Legal provisions of COM(2016)821 - Enforcement of the Services Directive and laying down of a notification procedure for authorisation schemes and requirements related to services

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dossier COM(2016)821 - Enforcement of the Services Directive and laying down of a notification procedure for authorisation schemes and requirements ...
document COM(2016)821 EN
date January 10, 2017

Contents

Article 1 - Subject matter and scope

This Directive lays down rules on the notification by Member States of draft laws, regulations or administrative provisions introducing new, or amending existing authorisation schemes and certain requirements falling under the scope of Directive 2006/123/EC.

Article 2 - Definitions

For the purpose of this Directive, the definitions set out in Article 4(1), (2), (3) and (5) to (9) of Directive 2006/123/EC and in Article 5 second paragraph of Regulation (EU) No 1024/2012 shall apply.

In addition, the following definitions shall apply:

(a)'draft measure' means a text laying down an authorisation scheme or a requirement, within the meaning of Article 4(6) and (7) of Directive 2006/123/EC, respectively, formulated with the view of having it enacted as a law, regulation or administrative provision of a general nature, the text being at the stage of preparation at which substantive amendments can still be made by the notifying Member State;

(b)'adoption' means the decision in a Member State making the law, regulation or administrative provision of a general nature final according to the applicable procedure.

Article 3 - Notification obligation

1. Member States shall notify to the Commission any draft measure that introduces new requirements or authorisation schemes referred to in Article 4, or modifies such existing requirements or authorisation schemes.

2. Where a Member State modifies a notified draft measure with the effect of significantly extending its scope or content, or shortening the timetable originally envisaged for implementation, or adding requirements or authorisation schemes, or making those requirements or authorisation schemes more restrictive for the establishment, or the cross-border provision of services, it shall notify the modified draft measure previously notified under paragraph 1 again, including an explanation of the objective and content of the modifications. In such a case, the previous notification shall be deemed to be withdrawn.

3. Draft measures referred to in paragraphs 1 and 2 shall be notified to the Commission at least three months prior to their adoption.

4. The breach of one of the obligations set out in Article 3(1), (2) and (3) or in Article 6(2) shall constitute a substantial procedural defect of a serious nature as regards its effects vis-à-vis individuals.

5. Member States shall, as part of any notification, provide information demonstrating the compliance of the notified authorisation scheme or requirement with Directive 2006/123/EC.

That information shall identify the overriding reason relating to the public interest pursued and give the reasons why the notified authorisation scheme or requirement is non-discriminatory on grounds of nationality or residence and why it is proportionate.

That information shall include an assessment demonstrating that less restrictive means are not available as well as specific evidence substantiating the arguments put forward by the notifying Member State.

6. In the notification, the Member State concerned shall also communicate the text of the legislative or regulatory provision that underlies the notified draft measure.

7. Member States concerned shall communicate the adopted measure within two weeks following its adoption.

8. For the purpose of the notification procedure established by this Directive and to ensure the exchange of information between the notifying Member State, other Member States and the Commission, the Internal Market Information System set out in Regulation (EU) No 1024/2012 shall be used.

Article 4 - Authorisation schemes and requirements subject to the notification obligation

Member States shall notify the following authorisation schemes and requirements:

(a)authorisation schemes within the meaning of Article 9(1) of Directive 2006/123/EC;

(b)requirements referred to in Article 15(2) of Directive 2006/123/EC;

(c)requirements affecting the freedom to provide services referred to in the third subparagraph of Article 16(1) and in the first sentence of Article 16(3) of Directive 2006/123/EC;

(d)requirement to subscribe to a professional liability insurance, guarantee or similar arrangement as referred to in Article 23 of Directive 2006/123/EC;

(e)requirement to exercise a given specific activity exclusively or which restricts the exercise jointly or in partnership of different activities as referred to in Article 25 of Directive 2006/123/EC.

Article 5 - Consultation

1. Upon receipt of a notification from a Member State referred to in Article 3(1) and (2), the Commission informs the notifying Member State of the completeness of the notification received.

2. As from the date of the Commission informing the notifying Member State of the completeness of a notification received, a consultation of maximum three months shall take place among the notifying Member State, other Member States and the Commission.

