Considerations on COM(2016)824 - European services e-card and related administrative facilities - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2016)824 - European services e-card and related administrative facilities. |
|---|---|
| document | COM(2016)824  |
| date | January 10, 2017 |
(2) Directive 2006/123/EC of the European Parliament and of the Council 18 establishes general provisions facilitating the exercise of the freedom of establishment of service providers and the free movement of services. It provides inter alia that Member States should provide for administrative simplification, such as making use of Points of Single Contact, as well as accepting equivalent professional indemnity insurance that service providers already hold in their home Member State.
(3) Directive 2006/123/EC requires Member States to put in place and keep constantly updated Points of Single Contacts where a service provider wishing to establish or to provide services can find all relevant information about requirements to be complied with and e-procedures in respect of all formalities, authorisations and notifications to go through. However, costly information challenges and difficulties complying with national procedures at a distance remain to date for service providers, namely for sector-related requirements. Cooperation between the administrations of different Member States should in principle take place via the Internal Market Information System (IMI), an IT-platform offered for cross-border exchange of information and mutual assistance between authorities in different Member States under that Directive. Despite the fact that authorities sometimes have doubts with regard to the legal establishment of a provider in another Member State, the possibilities for cooperation currently provided in IMI are not exploited to their full potential.
(4) Requirements remain in place which make expansion of service providers' operations across the internal market burdensome and unappealing, such as multiple and disparate authorisation schemes before different authorities and, which, regarding establishment, fail to achieve mutual recognition of conditions previously complied with in other Member States or, regarding temporary cross-border provision of services apply disproportionate or unjustified restrictions. As a consequence, service providers face multiple and disproportionate compliance costs when going cross-border.
(5) Formalities associated with authorisations and notifications often require paper forms to be filled in and paper documents to be submitted, to be translated at significant cost, which must even comply with particular form requirements such as certification or authentication. Information regarding these obstacles is either not available online or is scarce, incomplete, dispersed and difficult to interpret in relation to the particular circumstances of a provider expanding across borders, as they often target purely domestic situations. Service providers often risk resubmitting information and documents and undergoing duplication of controls with different authorities in the same Member State. Significant translation costs work also as an important disincentive for companies to take the first steps when going cross-border.
(6) Cross-border trade and cross-border investment in certain business and construction services are particularly low showing a potential for better integration of services markets with significant negative repercussions for the remaining part of the economy. This underperformance leads to situations where the potential for more growth and jobs in the Single Market has not been fully exploited.
(7) Addressing remaining obstacles to more cross-border activities in services will help to strengthen competition, resulting in more choice and better prices for consumers as well as more competitive services sectors creating new jobs, promoting productivity and ensuring a more attractive climate for investment and innovation.
(8) This Regulation aims to facilitate the freedom of establishment and the free movement of services within the single market in areas already covered by Directive 2006/123/EC through the adoption of further measures on approximation of provisions which have as their object the establishment and functioning of the internal market. It should be based on Article 114 of the TFUE.
(9) In view of this, the present Regulation introduces a European services e-card which should facilitate certain service providers to expand service provision across internal market borders, either in the form of temporary provision of services or via secondary establishment through branches, agencies or offices.
(10) In so doing, this Regulation specifically targets business and construction service sectors included in scope of Directive …[ESC Directive]… which face some of the most stringent regulatory and administrative barriers to cross-border expansion and consequently have an unexploited potential for internal market integration.
(11) All matters, activities and fields excluded from the scope of Directive 2006/123/EC should remain excluded from the scope of this Regulation. In particular, this Regulation does not affect matters, activities and fields such as those deriving from taxation, social security and labour law, including any legal or contractual provision concerning employment conditions, working conditions, including health and safety at work and the relationship between employers and workers. Equally this Regulation does not affect the social security legislation of the Member States. This Regulation is also without prejudice to any provision stemming from competition law as well as any rule on the applicable law or jurisdiction pursuant to private international law.
(12) For reasons of coherence, possible conflicts between the present Regulation and other EU acts governing specific aspects of access or exercise of a service activity in a specific sector should be solved as provided for in Article 3 of Directive 2006/123/EC for conflicts between that Directive and such acts, with the application of those other acts. As a result, the provisions in the present Regulation cannot be relied upon in order to justify prior authorisation schemes, prior notification schemes or establishment requirements which are prohibited by other EU acts governing specific aspects of access or exercise of a service activity in a specific sector such as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 19 . As a further result, this Regulation does in no way affect the obligations service providers should respect in accordance with Directive 96/71/EC of the European Parliament and of the Council 20 and Directive 2014/67/EU of the European Parliament and of the Council 21 .
