Scope of the Services Directive

Scope of the Services Directive in Europe

The services excluded from the scope of application of the Directive in relation to the E.U. Services Directive

The following is an examination of the services excluded from the scope of application of the directive regarding the European Union Servicies Directive [1]:

The services excluded from the scope of application of the Directive: Services covered

The Services Directive explicitly excludes a number of services from its scope. These exclusions are optional in the sense that Member States may, if they so wish, apply some of the general principles and arrangements provided in the Services Directive, such as the “points of single contact”, to some or all of the excluded services. In any event, it is clear that national rules and regulations relating to excluded services have to comply with other rules of Community law, in particular with the freedom of establishment and the freedom to provide services as guaranteed in Articles 43 and 49 of the EC Treaty. Concerning

the scope of these exclusions, the following explanations can be given:

m Non-economic services of general interest

The exclusion in Article 2(2)(a) is closely linked to the concept of “service” explained above. The terms “noneconomic services” refer to services which are not performed for an economic consideration. These activities do not constitute a service within the meaning of Article 50 of the Treaty and are thus, in any case, not covered by the Services Directive. As a result, non-economic services of general interest, such as services which are not provided against remuneration in the field of national primary and secondary education, are not covered by the Services Directive. In contrast, services of general economic interest, such as those in the electricity and the gas sector, are services performed for economic consideration and thus, in principle, fall within the scope of application of the Services Directive15. Whether a service which a Member State considers to be of general interest is of an economic or a non-economic nature has to be determined in the light of the case law of the ECJ referred to above16. In any case, it will not be possible for Member States to consider all services in a specific field, for example all education services, as non-economic services of general interest.

m Financial services

The exclusion in Article 2(2)(b) covers all financial services, including banking services, credit services, securities and investment funds and insurance and pension services. This includes the services listed in Annex I to Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions17, such as consumer credit, mortgage credit services, financial leasing and the issuing and administering of means of payment. Services which do not constitute a financial service, such as operating leasing services consisting in the hiring-out of goods, are not covered by this exclusion and Member States will have to ensure that they are covered by implementing measures.

m Electronic communication services and networks

The exclusion in Article 2(2)(c) concerns electronic communication services and networks, and associated facilities and services as defined in Article 2 of 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 (Framework Directive)18. Such services and networks include, for example, voice telephony and electronic mail conveyance services. However, these services are only excluded with respect to matters covered by the five directives included in the so-called “telecoms package”19. As regards matters which are not covered by these five Directives, such as “points of single contact” or electronic procedures, the Services Directive applies. Member States thus need to ensure that these services benefit from the relevant provisions of the Services Directive. This can be done either by amending the specific legislation in the telecommunications sector or by addressing the matter in the horizontal framework legislation implementing the Directive.

m Services in the field of transport

The exclusion in Article 2(2)(d) covers the transport services falling within Title V of the EC Treaty. Thus, it covers air transport, maritime and inland waterways transport, including port services, as well as road and rail transport, including in particular urban transport, taxis and ambulances20. The exclusion of transport services does not cover services which are not transport services as such like driving schools services, removal services, car rental services, funeral services or aerial photography services. It does not cover either commercial activities in ports or airports such as shops and restaurants. These service activities thus benefit from the provisions of the Services Directive and have to be covered by implementing measures.

Services of temporary work agencies

The exclusion in Article 2(2)(e) covers the service of hiring out workers provided by temporary work agencies. Services other than services of hiring-out of workers which are sometimes furnished by the same service provider, such as placement or recruitment services, are not covered by the exclusion and thus have to be covered by implementing measures.

Healthcare

The exclusion of healthcare in Article 2(2)(f) covers “healthcare and pharmaceutical services provided by health professionals to patients to assess, maintain or restore their state of health where those activities are reserved to a regulated health profession in the Member State in which the services are provided”21. This means that services which are not provided to a patient but to the health professional himself or to a hospital such as accounting services, cleaning services, secretarial and administration services, the provision and maintenance of medical equipment as well as the services of medical research centres, are not covered by this exclusion. Moreover, the exclusion does not cover activities which are not designed to maintain, assess or restore patients' state of health. For example, activities which are designed to enhance wellness or to provide relaxation, such as sports or fitness clubs, are covered by the Services Directive and will have to be covered by implementing measures. Furthermore, the exclusion of health services only covers activities which are reserved to a regulated health profession in the Member State where the service is provided. Services which can be provided without specific professional qualification being required have thus to be covered by implementing measures. Finally, it should be clear that the exclusion of health services concerns services relating to human health and should not be understood as covering the services of veterinaries and therefore these services should be covered by implementing measures.

Audiovisual and radio broadcasting services

The exclusion in Article 2(2)(g) covers audiovisual services, i.e. services the principal purpose of which is the provision of moving images with or without sound, including television and showing of films in cinemas, irrespective of the way they are produced, distributed or transmitted. It also covers radio broadcasting services. Other services linked to audiovisual services or to radio broadcasting, such as advertising services or the sale of drinks and food within cinemas are not excluded and have to be covered by implementing measures.

Gambling activities

The exclusion in Article 2(2)(h) covers any service which involves wagering a stake with pecuniary value in games of chance, including in particular, numeric games such as lotteries, scratch cards, gambling services offered in casinos or licensed premises, betting services, bingo services and gambling services operated by and for the benefit of charities or non-profit-making organisations. In contrast, games of skill, gaming machines that do not give prizes or that give prizes only in the form of free games and promotional games whose exclusive purpose is to encourage the sale of goods or services are not covered by the exclusion and thus benefit from the Services Directive. Furthermore, other services provided in casinos, for example the sale of food and drinks, are also not covered by the exclusion and have to be covered by implementing measures.

