I can find a lot of sites in Dutch I need some more time to search some in english. (which I don't have right now I need some time to study now, but for now:
Why sign the petition ?
Argument against the draft directive on services in the internal market adopted by the Commission on 13 January 2004, the so-called “Bolkenstein directive”.
I. Context and background
According to its author, the aim of the directive is to establish a legal framework to facilitate the freedom of establishment of service providers in Member States and the free movement of services between Member States. The proposal therefore aims to remove all barriers to the effective exercise of these two fundamental freedoms of the EC Treaty.
In reality, it has quickly become clear that, if adopted, this directive would result in the commercialisation of all services within the Union, including essential sectors, such as social services, culture, education and health care.
The alarm was sounded in March and a call for action issued, urging progressive European bodies to fight this draft directive which represents a backwards step in terms of social progress. A whole range of national and European bodies (trade unions, associations, NGOs, political parties, etc.) have joined forces and expressed serious reservations about the draft directive.
Despite these concerted efforts, a very great majority of Member States now seem to be in favour of the rapid adoption of this draft directive.
The proposal was presented to the Competitiveness Council (which is acting as the lead for this dossier) in March 2004. The Council’s working party has reviewed the text twice, article by article, forming an initial idea of the political and technical difficulties facing the Member States. Belgium showed the greatest reserve during this initial debate at the Council, the other Member States being in favour of the concept at least. At the Competitiveness Council of November 2004, Belgium, Portugal, Greece and France agreed that unanimity in the Council on the issues discussed – from the country of origin principle to the sectors to be excluded from the scope of the directive – was not required. The next meetings of the Competitiveness Council will be held under Presidencies (Luxembourg and the United Kingdom) that are strongly in favour of the Commission’s proposal.
With regard to the directive, an important fact is that different committees within the European Parliament are examining the text at the same time as the Council (in particular via hearings) and that since this matter is subject to a joint decision by the Council and the Parliament, it will also have to pronounce a verdict in terms of opinions and possible modifications to the Commission's proposal.
For its part, the Commission has announced a number of amendments, with limited scope but which address certain criticisms of the directive, in particular from Belgium (temporary employment, private insurance, applicability to network industries, taxation, etc.). However, these amendments do not modify the fundamentally objectionable nature of the draft directive. Furthermore, it now appears that it will be difficult to achieve the Commission’s initial schedule for the adoption of the directive (before the end of 2005).
It is now imperative that we renew our efforts without delay.
II.Analysis and fundamental objections
The draft directive is completely unacceptable.
In summary, we have three fundamental objections:
1. The proposal treats all services in the same way, regardless of whether they are services of general interest or not. In particular, it does not consider specific requirements in relation to security, health, guaranteed access and funding, preservation of diversity or exclusion from competition rules, which are essential in certain sectors. It therefore considers medical care, culture or education to be economic and competitive services, in the same way as a car repair or a visit to the hairdresser.
We have insisted, and will continue to insist, that the special features of general interest services, and in particular public services, are considered in this discussion. This is particularly important, as although it is not a formal liberalisation text, if adopted the proposal would subject certain public services to increased and uncontrolled competition.
Before we go any further down the road towards the establishment of a true internal market for services, we need to have a framework directive on services of general interest (SGI), which would allow Member States to define which services they consider to be of general interest and which must therefore be protected from the rules of free competition.
This framework directive must also include a guarantee of free choice for public authorities with regard to systems for funding and organising SGIs.
2. The proposal severely restricts the capacity of Member States to regulate, or even control, service activities within their national borders. However, once again, there must be provision for making some of these activities subject to special supervision for the sake of general interest.
For example, this move towards administrative simplification would call into question standards which ensure the correct operation of health care systems: requirements relating the minimum number of employees, mandatory prices, limits set on the basis of population or a minimum geographic distance. This would herald the end of our current health care cover system.
An alternative solution, which would also have been more effective in creating a free European market, would have been the adoption of minimum rules at a European level in a series of sectors. However, the draft directive basically excludes this possibility.
3. On the basis of the same reasoning, the proposal provides for the country of origin principle. This means that a service provider is subject only to the law of the country in which it is established.
This principle favours the service provider. It could simply set up operations in the European Union State with the most liberal social regulations and use this country as a base from which to operate in all other Member States while avoiding their more restrictive regulations.
To avoid relocations and an increase in unemployment, there is a risk that Member States will embark upon a race to establish the least strict regime and dismantle their existing systems for protecting citizens, consumers and workers.
