The Bolkestein Directive (Directive 123/2006 CE) is the name by which we know the European Directive passed in November 2006 in which the arrangements needed to promote the freedom of establishment and free movement of services within the European Union are established and that must be transposed into the legal systems of the Member States before the 28th of December 2009.
This freedom, fundamental within the first pillar of the European Union, represents the principle to progress the European services market, is one of the most important drivers behind economic growth, representing up to 70% of the GDP and employment in many Member States.
From this framework comes the “Bolkestein” Directive with the main objective of guaranteeing the freedom of establishment and the liberalisation in the provision of services, trying to remove the great number of barriers that hinder those who provide services, particularly those small and mediumsized companies to extend their operations beyond their frontiers and benefit fully from the internal market.
Aside from the clear benefits that the liberalisation of the provision of services brings from the point of view of the service providers, the Directive also lends benefits to the consumers, who through these measures that promote transparency and information, will obtain more choice and a lowering in the price of such services.
The Directive attempts to be a legal framework within which the current governing community principles for the free provision of services are stated, however without damaging the provision of services or development of certain professions that are regulated under separate specific rules, in such a way that the “Cassis de Dijon” judgment occurred in relation to the free movement of goods.
The Directive expressly excludes from its scope of application (i) services of general interest and not of an economic nature; (ii) financial services such as those of banks, credit, insurance and assurance, pensions, and hedge funds, among others; (iii) services and networks of electronic communications; (iv) the transport sector, including airport services; (v) services of temporary work agencies; (vi) sanitation services; (vii) audiovisual services, including cinematographers; (viii) the activities of betting and gambling games; (ix) activities linked to the exercise of the public authorities; (x) social services relating to housing welfare; (xi) services of private security firms; (xii) services supplied by notaries or legal agents; and finally (xiii) taxation.
Together with the exclusions from the scope of the Directive’s application, other services are also excluded from this general principle of the free provision of services, such as those that have specific community rules that regulate them, such as postal services, energy providers (light, gas or water), services relating to the treatment and transport of waste, debt recovery activities, etc.
Amongst the main regulations, we could highlight, in first place the preference for the simplification of the administrative procedures that are currently in place in each Member State, with the object of achieving and greater speed in the awarding and receiving of permits and authorities for the providers of intracommunity services. This simplification includes a general acceptance of the documents and analogous documents for each Member sate, and the creation of a single desk where all documents can been processed and such processes that are necessary for the provision of services, or gaining access to the receiver of such services, can be performed.
The Directive expressly states, a series of possible conditions that are deemed prohibited and cannot be required by the Member States to gain access or practise in the service activity. These prohibitions are mainly based upon the matters that relate to nationality or residence, the need to enrol in professional colleges, the need to provide services in different states, the application of the principle of reciprocity between Member States, the obligation to choose between principal or secondary offices, the demonstration of an economic or social need, or the obligation to have been registered previously and for a certain length of time in registers of another Member State.
On the other hand, we must equally highlight that the freedom of movement of services does not encounter such firm limits, unless of exceptional form, to those allowing Member States to establish certain conditions that restrict the free movement of services or freedom of establishment. These restrictions, that are limited and exceptional, must always respect the following fundamental principles: (i) No discrimination, that’s to day that the requisites are not discriminatory concerning nationality and residence; (ii) Necessity, in that the requisites are justified by and overriding interest of public interest, these understood as reasons of public order, public security, public health, or protection of the environment; and (iii) Proportionality, that in such that the requirements are adequate to guarantee the realisation of the objective that they are following, not going any further than that which is necessary in order to achieve said desired objective and without which the pursued goal could not be achieved with any less restrictive measure.
Likewise, and before the transposition of the Directive to the national order, imposed upon the Member States was the obligation to evaluate their legal order with the purpose of identifying and repealing those internal rules that could violate these three principles. As an example, the Directive identifies circumstances such as the need for the adoption of certain company forms, the need for a determined social capital or certain number of employees, the need for the provision of additional services to the main activity, or including the existence of minimum or maximum charges in the provision of certain services that ought to be removed from Member States’ internal rules.
Within the area of existing decentralisation in our country and different powers given to our autonomous communities, we must underline that the coming into force of the Bolkestein Directive brings the “dismantling” of the current competencies in commercial matters, that involves the removal of the law-making powers concerning the limitation, establishment and opening of large commercial zones. In this sense, the autonomous communities must redefine the parameters and criteria upon which they base the granting of so-called “second licences” necessary for the installation of commercial shopping centres, including the termination of certain permanent moratorium already imposed in some autonomous communities.
We must conclude by stating that the Bolkestein Directive is a very important piece of legislation that will affect a very important sector within the economy of the Union that must without doubt contribute enormously to the liberalising of the provision of services and commercial sector, and although since its start has been immersed in much debate, one hopes that it will manage to bring to the services sector similar levels of liberalisation to those existing in relation to goods, people, and capital.
Even if there is still more than a year before which the Directive must be transposed into our legal order, the idiosyncrasy of our autonomous system requires that, like all good students, the legislator should proceed “doing its homework” continuously and orderly during the “academic term” that remains until the final date of 28th December 2009, without leaving tasks until the last hour.