Activities which are connected with the exercise of official authority

The exclusion in Article 2(2)(i) reflects Article 45 of the EC Treaty according to which activities which are connected with the exercise of official authority are not covered by the provisions relating to the freedom of

establishment and the freedom to provide services. This exclusion, in line with the case law of the ECJ, only covers

specific activities and does not encompass entire professions22. Whether or not specific activities are directly or

specifically connected with the exercise of official authority cannot be unilaterally determined by a Member State

but has to be assessed on the basis of general criteria established by the ECJ. Thus, the mere fact that a Member

State considers an activity to be an exercise of official authority or that an activity is provided by the State, a

State body or a body to which public tasks have been assigned, does not mean that this activity is covered by

Article 45 of the EC Treaty. When confronted with cases where they need to assess if a service activity is under

Article 45 of the EC Treaty and therefore excluded from the Services Directive, Member States should keep in

mind the narrow scope of application that the ECJ has given to this article23.

The services excluded from the scope of application of the Directive in relation to the E.U. Services Directive

The following is an examination of the services excluded from the scope of application of the directive regarding the European Union Servicies Directive [1]:

The services excluded from the scope of application of the Directive: Services covered

As said in this legal encyclopedia, the Services Directive explicitly excludes a number of services from its scope. This is a continuation on the subject.

Social services relating to social housing, childcare and support of families and persons permanently or temporarily in need

The social services in Article 2(2)(j) are excluded to the extent that they are provided by the State itself, by providers which are mandated by the State and are thus under an obligation to provide such services, or by charities recognised as such by the State. The notion of “charities recognised as such by the State” includes churches and church organisations which serve charitable and benevolent purposes. On the basis of the wording of this exclusion, and the explanations given in Recital 27, it is clear that such services are not excluded if they are provided by other types of providers, for example private operators acting without a mandate from the State. For instance childcare which is provided by private nannies or other childcare services (such as summer camps) provided by private operators are not excluded from the scope of application of the Services Directive. Similarly, social services relating to the support of families and persons who are permanently or temporarily in a state of need because of their insufficient family income or total or partial lack of independence and for those who risk being marginalised, such as services concerning care for elderly people or services to the unemployed, are excluded from the scope of application of the Services Directive only to the extent that they are provided by any of the providers mentioned above (i.e. The State itself, providers mandated by the State or charities recognised as such by the State). Thus, for instance, private household support services are services not excluded from the Services Directive and have to be covered by the implementing measures.

Private security services

The exclusion in Article 2(2)(k) covers services such as surveillance of property and premises, protection of persons (bodyguards), security patrols or supervision of buildings as well as the depositing, safekeeping, transport and distribution of cash and valuables. Services which are not “security services” as such, for instance the sale, delivery, installation and maintenance of technical security devices, are not covered by the exclusion. Thus, they have to be covered by measures implementing the Directive.

Services provided by notaries and bailiffs, who are appointed by an official act of government

These services are excluded by Article 2(2)(l) from the scope of application of the Directive irrespective of whether or not they can be considered to be connected with the exercise of official authority as set out in Article 45 of the EC Treaty. The exclusion covers the services provided by notaries and bailiffs who are appointed by an official act of government. It includes, for instance, authentication services of notaries and seizure of property by bailiffs.

The Relationship between the EU Directive and other provisions of EU law in relation to the E.U. Services Directive

The following is an examination of the relationship between the eu directive and other provisions of eu law regarding the European Union Servicies Directive [1]:

The Relationship between the EU Directive and other provisions of EU law: the Relationship between the EU Services Directive and other provisions of EU law

As a basic rule, the Services Directive applies in addition to existing Community law. Possible conflicts between the Services Directive and other instruments of secondary Community law have generally been explicitly addressed in the Directive, in particular by means of derogations from specific provisions34. Nevertheless, Article 3 provides a rule for any residual and exceptional cases in which a conflict between a provision of the Services Directive and a provision of another instrument of secondary Community law could arise.

Article 3 states that, in case of conflict between a provision of the Services Directive and a provision of another instrument of secondary Community law, the provision of the latter takes precedence. This means that in such cases the provision of the other Community instrument prevails and the provision of the Services Directive will not be applied. It should be noted that this concerns only the specific conflicting provision and not the remaining provisions of the Services Directive which will still apply.

The question of whether or not a conflict exists between a provision of the Services Directive and a provision of another Community instrument has to be assessed carefully in each specific case. The mere fact that rules relating to specific aspects of a particular service have been established in another Community instrument (including those mentioned in Article 3) is not sufficient to conclude that a conflict exists with a provision of the Services Directive. In order to set aside a provision of the Services Directive, it has to be demonstrated that there is a contradiction between specific rules of both instruments. This assessment has to be based on a thorough interpretation of the provisions at issue in compliance with their legal basis and with the fundamental freedoms enshrined in Articles 43 and 49 of the EC Treaty.

Resources

Notes

  1. Information on the relationship between the eu directive and other provisions of eu law based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on the services excluded from the scope of application of the directive based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on the services excluded from the scope of application of the directive based on the EU Services Directive Handbook, UK Government

See Also

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