Legal provisions of COM(2016)824 - European services e-card and related administrative facilities

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dossier COM(2016)824 - European services e-card and related administrative facilities.
document COM(2016)824 EN
date January 10, 2017


CHAPTER I
GENERAL PROVISIONS

Contents

Article 1 - Subject matter

This Regulation introduces a European services e-card and related administrative facilities, which shall be made available throughout the European Union to providers of services willing to avail themselves of that e-card.

In order to make available such a European services e-card to take up and pursue activities as a service provider, the necessary coordination of provisions laid down by law, regulation or administrative action in a Member State is laid down in Directive …….[ESC Directive]....

Article 2 - Scope

1. This Regulation applies to the services listed in the Annex of Directive [ESC Directive].

2. This Regulation does not affect the matters mentioned in Article 1(2) to (7) of Directive 2006/123/EC.

It shall not apply to the activities and fields mentioned in Article 2(2) and (3) of Directive 2006/123/EC.

3. If the provisions of this Regulation conflict with the provision of another Union 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 Union act shall prevail and shall apply to those specific sectors or professions.

This Regulation, in particular its Chapter III, shall be without prejudice to the rights of workers, the obligations of service providers and related controls in Member States laid down in Directives 96/71/EC and 2014/67/EU.

Article 3 - Definitions

For the purposes of this Regulation the following definitions shall apply:

1. 'information on the good repute of a provider' means information as referred to in Article 33 (1) of Directive 2006/123/EC;


2. 'electronic document' means an electronic document as defined in Article 3(35) of Regulation (EU) 910/2014 of the European Parliament and of the Council 29 ;

3. 'IMI' means the Internal Market Information System established by Regulation (EC) 1024/2012;

4. 'public document' means any document issued by the authorities of a Member State in accordance with its national law relating to issues relevant for procedures governed by this Regulation as follows:

(a) documents emanating from an authority or an official connected with the courts or tribunals of a Member State, including those emanating from a public prosecutor, a clerk of a court or a judicial officer (‘huissier de justice’);

(b) administrative documents;

(c) notarial acts;

(d) official certificates which are placed on documents signed by persons in their private capacity, such as official certificates recording the registration of a document or the fact that it was in existence on a certain date and official and notarial authentications of signatures;

(e) documents drawn up by the diplomatic or consular agents of a Member State acting in the territory of any State in their official capacity, where such documents have to be presented in the territory of another Member State or to the diplomatic or consular agents of another Member State acting in the territory of a third State.

5. 'legalisation' means the formality for certifying the authenticity of a public office holder's signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears;

6. 'apostille formality' means the formality that may be required in order to certify the authenticity of the signature, the capacity in which the person signing the document has acted and, where appropriate, the identity of the seal or stamp which it bears issued by the competent authority of the State from which the document emanates provided for by the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (Apostille Convention);

7. 'certified copy' means a copy of an original document which is signed and attested to be an accurate and complete reproduction of that original document by an authority, empowered to do so under national law;

8. 'certified translation' means a translation carried out by a person qualified to do so under the law of a Member State;

9. 'professional liability insurance' means professional liability insurance as defined in the last indent of Article 23(5) of Directive 2006/123/EC.

10. 'service' shall mean a service as defined in Article 4(1) of Directive 2006/123/EC;

11. 'provider' shall mean a provider as defined in Article 4(2) of Directive 2006/123/EC;

12. 'Member State of establishment' means a Member State of establishment as defined in Article 4(4) of Directive 2006/123/EC;

13. 'establishment' means establishment as defined in Article 4(5) of Directive 2006/123/EC;

14. 'home Member State' means the Member State to which a provider addressed the application for a European services e-card;

15. 'host Member State' means the Member State in which a provider declared the intention to provide services making use of a European services e-card;

16. 'requirement' means a requirement as defined in Article 4(7) of Directive 2006/123/EC ;

17. 'coordinating authority' means an authority designated in accordance with Article 17;

18. 'competent authority' means any of the following:

(i) a competent authority as defined in Article 4 point 9 of Directive 2006/123/EC;

(ii) a competent authority as defined in Article 3(1)(d) of Directive 2005/36/EC;

(iii) any authority or body in charge of central, commercial or company register in a Member State;

(iv) any tax authority in a Member State;

19. 'insurance distributor' means insurance distributor as defined in point (8) of Article 2(1) of Directive (EU) 2016/97 of the European Parliament and of the Council 30 ,


CHAPTER II
PROCEDURE TO ISSUE A EUROPEAN SERVICES E-CARD

Article 4 - Application for a European services e-card

1. Providers may choose to apply for a European services e-card.

Any applications for a European services e-card shall be submitted in an electronic platform connected to IMI using a multilingual standard form.

