Safety of Services Derogations

Safety of Services Derogations in Europe

Case by case derogations pursuant to Article 18 in relation to the E.U. Services Directive

The following is an examination of case by case derogations pursuant to article 18 regarding the European Union Servicies Directive [1]:

Case by case derogations pursuant to Article 18: the Freedom to Provide Services clause and related derogations

Article 18 allows for derogations from Article 16 under specific conditions and in particular cases relating to the safety of services. Under the conditions set out in Article 18, a receiving Member State may exceptionally apply its requirements to a particular incoming service provider. Recourse to this article can only be had in a concrete and specific situation and with regard to the provision of a specific service by a particular service provider. The article cannot be used in a general way to derogate from Article 16 for a given type of service or category of service provider.

Article 18 allows preventive or injunctive measures to ensure the safety of the service concerned. The service must present a danger which cannot be prevented by measures taken in accordance with the provisions on administrative cooperation, i.e. by the mutual assistance mechanism between the administrations of the Member States concerned. Measures must be proportionate and limited to what is necessary to protect against dangers created or about to be created by the service or the service provider. The measures must be more effective than measures taken by the Member State of establishment of the service provider. This requires that the Member State receiving the service undertakes an assessment in every case as to whether the measures it envisages provide a real added value over measures taken by the Member State of establishment of the service provider.

Procedurally, the Member State in which the service is provided may only take measures on its own after having requested assistance from the Member State where the service provider is established and after having complied with the steps set out in Article 35(2) to (6), including the obligation to notify the Member State of establishment and the Commission of the intention to take the measures and the reasons for it138.

Paragraph 3 clarifies that this procedure does not affect other Community instruments in which the freedom to provide services is guaranteed and case-by-case derogations are provided for. This is notably the case in the E-commerce Directive139.

Resources

Notes

  1. Information on case by case derogations pursuant to article 18 based on the EU Services Directive Handbook, UK Government

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