EPSU ‘Ad hoc’ Working Group on Services of General Interest 9 December 2004

POSITIONS ON DRAFT SERVICES DIRECTIVE

Whatever the possibilities that might be open at a later date, it is useful to know the different proposals for changes and amendments that are being made to the different parts of the Directive. EPSU will begin to collect these different proposals, group them as far as possible under the different Articles of the Directive (not the recitals). This note is a first start.

LEGAL BASIS

On the issue of legal base, the report prepared for Ann Van Lancker questions the legal base A.47 (2) and A. 55 as being too narrow for a Directive that takes such a broad notion of services and obstacles. Also says wrong that the ECJ’s “case by case” approach to services is used as main justification for a regulatory instrument. On definition of services, the report says the Directive has gone beyond ECJ rulings to include activities concerning goods and the distribution of goods; and on obstacles, that it has gone beyond ECJ in that text includes in its definition of an obstacle any measure that has an indirect effect on other market participants (economic-chain argument).

The Directive will mean that Member States will not be allowed to introduce new requirements unless pass non-discrimination, proportionality and necessity test and will have to notify Commission. Commission will be able to request removal. This is a departure from the normal role of the Commission, which is to intervene when there has been an infringement of Community law. There are questions as to whether this is compatible with ECJ rulings that state that MS have power to manage their social security system (and not the Commission).

The ETUC has argued that the legal basis is not appropriate for making choices over public law.

Niklas Bruun argues that while EU law on free movement of services is completely separate from EU law on free movement of workers, the provision of services normal involves employees. This means that in practice the free movement of services shares many characteristics of the free movement of workers. “ A primary principle of the free movement of workers is equal treatment and non-discrimination on the ground of nationality....” The Directive (through the country of origin principle being applied to employment and social sphere) undermines this principle.

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