Proposal for a Council directive extending the freedom to provide cross-border services to third-country nationals established within the Community
10. 3. 1999 EN Official Journal of the European Communities C 67/17 Proposal for a Council Directive extending the freedom to provide cross border services to third country nationals established within the Community (1999/C 67/10) (Text with EEA relevance) COM(1999) 3 final - 1999/0013(CNS) (Submitted by the Commission on 12 February 1999) THE COUNCIL OF THE EUROPEAN UNION, protection equivalent to that enjoyed by employed workers; Having regard to the Treaty establishing the European Community, and in particular the second paragraph of Article 59 thereof, Having regard to the proposal from the Commission, Having Parliament, regard to the opinion of the European Having regard to the opinion of the Economic and Social Committee, to the (1) Whereas, pursuant to point (c) of Article 3 of the Treaty, the abolition, between Member States, of obstacles services constitutes one of the objectives of the Community; whereas the free movement of services may be extended to self employed persons who are not citizens of the Union, but third country nationals legally present in the Community; free movement of (2) Whereas the Treaty has provided for this extension for more than 40 years; whereas it is not justifiable that a third country national with an ongoing actual link with the economy of a Member State should be unable to enjoy the benefit of the freedom to provide services, otherwise than by setting up a company within the meaning of Article 58 of the Treaty, nor that self employed thirdÜ their capacity as country nationals cannot, natural persons, enjoy such freedom; in (3) Whereas employed workers who are third country nationals may be posted whereas self employed persons whose activities add to the value of the economy of a Member State are debarred from cross border activities internal market; whereas the extension of the freedom to provide third country nationals does not affect the application of national provisions affording such persons a degree of social self employed throughout services the to the conditions. Ø. Ø. /. Ø. Ø. /EC when (4) Whereas it is appropriate, therefore, to introduce such an extension through European Parliament the and Council Directive Community clarifies for posting workers who are nationals of a third country for the provision of services; whereas, in view of Article 61(1) of the Treaty, the scope ratione personae of service this Directive cannot be extended providers operating in the transport sector except by a the Treaty provisions governing the common transport policy; specific act adopted under to (5) Whereas a self employed person who is a national of a third country should enjoy no right of estabÜ lishment in the Member State in which he provides his services; whereas this Directive does not affect other rights already recognised at Community or national level or under international agreements, including those guaranteed by the Convention for the Protection of Human Rights, particularly as regards family life; (6) Whereas the temporary nature of the activities in question has to be determined in the light, not only of the duration of the provision of the service, but also of its regularity, periodicity or continuity; whereas this does not mean that the provider of services may not equip himself with some form of infrastructure in so far as such infrastructure is necessary the service; the purposes of performing for is provided; whereas, (7) Whereas the freedom to provide services entails as a corollary the right of entry into and residence on the territory of the Member State in which the in the absence of service uniform national documents covering the various aspects of movement, a document known as an "EC service provision card’ should be the instrument facilitating the provision of cross border services with a view to current or potential movements in connection with normal activities; whereas it should be for the service provider to decide whether to apply for the EC service provision card; whereas C 67/18 EN Official Journal of the European Communities 10. 3. 1999 this Directive, similarly, does not affect the underÜ takings of the Community and its Member States, given in the context of the General Agreement on Trade in Services (GATS)Ø(˛); whereas the EC service provision card should include only the data required under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such dataØ(ˇ). (8) Whereas the Member State issuing the EC service provision card should take account of public policy factors aimed at combating clandestine immiÜ gration, by certifying the lawfulness of the situation in the Member State in which the service provider is established; whereas this document should ensure that the main activity of a self employed person is pursued in the Member State in which he is estabÜ lished; whereas that document should be safeÜ guarded against falsification; whereas it is therefore no longer necessary to require an entry visa; is established in which should (9) Whereas the EC service provision card issued by the self employed the Member State person the thus afford necessary guarantee that any other Member State in which services are provided will admit the entry and residence of that person for the purpose of one or more services, namely residence during and at the time of the provision of the service; whereas this guarantee should include the obligation not to consider the movement as an interruption of the period of residence and of the initially permitted self employed activity, and in particular not, under any circumstances, to refuse readmission of the person concerned; whereas the Member State in which the service is provided