Furthermore, the draft directive has major implications for the operation of the labour market. Two in particular give cause for concern.
In the first place, the proposal affects posted workers. The Member State of posting would therefore be unable to apply a whole range of measures to these posted workers, which will make it impossible to control their working conditions. For example, a Member State will no longer be able to oblige posted workers to hold social papers in its territory.
Secondly, as the proposal aims to remove all barriers to the free movement of services, collective agreements, industry agreements or collective social policies could be considered as obstacles and abolished.
In summary, the proposal places far too much emphasis on the freedom of establishment and movement in comparison to other equally legitimate requirements of the Treaty, such as security, health, operation of services of general interest, etc.
III. Conclusion and call to sign the petition
The draft directive is completely unacceptable.
A directive on services within the internal market could only be considered subject to three conditions:
1. its scope must be limited and distinguish between services of general interest and other types of services.
2. it must allow States who wish to do so to regulate and effectively control the provision of certain services within their national borders.
3. it must oblige service providers to adhere to the regulations of the Member State in which they effectively provide their services
Furthermore, another condition for such a directive is the parallel adoption of a framework directive on services of general interest within the Union.
These minimum guarantees will ensure that a true internal market for services can be set up in the interest of citizens.
We call for concerted action via the Internet to defend the interests of the citizens of Europe and Belgium.
We hereby invite you to sign our international petition against the adoption of the draft “Bolkenstein” directive.
IV. Interpretation of the key articles of the directive
Article 2: this directive shall apply to services supplied by providers established in a Member State (MS).
Exception: financial, telecommunications and transportation services which are governed by specific directives and services provided directly and free of charge by public authorities or which are involved in the exercise of government activities (non-economic service of general interest).
Article 4: a service means any self-employed economic activity, as referred to in Article 50 of the Treaty, consisting in the provision of a service for economic consideration.
Article 6: Member States shall ensure that it is possible for a service provider to complete all procedures and formalities required to access to its service activities and all applications for authorisation required to exercise its service activities at a contact point known as a “single point of contact”.
Article 9: Member States shall not make access to a service activity or the exercise thereof subject to an authorisation scheme unless the following conditions are satisfied: the authorisation scheme is non-discriminatory, it is objectively justified by an overriding reason relating to public interest, the objective cannot be attained by means of a less restrictive measure.
Article 10 sets out the criteria governing national authorisation schemes. We would add three requirements to article 9: precise and unambiguous, objective, made public in advance.
Article 11 stipulates that authorisations cannot be for limited durations, except in three cases: automatic renewal, limited number of authorisations, overriding reason relating to public interest.
Article 14 sets out the prohibited requirements.
Article 15 lists the requirements to be evaluated. This means that Member States must examine whether their legal system makes access to a service activity, or the exercise of a service activity, subject to non-discriminatory requirements (quantitative or territorial restrictions, specific legal form, specific professional qualification in order to hold capital, number of employees, price). Member States shall then transmit a report to the Commission which will examine these requirements in relation to community law and decide if they need to be abolished.
Article 16: Member States shall ensure that service providers are subject only to the national provisions of their Member State of origin which fall within the coordinated field.
The Member State of origin is responsible for supervising the provider and the services it provides, including services it provides in another Member State.
Member States may not restrict the freedom to provide services in the case of a provider established in another Member State, in particular, by imposing any of the following requirements: an obligation to have an establishment or a representative or an infrastructure or a residence in their territory, an obligation to possess a specific identity document, an obligation affecting the use of equipment.
Article 17: general derogations
Article 18: transitional derogations
Article 19: case-by-case derogations
Article 20: prohibited restrictions
Article 21: non-discrimination
Article 22: assistance in obtaining information (consumer protection, means of redress, contact details for practical assistance).
Article 23: Member States shall take responsibility for the costs of non-hospital health care dispensed by another Member State where the costs of this care would have been covered by their social security system.
Article 24: The Member State of posting shall carry out in its territory the checks, inspections and investigations necessary to ensure compliance with employment and working conditions. However, it may not oblige the service provider or the posted worker to be registered with the responsible authorities, or to hold and keep social documents in its territory.
Article 26: information on service providers and their services
Article 27: professional insurance and guarantees for services presenting a particular risk
Article 30: Member States shall ensure that providers are not made subject to requirements which restrict the exercise of different activities jointly or in partnership.
Article 35: Member States shall give each other mutual assistance and shall put in place all possible measures for effective cooperation with one another in order to ensure the supervision of providers and the services they provide.
