Mutual Assistance Relating to Derogations in Europe
Mutual assistance relating to case-by-case derogations in relation to the E.U. Services Directive
The following is an examination of mutual assistance relating to case-by-case derogations regarding the European Union Servicies Directive :
Mutual assistance relating to case-by-case derogations: Mutual assistance in case of cross-border service provision
By way of derogation from the freedom to provide services clause, and for specific cases only, Article 18160 gives Member States the possibility to take measures – on the basis of their own legislation relating to the safety of services – in respect of individual service providers providing services across borders into their territory. Concerning case-by-case derogations, Article 35 provides for a specific procedure for administrative cooperation which furnishes procedural safeguards ensuring that the case-by-case derogation is only used if the substantive criteria laid down in Article 18 are fulfilled. In particular, Article 35 establishes that the Member State where the service is provided can only take measures if the Member State of establishment of the service provider has been contacted but has not taken sufficient measures. Provided that the requirements set out in Article 18 are fulfilled and the procedure laid down in Article 35 has been complied with, a Member State might invoke a case-by-case derogation, for instance, in a case in which an operator from another Member State providing maintenance and cleaning services for central heating systems in its territory does not carry out work properly and creates safety risks.
As the first step in the procedure, as mentioned above, a Member State which intends to take a measure pursuant to Article 18 has to ask the Member State of establishment of the service provider to take measures and provide information. The Member State of establishment will then need to check whether it is appropriate to take measures according to its legislation, and inform the requesting Member State within the shortest possible time of the measures taken or envisaged or, as the case may be, the reasons why it does not intend to take any measures. If – after consulting of the Member State of establishment – the Member State where the service is provided still intends to take measures according to Article 18, it will, as a second step, have to inform the Commission and the Member State of establishment of its intention giving reasons why the measures by the Member State of establishment are inadequate and why the measures it intends to take fulfil the conditions laid down in Article 18. The Member State where the service is provided can take these notified measures after 15 days following notification unless the Commission has adopted a decision to the contrary. In cases of urgency, i.e. if there is a substantiated risk of immediate and serious damage to the safety of persons or property, the Member State where the service is provided can take measures on the basis of its own safety-ofservices-related legislation even though the specific procedure provided for in Articles 35(2) to (4) has not been completed (Article 35(5)). However, it is clear that such measures can only be taken if the criteria laid down in Article 18 are fulfilled, i.e. if the national provisions, in accordance with which the measure is taken, have not been subject to Community harmonisation in the field of safety of services, the measures provide for a higher level of protection of the recipient, the Member State of establishment has not taken sufficient measures and the measures are proportionate. Such measures have to be notified to the Commission and the Member State of establishment within the shortest possible time and giving reasons for the urgency.
- Information on mutual assistance relating to case-by-case derogations based on the EU Services Directive Handbook, UK Government