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Negotiating European Legislation: The Services Directive

Published online by Cambridge University Press:  27 October 2017

Joanna Flower
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Extract

The directive on Services in the Internal Market is one of the most controversial and disputed pieces of European legislation in recent years. Known in its infancy as the ‘Bolkestein’ Directive after Frits Bolkestein, the Internal Market Commissioner who first put forward the proposal on behalf of the Commission, and later in the run up to its adoption as the ‘Frankenstein’ Directive, it sparked mass protests across Europe and was even suggested by some as being the real reason why France voted against the draft Constitutional Treaty in 2005.

Type
Research Article
Information
Cambridge Yearbook of European Legal Studies , Volume 9 , 2007 , pp. 217 - 238
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2007

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References

1 Directive 2006/123/EC on services in the internal market, OJ 2006 L 376/36 (hereinafter referred to interchangeably as ‘the Services Directive’ or ‘the Directive’).

2 As from 1 January 2007, any future negotiations within the EU will involve 27 Member State parties.

3 Doc 00/8 of 24 Mar 2000, para 5.

4 Ibid, para 7.

5 COMM(2000)888 of 29 Dec 2000.

6 Ibid, at 2.

7 Ibid, at 1.

8 Ibid, at 3.

9 References throughout to ‘Parliament’ are references to the European Parliament.

10 Proposal for a Directive on the coordination of procedures for the award of public supply contracts, public service contracts and public works contracts (COM(2000)0275 final); Proposal for a Directive on the distance marketing of consumer financial services and amending Directives 97/7/EC and 98/27/EC (COM(99)0385 final); all proposals resulting from the Commission’s 1999 review of the telecoms regulatory framework; Proposal for a Directive on the further opening to competition of the Community postal service (COM(2000)0319 final); Proposal for a Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (SEC(2000)1734 final); Legislative follow-up to the Commission Communication updating the EU accounting strategy (COM(2000)359 final); Proposal for the takeover bids Directive (COM(97)0565 final); Proposal for a Council Directive amending Directive 77/388/EEC as regards the value added taxes arrangements applicable to services supplied by electronic means (COM/2000/0349 final).

11 Including direct application of Treaty rules, non-legislative measures to remove barriers and targeted harmonisation.

12 Proposal for a Directive of the European Parliament and of the Council on services in the internal market, COM(2004)002 final, 13 Jan 2004.

13 Ibid, Art 14(1).

14 Ibid, Art 15(2)(b).

15 Ibid, Art 17(16).

16 Ibid, Art 17(18).

17 Ibid, Art 17(21).

18 Working document of the Luxembourg Presidency containing clarifications on the Commission’s proposal: Consolidated text on Proposal for a Directive of the European Parliament and of the Council on services in the internal market, 2004/2001 (COD) 5161/05, 10 Jan 2005, recital 37.

19 ‘Practical Examples of How the Services Directive Will Make a Difference: The Situation before and After, 6 Oct 2004 (Commission paper).

20 As reported in the European Industrial Relations Observatory Online 28 June 2004, available at http://www.eurofound.europa.eu/eiro/2004/06/feature/be0406302f.html.

21 As reported in SP International, 25 Nov 2004. See also the paper by T Novitz in this volume.

22 European Parliament resolution on the Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions: 2002 Review of the Internal Market Strategy—Delivering the promise (COM(200)171— C5-0283/2002—2002/2143(COS)), 13 Feb 2003, OJ 2004 C 43E/325, para 36.

23 See, eg, Oral Evidence of Evelyne Gebhardt MEP to the House of Lords Select Committee on European Union, 15 Mar 2005, Sixth Report of Session 2005–2006, HL Paper 38, Q430.

24 Oral Evidence of Malcolm Harbour MEP, House of Lords Select Committee on European Union, 15 Mar 2005, Sixth Report of Session 2005–2006, HL Paper 38, Q414.

25 Extended Impact Assessment of Proposal for a Directive on Services in the Internal Market, 13 Jan 2004, SEC(2004)21, 28.

26 Recital 58 of the original proposal, above n 12.

27 Ibid, Arts 24 and 25.

28 House of Lords Select Committee on European Union, Sixth Report of Session 20052006, HL Paper 38, Ch 5, para 85.

29 The hearing in this case (Case C–341/05) took place on 11 Jan 2007, but at the time of writing no Opinion had been delivered. The case is discussed in detail by T Novitz in this volume.

30 The International Herald Tribune reports (Elaine Sciolino, ‘A plumber to rattle Gallic pipes’, 27 June 2007) that the expression was first used in a political speech by French politician Phillippe de Villiers in Mar 2005.

31 The International Herald Tribune reports (ibid ) that Commissioner Bolkestein made this comment in a news conference in Apr 2005.

