DIRECTIVE 2006/123/EC OF THE EUROPEAN PARLIAMENT AND COUNCIL ON THE SERVICES IN THE INTERNAL MARKET (Dyrektywa 2006/123/WE Parlamentu Europejskiego i Rady o uslugach na rynku wewnetrznym)
After two years of intensive works and discussions the services directive was finally adopted in December 2006. However, the final text of the directive was - in the result of compromise between the Council and the European Parliament - watered down in comparison with ambitious Commission's proposal from 2004. In this article the authoress summarizes the most important differences between the project and the adopted directive and makes attempt to provide a general evaluation of the directive.. First of all it should be noted that the scope of the services directive has been radically restricted. Articles 1 and 2 contain a long list of derogations. One should also take in the account additional exemptions (for example from the application of the freedom to provide services expressed in article 16) which limit the scope of the directive even further. Some of these derogations can be explained with the existence of other legislative act harmonizing certain areas, such as electronic communication services or financial services. But there are also many others which were exempted even though, according to the European Court of Justice, they are covered by article 50 EC. The Commission's proposal to include in the directive matters connected with posting of workers and recovery of medical treatment costs were also rejected. Another radical change consists of the replacement of the country of origin principle with the free provision of services principle which vague and cautious wording does nothing to improve present problems with the application of article 49 EC. Consequently also the powers of the Member State where a service is provided to supervise the provider were not restricted as far as planned. The final result not only does not reflect the case law but even seems to constitute a step back from the progress already achieved. Even with its numerous shortcomings the services directive can have a positive influence on the application of the freedom to provide services. The obligation to implement the directive into national legal orders alone will improve the situation of service providers and recipients as presently there are no national horizontal and comprehensive regulations of the freedom. Additionally the simplification of procedures should result in the significant reduction of the formalities which today cost the entrepreneurs a lot of time and money. And finally, the administrative cooperation between the Member States and the Commission introduced by the directive will help to limit the number of existing barriers through close mutual supervision and exchange of information.
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