associations would still require that the provider has its principal
establishment within the territory of the association.  In this specific case, not only  the horizontal laws (Ley 17/2009 y
Ley 25/2009) but also the professional associations law (Ley 2/1974) again
prevail.

   SWEDEN  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

Sweden used an existing
website (www.verksamt.se) and developed
it further in order to implement the Services Directive. In general, Sweden
takes a comprehensive view of the PSC with the aim to provide for information
and completion of procedures beyond the scope of the Services Directive, both
in terms of procedures and in terms of economic activities.

The degree of
information offered on the Swedish PSC is generally very good and is provided
in simple and clear language and well-structured. The content of information
provided is comprehensive and goes beyond the minimal legal requirements as
provided for in the Services Directive. For instance, information is also
offered concerning tax and social security requirements.

An important number of
procedures can be completed online. However, many procedures require the use of
Swedish e-ID or e-signature which is difficult to fulfil for foreign service
providers. It would be important to enhance the ease of procedure completion
for foreign users by developing means to accept foreign-issued
e-Identification.

Most of the information
on the PSC is translated to English which is a big advantage for cross-border
service providers. An improved search function and a clear distinction between
cases of establishment and cases of cross-border provision of services would
even increase the usability of the PSC in particular for incoming service
providers.

The overall use and
usability of the Swedish PSC is above average[84].
However, improvements could be made concerning the clarity of information by
further developing the search function and by enhancing the ease of procedure
completion for foreign users, in particular by developing means to accept
foreign-issued e-Identification.

II.        Implementation of and compliance with key provisions

Sweden adopted its horizontal law and a considerable number of
sector specific legislation within the transposition deadline. Around 60
national measures have been adopted in order to implement the Services
Directive. In addition, Sweden has modified its law on foreign branches in
2011. By removing obstacles, in particular an establishment requirement, Sweden
opened up the market and made access easier for service providers from other
Member States.

Before Sweden changed the law, operators legally established in the
EU wishing to pursue an economic activity in Sweden were subject to formalities
likely to dissuade or even prevent them from offering their services to Swedish
businesses and consumers. Even for temporary activities, operators had to be
established and registered as a branch in the Swedish register of foreign
branches before starting work. The alternative was to set up as subsidiary,
involving even more red tape. The procedure for registering the branch could
take up to eight months. Finally, an operator established in another Member
State needed both an agent responsible for receiving notifications of documents
and a representative, both domiciled in Sweden.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in Sweden (articles 14 and 15 of the Services Directive)

The evaluation of the implementation of the Services Directive has
revealed that a few requirements prohibited by article 14 of the Directive can
still be found in Swedish legislation. Also, some requirements where the
Directive left a margin of appreciation to Member States to streamline the
regulatory environment for the establishment of providers and which are mainly
dealt with in article 15 of the Directive have been maintained.

Concerning professional services, it seems that there is an
involvement of competing operators in the granting of an authorisation for
establishment for lawyers as lawyers already established in Sweden shall
confirm the good reputation of the candidate lawyer. In addition, only a Member
of the Swedish Bar Association may be a shareholder or partner of a legal
practice conducted in the form of a limited liability company or partnership.
Similarly, only accountants may be shareholders or owners of an accounting
undertaking conducted in the form of a limited liability company or
partnership. Moreover, it seems that a patent agent has to be domiciled in
Sweden in order to be entitled to receive documents.

Finally, in the real estate sector, fixed maximum tariffs on
professional housing agency services (letting agents) have been maintained.

In the tourism sector, a residence requirement has been
maintained for car rental services as a responsible person domiciled in Sweden
has to be appointed.

2.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

Tacit approval does not apply as a general rule. Sector specific
legislation was amended in order to specify where tacit approval applies.  For
example, it has been explicitly introduced for the authorisation to operate as
a car rental business.

In particular, it seems that it was a deliberate decision that tacit
approval should not apply to the construction sector in its entirety. Moreover
tacit approval does not seem to apply to environmentally hazardous activities,
to debt collecting activities and to company registration.

Sweden will have to ensure that the instances in which article 13(4)
of the Services Directive is not applied are limited to duly justified matters.

