Providers and insurance companies should maintain the necessary flexibility to negotiate insurance policies precisely targeted to the nature and extent of the risk. Furthermore, it is not necessary for an obligation of appropriate insurance to be laid down by law. It should be sufficient if an insurance obligation is part of the ethical rules laid down by professional bodies. Finally, there should be no obligation for insurance companies to provide insurance cover.
It is necessary to put an end to total prohibitions on commercial communications by the regulated professions, not by removing bans on the content of a commercial communication but rather by removing those bans which, in a general way and for a given profession, forbid one or more forms of commercial communication, such as a ban on all advertising in one or more given media.
As regards the content and methods of commercial communication, it is necessary to encourage professionals to draw up, in accordance with Community law, codes of conduct at Community level. It is necessary and in the interest of recipients, in particular consumers, to ensure that it is possible for providers to offer multidisciplinary services and that restrictions in this regard be limited to what is necessary to ensure the impartiality, independence and integrity of the regulated professions.
This does not affect restrictions or prohibitions on carrying out particular activities which aim at ensuring independence in cases in which a Member State entrusts a provider with a particular task, notably in the area of urban development, nor should it affect the application of competition rules.
In order to increase transparency and promote assessments based on comparable criteria with regard to the quality of the services offered and supplied to recipients, it is important that information on the meaning of quality labels and other distinctive marks relating to these services be easily accessible. That obligation of transparency is particularly important in areas such as tourism, especially the hotel business, in which the use of a system of classification is widespread.
Moreover, it is appropriate to examine the extent to which European standardisation could facilitate compatibility and quality of services. In order to solve potential problems with compliance with judicial decisions, it is appropriate to provide that Member States recognise equivalent guarantees lodged with institutions or bodies such as banks, insurance providers or other financial services providers established in another Member State. The application of consumer protection legislation in cross-border cases, in particular with regard to new marketing and selling practices, as well as the need to remove certain specific obstacles to cooperation in this field, necessitates a greater degree of cooperation between Member States.
In particular, it is necessary in this area to ensure that Member States require the cessation of illegal practices by operators in their territory who target consumers in another Member State. Administrative cooperation is essential to make the internal market in services function properly. Lack of cooperation between Member States results in proliferation of rules applicable to providers or duplication of controls for cross-border activities, and can also be used by rogue traders to avoid supervision or to circumvent applicable national rules on services.
It is, therefore, essential to provide for clear, legally binding obligations for Member States to cooperate effectively. In normal circumstances mutual assistance should take place directly between competent authorities. The liaison points designated by Member States should be required to facilitate this process only in the event of difficulties being encountered, for instance if assistance is required to identify the relevant competent authority. Certain obligations of mutual assistance should apply to all matters covered by this Directive, including those relating to cases where a provider establishes in another Member State.
Other obligations of mutual assistance should apply only in cases of cross-border provision of services, where the provision on the freedom to provide services applies.
A further set of obligations should apply in all cases of cross-border provision of services, including areas not covered by the provision on the freedom to provide services.
Cross-border provision of services should include cases where services are provided at a distance and where the recipient travels to the Member State of establishment of the provider in order to receive services. In cases where a provider moves temporarily to a Member State other than the Member State of establishment, it is necessary to provide for mutual assistance between those two Member States so that the former can carry out checks, inspections and enquiries at the request of the Member State of establishment or carry out such checks on its own initiative if these are merely factual checks.
It should not be possible for Member States to circumvent the rules laid down in this Directive, including the provision on the freedom to provide services, by conducting checks, inspections or investigations which are discriminatory or disproportionate.
The provisions of this Directive concerning exchange of information regarding the good repute of providers should not pre-empt initiatives in the area of police and judicial cooperation in criminal matters, in particular on the exchange of information between law enforcement authorities of the Member States and on criminal records. Cooperation between Member States requires a well-functioning electronic information system in order to allow competent authorities easily to identify their relevant interlocutors in other Member States and to communicate in an efficient way.
It is necessary to provide that the Member States, in cooperation with the Commission, are to encourage interested parties to draw up codes of conduct at Community level, aimed, in particular, at promoting the quality of services and taking into account the specific nature of each profession.