The standard form shall consist of the following elements:

(a) identification of the provider, including, where applicable, registration numbers in central, commercial or company registers and for tax and social security purposes;

(b) identification of the service activity, the host Member State, the type of European services e-card envisaged;

(c) indication whether provision of information society services are envisaged;

(d) information pertaining to establishment of the provider in the home Member State in relation to the service activity identified in accordance with (b), including the date of initial establishment and identification of other Member States of establishment;

(e) requirements to which the applicant is subject for the provision of the service in its home Member State, such as qualifications or certifications;

(f) information on the good repute of the provider;

(g) information on any existing professional indemnity insurance of the provider in relation to professional liability in the territory of the home Member State, including information on the cover for activities carried out in the territory of other Member States, as appropriate;

(h) a reference to previously issued European services e-cards for the same provider and service activity as identified in accordance with (a) and (b).

2. The Commission shall specify how the information referred to in points (a) to (h) above is to be presented in the standard form and lay down the technical details of the standard form throughout the European Union, by way of implementing acts. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

The application shall include all the necessary supporting documents, uploaded by the applicant into the electronic platform where the standard form for application is made available.

3. The Commission is empowered to adopt delegated acts in accordance with Article 15 in order to further specify:

a) details of the information elements of the standard form listed to in letters paragraph 1, points (a) to (h), which shall be contained in the standard form;

b) further documents or categories of documents that are exceptionally required to be included as supporting evidence.;

4. Member States shall provide to the Commission with all information on the procedural steps related to requirements imposed on providers for the provision of services through a branch, agency or office and for temporary cross-border provision of service activities falling under Directive …[ESC Directive]……….., necessary for the development of the standard application forms, describing the information and documents the presentation of which is required under national law of the provider in relation to all applicable requirements, through IMI by [9 months after entry into force of this Regulation] to the extent that the information was not contained in the notification of the requirement itself already submitted under Articles 15(7) and 39(5) of Directive 2006/123/EC.

5. Member States shall communicate via IMI to the Commission changes to the information previously communicated to the Commission in accordance with paragraph 4 prior to entry into force of the legislation in question.

Article 5 - Insurance certificate

1. Where information on insurance cover is entered into the standard form, in accordance with point (g) of the third subparagraph of Article 4(1), a corresponding insurance certificate shall be attached to the application form.

The insurance distributor or the body appointed by a Member State to provide compulsory insurance shall provide the certificate to the applicant upon request.

The insurance certificate shall contain information about the existence of professional liability insurance for the services concerned, including the territorial scope of such cover in other Member States, the insured risks, the duration, the insured sums per claim and for all claims in a year, and possible exclusions.

2. The Commission may adopt a harmonised format for the insurance certificate as referred to in the second subparagraph of paragraph 1 by means of an implementing act.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

CHAPTER III
FORMALITIES FOR SECONDMENT OF STAFF
AND MOVEMENT OF SELF-EMPLOYED

Article 6 - Formalities for seconded staff

1. Providers who hold a European services e-card may submit a declaration in advance as referred to in Article 7 of Directive 2005/36/EC in relation to the professional qualifications of the staff they intend to second to the host Member State, in connection with the service activity for which the e-card applies, to the competent authority in the host Member State as defined in point (ii) of Article 3(18) of this Regulation, through an electronic platform connected to IMI.

The preceding subparagraph shall not apply to declarations in advance in relation to professional qualifications of regulated professions:

(i) with public health and safety implications which do not benefit from automatic recognition under Chapters II, III or IIIA of Title III of Directive 2005/36/EC;

(ii) for which a European Professional card has been introduced, in accordance with Directive 2005/36/EC.