3.         Total
prohibition of commercial communications (article 24 of the Services Directive)

No total prohibition of commercial communications has been
identified.

B.        Boosting cross-border trade

1.         National implementation

Sweden implemented the freedom to provide services clause of Article
16 of the Services Directive by way of a horizontal law provision as well as by
sector-specific law. This horizontal provision does not in itself guarantee a
complete implementation of Article 16 as it is not unconditional, nor does it
mention that the freedom to provide services may only be restricted for reasons
of public policy, public security, public health or the protection of the
environment.

The provision in the horizontal law must therefore be seen in the
light of the other implementing measures carried out by the Swedish Government in
the sector-specific legislation. The Swedish Government has carried out a
careful screening of the national legislation and amended a number of Acts in
order to ensure conformity with the Services Directive. In addition, according
to the Swedish legal order, the horizontal law, including the provision
implementing the freedom to provide services clause, must be interpreted in the
light of the preparatory legislative work that refers clearly to the Directive
and the principles deriving from it.

2.         Distinction between freedom of
establishment and free provision of services

It seems that this implementation implies, in case that sector
specific legislation does not make a distinction between an established and a
cross-border service provider, that the competent authority has to decide on a
case-by-case basis whether a requirement applicable to providers established in
Sweden shall also be applied in the same manner to a service provider
established in another Member State wanting to provide temporary services in
Sweden.

In view of this, the effectiveness of the Swedish implementation of
the freedom to provide services clause will depend to a large extend on the way this clause is implemented in practice. However, no
practical experience has been documented so far.

The Swedish government has issued brochures for the attention of
local authorities explaining how the Services Directive, including the freedom
to provide services clause, has to be applied in practice.[85]

3.         Issues with the free provision
of services clause

Following their screening, the Swedish authorities had identified only few requirements which should, according to the Directive, not
be applied anymore to incoming service providers. As a
consequence, only a limited number of sector specific legislative acts have
been amended in order to ensure the implementation of this part of the
Directive. However, according to the information of the Commission, problems of
compatibility with the freedom to provide services clause still exist, namely as
regards car rental services and patent agents.

In addition, it seems that it might have been considered that
authorisation regimes applicable to service providers established in Sweden
should apply to the same extent to service providers established in other
Member States providing their services in the Swedish territory on a
cross-border basis (e.g. in the retail sector concerning health and safety
requirements of products or premises). This causes some doubts and concerns as
to the justification by one of the four reasons recognized by the Directive. In
this respect special attention will have to be paid to the very broad
interpretation of the notion of “public policy” which
includes also animal welfare.

Examples of requirements that have been
maintained

In the tourism sector, there is an obligation for providers
of car rental services to appoint a "responsible" person domiciled in
Sweden. In addition there are some questions concerning insurance obligations
in the sector. It seems that the requirement to provide a guarantee with the
competent authority in Sweden does not apply to cross-border provision of
travel services other than package travel, but that the obligation applies to
package travel activities and in any case to resellers in Sweden acting on
behalf of a provider established in another Member State.

As far as the education sector is concerned, it seems
that the authorisation scheme for driving school is also applicable to
cross-border service providers.

Use of exceptions article 17

Sweden has interpreted broadly the exception of the freedom to
provide services clause as foreseen in Article 17(11) of the Services
Directive and concerning intellectual property rights. The competent authority
may request the owner of an intellectual property right who is not domiciled in
Sweden to have an agent residing in Sweden who is entitled to receive for him
service of writs of summons, notifications and other documents in legal cases
and matters concerning the patent.

   UNITED KINGDOM  
\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

I.          Points of Single Contact

The UK Point of Single
Contact has two entry points depending on whether the user is based in the UK (www.businesslink.gov.uk) or outside
the UK (www.UKwelocmesbusinesslink.gov.uk).

Information available
is presented in simple and clear language which is of particular advantage to
cross-border service providers who are not familiar with the administrative
system of the UK. The content of the information provided goes well beyond the
minimum requirements set out in the Services Directive and covers for instance
also information on social security and tax issues.