should therefore no longer be able to impose its own requirements as regards entry and residence and access to a selfÜ employed activity; (10) Whereas each Member State in which a service is provided should be able to make it obligatory to declare, before the entry of the provider concerned into the territory, his intended presence and the service or services for which he is moving; whereas an obligation to make a prior declaration should enable the Member State in question to take measure in specific cases on grounds of public order, public security or public health, within limits set by this Directive; whereas each the for for which the services Member State in which a service is provided should also be able to make it obligatory to obtain, after entry, a temporary residence permit if the time required the selfÜ employed person is moving exceeds six months out of a period of twelve months; whereas the period of validity of a residence permit should be limited to the period of validity of the EC service provision card on the grounds that the Member State intends to issue a residence permit in accordance with its own rules in the case of residence for a period of more than twelve months; treatment between (11) Whereas for this extension to be effective there must be equality of thirdÜ country nationals and citizens of the Union in their capacity as service providers as regards the recogÜ nition of diplomas, certificates and other qualifiÜ cations acquired within the Community; whereas this equality of treatment should be restricted to the provision of services; whereas it should not cover diplomas, certificates and other qualifications acquired in a third country and only recognised in a Member State; (12) Whereas the Member States should not be able to confer more favourable treatment on self employed persons established outside the Community than on those established within the Community; whereas the Member States should be able to derogate from this Directive on grounds of public order, public security or public health; whereas the limits of such derogation should be determined with respect to service the providers national concerned on the coordination provided for in Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public healthØ(—), as last amended by Directive 75/35/EECØ(Ñ); the basis of third country (13) Whereas it it would be useful is vital to ensure close cooperation between the competent authorities of the Member States; whereas the competent authorities of the Member States to the EC service format adopt a standard provision card; whereas the Commission should be empowered to lay down this format and other procedures the EC service provision card in accordance with the committee in connection with for for (˛) OJ L 336, 23. 12. 1994, p. 191. (ˇ) OJ L 281, 23. 11. 1995, p. 31. (—) OJ 56, 4. 4. 1964, p. 850/64. (Ñ) OJ L 14, 20. 1. 1975, p. 14. 10. 3. 1999 EN Official Journal of the European Communities C 67/19 procedures set out in Council Regulation (EC) No 1683/95 of 29 May 1995 laying down a uniform format for visasØ(˛); 3. Ú For the purposes of this Directive, "service provider’ means any natural person who third country national and who, in the Member State of establishment, is a (14) Whereas, this Directive does not affect the competence of the Member States to decide which third country nationals are to be admitted for the purposes of a self employed activity, the conditions on which such admission should be extended or which professional activities are regulated on national territory, and which are not; (15) Whereas, in accordance with the principle of proportionality as set out in the third paragraph of Article 3b of the EC Treaty, this Directive does not is necessary for achieving the go beyond what objective of the free movement of services; whereas it allows Member States to make their checks to determine whether a is providing cross border services on a temporary basis or is pursuing a permanent activity on the territory of a Member State other than the one in which he has his main establishment; whereas it is limited to movements for periods of not more than twelve months for the purpose of providing services in another Member State, and to the recognition of diplomas, certificates and other qualifications acquired within the Community; third country national (16) Whereas, for the purpose of Directive, Member States should appropriate system of sanctions; implementing this lay down an (17) Whereas, not later than four years after the date of transposal of this Directive, the Commission must examine its application with a view to proposing any necessary amendments, (a) has lawfully set up his main establishment from which he has maintained an actual, continuous link as a self employed person with the economy of that Member State for at least twelve months; (b) has his residence, in accordance with the legislation of that State; (c) is not also an employee. Article 2 1. Ú When a provider of services proposes, in the ordinary course of his business, to move to, and to reside in, one or more other Member States, in his capacity as such, the Member State in which he is established shall be obliged to issue to him, at his request, a document to be known as an "EC service provision card’. For the purposes of the first paragraph, confirmation shall be given that the service provider is affiliated to the social security scheme of the competent Member State against the risk of sickness and industrial accident, or, failing such affiliation, is covered by insurance against sickness and industrial accident during his movements through one or more other Member States. 