Services Standards: Defining the Core Consumer Elements ... - ANEC

Hans-W. Micklitz
The markets differ considerably in the degree to which the European
Commission has achieved its policy. The European Community has adopted a
whole series of directives all aimed at opening up the relevant market sectors
with telecommunication and postal services being at the forefront of the
development, energy following suit, whereas the railway market is still rather
closed.
4. Service Directive
The Service Directive 2006/123/EC 75 does not really fit into a sectoral approach.
It seems as if the Service Directive is meant to establish a common framework
for the “harmonisation” of the remaining services d’un seul coup.
“Harmonisation” has been put in quotation marks, because the Service Directive
differs from all other vertical subject-related approaches on services in a twofold
way: first, it is not related to a particular sector – although quite a number of
services are excluded from the scope of application – and second, it is not
designed to harmonise services in the proper sense. Instead, the Directive
should be understood as a combination of the softened country of origin
principle 76 designed to establish freedom of services and freedom of
establishment 77 combined with a quasi New Approach type of regulation, meant
to shape the quality of services, including contractual rules. So in a way it might
be misleading to classify the Service Directive as vertical strategy. The Directive
has a limited scope of application by exempting, for example, labour law and
health care services. However, the European Commission sticks to the idea to
liberalise health care services as it was originally foreseen in the Draft Service
Directive. 78 The exact scope shall be presented at a latter stage.
The following table intends to classify the different types of services, consumer,
transport, financial services, network services, services that come under the
scope of the Service Directive such as contracts with liberal professions and
craftsmen and last but not least health care services.
75 OJ L 376, 27.12.2006, 36.
76 As defined by Wikipedia: The country of origin principle states that, where an action or
service is performed in one country but received in another, the applicable law is the law of
the country where the action or service is performed. The opposing principle is the country
of reception principle. For example, if a sale of goods is made over the Internet from a
website in France to a purchaser in Italy, the country of origin principle would be said to
apply if French law applied to the transaction, and the country of reception principle if
Italian law prevailed.
77 These are the basic freedoms guaranteed under the Treaty, the freedom to provide
services all over the European Community and the freedom to establish a business site
wherever in the European Community.
78 See in particular COM (2004), 2 final, 25.2.2004.
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