The declaration in relation to the professional qualifications of seconded staff shall be submitted as a multilingual form and supporting documents as required by paragraphs (1) and (2) of Article 7 of Directive 2005/36/EC

A declaration communicated in accordance with this paragraph shall constitute a declaration as referred to in Article 7 of Directive 2005/36/EC.

2. Providers who hold a European services e-card and intend to post workers in connection with the service activity in question to a host Member State shall submit any declaration pursuant to Article 9 of Directive 2014/67/EU following the procedures established by Member States to that effect.

Where Member States have set up procedures that allow for the declaration relating to the posting of workers pursuant to Article 9 of Directive 2014/67/EU to be completed by electronic means, the electronic platform connected to IMI referred to in paragraph 1 shall direct the card holder to the relevant national procedures.

3. Providers who hold a European services e-card may also submit a declaration pursuant to Article 9 of Directive 2014/67/EU, relating to the workers that they intend to post to the host Member State in connection with the service activity for which the card applies, to the competent authority in the host Member State as defined in Article 2(a) of Directive 2014/67/EU through the electronic platform connected to IMI referred to in paragraph 1 where a host Member State has communicated to the Commission that this possibility should apply for the posting of workers in its territory.

To make use of the possibility provided for in the first subparagraph, a host Member State shall provide all the elements required in accordance with point a) of paragraph 1 and paragraph 2 of Article 9 of Directive 2014/67/EU as the basis for a multi-lingual form to be submitted for the declaration of posted workers on its territory. The Commission shall publish this form in the Official Journal and make it available in the electronic platform connected to the IMI. The relevant information with regard to the elements required shall be available for the host Member State concerned in full compliance with the language requirements set out in Article 9(1)(a) of Directive 2014/67/EU.

A declaration communicated in accordance with the first and second subparagraph shall constitute a valid declaration for the purpose of point a) of paragraph 1 and of paragraph 2 of Article 9 of Directive 2014/67/EU, without prejudice to other administrative requirements or control measures imposed by the host Member State in accordance with Article 9 of that Directive.

A host Member State may notify the Commission that it does no longer wish to apply the possibility provided for in the first subparagraph.

4. The Commission is empowered to adopt technical rules by means of implementing acts concerning the design of the multilingual form referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 16(2).

Article 7 - Formalities for movement of self-employed

1. Providers who are natural persons and apply for a European services e-card may submit a declaration in advance in relation to their own professional qualifications in an electronic platform connected to IMI under the same conditions as prescribed by paragraph 1 of Article 6 in relation to their workers.

Regarding declarations in advance in relation to the professional qualifications of the provider, the attestations referred to in points b) and d) of Article 7(2) of Directive 2005/36/EC shall be replaced by the completed application form for a European services e-card, communicated to the host Member State in accordance with Article 11 of Directive .[ESC Directive]…….., proving establishment of the provider.

2. A declaration communicated in accordance with paragraph 1 shall constitute the declaration in advance under Article 7 of Directive 2005/36/EC.

3. The Commission may adopt technical rules by means of implementing acts concerning the design of the multilingual form referred to in paragraph 1. Those implementing acts shall be adopted in accordance with the procedure referred to in Article 16(2).

CHAPTER IV
GENERAL PROVISIONS ON THE PROCEDURES
OF THE EUROPEAN SERVICES E-CARD

Article 8 - Electronic procedures

1. Providers shall have the right to fully electronic handling and processing of the procedures for the application, issue and update of a European services e-card as well as to fully electronic formalities in accordance with Articles 6(1), 6(3) and 7.

Those electronic procedures and formalities shall be made available by the Commission in an electronic platform connected to IMI.

Member States shall determine whether the procedural workflows between their coordinating authorities and their competent authorities involved in the European services e-card procedures and formalities for secondment of staff and movement of self-employed in accordance with Articles 6 and 7 shall be electronic or not.