A relatively high
number of procedures can be completed on-line, but the degree of on-line
sophistication seems to depend on whether it concerns an establishment or a
cross-border scenario.

The portal can accept
electronic signatures, also from other Member States, but electronic signatures
in general are not used for verification purposes but rather to lock down
documents and forms completed by users so that others cannot tamper with them.

The PSC offers a high
degree of readiness for domestic and cross-border users. The interactive search
tree that provides checklists by sector or company type has been considered as
one of the best examples of good practice and very user-friendly.

The homepage for users
from outside the UK provides also for a help button linking directly to
versions of the site in 24 other languages, even if information in other
languages only covers core and general information.

The UK PSC is well
established and the overall use and usability have been rated above average[86].
However, in order to enhance the usability of the PSC, a clear distinction
between establishment and cross-border situations would certainly be
appreciated in particular by cross-border service providers. Improvements
concerning the on-line availability of procedures would certainly benefit all
service providers.

II.        Implementation of and compliance with key provisions

The main piece of implementation is the "Provision of
Services Regulation 2009", an omnibus law which implements the
principles of the Services Directive in a cross-cutting way and amends some
sector specific regulations.

Another important element relevant to the implementation of the
Services Directive was the amendment of the Companies Act which abolished a
general obligation for anyone doing business in the UK to have an address in
the UK. This requirement was indirectly discriminatory against persons
established in other Member States who did not have a place of business in the
UK.

In general, few sector specific amendments were made, the UK
claiming to have traditionally a light touch regulatory regime. Besides a few
sector specific changes contained in the horizontal law (street trading/peddlars
and licensing of pubs/bars/restaurants etc.) which concerned mostly amendments
regarding aspects of authorisation schemes and availability of procedures
electronically, changes in sector specific legislation concern insolvency
practitioners (authorisation scheme and insurance), veterinarians, bars and
restaurants and certain services in the area of gas supply, distribution and
storage.

A.        Streamlining the regulatory
environment for services

1.
        Requirements applying to providers established or wishing to
establish in the United Kingdom (articles 14 and 15 of the Services Directive)

No requirements prohibited by Article 14 have been maintained in the
UK. The few requirements which existed in UK legislation prior to the
implementation of the Services Directive have all been removed.

However, a number of requirements where the Directive left a margin
of appreciation to Member States to streamline the regulatory environment have
been identified, mainly concerning professional services where there is
still a number of requirements, imposed by Professional rules, relating to
the shareholding of companies and/or obligations to take a specific legal form,
in particular with regard to lawyers and auditors. Some particularly stringent
requirements regarding legal form and shareholding in the legal professions
where advocates in Scotland and barristers in Northern Ireland can only provide
services as single practitioners and the solicitors are subject to shareholding
obligations in both of them, raise questions as regards their proportionality.
The shareholding requirements are in the process of being relaxed.

2.         Nationwide validity of authorisations (article 10(4)
of the Services Directive)

Authorisations which are not granted for the whole territory of a
Member State but only for a specific part are likely to hinder the exercise of
service activities.

The United Kingdom implemented the principle of nationwide validity
of authorisations in the horizontal law which foresees that an authorisation
granted by a competent authority must enable the provider of the service to
have access to the service activity or to the exercise it throughout the United
Kingdom. However the law also contains an exception for cases where the
functions of the competent authority relate only to part of the United Kingdom.
For those cases, the authorisation granted is only valid for that particular
part of the country and no mechanism to ensure nationwide validity, such as
recognition of authorisations issued by other devolved administrations, is
provided for.

3.         Tacit approval of authorisations (article 13(4) of the
Services Directive)

The principle of tacit approval is an important means of cutting red
tape as it foresees that an authorisation is deemed to have been granted to the
provider in case an application has not received any response within the set
time period. The UK has foreseen this principle in its horizontal law
implementing the Services Directive.[87]

In its Guide for Business on the Provision of Services Regulations[88]
the UK authorities explain that "failure to respond within the
advertised time implies that your licence has been granted thus enabling you to
start doing business."