(13) A European services e-card should be introduced as a voluntary alternative to service providers. Service providers should continue to enjoy the possibility of demonstrating compliance with applicable requirements when expanding operations across borders in the context of other authorisations and notifications introduced under the national law of the Member States concerned. A service provider should always be able to choose not to apply for a European services e-card.
(14) The European services e-card should be fully electronic, rely almost exclusively on data provided by reliable sources, limit the use of documents to the minimum necessary and allow for multilingual processing to avoid translation costs. In order to make the procedure fully electronic and allow for administrative cooperation between home and host Member States. The Internal Market Information system set up by Regulation (EU) No 1024/2012 of the European Parliament and of the Council 22 should be used under this Regulation. A specific electronic platform should be developed for the purpose of issuing, updating, suspending, revoking or cancelling European services e-cards, as well as to make valid European services e-cards electronically available to their holders and to competent authorities.
(15) In order to submit an application for a European services e-card, a harmonised multilingual form should be made available ensuring that the elements necessary for identification of the provider and of the services for which the e-card is requested, as well as for the assessment of specific requirements applicable to the services at stake, such as those regarding proof of its establishment in the home Member State, good repute or insurance coverage, are included and thus made available to coordinating authorities in both home and host Member States.
(16) The power to adopt acts in accordance with Article 290 of the Treaty should be delegated to the Commission to specify the details of the information to be contained in the standard application form and the documents to be included in the application as supporting evidence. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.
(17) During the implementation of this Regulation, Member States should inform and update the Commission of procedures imposed under national law on incoming cross-border providers wishing to provide services temporarily or through a branch, agency or office, including the information and documents to which those procedures pertain, to allow for the preparation of application forms. In order to ensure uniform implementation concerning the necessary information to be provided for the application of the European service e-card, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 23 .
(18) Description of the terms of coverage of a mandatory or voluntary insurance included in written contracts might be difficult to find. Insurance distributers, as well as bodies appointed by a Member State to provide compulsory insurance, should therefore provide a description of the core elements of coverage to their client in the format of an insurance certificate. This certificate should be annexed to the application form. In order to ensure uniform implementation of this part of the Regulation, implementing powers should be conferred on the Commission to adopt a harmonised format for the certificates. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(19) Holders of a European services e-card may want to second staff into the territory of the host Member State. When doing so, service providers may be subject to requirements, such as prior declarations addressed to the host Member State, necessary for the protection of posted workers. The European Services e-card will in no way affect the content of such declarations and the responsibilities by the host Member State in that regard.
(20) An electronic platform connected to IMI, to be developed by the Commission, should be made available to European services e-card holders to facilitate compliance with those formalities which, as the case may be, need to be completed with the host Member State. These formalities concern in particular the possible obligation of declarations in advance of professional qualifications of workers that should be carried out in accordance with Directive 2005/36/EC of the European Parliament and of the Council 24 .
(21) As regards the prior declaration that may be required under Article 9 of Directive 2014/67/EU of the European Parliament and of the Council 25 , the electronic platform connected to IMI should direct holders of a European services e-card to electronic national procedures put in place in the host Member State where the workers will be posted, wherever such national procedures allow for the electronic submission of the above-mentioned prior declaration.
(22) The electronic platform connected to IMI should be made available by the Commission to those Member States that have previously communicated to the Commission their intention to make use of this possibility. Where Member States decide to allow for the use of IMI for the sending of the prior declaration in relation to workers posted in their territory, holders of a European services e-card shall be able to submit a declaration as referred to in Article 9 of Directive 2014/67/EU directly 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. To that end, a host Member State should 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 should publish this form in the Official Journal and make it available in the electronic platform connected to IMI. The relevant information with regard to the elements required should 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. The experience of these Member States with the use of the electronic platform connected to IMI should be part of the assessment foreseen in the second subparagraph of Article 19 of this Regulation.
(23) In order to ensure uniform implementation of this Regulation in relation to procedures to issue and update of a European services e-card, as well for formalities regarding secondment of staff and movement of self-employed other than the one referred to in the preceding recital, implementing powers should be conferred on the Commission to adopt rules on electronic processing of those procedures. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(24) Domestic administrative procedures supporting the procedures governed by this Regulation should be electronic if the Member States in question so decide. Member States could however make use of the Internal Market Information system set up by Regulation (EU) No 1024/2012 for domestic purposes of administrative cooperation.