2. The Commission shall adopt technical specifications for the electronic handling and processing of the procedures referred to in paragraph 1 by means of implementing acts, including measures to ensure the integrity, confidentiality and accuracy of the information, as well as the conditions and the procedures for the holder of a European services e-card to download such information, to allow third parties to access such information and for those third parties to verify that same information.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

3. The coordinating authorities of Member States shall inform the public about the functioning and the value added of the European services e-card and the formalities for secondment of staff and movement of self-employed in accordance with Articles 6(1) and 7.

Article 9 - Form of documents and translation

1. In the context of procedures to issue, update, suspend or revoke a European services e-card competent authorities of Member States shall accept documents in a simple copy form and shall not request that documents submitted to them are subject to legalisation, apostille formalities, certification or authentication.

2. In so far as a special form of documents used for the purposes of formalities for secondment of staff and movement of self-employed in accordance with Articles 6 (1) and 7, is required, in accordance with EU Law, competent authorities of Member States as defined in point (ii) of Article 3(19) shall accept:

(a) public documents, certified documents and their certified copies exempt from the apostille formality and from all forms of legalisation;

(b) documents certified or authenticated in the Member State of original issue, in accordance with its laws, regulations or administrative provisions or practice, as certified or authenticated;

(c) certified copies made in any Member State, in accordance with the laws of the Member State where certification was performed.

3. A certified translation shall not be requested for documents used in the context of procedures to issue, update, suspend or revoke a European services e-card or in the context of formalities for secondment of staff and movement of self-employed in accordance with Articles 6 (1) and 7. This shall not affect the right of Member States to require non-certified translations of documents in one of their official languages, in accordance with EU law.

4. The Commission shall adopt technical rules for automatic translation of information and documents in the context of procedures to issue, update, suspend or revoke a European services e-card or in the context of formalities for secondment of staff and movement of self-employed in accordance with Articles 6(1) and 7 by means of implementing acts. Those implementing acts shall be adopted in accordance with the examination referred to in Article 16(2).

Article 10 - Fees for issuing a European services e-card and regarding formalities for secondment of staff and movement of self-employed

1. Any fees charged in the context of a procedure to issue a European services e-card shall be reasonable and proportionate and shall not exceed the cost directly ensuing from the specific work related to the procedure.

Providers shall have the right to be reimbursed of fees paid in advance to either home or host Member State in relation to applications that have not been examined, verified and completed by Member States in accordance with Article 11(1) of Directive ………[ESC Directive]……….

No fees shall be charged regarding:

(a) the procedures to update, suspend, revoke or cancel a European services e-card;

(b) the provision of additional information by the e-card holder in accordance with Article 17(4) of…[Directive];

(c) formalities introduced in accordance with Articles 6 (1) and 7 for secondment of staff and movement of self-employed.

2. Member States shall communicate the fees and payment modalities introduced under this Article to the Commission through IMI by [2 years after entry into force of this Regulation] at the latest and shall publish this information appropriately.

3. The Commission shall adopt technical rules regarding payment modalities and processing by means of implementing acts.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

CHAPTER V
PROFESSIONAL LIABILITY INSURANCE

Article 11 - Statement relating to third party liability claims

1. An insurance distributor shall issue, within 15 days of receiving a request to this effect from the policyholder, a statement concerning the third party liability claims related to his activities covered by the contract of professional liability insurance, during the preceding years of the contractual relationship up to a maximum of 5 years, or to the absence of such claims, describing the liabilities arising from provision of the services in question which were the object of a claim.

2. The Commission may adopt rules on the standardised presentation format of the statement referred to in paragraph 1 by means of implementing acts.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

Article 12 - Obligations for insurance distributors

Insurance distributors and bodies appointed by a Member State to provide compulsory insurance shall duly take into account in the acceptance policy and in the calculation of premiums, in a non-discriminatory manner, the experience of the provider as reflected in the claims statement issued in accordance with Article 11, as presented by the provider.

Article 13 - Obligations for professional organisations

Professional organisations, including competent authorities as defined in points (i) and (ii) of Article 3(18), which offer group cover related to professional liability insurance to their members or to providers of services under specific conditions, shall ensure access to such cover, under the same conditions in a non-discriminatory manner, to providers of services from other Member States which express an interest in benefiting from such group cover.