Nevertheless, there are quite a few exceptions to this principle.
Those exceptions can be found in almost all sectors, but mainly in the
construction and tourism sector.

The United Kingdom will have to ensure that the instances in which
article 13(4) of the Services Directive is not applied are limited to duly
justified matters.

4.         Total
prohibition of commercial communications (article 24 of the Services Directive)

The horizontal law rules out any prohibition of commercial
communication for regulated professions.

However it appears that the Law Society of Scotland practice
Rules governing advertising and promotion of solicitors in Scotland contain
a prohibition on direct or indirect approaches to members of the public but
only where the solicitor knows or ought to know that the person in question is
a client of another solicitor (or equivalent- including registered foreign
lawyers and registered European lawyers).

B.        Boosting cross-border trade

1.         National implementation

The horizontal law giving effect to the main provisions of the
Services Directive also implements the freedom to provide services clause as
foreseen in Article 16 of the Directive, which has been literally reproduced.
The horizontal law being an omnibus law, it also amended certain sector
specific legislation, e.g. concerning pedlars, employment agencies.

The UK carried out an in-depth screening process and identified
around 280 pieces out of several thousands to be assessed for their compliance
with the Directive. 24 of those legislative acts were finally amended to comply
with the Services Directive. However, it seems that only one piece of
legislation, namely the Companies Act was modified in order to ensure
compliance with the freedom to provide services clause.

2.         Distinction between freedom of
establishment and free provision of services

The horizontal law refers to the general principles of
non-discrimination, necessity and proportionality and to the justified reasons
for imposing requirements to incoming service providers. The reasons mentioned
are the four reasons recognized by the Services Directive.

3.         Issues with the free provision
of services clause

Requirements maintained and applied to incoming services providers
seem to concentrate on the retail and construction sector.

Examples of requirements that have been
maintained

In the construction sector, a number of specific Article 16
requirements with regard to obtaining consent before carrying out certain works
or activities have been maintained, such as licence for specific works on
highways or concerning waste management. Curiously enough there is also an
authorisation requirement for window cleaners in Scotland.

Concerning the retail sector, most requirements identified
took the form of authorisations. The majority of those authorisations are
concerned with licensing the retail sale of alcohol. Licences are also required
for other services, including second-hand dealer’s licences, metal
dealers and street traders.

As far as the education sector is concerned, a number of
registration requirements exist in relation to driving instruction.

[1]       Due to data limitations, most of the data cannot be
disaggregated by sectors, so that sectors within the scope of the Services
Directive include also specific activities that are excluded from the scope of
the Directive, and vice versa.

[2]       http://ec.europa.eu/internal\_market/services/services-dir/handbook\_en.htm

[3]       SEC(2011)
102 accompanying the Communication from the Commission 'Towards a better
functioning Single Market for Services – building on the results of the
mutual evaluation process of the Services Directive', COM(2011)20

[4]       http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm
and Study "Assessment of implementation Measures in Member States"
published on http://ec.europa.eu/internal\_market/services/services-dir/implementation\_en.htm

[5]       Commission Study 'The Economic Impact of the Services
Directive: a first assessment following implementation', published on
http://ec.europa.eu/economy\_finance/publications/economic\_paper/2012/index\_en.htm.

[6]       A number of previous economic studies have assessed the
potential impact from a theoretical standpoint. See in particular Copenhagen
Economics, 2005, Economic assessment of the barriers to the internal market for
services and Bas Straathof, Gert-Jan Linders, Arjan Lejour, Jan Möhlmann, 2008,
The internal market and the Dutch economy — Implications for trade and
economic growth, CPB Document 168. These documents and further studies are
available at http://ec.europa.eu/internal\_market/services/services-dir/studies\_en.htm.

[7]       In particular, this approximation to the economic effect of
setting up national Points of Single Contacts is based upon the Member States'
procedural streamlining efforts as far as setting up a service provider
activity is concerned, while the dimension of cross-border provision is not
covered.

[8]              See http://ec.europa.eu/internal\_market/services/services-dir/updates\_and\_reports\_en.htm.