3. The Commission and Member States may, within a period of two months as of the beginning of the consultation period referred to in paragraph 2, submit comments to the notifying Member State.

4. The notifying Member State shall respond to comments submitted by the Commission or other Member States within one month after their reception and prior to the adoption of the notified measure, either explaining how those comments will be taken into account in the notified measure or indicating the reasons why those comments cannot be taken into account.

5. Where neither the Commission nor other Member States have submitted comments to a notified draft measure within the two months referred to in paragraph 3, the consultation period shall end immediately.

Article 6 - Alert

1. Before the closure of the consultation period referred to in Article 5(2), the Commission may alert the notifying Member State of its concerns about the compatibility with Directive 2006/123/EC of the draft measure notified and of its intention to adopt a Decision referred to in Article 7. 

2. Upon receipt of such an alert, the notifying Member State shall not adopt the draft measure for a period of three months after the closure of the consultation period.

Article 7 - Decision

Where the Commission has issued an alert in accordance with Article 6(1), it may, within a period of three months after the date of the closure of the consultation period referred to in Article 5(2), adopt a Decision finding the draft measure to be incompatible with Directive 2006/123/EC and requiring the Member State concerned to refrain from adopting the draft measure or, if such measure has been adopted in breach of Article 3(3) or Article 6(2), to repeal it.

Article 8 - Information to the public

The Commission shall publish on a dedicated public website the notifications made by Member States under Articles 3(1) and (2) and the related adopted measures.

Article 9 - Designation of competent authority

Member States shall designate a competent authority responsible at national level for the operation of the notification procedure established by this Directive.

Article 10 - Link to other notification or reporting mechanisms

1. Where a Member State is required to notify a measure under Article 3 of this Directive and under Article 5(1) of Directive (EU) 2015/1535, a notification carried out under that Directive and which complies with the obligations laid down in paragraphs 3, 5, 6 and 7 of Article 3 of this Directive shall be deemed to have satisfied also the notification obligation established under Article 3(1) and (2) of this Directive.

2. Where a Member State is required to notify a measure under Article 3 of this Directive and to inform the Commission in accordance with Article 59(5) of Directive 2005/36/EC, that notification shall be deemed to have satisfied also the information obligation set out in Article 59(5) of Directive 2005/36/EC.

Article 11 - Report and review

1. By [36 months after the date for transposition of this Directive] and at the latest every five years thereafter, the Commission shall present a report to the European Parliament, the Council and the European Economic and Social Committee on the application of this Directive.

2. Following the report referred to in paragraph 1, the Commission shall regularly evaluate this Directive and submit the evaluation results to the European Parliament, the Council and the European Economic and Social Committee.

3. Where appropriate, the reports referred to in paragraphs 1 and 2 shall be accompanied by relevant proposals.

Article 12 - Amendments to Directive 2006/123/EC

Directive 2006/123/EC is amended as follows:

1. Article 15(7) is deleted with effect from [one day after the deadline for the transposition].

2. In Article 39(5), the second and third subparagraphs are deleted with effect from [one day after the deadline for the transposition].

Article 13 - Amendments to Regulation (EU) No 1024/2012

The Annex to Regulation (EU) No 1024/2012 is amended as follows:

1. point 1 is replaced by the following:

"1. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market: Chapter VI.";

2. the following point 11 is added:

"11. Directive (EU) XXXX/XXXX of the European Parliament and of the Council of XX on the enforcement of the Directive 2006/123/EC on services in the internal market, laying down a notification procedure for authorisations schemes and requirements related to services, and amending Directive 2006/123/EC and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System, unless a notification, as provided for in that Directive, is made in accordance with Directive (EU) 2015/1535.".

Article 14 - Transposition

1. Member States shall adopt and publish, by [calendar date one year as from the date of the entry into force of that Directive] at the latest, the laws, regulations and administrative provisions necessary to comply with this Directive.

The provisions adopted to transpose this Directive shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made.

2. Member States shall communicate to the Commission the text of those provisions.

3. Member States shall apply those provisions from [calendar date one year as from the date of the entry into force of that Directive + one day].

Article 15 - Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 16 - Addressees

This Directive is addressed to the Member States.