Services Directive

European Union Services Directive

The European Union (EU) Services Directive aims to break down barriers to cross border trade in services between countries in the EU.

The Services Directive aims to make life easier for businesses, particularly small and medium sized enterprises, to offer their services to customers in other EU countries, whether establishing elsewhere in the EU or providing services remotely from a Member State. It requires all EU countries to lift legal and administrative barriers.

Overview

The EU Services Directive is an European piece of legislation, which came into effect on 28 December 2009. Its purpose is to break down barriers between countries in the EU. It will make it easier for service providers, particularly small and medium sized businesses, to offer their services to customers in other EU countries, whether establishing elsewhere in the EU or providing services remotely.

EU Member states were required to implement the Directive by 28 December 2009.

Businesses – licence applications

Businesses can apply online for licences needed in other EU countries through their Points of Single Contact (eu-go.eu).

Licences may also be found on GOV.UK Licence finder.

Consumers

The European Consumer Centre for Services is a portal with information about your rights when buying services in other EEA countries. It’s a new free website and telephone service for consumers that provides general information on consumer laws and rights when buying a service in other European countries.

Services that UK consumers can get advice on include tourism services such as hotels, timeshares and car hire; construction services such as architects, builders, electricians and plumbers; estate agents and letting agents; private education providers such as language schools; and accountancy services and lawyers.

The website also has contact details of organisations that could provide practical assistance in the case of dispute.

The Directive was brought into UK law by the Provision of Services Regulations 2009, which came into effect on 28 December 2009. The Regulations affect a very wide range of service businesses. This guidance is aimed at those bodies who set rules or requirements which service providers have to comply with, and those who are involved in authorising service providers (ie ‘competent authorities’).

These bodies include government departments, devolved administrations, local authorities, licensing and authorisation bodies and other authorities such as professional bodies or bodies who maintain required registers or deliver required training qualifications. The guidance contains user friendly flowcharts which will guide you through the steps that you need to take, and point you to the sections of the guidance that you will need to look at.

Services Directive legislation

Provision of Services Regulations

The Provision of Services Regulations 2009 were made on 11 November 2009. They are the main Statutory Instrument which will implement the EU Services Directive into UK law.

In May 2009, we asked for comments on the draft Regulations. The government’s response to these comments can be found below, along with the draft statutory instrument and transposition note:

government response to comments on the draft Provision of Services Regulations 2009
the final Statutory Instrument The Provision of Services Regulations 2009
transposition note – Provision of Services Regulations 2009 implementing EU Services Directive
The Regulations are due to come into force on 28 December 2009. As a general principle, the Regulations do no more than transpose the Directive. Where this is not the case, this is highlighted in the Transposition Note.

Screening flowcharts for competent authorities

This document will help guide you through the steps involved in reviewing (or ‘screening’) any requirements that you impose on service providers for compliance with the Directive. Before attempting to use the flowcharts yourself it is advisable that you:

have read the following information
have access to ‘Documents to help competent authorities screen’ (see below)

Screening

The Directive aims to make it easier for businesses to provide services in all member States (EU countries). One way of doing this is by the removal of unjustifiable barriers to service provision. All requirements (for example authorisation schemes and registration processes) which are imposed on service providers must be screened to ensure that they are for example non-discriminatory, necessary and proportionate. Any requirements that cannot be justified under the terms of the Directive will need to be amended or abolished in order to be compliant with the Directive. Any requirements that can be justified under the terms of the Directive must be reported on by BIS to the EU Commission by the 28 December 2009.

Document 2 below will show you whether legislation in England, Wales, Scotland and Northern Ireland has been screened and justified under the terms of the Directive or will be amended to comply with the Directive. Later in the year we will update the website with those authorisation schemes, authorisation scheme procedures or other requirements that government views are not justified together with the amendments that are being made as a result to legislation. Please look out for this information, so that you are aware of how you may have to change your processes – we shall ensure that your Primary Liaison Point (PLP) is kept informed.

