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Transposing the Services Directive

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Book cover The EU Services Directive: Law or Simply Policy?

Part of the book series: Legal Issues of Services of General Interest ((LEGAL))

Abstract

This chapter examines the provisions and characteristics of the Services Directive as well as its transposition and mutual evaluation processes introducing new instruments to achieve its objectives. The above is carried out not only by examining the Directive and other documents relevant to its understanding but also through a discussion of the implementation process in Sweden. This examination is based on the author’s own observations as well as interviews of individuals responsible for the implementation in light of the modes of governance utilised especially in transposing the Services Directive.

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Notes

  1. 1.

    Exemptions made in relation to the scope of the Services Directive are discussed in Sect. 8.4.3, in relation to fields of law exempted as well as in Sect. 9.3.3, in relation to service activities exempted.

  2. 2.

    Amended proposal for a Directive of the European Parliament and of the Council on services in the internal market COM(2006) 160 final, Section 3.1.

  3. 3.

    See the Commission’s amended proposal referring to the Parliaments amendments, 167 and 168, 176 as well as 199–202, Amended proposal for a Directive of the European Parliament and of the Council on services in the internal market COM(2006) 160 final.

  4. 4.

    Barnard 2008, p. 386.

  5. 5.

    Klamert 2010, p. 113.

  6. 6.

    For such reasoning, see Barnard 2008, p. 383.

  7. 7.

    Article 39 of the Services Directive.

  8. 8.

    Barnard 2008, at p. 386.

  9. 9.

    Hatzopoulos 2012, p. 260.

  10. 10.

    For such discussion, see Hatzopoulos 2012, p. 260.

  11. 11.

    See Barnard 2008, at pp. 382–383 and Weatherill 2007, p. 8.

  12. 12.

    In addition, the “new” approach is further discussed in Sect. 12.5.

  13. 13.

    In accordance with the comitology procedures, see Barnard 2008, pp. 383–384.

  14. 14.

    See further Barnard 2008, pp. 379–380.

  15. 15.

    Article 9 of the Commission Proposal for a directive on services in the internal market COM(2004) 2 final “1. Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions [non-discrimination, objectively justified by an overriding reason relating to the public interest and being proportional] are satisfied”.

  16. 16.

    Article 15 of the Commission Proposal for a directive on services in the internal market COM(2004) 2 final: “(a) quantitative or territorial restrictions, in particular in the form of limits fixed according to population, or of a minimum geographical distance between service and providers; (b) an obligation on a provider to take a specific legal form, in particular to be a legal person, to be a company with individual ownership, to be a non-profit making organisation or a company owned exclusively by natural persons; (c) requirements which relate to the shareholding of a company, in particular an obligation to hold a minimum amount of capital for certain service activities or to have a specific professional qualification in order to hold capital in or to manage certain companies; (d) requirements, other than those concerning professional qualifications or provided for in other Community instruments, which reserve access to the service activity in question to particular providers by virtue of the specific nature of the activity; (e) a ban on having more than one establishment in the territory of the same State; (f) requirements fixing a minimum number of employees; (g) fixed minimum and/or maximum tariffs with which the provider must comply; (h) prohibitions and obligations with regard to selling below cost and to sales; (i) requirements that an intermediary provider must allow access to certain specific services provided by other service-providers; (j) an obligation on the provider to supply other specific services jointly with his service.” These requirements must satisfy the conditions of being non-discriminatory, objectively justified by an overriding reason relating to the public interest, and proportional.

  17. 17.

    Article 30 of the Commission Proposal for a directive on services in the internal market COM(2004) 2 final: “Member States shall ensure that providers are not made subject to requirements which oblige them to exercise a given specific activity exclusively or which restrict the exercise jointly or in partnership of different activities”.

  18. 18.

    See Barnard 2008, p. 371.

  19. 19.

    Commission staff working document on the result of the performance checks of the internal market for services (construction, business services and tourism) SWD(2012) 147 final.

  20. 20.

    Article 41 provides of the Services Directive: “The Commission, by 28 December 2011 and every three years thereafter, shall present to the European Parliament and to the Council a comprehensive report on the application of this Directive. This report shall, in accordance with Article 16(4), address in particular the application of Article 16. It shall also consider the need for additional measures for matters excluded from the scope of application of this Directive. It shall be accompanied, where appropriate, by proposals for amendment of this Directive with a view to completing the Internal Market for services”.

  21. 21.

    Article 16(4) that: “By 28 December 2011 the Commission shall, after consultation of the Member States and the social partners at Community level, submit to the European Parliament and the Council a report on the application of this Article, in which it shall consider the need to propose harmonisation measures regarding service activities covered by this Directive”.

  22. 22.

    See the National Reports I and II for Sweden, prepared by Ida Otken Eriksson for Milieu Ltd. under Contract with the European Commission, DG Internal Market and Services (2011) http://ec.europa.eu/internal_market/services/docs/services-dir/mileu-study/se-national-report-part_I_en.pdf.