[9] Refer to www.doingbusiness.org/data/exploretopics/~/media/FPDKM/Doing%20Business/Documents/Annual-Reports/English/DB12-Chapters/starting-a-business.pdf.

[10]     "The functioning and usability of the Points
of Single Contacts under the Services Directive – State of Play and Way Forward" (Deloitte, 2012), commissioned by DG MARKT.

[11]     Commission Decision 2009/767/EC of 16 October 2009 setting out
measures facilitating the use of procedures by electronic means through the
‘points of single contact’ under Directive 2006/123/EC of the
European Parliament and of the Council on services in the internal market  as
amended by Commission Decision 2010/425/EU of 28 July 2010 amending Decision
2009/767/EC as regards the establishment, maintenance and publication of
trusted lists of certification service providers supervised/accredited by
Member States and by Commission Decision 2011/130/EU of 25 February 2011
establishing minimum requirements for the cross-border processing of documents
signed electronically by competent authorities under Directive 2006/123/EC of
the European Parliament and of the Council on services in the internal market.

[12]     Advanced e-signatures supported by a qualified certificate, or advanced
e-signatures supported by a qualified certificate and created by a secure
signature creation device, if justified..

[13]     Business Europe, Services Directive Implementation Report,
November 2011, available at www.businesseurope.eu, Eurochambres: Services
Directive: Points of Single Contact not fully functioning across the EU,
January 2011, available at www.eurochambres.eu.

[14]     http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[15]     The Large Scale Pilot SPOCS (Simple Procedures Online for
Cross-border Services) Points of Single Contact Research Study, April 2011,
available at www.eu-spocs.eu; the 9th eGovernment Measurement Benchmark: Digitising Public
Services in Europe: Putting ambition into action, December 2010, available at http://ec.europa.eu/information\_society/newsroom/cf/item-detail-dae.cfm?item\_id=6537.

[16]     Romania launched its electronic PSC in late 2011; in January
2012, Slovakia launched its electronic PSC, which had only been available in
pilot form at the time of the assessment, and Malta launched a substantially
revamped PSC. Some other Member States, including Estonia, Finland, Luxembourg
and Portugal, have recently made significant improvements to their PSCs.

[17]     Availability of information, availability of e-procedures and
ease of cross-border completion of e-procedures, user-friendliness.

[18]     For the procedures assessed in the Deloitte study, namely those
required to offer services as an architect, travel agent and tour guide or
restaurant/catering provider are considered. The administrative procedures
analysed were company registration; obtaining a general business licence;
procedures relating specifically to the service provider, including recognition
of professional qualifications, specific licences to act as a travel agent or
architect, or to sell alcohol; tax and financial formalities; social security
formalities; regulations relating to the premises of the provider; procedures relating
to the operation and location of the service provision, such as licences for a
restaurant terrace; and procedures applying only or specifically to
cross-border providers.

[19]     AT, BE, DK, FI, FR, IE, IS, UK.

[20]     BG, EE, ES, HU, IT, LT, LU, LV, MT, NL(depends on authorities),
NO, PT, SE, SI.

[21]     BG, CY, DE, EE, ES, HU, IT, LV, LT, LU, MT, NL (depends on
authorities), NO, PL, PT, SE, SI, SK.

[22]     CY, EE, ES, GR, LI, LT, PT for e-ID and CY, CZ, EE, ES, GR, LI,
LT, LV, PT, SK for e-signatures.

[23]     Detailed analysis of other features of the composite usability
index can be found in the Deloitte study.

[24]     Cyprus, the Czech Republic, Ireland, Lithuania, Portugal,
Slovenia and Spain

[25]     Competitiveness and Innovation Programme

[26]     Large Scale Pilot STORK (Secure Identity Across Borders
Linked)

[27]     Open source software for e-signature creation and validation

[28]     Commission Staff Working Paper with a view to establishing
guidance on the application of Article 20, paragraph 2 of Directive 2006/123/EC
on services in the internal market ("the Services Directive").