Those codes of conduct should comply with Community law, especially competition law. They should be compatible with legally binding rules governing professional ethics and conduct in the Member States. Member States should encourage the setting up of codes of conduct, in particular, by professional bodies, organisations and associations at Community level. These codes of conduct should include, as appropriate to the specific nature of each profession, rules for commercial communications relating to the regulated professions and rules of professional ethics and conduct of the regulated professions which aim, in particular, at ensuring independence, impartiality and professional secrecy.
In addition, the conditions to which the activities of estate agents are subject should be included in such codes of conduct. Member States should take accompanying measures to encourage professional bodies, organisations and associations to implement at national level the codes of conduct adopted at Community level.
Codes of conduct at Community level are intended to set minimum standards of conduct and are complementary to Member States' legal requirements.
They do not preclude Member States, in accordance with Community law, from taking more stringent measures in law or national professional bodies from providing for greater protection in their national codes of conduct. Since the objectives of this Directive, namely the elimination of barriers to the freedom of establishment for providers in the Member States and to the free provision of services between Member States, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale of the action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty.
In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives. In accordance with paragraph 34 of the Interinstitutional Agreement on better law-making 22 , Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables, which will, as far as possible, illustrate the correlation between the Directive and the transposition measures, and to make them public,.
This Directive establishes general provisions facilitating the exercise of the freedom of establishment for service providers and the free movement of services, while maintaining a high quality of services.
This Directive does not deal with the liberalisation of services of general economic interest, reserved to public or private entities, nor with the privatisation of public entities providing services.
This Directive does not deal with the abolition of monopolies providing services nor with aids granted by Member States which are covered by Community rules on competition. This Directive does not affect the freedom of Member States to define, in conformity with Community law, what they consider to be services of general economic interest, how those services should be organised and financed, in compliance with the State aid rules, and what specific obligations they should be subject to.
This Directive does not affect measures taken at Community level or at national level, in conformity with Community law, to protect or promote cultural or linguistic diversity or media pluralism. This Directive does not affect Member States' rules of criminal law.
However, Member States may not restrict the freedom to provide services by applying criminal law provisions which specifically regulate or affect access to or exercise of a service activity in circumvention of the rules laid down in this Directive. This Directive does not affect labour law, that is any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers, which Member States apply in accordance with national law which respects Community law.
Equally, this Directive does not affect the social security legislation of the Member States. This Directive does not affect the exercise of fundamental rights as recognised in the Member States and by Community law.
Nor does it affect the right to negotiate, conclude and enforce collective agreements and to take industrial action in accordance with national law and practices which respect Community law. This Directive shall apply to services supplied by providers established in a Member State. If the provisions of this Directive conflict with a provision of another Community act governing specific aspects of access to or exercise of a service activity in specific sectors or for specific professions, the provision of the other Community act shall prevail and shall apply to those specific sectors or professions.
These include:. This Directive does not concern rules of private international law, in particular rules governing the law applicable to contractual and non contractual obligations, including those which guarantee that consumers benefit from the protection granted to them by the consumer protection rules laid down in the consumer legislation in force in their Member State.
Member States shall apply the provisions of this Directive in compliance with the rules of the Treaty on the right of establishment and the free movement of services. The following do not in themselves constitute commercial communications:.
Member States shall examine the procedures and formalities applicable to access to a service activity and to the exercise thereof. Where procedures and formalities examined under this paragraph are not sufficiently simple, Member States shall simplify them. The Commission may introduce harmonised forms at Community level, in accordance with the procedure referred to in Article 40 2. These forms shall be equivalent to certificates, attestations and any other documents required of a provider.
Where Member States require a provider or recipient to supply a certificate, attestation or any other document proving that a requirement has been satisfied, they shall accept any document from another Member State which serves an equivalent purpose or from which it is clear that the requirement in question has been satisfied. They may not require a document from another Member State to be produced in its original form, or as a certified copy or as a certified translation, save in the cases provided for in other Community instruments or where such a requirement is justified by an overriding reason relating to the public interest, including public order and security.
The first subparagraph shall not affect the right of Member States to require non-certified translations of documents in one of their official languages. Member States shall ensure that it is possible for providers to complete the following procedures and formalities through points of single contact:. The establishment of points of single contact shall be without prejudice to the allocation of functions and powers among the authorities within national systems.