  23. 23.

    Stelkens et al. 2012, p. 15.

  24. 24.

    See the Eurochambres Policy Surveys published during the implementation period of the Services Directive. See for this information especially pp. 6–7 in the second survey, January 2008.

  25. 25.

    The Eurochambres Policy Survey on the implementation of the Services Directive in January 2008 found that in a majority of the Member States, the screening is organised in a decentralised way, with each ministry responsible for the screening of its areas of competence and reporting back to the competent ministry leading the process, see p. 8 of the Survey.

  26. 26.

    Working Paper distributed to the participants of the Forum on 26 March 2008.

  27. 27.

    Ds 2008:75, Genomförande av tjänstedirektivet (Departmental Memorandum on the Implementation of the Services Directive), pp. 231–232.

  28. 28.

    Hettne and Reichel 2012, p. 50.

  29. 29.

    For example, Almega, an organisation that supports service companies in Sweden, http://www.almega.se/om-almega/in-english. The Confederation of Swedish Enterprise (Svenskt Näringsliv) is Sweden’s largest business federation representing 50 member organizations and 60,000 member companies with over 1.6 million employees. It was founded in 2001 through the merger between the Swedish Employers’ Confederation (SAF, founded in 1902) and the Federation of Swedish Industry (SI, founded in 1910), see its website at www.svensktnaringsliv.se. SALAR, the Swedish Association of Local Authorities and Regions represents the governmental, professional and employer-related interests of Sweden's 290 municipalities and 20 county councils, see its website at www.skl.se.

  30. 30.

    Svensk Handel, an employers’ organisation serving the entire trade and commerce sector, representing commercial enterprises on issues concerning employment and economic policy, see its website at www.svenskhandel.se.

  31. 31.

    ‘Landsorganisationen’–—LO is the central organisation for 14 affiliates which organise workers within both the private and the public sectors. The 14 affiliates together have about 1.5 million members. The 14 affiliates of LO have independent status, and LO is primarily an organisation for coordination, research, signing labour market insurance schemes and creating public opinion at central and regional levels, see its website at www.lo.se. The TCO (The Swedish Confederation for Professional Employees) comprises 15 affiliated trade unions, approximately half of the members work in the private sector and half in the public sector, see its website at www.tco.se. Saco is a trade union confederation of 22 affiliated associations which together have over 600 000 members. Members are university graduates or professionals with a college degree. The members include employees, students, researchers, self-employed people and retired professionals. Members include economists, lawyers, physiotherapists, graduate engineers, doctors, teachers and members of many other professions, see its website at www.saco.se.

  32. 32.

    Invest Sweden is the official investment promotion agency of Sweden. They connect international companies with business opportunities in Sweden and offer comprehensive, one-stop investment consultancy services free of charge, see its website at www.investsweden.se.

  33. 33.

    Founded in 1972 the Swedish Trade Council serves the Swedish Government and Swedish business. They have offices in 60 countries and work closely with trade associations, embassies, consulates and chambers of commerce around the world, see its website at www.swedishtrade.se.

  34. 34.

    The National Board of Trade is the Swedish governmental agency dealing with foreign trade and trade policy. The Board provides the Government with analyses and recommendations, see its website at www.kommers.se.

  35. 35.

    The Swedish Consumer Agency, see its website at www.konsumentverket.se.

  36. 36.

    The aim of the Swedish Agency for Economic and Regional Growth—Tillväxtverket—is to work pro-actively for sustainable growth—a public strategy to ensure that investments for growth will also make growth possible for coming generations, see its website at www.tillvaxtverket.se.

  37. 37.

    Företagarna (Swedish Federation of Business Owners) creates better conditions for starting, running, developing, and owning a business in Sweden. Their mission is to promote entrepreneurship, safeguard the rights of business owners, and contribute to conditions that make running a business easy and appealing, see its website at www.foretagarna.se.

  38. 38.

    ‘Näringspunkten’ is a network of a large number of professional associations and organisations and companies, see its website at www.naringspunkten.se.

  39. 39.

    The Swedish Chambers of Commerce are private law Chambers (privately owned), based on voluntary membership. This differentiates them from many other public law Chambers in Europe, see their website at www.chamber.se.

  40. 40.

    The Swedish Consumers’ Association is the national consumer organisation in Sweden, owner of the consumer test magazine “Råd & Rön—Advice and Results”. They represent the Swedish consumer interest on national, regional and international levels, see its website at www.sverigeskonsumenter.se.

  41. 41.

    Ds 2008:75, Genomförande av tjänstedirektivet (Departmental Memorandum on the Implementation of the Services Directive), pp. 55–56 and SOU 2010:146, Utländsk näringsverksamhet i Sverige: en översyn av lagstiftningen om utländska filialer i ett EU-perspectives betänkande/av Filiallagsutredningen (Report/by Branch Team Survey on Foreign trade in Sweden: a review of the legislation on foreign branches in an EU perspective).