[29]     SEC(2011) 102 accompanying the Communication from the
Commisison "Towards a better functioning Single Market for Services
– building on the results of the mutual evaluation process of the
Services Directive) COM(2011)20

[30]     http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm
and Study "Assessment of implementation Measures in Member States"
published on http://ec.europa.eu/internal\_market/services/services-dir/implementation\_en.htm

[31]     SEC(2011) 102 accompanying the Communication from the
Commission "Towards a better functioning Single Market for Services
– building on the results of the mutual evaluation process of the
Services Directive) COM(2011)20

[32]     http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm
and Study "Assessment of implementation Measures in Member States"
published on http://ec.europa.eu/internal\_market/services/services-dir/implementation\_en.htm

[33] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[34]  A draft horizontal law had been pending in the Austrian Parliament
since December 2009 but could not get the 2/3 majority required for its
adoption. Given the delay in the implementation, the Commission decided on 27
October 2011 to refer Austria to the Court of Justice over incomplete
transposition of the Directive (IP/11/1283). Following the adoption and the
notification of the last implementing measures the Commission has decided on 25
April 2012 to close the case against Austria.

[35]  Concerning the federal state, Austria has reported the adoption of
the horizontal law in November 2011 implementing Articles 1 to 8, 13 and 28 to
33 of the Services Directive, as well as the amendments of the Law on unfair
commercial practices and the law concerning patent agents.

[36] http://www.bmwfj.gv.at/wirtschaftspolitik/standortpolitik/seiten/eu-richtlinie%C3%BCberdienstleistungenimbinnenmarktundihreumsetzungin%C3%96sterreich.aspx.

[37] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[38] Article 8 of the Royal Decree of 30 June 1966 on travel agencies, Belgisch
Staatsblad 27-07-1966.

[39] By Article 36 of the Decree of the Flemish government implementing
the Decree of 2 March 2007 on travel agencies.

[40] By Article 29 of a Decree of 27 May 2010.

[41] Decree of 25 June 2010 partially
transposing Directive 2006/123/EC of the European Parliament and the Council of
12 December 2006 on Services in the Internal Market, Belgisch Staatsblad
2-08-2010 and Decree of 10 December 2009 transposing Directive 2006/123/EC of
the European Parliament and the Council of 12 December 2006 on Services in the
Internal Market concerning the matters referred to in Article 138 of the
Constitution, Belgisch Staatsblad 24-12-2009.

[42] Case C-577/10, Commission v Belgium;
see press release IP/10/680; http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/680&format=HTML&aged=1&language=en&guiLanguage=en.

[43] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[44] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[45] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[46] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[47] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[48] The Building Act covers the activities of building, designing,
conducting site investigations, exercising owner supervision, performing expert
assessments of building design documentation, evaluating construction works and
engaging in project management.

[49] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[50] CJUE C-119/09

[51]
http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[52] "Eine beantragte Genehmigung gilt nach
Ablauf einer für die Entscheidung festgelegten Frist als erteilt
(Genehmigungsfiktion), wenn dies durch Rechtsvorschrift angeordnet und der
Antrag hinreichend bestimmt ist."

[53]     Given delays with the adoption of other texts necessary for the
implementation of the Services Directive, the Commission decided on 27 October
2011 to refer Greece to the Court of Justice over incomplete transposition of
the Directive (IP/11/1283). Following the adoption and the notification of the
last implementing measures the Commission has decided on 31 May 2012 to close
the case against Greece.

[54]
http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[55]  Act LXXVI of 2009 on general rules on the taking up and pursuit of
service activities

[56] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[57]          European Union (Provision of
Services) Regulations 2010 (S.I. No. 533 of 2010) give effect to the
Services Directive in Ireland, with the exception of Article 42 of the
Directive, which was transposed separately by the European Communities (Court
Orders for the Protection of Consumer Interests) Regulations 2010 (S.I. No. 555 of 2010).

[58]     Forfás Study Review of the Economic Impact of the Retail Cap
(April 2011)

[59] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[60] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[61] Article 15(3) of LFPS.

[62] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[63] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[64] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[65] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[66] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[67] The proposal for the Act on the changes to the acts regulating the
exercise of some professions contains the deletion of this requirement, except
for mountain tourist guides.