Member States shall ensure that the following information is easily accessible to providers and recipients through the points of single contact:. Member States shall ensure that it is possible for providers and recipients to receive, at their request, assistance from the competent authorities, consisting in information on the way in which the requirements referred to in point a of paragraph 1 are generally interpreted and applied.
Where appropriate, such advice shall include a simple step-by-step guide. The information shall be provided in plain and intelligible language. Member States shall ensure that the information and assistance referred to in paragraphs 1 and 2 are provided in a clear and unambiguous manner, that they are easily accessible at a distance and by electronic means and that they are kept up to date.
Member States shall ensure that the points of single contact and the competent authorities respond as quickly as possible to any request for information or assistance as referred to in paragraphs 1 and 2 and, in cases where the request is faulty or unfounded, inform the applicant accordingly without delay.
Member States and the Commission shall take accompanying measures in order to encourage points of single contact to make the information provided for in this Article available in other Community languages. This does not interfere with Member States' legislation on the use of languages. The obligation for competent authorities to assist providers and recipients does not require those authorities to provide legal advice in individual cases but concerns only general information on the way in which requirements are usually interpreted or applied.
Member States shall ensure that all procedures and formalities relating to access to a service activity and to the exercise thereof may be easily completed, at a distance and by electronic means, through the relevant point of single contact and with the relevant competent authorities. Paragraph 1 shall not apply to the inspection of premises on which the service is provided or of equipment used by the provider or to physical examination of the capability or of the personal integrity of the provider or of his responsible staff.
The Commission shall, in accordance with the procedure referred to in Article 40 2 , adopt detailed rules for the implementation of paragraph 1 of this Article with a view to facilitating the interoperability of information systems and use of procedures by electronic means between Member States, taking into account common standards developed at Community level.
Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied:. In the report referred to in Article 39 1 , Member States shall identify their authorisation schemes and give reasons showing their compatibility with paragraph 1 of this Article. This section shall not apply to those aspects of authorisation schemes which are governed directly or indirectly by other Community instruments.
Authorisation schemes shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner. The conditions for granting authorisation for a new establishment shall not duplicate requirements and controls which are equivalent or essentially comparable as regards their purpose to which the provider is already subject in another Member State or in the same Member State.
The liaison points referred to in Article 28 2 and the provider shall assist the competent authority by providing any necessary information regarding those requirements.
The authorisation shall enable the provider to have access to the service activity, or to exercise that activity, throughout the national territory, including by means of setting up agencies, subsidiaries, branches or offices, except where an authorisation for each individual establishment or a limitation of the authorisation to a certain part of the territory is justified by an overriding reason relating to the public interest.
The authorisation shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for authorisation have been met. Except in the case of the granting of an authorisation, any decision from the competent authorities, including refusal or withdrawal of an authorisation, shall be fully reasoned and shall be open to challenge before the courts or other instances of appeal.
This Article shall not call into question the allocation of the competences, at local or regional level, of the Member States' authorities granting authorisations.
An authorisation granted to a provider shall not be for a limited period, except where:. Paragraph 1 shall not concern the maximum period before the end of which the provider must actually commence his activity after receiving authorisation. Member States shall require a provider to inform the relevant point of single contact provided for in Article 6 of the following changes:.
This Article shall be without prejudice to the Member States' ability to revoke authorisations, when the conditions for authorisation are no longer met. Where the number of authorisations available for a given activity is limited because of the scarcity of available natural resources or technical capacity, Member States shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.
In the cases referred to in paragraph 1, authorisation shall be granted for an appropriate limited period and may not be open to automatic renewal nor confer any other advantage on the provider whose authorisation has just expired or on any person having any particular links with that provider. Subject to paragraph 1 and to Articles 9 and 10, Member States may take into account, in establishing the rules for the selection procedure, considerations of public health, social policy objectives, the health and safety of employees or self-employed persons, the protection of the environment, the preservation of cultural heritage and other overriding reasons relating to the public interest, in conformity with Community law.
Authorisation procedures and formalities shall be clear, made public in advance and be such as to provide the applicants with a guarantee that their application will be dealt with objectively and impartially.