2. Ú The EC service provision card shall be valid for 12 months. It shall be renewable only if the conditions as to its issue are fulfilled once more. 3. Ú The EC service provision card shall be a separate document belonging to the service provider, and shall contain the following data: HAS ADOPTED THIS DIRECTIVE: (a) details of the service provider; Article 1 (b) the period of validity; 1. Ú Member States shall ensure that nationals of a third country established within the Community enjoy the freedom to provide services in accordance with the provisions of this Directive. 2. Ú This Directive shall not cover nationals of a third country as recipients of cross border services and provisions of services in the transport sector. (c) the issuing authority and issuing Member State. the falsification The precise details, a specimen of the document to be to issued, and an shall be prevent implementing the in procedure laid down in Article 6 of Regulation (EC) No 1683/95. technical specifications designed in laid down accordance with regulation (˛) OJ L 164, 14. 7. 1995, p. 1. 4. Ú The Member State issuing the EC service provision card may not regard the movement for the provision of C 67/20 EN Official Journal of the European Communities 10. 3. 1999 services as being an interruption of the service provider’s period of residence or self employed activity on its territory. Community with a view to performing the activity concerned and issued by a competent authority of a Member State. The issuing Member State may not refuse, under national regulations, the readmission to its territory of the service provider, for any reason whatsoever. Article 3 1. Ú Any Member State in which services are provided shall permit the entry into and residence on its territory of a self employed person who third country national for the purposes of one or more provisions of services, if such person is in possession of the EC service provision card, and of an identity card or passport valid for the period in which the services are to be provided. is a 2. Ú No Member State in which a service is provided may require from the service provider (a) an entry or exit visa; (b) a residence permit other than that specified in paragraph 3; or (c) an authorisation to provide services, such as a work permit, a foreign businessman’s identity card or a business card; or d) impose any obligation equivalent to points (a), (b) and (c). 3. Ú Any Member State in which a service is provided may require the service provider to declare, before he enters the territory, his intended presence, the period of presence provided for and the service provision or provisions for which he is moving. If the total period in required question exceeds six months out of a period of twelve months, the Member State shall issue, after entry, a temporary residence permit showing that residence is authorised. the service provision or provisions for 4. Ú In order to facilitate the provision of services, any Member State in which a service is carried out shall third country ensure equality of nationals and citizens of the Union in their capacity as service providers as regards the recognition of diplomas, certificates and other qualifications acquired within the treatment between Article 4 1. Ú Member States shall not give more favourable treatment to self employed persons established outside the Community than to those established within the Community. 2. Ú Member States may not derogate this Directive except on grounds of public order, public security or public health, in which case Directive 64/221/EEC shall apply mutatis mutandis. from Article 5 to 1. Ú The Member States shall designate the authorities responsible for issuing the EC service provision card and the temporary residence permit, and for receiving the in Article 3(3). They shall information referred provide the Commission and the other Member States with a list of such authorities. They shall take the necessary measures for simplifying as far as possible the formalities, deadlines and procedures for obtaining the abovementioned documents, which shall be issued free of charge or on payment of a sum not exceeding the duties and taxes payable for the issuing of identity cards to national citizens. 2. Ú Member States for cooperation between the public administrations responsible under the national implementation of this Directive. for matters connected with shall provide legislation Cooperation shall in particular entail replying to any reasoned request for information. It shall be provided free of charge and without delay. Article 6 rules adopted Member States shall lay down the penalties applicable to infringements of national the implementation of this Directive and shall take all necessary measures to ensure their enforcement. The penalties shall be effective, proportionate and deterrent. Member States shall notify the Commission of these provisions not later than the date specified in Article 8, and as soon as possible in the event of any subsequent changes. for 10. 3. 1999 EN Official Journal of the European Communities C 67/21 Article 7 No later than four years after the date specified in Article 8, the Commission shall report to the European Parliament and the Council on the implementation of this Directive in the Member States and shall propose any necessary changes. Article 8 When Member States adopt those provisions, they shall contain a reference to this Directive or shall be accomÜ panied by such a reference on the occasion of their official publication. Member States shall determine how such reference is to be made. Article 9 This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Communities. Member States shall adopt and publish not later than 30 June 2002 laws, regulations and administrative provisions necessary to comply with this Directive. They shall forthwith inform the Commission thereof. the Article 10 This Directive is addressed to the Member States