“Directive services”: À six mois de l’échéance

Jean Bizet

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On 17 June 2009, Senator Jean Bizet presented his report to the European Affairs Committee of the Senate on the state of transposition of Directive 2006/123/EC of 12 December 2006 on services in the internal market (hereinafter "the Directive"). The transposition of this directive, "not like the others", is the subject of particular attention by the Union’s legislator - the European Commission and the Council of the Union in particular - as well as by national authorities. More than a question of compliance with the Community obligations of the Member States in transposing directives, it is a text of high political interest. The deadline set by the Directive for its transposition into national law is 28 December 2009. Six months before that date, the report presents the developments that have taken place since a previous information report on the same subject more than a year ago. This parliamentary monitoring reflects a political awareness of the interest and importance of the Directive. Its main objective is the development of the internal market for services. It contains provisions aimed, on the one hand, at simplifying administrative procedures and, on the other, at removing obstacles to service activities. Even if questions, or even concerns remain, the main provisions of the Directive, thanks to the significant efforts made over the past year, should be transposed by the end of 2009, in particular those concerning points of single contact, which are the most concrete aspect of the Directive. Formally, the report is structured around three points: the gradual nature of the transposition, the modalities of transposition in France and the significant progress made in setting up the points of single contact points. Given the scale of the task, transposition will be gradual. It will first cover the main aspects of the Directive and then be progressively improved. The report therefore proposes to make a pragmatic assessment of compliance with the deadline. The transposition of the Directive gives rise to close relations between the European Commission and the Member States, on the one hand, and between the Member States themselves, on the other, which make it possible both to create an overall dynamic conducive to meeting the deadline and to raise awareness of the need for pragmatism in this area. Thus, the European Commission believes that the deadline of 28 December 2009 for transposing the Directive will be met by most Member States. Although France is not among the most advanced Member States, it is within a "good average". Technical work has progressed well over the past year, in particular on one-stop shops. Also, the screening of legislation against the provisions of the Directive has made real progress. Thanks to the consultation of professionals, such as national federations, who are encouraging proposals, there has been a positive development. Working groups bringing together professionals have also been set up. On the other hand, the report underlines that neither the local authorities nor the social partners have been sufficiently involved in the transposition work in France. According to the report, in order to avoid a "botched transposition", it is highly likely that no Member State will have fully and definitively transposed the Directive by 28 December next. Indeed, the context in which transposition must take place has changed significantly since the beginning of 2008. It is feared that the financial and economic crisis will relegate the transposition of the Directive to the second priority of some Member States. In a second part, the report focuses on the legal modalities of the transposition of the Directive. On this point, the government has abandoned the idea of tabling a draft transposition framework law. This is a reasonable decision, since framework legislation is not the ideal legislative vehicle for transposing such a technical directive with a broad and cross-cutting scope. The government would also have ruled out the enabling legislation route. Thus, the French government of a framework law for transposition is led to instil several provisions of a technical nature when examining various bills in order to bring French legislation into line with the requirements of the Directive. This method is no doubt less readable, both for parliamentarians and for public opinion, but it does make it possible, by "technicalizing" the transposition, to avoid the emergence of sterile polemics. So far, the Directive has been partially transposed in France by several provisions contained in laws recently adopted by the Parliament, or currently under discussion. This is the case of the Law on modernisation of the economy (LME) of 4 August 2008. In addition, the report highlights the importance of conducting a communication campaign aimed at popularising the expected benefits of the Directive. However, in France, no general information campaign is currently planned by the government. Business leaders, particularly SMEs, and craftsmen are nevertheless demanding clear information on the directive and the benefits expected from it. In a final section, the report sets out the significant progress that has been made in setting up one-stop shops in France. These are undoubtedly one of the most innovative provisions of the Directive. The Directive requires Member States to ensure that providers can complete, through points of single contact, the procedures and formalities necessary for access to and exercise of their service activities. The points of single contact must provide easily accessible information to providers and recipients of services. Moreover, all procedures and formalities relating to access to a service activity and to the exercise thereof must be capable of being completed easily, at a distance and by electronic means, through those points of single contact. Their smooth operation will make it possible to assess the success of the Directive and to take advantage of all the opportunities it offers, particularly for SMEs. While all Member States have now taken decisions on the structure that will ensure the functions of the PSCs, they are not designed according to a single functional and structural model. In France, Article 8 of the Law on modernisation of the economy of 4 August 2008 entrusted the Centres de formalités des entreprises (CFE) with the tasks of the one-stop shops. This measure seemed relatively logical, given the skills acquired by the CFEs in dealing with administrative formalities and, more generally, in assisting business start-ups, which should be relieved of the ’paper tax’. As soon as this decision was taken, the CFEs have invested heavily in setting up one-stop shops. However, the task is made more complex by the existence of seven CFE networks. The one-stop portal is to provide three types of services: to enable the creation of companies in a totally dematerialised way; to deliver information; to carry out administrative procedures.

The report reflects a political will to communicate on the challenges and opportunities of the Directive. In itself, the approach deserves to be commended. All the more so as the report places the question of transposition in the current context of economic crisis. Indeed, the Senate committee considers that this transposition can contribute to accelerate the exit from the crisis in Europe. However, as the conclusion of the report indicates: "the benefits of the "services directive" will only be fully felt once the text has been fully transposed", and logically, "too great a delay by certain Member States would distort competition and penalise the most advanced States whose service providers would not be able to benefit from quality transposition abroad, unlike the nationals of the lagging State".

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Author

  • University of Paris I Panthéon-Sorbonne

Quotation

Beligh Nabli, “Directive services”: À six mois de l’échéance, December 2009, Concurrences N° 4-2009, Art. N° 29416, pp. 227-228

Publisher La Documentation française

Date 17 June 2009

Number of pages 100

ISBN 978-2-11-126767-1

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