(25) Procedures for issuing, updating, suspending or revoking a European services e-card should make use of documents only in exceptional circumstances, when more detailed information is absolutely essential. In any case, all of such documents should be used and accepted in simple form.
(26) EU law may allow, in the context of formalities for secondment of staff as regulated professionals or movement of self-employed in relation to control of professional qualifications, for documents to be submitted in special form, for example as certified or authenticated documents. Such certification and authentication, once performed in the Member State of original issue of the document in question, should be accepted throughout the EU.
(27) Certified translation of documents should not be required under this Regulation. The electronic platforms dealing with procedures should provide for a technical solution to translate their content. In order to ensure uniform implementation of this part of the Regulation implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council. Rules on translation of documents in the context of posting of workers and application for attestations regarding their social security contributions should not be covered by this Regulation.
(28) Member States are entitled to charge fees only to the extent of the specific costs borne to carry out the procedure. Costs borne already by the budget of the Union should not give rise to fees charged by Member States. Member States should communicate their fees charged to the Commission through IMI and publish such information. Given that IMI is in essence offering all necessary facilities, Member States should, inter alia, not charge fees to update, suspend, revoke or cancel a European services e-card. In order to ensure uniform implementation of the provisions on the payment of fees, implementing powers should be conferred on the Commission to adopt rules on payment modalities and processing. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(29) This Regulation builds on enhanced administrative cooperation between home and host Member States, which should include exchanges of information and use of interconnected national registers to obtain or verify previously obtained information such as registers required under Directive 2009/101/EC of the European Parliament and of the Council 26 or under Regulation (EU) 2015/848 of the European Parliament and of the Council 27 . In order to ensure uniform implementation of the handling and processing of exchanges of information and mutual assistance implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(30) Service providers obliged to acquire professional liability insurance in Member States where they have not been active often have difficulty demonstrating their claims history regarding cover obtained elsewhere. Claims histories are an essential element to insurance distributers in ascertaining and assessing the risk profile of a potential client. Demonstration is difficult due to poor communication between insurance distributers across internal market borders but also to disparities in describing the track-record of an insured party, even within the same Member State. Insurance distributers and bodies appointed by a Member State to provide compulsory insurance cover should therefore be obliged to issue a statement relating to the third party liability claims which can then be used across borders and even domestically, should a service provider change insurance distributer.
(31) In order to ensure uniform implementation of this Regulation in relation to the presentation of the description of liabilities, implementing powers to adopt rules on the standardised presentation format of that statement should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council.
(32) A statement relating to claims history should be instrumental in allowing insurance distributers and bodies appointed by a Member State to provide compulsory indemnity insurance to ban discriminatory practices towards cross-border providers of which information is more scarce and difficult to obtain. The same non-discrimination principle should apply to professional organisations who offer group cover to their members or other service providers.
(33) A single coordinating authority should be designated by each Member State to carry out the tasks provided for in this Regulation, without prejudice to the competences set out in applicable national legislation. Such authorities should be registered as a competent authority in the Internal Market Information system for the purposes of Regulation (EU) 1024/2012 and communicated to the Commission.
(34) The application of this Regulation should be monitored and assessed in order to determine its impact on the costs of expanding operations cross-border, increased transparency about cross-border providers, competition, prices and quality of the services provided. The effects of this Regulation and the practical functioning of the cooperation between coordinating authorities should be evaluated regularly. This monitoring will happen in cooperation with Member States, social partners and other relevant stakeholders.
(35) In order to adapt the functioning of IMI to the tasks conferred by this Regulation, Regulation (EU) No 1024/2012 should be amended accordingly.
(36) Since the objectives of this Regulation cannot be sufficiently achieved by the Member States in view of the risk of complexity and inconsistency of regulatory approaches of certain services across Member States but can rather, by reason of enhanced administrative coordination and harmonisation across the Union, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(37) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular, this Regulation, through the introduction of the European services e-card and related administrative facilities and procedures, seeks to promote the rights of establishment and the right to provide services in any Member State, preventing any discrimination on grounds of nationality and ensuring impartial, fair and reasonably speed procedure, in accordance with Articles 15, 21 and 41 of the Charter of Fundamental Rights of the European Union, while ensuring full respect of the protection of personal data, including in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council 28 , and giving due consideration to the risk of abuse of rights provided for respectively in Articles 8 and 54 of that Charter.