  42. 42.

    Almega was especially active in this respect.

  43. 43.

    Article 39(5) third para.

  44. 44.

    No real progress has been made in this respect, in accordance with the information received by the author during interviews of an official participating in the mutual evaluation procedure in Sweden.

  45. 45.

    Commission Communication on the process of mutual evaluation of the Services Directive SEC(2011) 102 final, p. 5.

  46. 46.

    Ibid, Section 2.2.2.1.

  47. 47.

    Ibid, Section 2.2.2.2.

  48. 48.

    Ibid, Section 2.2.2.3.

  49. 49.

    Summary of the stakeholders’ consultation, see http://ec.europa.eu/internal_market/consultations/docs/2010/services_directive/summary_en.pdf, p. 1.

  50. 50.

    See, e.g., Commission Communication on the process of mutual evaluation of the Services Directive SEC(2011) 102 final.

  51. 51.

    Commission Consultation Paper—Mutual evaluation foreseen by the Services Directive—Stakeholders’ Consultation, http://ec.europa.eu/internal_market/consultations/docs/2010/services_directive/consultation_paper_en.pdf, p. 7.

  52. 52.

    Summary of the stakeholders’ consultation, see http://ec.europa.eu/internal_market/consultations/docs/2010/services_directive/summary_en.pdf, p. 1.

  53. 53.

    Ibid, p. 4.

  54. 54.

    Ibid, p. 2.

  55. 55.

    Common Position (EC) No 16/2006 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a Directive of the European Parliament and of the Council on services in the internal market [2006] OJ C 270/1.

  56. 56.

    Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on retail market monitoring report “Towards more efficient and fairer retail services in the internal market for 2020”, COM(2010) 355.

  57. 57.

    Commission Communication on the single market act, twelve levers to boost growth and strengthen confidence “Working together to create new growth” COM(2011) 206 final, p. 11.

  58. 58.

    See Commission staff working document on the result of the performance checks of the internal market for services (construction, business services and tourism) SWD(2012) 147 final.

  59. 59.

    Ibid, p. 3.

  60. 60.

    The National Board of Trade, Kommunernas regelöversyn utifrån tjänstedirektivet, (The screening process by Municipalities in respect of the Services Directive) http://www.kommers.se/Documents/dokumentarkiv/publikationer/2011/rapporter/kommunernas-regeloversyn-utifran-tjanstedirektivet.pdf.

  61. 61.

    See The National Board of Trade, Icke-bindande myndighetsåtgärder måste följa EU-rätten (Non-binding measures of public authorities must comply with EU-law) http://www.kommers.se/Documents/dokumentarkiv/publikationer/2012/rapporter/rapport-icke-bindande-myndighetsatgarder.pdf.

  62. 62.

    Lag (2009:1079) om tjänster på den inre marknaden (the Services Act).

  63. 63.

    The National Board of Trade, Kommunernas regelöversyn utifrån tjänstedirektivet, (The screening process by Municipalities in respect of the Services Directive) http://www.kommers.se/Documents/dokumentarkiv/publikationer/2011/rapporter/kommunernas-regeloversyn-utifran-tjanstedirektivet.pdf, p. 6.

  64. 64.

    Kommerskollegium, Possible Effects of the Services Directive, http://www.kommers.se/Documents/dokumentarkiv/publikationer/2012/rapporter/report-possible-effects-of-the-services-directive.pdf.

  65. 65.

    Regeringens Proposition 2012/13:157, Anmälan enligt tjänstedirektivet av förslag till visa kommunala föreskrifter (Government Proposition 2012/13:157, Notification in accordance with the Services Directive regarding certain proposals regarding regulations by municipalities), p. 4.

  66. 66.

    Stelkens et al. 2012, Chap. 2, Comparison.

  67. 67.

    Stelkens et al. 2012, pp. 8–9.

  68. 68.

    Ibid, p. 10.

  69. 69.

    Ibid, p. 45.

  70. 70.

    See for example Commission Communication on the Single Market Act II together for new growth COM(2012) 573 final, p. 13; Commission Communication on the single market act, twelve levers to boost growth and strengthen confidence “Working together to create new growth” COM(2011) 206 final, p. 11.

  71. 71.

    Commission Communication on the implementation of the Services Directive, A partnership for new growth in services, COM(2012) 261 final, p. 5.

  72. 72.

    Commission Communication on the Single Market Act II together for new growth COM(2012) 573 final, p. 13.

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  1. Department for the EU Internal Market, Swedish Ministry of Foreign Affairs, Stockholm, Sweden

    Maria Wiberg

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Wiberg, M. (2014). Transposing the Services Directive. In: The EU Services Directive: Law or Simply Policy?. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-023-7_3

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