Action for competent authorities

You now need to check if your procedural rules or other requirements placed on service providers within scope comply with the Directive. The following flowcharts are designed to assist you with this process.

The first flowchart is for the screening of authorisation schemes that are imposed on service providers who want to establish in the UK. The second flowchart is for the screening of other requirements that are imposed on service providers operating in the UK, whether they are established here or are operating here without being established.

Screening considerations

Many competent authorities will have responsibility for overseeing authorisation schemes or enforcing requirements which have been implemented in national legislation. Where this is the case, competent authorities should look for the relevant legislation in Document 2 – it should already have been screened and a decision made by the responsible department as to whether it is justified or if amendments are needed.

If you have responsibility for imposing your own requirements and authorisation schemes, or the relevant legislation is not shown on our list, then you will have to screen your requirements as explained in the flowcharts.

Some different considerations pertain to requirements applying to service providers seeking to establish in the UK, as opposed to those who want to provide services in the UK but do not want to establish in the UK. You should refer to the Services Directive Regulations, in particular regulations 14.1 to 14.2, 22.1 to 22.3 and 24.1 to 24.3, in order to ascertain the requirements applicable to each element of an authorisation scheme or other requirement.

One point to note is that the test for necessity is narrower in relation to service providers who are not seeking to establish in the UK. For such service providers, a ‘necessary’ requirement can only be justified on one or more of four specified grounds: public policy, public security, public health or protection of the environment. The specific meanings of these terms have been established by European case law; refer also to Recital 41 of the Directive. However, where a service provider intends to establish in the UK a ‘necessary’ requirement may be justified on wider grounds, by an ‘overriding reason relating to the public interest (ORRPI). This term is defined in Article 4(8) and explained fully in Recital 40 of EU Service Directive Final Text 27 December 2006.

Please note that regulation 24 is not applicable to professional bodies already complying with the Mutual Recognition of Professional Qualifications (MRPQ) Directive. If you fall into this category and your rules already comply with the MRPQ Directive, then you do not have to check whether they comply with regulation 24 and whether they can be imposed on service providers not seeking to establish in the UK. Other derogations to regulation 24 exist – please see regulation 25 for a full list.

Steps

The Directive was brought into UK law by the Provision of Services Regulations 2009, which came into effect on the 28 December 2009. The Regulations affect a very wide range of service businesses. This guidance is aimed at those bodies who set rules or requirements which service providers have to comply with, and those who are involved in authorising service providers (ie ‘competent authorities’). These bodies include government departments, devolved administrations, local authorities, licensing and authorisation bodies and other authorities such as professional bodies or bodies who maintain required registers or deliver required training qualifications.

Background to screening

The Directive aims to make it easier for businesses to provide services in all member states (EU countries). One way of doing this is by the removal of unjustifiable barriers to service provision. All requirements (for example authorisation schemes, licence applications, certification, registration processes, approval systems and continuing requirements) that are imposed on service providers must be screened to ensure that they are for example non-discriminatory, necessary and proportionate. Any requirements that cannot be justified under the terms of the Directive will need to be amended or abolished in order to be compliant with the Directive.

Screening considerations

Some different considerations pertain to requirements applying to service providers seeking to establish in the UK, as opposed to those who want to provide services in the UK but do not want to establish in the UK. You should refer to the Provision of Services Regulations (which implement the Directive, see below) , in particular regulations 14.1 to 14.2, 22.1 to 22.3 and 24.1 to 24.3, in order to ascertain the requirements applicable to each element of an authorisation scheme or other requirement. One point to note is that the test for necessity is narrower in relation to service providers who are not seeking to establish in the UK. For such service providers, a ‘necessary’ requirement can only be justified on one or more of four specified grounds: a fundamental threat to public policy, public security, public health or protection of the environment. The specific meanings of these terms have been established by European case law; refer also to Recital 41 of the Directive (see link below). However, where a service provider intends to establish in the UK a ‘necessary’ requirement may be justified on wider grounds, by an ‘overriding reason relating to the public interest’ (ORRPI). This term is defined in Article 4(8) and explained fully in Recital 40 of the Directive (see link below).

