Visa Requirements in Europe
The derogations in Article 17 in relation to the E.U. Services Directive
The following is an examination of the derogations in article 17 regarding the European Union Servicies Directive :
Article 17 contains a list of derogations from Article 16. In line with ECJ case law, derogations from a rule laid down in a directive with the intention of ensuring the effectiveness of the rights conferred by the EC Treaty, such as the freedom to provide services, have to be understood narrowly134.
The fact that certain matters or services are covered by one of the derogations in Article 17 does not necessarily mean that the entire body of regulations of the Member State where the service is provided can be applied to them. These matters or services are in any case subject to Article 49 of the EC Treaty. As a result, the application of certain requirements in the Member State where the service is provided may not be justified. m
Services of general economic interest
Article 17(1) contains a derogation from Article 16 for services of general economic interest which are provided in another Member State. As explained in Recital 70, “[f]or the purposes of this Directive, and without prejudice to Article 16 of the Treaty, services may be considered to be services of general economic interest only if they are provided in application of a special task in the public interest entrusted to the provider by the Member State concerned. This assignment should be made by way of one or more acts, the form of which is determined by the Member State concerned, and should specify the precise nature of the special task”. Article 17(1) mentions explicitly what are known as network services, including those which are covered by Community legislation (postal services, certain gas and electricity related services). The reference to these services does not mean that all such services are automatically to be considered services of general economic interest. In any case, the assessment as to whether a given service is one of general economic interest is to be made in each specific case applying the principles explained in Recital 70.
m Matters covered by Directive 96/71/EC on posting of workers
Article 17(2) makes clear that the Posting of Workers Directive135is not affected by Article 16. Recitals 86 and 87 explain in detail what this derogation covers. Rules concerning maximum work periods and minimum rest periods, minimum paid annual holidays, minimum rates of pay, including overtime rates, the conditions of hiring out of workers, in particular the protection of workers hired out by temporary employment undertakings, health, safety and hygiene at work, protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth and of children and young people, provisions on equality of treatment between men and women and other provisions on non-discrimination are covered by the Posting of Workers Directive and are thus not affected by Article 16.
m Matters covered by Directive 95/46/EC on the processing of personal data
The derogation in Article 17(3) covers the matters dealt with in the Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, which lays down specific rules for the cross-border transfer of data.
m Matters covered by Directive 77/249/EEC to facilitate the effective exercise by lawyers of freedom to provide services
The derogation in Article 17(4) ensures that the above mentioned Directive continues to fully apply in so far as it contains more specific rules on the provision of cross-border services by lawyers. Therefore, under this derogation, Article 16 will apply for lawyers only to those matters not dealt with by the said Directive. In particular, according to Directive 77/249, judicial activities and representation of a client before public authorities should be pursued in a Member State under the obligations laid down for lawyers established in that State. As regards non-judicial activities, Article 16 complements Directive 77/249 as regards matters for which this Directive does not explicitly permit the application of the rules of the Member State in which the services are provided.
m the activity of judicial recovery of debts
The exclusion in Article 17(5) of activities of judicial recovery of debts covers activities consisting in the recovery of debts by way of having recourse to judicial proceedings. It does not cover debt recovery services which are carried out by service providers outside the context of judicial procedures.
Matters covered by Title II of Directive 2005/36/EC on the recognition of professional qualifications and national requirements reserving an activity to a regulated profession
The derogation in Article 17(6) ensures the full application of Title II of the Professional Qualifications Directive in the case of cross-border service provision136. According to this derogation, Article 16 will apply, for regulated professions, only to those matters not linked to professional qualifications such as commercial communications, multidisciplinary partnerships, tariffs, etc. This derogation also excludes from the application of Article 16 requirements reserving an activity to members of a certain regulated profession. For example, when legal advice is reserved to lawyers in one Member State the provision on the freedom to provide services will not apply. Thus, a person that can provide services of legal advice in his Member State of establishment but is not qualified as a lawyer will not be able to rely on Article 16 to provide services of legal advice in a Member State where such services are reserved to lawyers. The compatibility of such a reserve with Community law is not dealt with by the Services Directive, the Professional Qualifications Directive or the lawyers Directives, but has to be analysed in the light of the EC Treaty.
Matters covered by Regulation (EEC) No 1408/71 on the coordination of social security systems
The derogation in Article 17(7) ensures that the rules in the regulation on the coordination of national social security systems are not affected by Article 16. These rules inter alia determine which national social security system covers persons temporarily working in another Member State either as a self-employed person or as an employee.
Matters covered by Directive 2004/38/EC as regards administrative formalities concerning the free movement of persons and their residence
Directive 2004/38/EC concerns administrative formalities Member States may impose on EU citizens and certain third-country nationals who move from one Member State to another. On the basis of the derogation in Article 17(8) these rules are not affected in cases of a service provision involving the temporary movement of EU citizens or third-country nationals.
Visa or residence permit requirements for third-country nationals
The derogation in Article 17(9) ensures that the rules on visa requirements which are part of the Schengen acquis are not affected by Article 16. Likewise, this derogation ensures that Article 16 does not affect Member States' possibilities to impose visa requirements on those third-country nationals who do not come under the Schengen acquis (in essence third-country nationals who move between a Schengen and a non-Schengen country or vice versa, and third-country nationals who move to another Member State for periods exceeding three months).
- Information on the derogations in article 17 based on the EU Services Directive Handbook, UK Government