[68] The proposal for the Act on the changes to the acts regulating the
exercise of some professions contains the deletion of this requirement.

[69] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[70]     Different interpretations can be held in this regard. Articles
4(1) and 4(3) of DL 92/2010 need to be read together with its Articles 8(1) and
8(2)(a) and (b) which clarify the meaning of “administrative
authorisation” and “prior communications”. The administrative
authorisations can be, namely, licences, authorisations, validations,
authentications, certifications, acts issued after a prior communication. This
definition contains only examples of what is included. The expression
“authorisation” mentioned in Article 4(3) of DL 92/2010 could refer
to all possible kinds of requirements. However, one could also take the view
(in light of the cross-reference to the definitions in Article 8) that it only
relates to requirements on access to the activity such as authorisation schemes
or equivalent.

[71] Decision 2009/767/EC, as amended by Decision 2010/425/EU.

[72] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[73] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[74] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[75] 4 % of the price of the property which is being sold

[76]     The law explicitly states that the qualifications and previous
work experience which were acquired in other Member States are recognised in
Slovenia.

[77] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[78]     BOE num. 283, de 24.11.2009 - Law 17/2009, of 23 November,  on
Free Access to Service Activities and its Exercise

[79]     BOE núm. 308, de 23.12.2009 - Law 25/2009, of 22 December,
amending diverse laws to adapt them to Law 17/2009-

[80]     Ley 1/2010, Ley 1/2010, de 1 de marzo, de
reforma de la Ley 7/1996, de 15 de enero, de Ordenación del Comercio Minorista
(BOE num. 53 de 02.03.2010) - Law 1/2010, of 1 March, amending Law 7/1996,
January 15, on Retail Trade.

[81]      Ley
6/2010, de 24 de marzo, de modificación del texto refundido de la Ley de
Evaluación de Impacto Ambiental de proyectos (BOE núm. 73, de 25.03.2010) - Law
6/2010, of 24 March, ammending the Consolidated Law on Environmental Impact
Assessment

[82]     Law 2/2007, of 15 March, on professional partnerships requires
as a minimum that the majority of the share and voting rights or the majority
of the shareholders equity and the number of partners in the non-sharing
companies belong to professional partners.

[83]     Nevertheless, in case a conflicting law was adopted an
unconstitutionality appeal before the TC would be promoted to declare that void
contrary to Ley 17/2009. According to Organic Law 2/1979, of 3 October, of the
Constitutional Court, the unconstitutionality appeal can be submitted by the
President of the Government, the Ombudsman, fifty members of the Spanish
Parliament or fifty members of the Senate. These parties can exercise this
action within three months from the official publication of the legal act containing
provisions contrary to the Constitution.  In addition to the
unconstitutionality appeal, any judge or Court can submit an
unconstitutionality question to the TC when a Law applicable to the case it is
analysing and on whose validity the judgment depends may be contrary to the CE.

[84] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[85] "The Services Directive - general guidelines for
authorities and municipalities" (non-official translation) published in
Nov 2011:     
http://www.kommers.se/Documents/Dokumentarkiv/Publikationer%20i%20PDF/%c3%96vriga%20publikationer/Publikation%20-%20Tj%c3%a4nstedirektivet%20-%20s%c3%a5%20p%c3%a5verkas%20myndigheter%20och%20kommuner.pdf

    "How the Services
Directive applies on local authorities" (non-official translation)
published in Dec 2011:                  http://www.kommers.se/Documents/Dokumentarkiv/Publikationer%20i%20PDF/%c3%96vriga%20publikationer/Publikation%20-%20Kommunernas%20regel%c3%b6versyn%20utifr%c3%a5n%20tj%c3%a4nstedirektivet.pdf

[86] http://ec.europa.eu/internal\_market/services/services-dir/study\_on\_points\_of\_single\_contact\_en.htm

[87]     "In the event of failure to process the application
within the period set or extended in accordance with the preceding provisions
of this regulation, authorisation is deemed to have been granted by a competent
authority, unless different arrangements are in place".

[88]     http://www.bis.gov.uk/files/file53100.pdf

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