Checking old requirements (those in force before 28 December 2009)

All legislation which affects service providers should have been checked for compatibility with the Directive, so you may find that the legislation you enforce has already been screened by a government department. Legislation made before 28 December 2009 should feature on the list of screened legislation list.

Checking new requirements (those in force after 28 December 2009)

Government departments, devolved administrations, local authorities and other competent authorities must ensure that all new requirements (in force after December 28th 2009) imposed on service providers in the UK are compliant with the Services Regulations

Screening

The Directive aims to make it easier for businesses to provide services in all member states (EU countries). One way of doing this is by the removal of unjustifiable barriers to service provision. All requirements (for example authorisation schemes and registration processes) which are imposed on service providers must be screened to ensure that they are for example non-discriminatory, necessary and proportionate. Any requirements that cannot be justified under the terms of the Directive will need to be amended or abolished in order to be compliant with the Directive.

Screening at a local level

You need to check if your locally used Acts, bylaws, procedural rules or other requirements placed on service providers within scope comply with the Directive.

Screening considerations

Some different considerations pertain to requirements applying to service providers seeking to establish in the UK, as opposed to those who want to provide services in the UK but do not want to establish in the UK. You should refer to the Services Directive Regulations, in particular regulations 14.1 to 14.2, 22.1 to 22.3 and 24.1 to 24.3, in order to ascertain the requirements applicable to each element of an authorisation scheme or other requirement. One point to note is that the test for necessity is narrower in relation to service providers who are not seeking to establish in the UK. For such service providers, a ‘necessary’ requirement can only be justified on one or more of four specified grounds: public policy, public security, public health or protection of the environment. The specific meanings of these terms have been established by European case law; refer also to Recital 41 of the Directive (see link below). However, where a service provider intends to establish in the UK a ‘necessary’ requirement may be justified on wider grounds, by an ‘overriding reason relating to the public interest (ORRPI). This term is defined in Article 4(8) and explained fully in Recital 40 of the Directive (see link below).

List of formalities within scope of the Services Directive

These are lists of formalities (authorisations/ licences/ certificates/ registrations) in England, Wales, Northern Ireland and Scotland that are in scope of the Directive and BIS believes are managed by local authorities.

Primary legislation checklists

These documents list primary legislation which Government Departments have reviewed to check for compliance with the Services Directive. The tables list the Acts that have been ‘screened’, indicating the lead Government departments and the results of the screening exercise, which are shown as one of the following:

  • in scope, but the government views that the requirements imposed cannot be justified under the terms of the Directive and as such changes have been made so that the Act complies with the Directive
  • in scope, but the government views that the requirements imposed can be justified under the terms of the Directive and as such a report has been prepared for the Commission explaining the rationale for keeping the Act
  • not in scope of the Directive and raises no requirements under the Directive Act has been repealed
  • under consideration by a government department

Internal Market Information (IMI) System

The Internal Market Information (IMI) system aims to make it easier for authorities to contact each other across the EU.

Resources

See Also

References (Papers)

  • The Place Of Policy In International Law, Oscar Schachter, Apr 2016
  • Introductory Statement, Rosalyn Higgins, Apr 2016
  • A Legal Theory Of Collective Security, David Frolick, Apr 2016
  • The Use Of Force In Bloc Situations, Ross R. Oglesby, Apr 2016
  • Discussion On The Control And Sale Of Arms, Henry C. Lauerman, Robert E. Clute, Apr 2016
  • Books Received, Georgia Journal Of International And Comparative Law, Apr 2016
  • Book Review: Law-Making In The International Civil Aviation Organization. By Thomas Buergenthal. Syracuse: Syracuse University Press, 1969. Pp. Xiii, 247. $10.50., William C. Bushnell, Apr 2016

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