Implementing Legislation in Europe
Implementing legislation in relation to the E.U. Services Directive
The following is an examination of implementing legislation regarding the European Union Servicies Directive :
Implementing legislation: Method of implementation
On the basis of the case law of the ECJ, it is clear that “in order to ensure that directives are fully applied in fact as well as in law, Member States must provide a precise legal framework in the field in question” which allows “individuals to know their rights and rely on them before the national courts”6. This means that Member States will have to provide for national provisions of a binding nature so that service providers and recipients can rely on the rights granted to them by the Services Directive.
Certain of these articles could be implemented by amendments to existing legislation, for example those in the area of authorisation schemes could in some Member States be implemented by amending national legislation dealing with administrative procedures. In other cases, notably in relation to articles setting out general principles such as Article 16 or 20, a new horizontal framework law should be considered7.
of a horizontal nature at the adequate level could be particularly needed as a safeguard against provisions in specific areas which might have escaped scrutiny as well as to ensure that service activities which may develop and be regulated at national level in the future will also be covered. However, it is clear that if Member States choose to implement the Directive, or certain articles of the Directive, by horizontal legislation, they will need to ensure that such horizontal legislation takes precedence over specific legislation.
Member States may also need to adapt existing specific legislation containing requirements which the Directive explicitly requires to be modified or abolished. This concerns, for instance, Articles 9, 14 and 15 regarding specific requirements restricting the freedom of establishment. Further examples are Articles 24 and 25 on commercial communications by the regulated professions and multidisciplinary activities.
Particular attention needs to be paid to legislation which contains specific rules for service providers established in other Member States. In so far as such rules are incompatible with the Directive, and are not based on other Community instruments, they need to be abolished by amending the legislation concerned. Member States need, for example, to verify whether in their legislation they have registration requirements for providers established in other Member States and wanting to provide services in their territory; if such requirements are neither provided for in another Community instrument nor justified under Articles 16 or 17 they have to be removed.
In order to be able to assess that implementation is complete, Member States are advised to resort to implementation tables indicating how the different provisions of the Directive have been implemented.
- Information on implementing legislation based on the EU Services Directive Handbook, UK Government