Authorisation procedures and formalities shall not be dissuasive and shall not unduly complicate or delay the provision of the service. They shall be easily accessible and any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures.
Authorisation procedures and formalities shall provide applicants with a guarantee that their application will be processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance.
The period shall run only from the time when all documentation has been submitted. When justified by the complexity of the issue, the time period may be extended once, by the competent authority, for a limited time. The extension and its duration shall be duly motivated and shall be notified to the applicant before the original period has expired. Failing a response within the time period set or extended in accordance with paragraph 3, authorisation shall be deemed to have been granted.
Different arrangements may nevertheless be put in place, where justified by overriding reasons relating to the public interest, including a legitimate interest of third parties.
All applications for authorisation shall be acknowledged as quickly as possible. The acknowledgement must specify the following:. In the case of an incomplete application, the applicant shall be informed as quickly as possible of the need to supply any additional documentation, as well as of any possible effects on the period referred to in paragraph 3.
When a request is rejected because it fails to comply with the required procedures or formalities, the applicant shall be informed of the rejection as quickly as possible. Requirements prohibited or subject to evaluation. Member States shall not make access to, or the exercise of, a service activity in their territory subject to compliance with any of the following:.
This shall not affect the possibility for Member States to require insurance or financial guarantees as such, nor shall it affect requirements relating to the participation in a collective compensation fund, for instance for members of professional bodies or organisations;. Member States shall examine whether, under their legal system, any of the requirements listed in paragraph 2 are imposed and shall ensure that any such requirements are compatible with the conditions laid down in paragraph 3.
Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with those conditions. Member States shall examine whether their legal system makes access to a service activity or the exercise of it subject to compliance with any of the following non-discriminatory requirements:. Member States shall verify that the requirements referred to in paragraph 2 satisfy the following conditions:. The regulatory measures imposed on PostNL served to promote and safeguard competition on the postal market.
If the Services Directive put a check on such measures, the question would be whether that is desirable, since such regulatory measures in fact give service providers access to the market.
An important question that the CBb should have raised in that case is whether the regulatory measures assuming that they constitute a requirement relate to the access to or the exercise of a service activity. Postal carriers may freely access the market and provide services without having to obtain a permit or satisfy any other requirement. Only if a postal carrier at some point in time has significant market power could the company in question be confronted with regulatory measures.
In light of the above, there is good reason to wonder why the Services Directive is not relied on more often. We believe the answer to that question is twofold: on the one hand many people are unaware of the possibilities that the Services Directive offers in specific cases, while on the other hand it should be noted that the Services Directive provides for many exceptions.
It applies only to requirements regarding the access to or the exercise of a service activity, for instance, and several sectors are exempted from the scope of the Services Directive.
In other words, the applicability of the Services Directive requires a case-by-case analysis. More information about this subject?
Don't hesitate to contact one of us:. Competition Regulation Litigation. This means UK issuers are not required to decline non-compliant transactions before this date. The PSD 2. The revised Payment Services Directive 2 PSD2 aims to better align payment regulation with the market and technology's current state. It introduces security requirements for the initiation and processing of electronic payments and the protection of consumers' financial data.
It also recognizes and regulates Third-Party Providers TPPs to access or aggregate accounts and initiate payment services. This move will shake up the payments market, particularly in the eCommerce space, by encouraging greater competition, transparency, and innovation in payment services.
In short, PSD2 aims at facilitating consumer access to their banking data and driving innovation by encouraging banks to exchange customer data securely with third parties.
On 13 March , the European Parliament and the European Council approved them, opening an month delay for their actual implementation that should have happened before 14 September European regulators have completed new technical standards and defined precisely how banks must link their technology platforms to outsiders.
Many banks and merchants were not ready for the March nor the September deadline. The EBA had to reset a deadline for the end of This move will genuinely cement open banking into place, according to Bloomberg. They could not provide a testing environment to third-party service providers. Before the September deadline, this six-month testing period was seen as critical for them to test the APIs that will connect them to banks and key to pilot new services.
At MONEY in June , several speakers pointed out that some banks and financial providers were clearly dragging their feet in handing over data to customers, arguing about their compliance and risk scenarios. Reuse this content opens in new window Comments Jump to comments section. Promoted Content. Comments have not been enabled for this article.
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