32 As reported by the BBC, ‘EU agrees to reform services plan’, 23 Mar 2005, available at http://news.bbc.co.uk/1/hi/world/europe/4374007.stm.

33 As reported by The Daily Telegraph, 30 Mar 2005, available at http://www.telegraph.co.uk/opinion/main.jhtml?xml=/opinion/2005/03/30/do3002.xml&sSheet=/opinion/2005/03/30/ixop.html.

34 Comment of Jean-Claude Juncker on the first working session of the European Council as reported in a press release of the Luxembourg Presidency of the EU dated 23 Mar 2005.

35 Report on the Proposal for a Directive of the European Parliament and Council on services in the internal market—Committee on the Internal Market and Consumer Protection— FINAL A6-0409/2005, 15 Dec 2005.

36 The text was adopted by 391 votes in favour to 213 against, with 34 abstentions.

37 Amended Proposal for a Directive of the European Parliament and of the Council on services in the internal market, presented on 4 Apr 2006, COM(2006)160 PROVISIONAL VERSION.

38 Held on 21 and 22 Apr 2006 in Graz, Austria.

39 Eg, in the Commission’s amended proposal, Art 2(2)(cg) read ‘social services relating to social housing, childcare and support of families and persons in need’, rather than ‘social services such as social housing services, childcare and family services’ in Art 2(2)(h) in the Parliament’s text, and Art 2(2)(gh) read ‘private security services’ rather than Art 2(20)(k) ‘security services’ in the Parliament’s text

40 COM(2006)160 final.

41 The Recommendation for Second Reading on the Council Common Position for adopting a Directive of the European Parliament and of the Council on services in the internal market, A6-0375/2006 FINAL.

42 As reported by the European Parliament’s Press Service, 20 Dec 2006, REF: 20061113IPR12540.

43 Art 23(4) of the Common Position, above n 40.

44 Ibid, Art 36.

45 Ibid, Art 40(3).

46 Council Decision of 22 Mar 2004 adopting the Council’s Rules of Procedure, OJ 2004 L 106/22, Art 5.

47 Ibid, Art 207EC provides: ‘A committee consisting of the Permanent Representatives of the Member States shall be responsible for the work of the Council and for carrying out the tasks assigned to it by the Council.’ COREPER consists of two committees; COREPER I comprises deputy heads of mission and generally deals with social and economic issues, and COREPER II comprises heads of mission and generally deals with political, financial and foreign policy issues.

48 Interinstitutional agreement on better lawmaking, OJ 2003 C 321/01, para 33.

49 Art 44 of the final text of Directive 2006/123/EC, OJ 2006 L376/36.

50 Commission’s amended proposal, COM(2006)160 Provisional version, Art 42(2).

51 Decision 1999/468/EC, OJ 1999 L184/23, Art 3.

52 Ibid, Art 5.

53 Above n 49, Art 40(2) of the final text.

54 It should however be noted that a specialist lawyer always formed part of the UK delegation, and was present at all sessions of negotiations.

55 Now 23 languages.

56 Art 16(3)(a) of the original proposal, above n 12.

57 Art 21 of Position of the European Parliament adopted at first reading on 16 Feb 2006 with a view to the adoption of Directive 2006/…/EC of the European Parliament and Council on services in the internal market (EP-PE_TC1-COD(2004)0001).

58 Oral evidence of Clifford Chance to the House of Lords Select Committee on European Union, 22 May 2006, 38th Report of Session 2005–2006, HL Paper 215, Q164 and Q171.

59 Oral evidence of Arlene McCarthy MEP to the House of Lords Select Committee on European Union, 22 May 2006, 38th Report of Session 2005–2006, HL Paper 215, Q150.

60 Position as set out by Lord Grenfell in the House of Lords European Union Committee, 38th Report of Session 2005–2006, HL Paper 215, Q172.

61 Oral evidence of Arlene McCarthy MEP. above n 59.

62 See, eg, Joined Cases C–369 and 376/96, Criminal Proceedings against Jean-Claude Arblade and Arblade & Fils SARL and against Bernard Leloup and Sofrage SARL [1999] ECR I–8453.

63 For more information about how the UK is proposing to implement the Directive see http://www.berr.gov.uk/europeandtrade/europe/services-directive/implementation/page9583. html.

64 As reported by the European Parliament’s press service on 20 Dec 2006.

65 Statement by Charlie McCreevy, Commissioner for Internal Market and Services, on the Revised Proposal for the Services Directive, European Parliament Plenary Session, Strasbourg, 4 Apr 2006, SPEECH/06/220.

66 Revised Partial Regulatory Impact Assessment on the draft Services Directive published by the Department for Business, Enterprise and Regulatory Reform based on the Commission’s amended proposal, available at http://www.berr.gov.uk.