On 17 December 2007, the Scottish Parliament's European and External Relations Committee wrote to the Minister for Europe, External Affairs and Culture requesting clarification of the Scottish Government's policy on the implementation of Directive 2006/213/EC – the EU Services Directive. In particular, the Committee is seeking the following information:
- Details of the Scottish Government's position on the Services Directive;
- The reasons why the Services Directive has no longer been identified as one of the Scottish Government's EU priorities;
- Details of the Scottish Government's position on the implementation of the Services Directive, in particular:
- Whether the Directive should be implemented on a UK-wide basis or should devolved aspects be implemented by the Scottish Government;
- Whether there should be a Point of Single Contact in Scotland;
- Whether there should be national liaison points to cover Scotland;
- Details of the screening exercise the Scottish Government has undertaken to ensure that devolved legislation and practices are compliant;
- Whether details of the screening exercise have been published on the Scottish Government's website;
- Whether the Scottish Government supports the reporting process on the screening exercise (para D31 of the UK Government's consultation);
- Details of the discussions the Scottish Government has had to date with Scottish stakeholders on how the Directive should be implemented; in particular, whether it should be implemented on a UK-wide basis;
- Details of the discussions the Scottish Government has had with other devolved administrations on the implementation of the Services Directive;
- The next steps the Scottish Government plans to take in respect of implementation.
As yet the Committee have not yet received a response.
What is the Services Directive?
Directive 2006/123/EC – the EU Services Directive – was agreed on 12 December 2006 and must be implemented into domestic law by 28 December 2009. Its objective is to achieve a genuine Internal Market by opening up services markets and removing the legal and administrative barriers to the development of service activities between Member States. One of the aims of the Directive is to boost growth and employment allowing the EU to compete in the long term against emerging economies like India and China.
What does the Directive cover?
The Directive is designed to deliver two of the freedoms enshrined in the EC Treaty:
- Freedom of establishment – i.e. formally setting up business in another Member State; and
- Free movement of services – i.e. providing a service on a short-term basis or at a distance across borders.
Accordingly, the scope of the directive includes:
- A provider establishing itself in another Member State;
- A provider moving temporarily to the country where the customer is located;
- A provider providing services at a distance from his country of establishment, e.g. via the internet or by phone; and
- A provider providing services in his home Member State to a customer who has travelled from another Member State (e.g. hotels, theme parks, tourist attractions, health services).
The Directive covers a wide variety of services including business services (such as management consultancy, advertising and facilities management), services to businesses and consumers (such as legal services, estate agencies, construction (including the services of architects)) and consumer services (such as tourism, leisure services, electricians and plumbers). It does not cover services, such as public administration or public education, which are of a non-economic nature (i.e. provided by the State to fulfil its public mission without any economic consideration.) In addition, it does not cover financial services, temporary work agencies and notaries. There also additional exclusions.
What are the Key Provisions?
The four main strands of the Directive are:
- The simplification of administrative procedures, including the establishment of Points of Single Contact (PCS) and the screening of legislation, licensing regimes and administrative practices to ensure compliance;
- Ensuring the freedom to provide services and the freedom of establishment are upheld;
- Ensuring mutual assistance and cooperation between regulatory bodies in different Member States; and
- Limited harmonisation of rules, including those in respect of rights for services recipients, information requirements and, in certain circumstances, the removal of prohibitions on multi-disciplinary practices.
Who is responsible for implementation of the Directive in the UK?
The Department for Business, Enterprise and Regulatory Reform (BERR) consultation document states that implementation is primarily the responsibility of the UK Government but that responsibility for certain legislation within the scope of the Directive is devolved. The UK Government has indicated that it is in discussion with the Scottish Government in developing policy for implementation and that it is working with the devolved administrations across the whole scope of implementation.
As the letter referred to at the beginning of this article indicates, the question now is to what extent the Scottish Government will be involved in implementation. Should there be separate PSCs to cover Scotland and the other devolved administrations? Will the Scottish Government be responsible for screening Scottish legislation, licensing regimes and administrative practices to ensure compliance? Should the Directive be implemented on a UK-wide basis or should the Scottish Government implement devolved aspects? Answers to these questions will hopefully be provided in the Scottish Government's response to the European and External Relations Committee's letter.