CHAPTER VI
FINAL PROVISIONS

Article 14 - Exchange of information and mutual assistance

1. Coordinating authorities and competent authorities in different Member States shall exchange information and give each other mutual assistance in the context of a procedure to issue suspend, revoke or cancel a European services e-card as well as in the update of the information contained therein. This obligation shall also apply in the context of formalities in accordance with Articles 6 (1) and 7 for secondment of staff and movement of self-employed, in relation to competent authorities as defined in point (ii) of Article 3(19).

2. Coordinating authorities and competent authorities shall make use of all available interconnections of national registers with a view to obtaining or verifying previously obtained information in the context of the procedures referred to in the preceding paragraph 1, including the interconnection of central, commercial and company registers under Directive 2009/101/EC and of insolvency registers under Regulation (EU) 2015/848.

3. The Commission shall adopt technical rules for the handling and processing of exchanges of information and mutual assistance referred to in paragraphs 1 and 3 by means of implementing acts. This shall be without prejudice to the functioning of the interconnection systems referred to in paragraph 2 of this Article and their respective technical specifications.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).

Article 15 - Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 4(3), shall be conferred on the Commission for a period of five years from […]. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3. The delegation of power referred to in Article 4(3) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5. A delegated act adopted pursuant to Article 4(3) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 16 - Committee procedure

1. The Commission shall be assisted by the Committee referred to in Article 40(1) of Directive 2006/123/EC. That Committee shall be a committee within the meaning of Regulation (EU) 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) 182/2011 shall apply.

Article 17 - Designation and role of coordinating authorities

1. For the purposes of this Regulation, each Member State shall designate one coordinating authority, empowered to perform the tasks assigned to them in accordance with this Regulation.

2. Member States shall communicate the identity of the coordinating authorities designated in accordance with paragraph 1 to the Commission by [9 months after entry into force of this Regulation] at the latest and register it in IMI in accordance with Article 5(f) of Regulation (EU) 1024/2012.

3. This Article shall not call into question the allocation of the competences, at local or regional level, of the Member States.

Article 18 - Monitoring of implementation

The Commission, with Member States, social partners and other relevant stakeholders, will establish monitoring arrangements to monitor the implementation and the impacts of this Regulation, in particular its impacts on the freedom of establishment and freedom to provide services across Member States for the services covered, with regard to costs for providers of expanding operations cross-border, enhancing transparency about cross-border providers, increasing competition and how it impacts prices and quality of those services concerned, considering relevant indicators.

Article 19 - Review clause

By 60 months after entry into force of this Regulation and at the latest every five years thereafter, the Commission shall carry out an evaluation of this Regulation and submit to the European Parliament and the Council a report on its performance, including an analysis of the impact on administrative burden incurred upon by service providers active across borders. This report shall also include an assessment of any practical experience relevant to cooperation between coordinating authorities. This report shall contain an assessment of the appropriateness of introducing a European services e-card for other service activities. It shall contain an evaluation of Directive …….[ESC Directive]…in line with its Article 21.

The Commission shall, as part of the report provided for in paragraph 1 of Article 24 of Directive 2014/67/EU, assess whether and to what extent the electronic platform connected to IMI referred to in Article 6 of this Regulation could facilitate compliance with formalities necessary for the posting of workers pursuant to Article 9 of Directive 2014/67/EU. That assessment shall take account of the experience of Member States that may have opted for making use of the electronic platform connected to IMI pursuant to paragraph 3 of Article 6 of this Regulation.

Article 20 - Amendment to Regulation (EU) No 1024/2012

In the Annex to Regulation (EU) No 1024/2012 the following point is added:

"9. Regulation (EU) ……. of the European Parliament and of the Council of …………. introducing a European services e-card and related administrative facilities.'

Article 21 - Entry into force

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

Article 4(1) to (3), Article 5(1), Article 6(1), (2), (3) and (4) , Article 7(1) and (2), Article 8(1), Article 9(1), (2) and (3), Article 10(1) and Article 14(1), (2) and (3) shall apply from [two years after entry into force] of this Regulation.

This Regulation shall be binding in its entirety and directly applicable in all Member States.