Services Directive: Assessment of Implementation Measures in Member States

Transcription

1 Services Directive: Assessment of Implementation Measures in Member States National Report for Hungary Part Two: Analysis of national requirements in specific service sectors

2 This National Report has been prepared by Katalin Császár for. under Contract No MARKT/2011/035/E1/ST/OP with the European Commission, DG Internal Market and Services. The views expressed herein are those of the consultants alone and do not necessarily represent the official views of the European Commission.. (Belgium), 15 rue Blanche, B-1050,, tel: ; Fax ; emma.psaila@milieu.be; web address:

3 National Report Part Two Analysis of national requirements in specific service sectors TABLE OF CONTENTS ABBREVIATIONS 1. Introduction Retail Tourism Food and beverages Real Estate Education Crafts, construction and certification services Regulated Professions Conclusions... 32

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5 ABBREVIATIONS PB Services Act propane butane Act LXXVI of 2009 on general rules in the taking up and the pursuit of service activities Services Directive Directive 2006/123/EC of the European Parliament and of the Council on 12 December 2006 on services in the internal market

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7 1. Introduction National measures implementing Articles 14, 15 and 16(2) of the Services Directive The Hungarian Services Act (Act LXXVI of 2009 on general rules in the taking up and the pursuit of service activities) lays down the general principles applicable to all service sectors and establishes provisions on the exercise of the freedom of establishment and the free movement of services. This framework law of horizontal application transposes the main provisions of the Services Directive (Directive 2006/123/EC). Article 4 of the Services Act transposes the following Article 14 requirements of the Services Directive: Article 4(2)(a)-(c) transposes Article 14(1); Article 4(2)(d) transposes Article 14(3); Article 4(2)(e) transposes Article 14(2); and Article 4(2)(f) transposes Article 14(8). In addition, Article 5 of the Services Act transposes the requirement of Article 14(6). References to other Article 14 requirements of the Services Directive were identified in Articles and 22(2) of the Services Act. The provisions of Article 14 are almost literally reproduced in the above listed Articles of the Services Act. According to the Services Act, Article 14 requirements cannot be imposed on any service providers in Hungary and consequently the sector-specific legislation must not contain reference to such requirements. With regard to the transposition of Article 15 of the Services Directive, the Services Act in its Article 51(a) states that the Minister responsible for external affairs should notify the European Commission of any draft laws, which set requirements referred to in Article 15 of the Services Directive. Article 15 requirements are reproduced verbatim in Article 52 of the Services Act. This Article states that such requirements could be included in the sector-specific legislation or in the internal regulation of professional organisations. This, in principle could mean that those requirements that are maintained after the screening process are listed in the relevant sector-specific legislation. It is noted that the Services Act does not reflect Article 15(3) to (6) of the Services Directive. This however, does not seem to affect the effectiveness of the transposition as most of these paragraphs (apart from Article 15(3)) refer to the future obligations of Member States and consequently are not meant to be transposed. Article 7 of the Services Act implements the freedom to provide services clause found in Article 16 of the Services Directive. Certain Article 16(2) requirements were not referred to in Article 7(1) of the Services Act: establishment requirement (Article 16(2)(a)), requirement banning the establishment of an infrastructure in the territory of the hosting Member State (Article 16(2)(c)), the requirement for specific contractual arrangements (Article 16(2)(d)) and the requirement to use certain equipment and material while carrying out service activities (Article 16(2)(f)). This could be explained by the fact that the relevant sector-specific legislation does not make the access to and exercise of service activities subject to such requirements anymore. Nevertheless, the regulatory technique used makes the implementation somewhat incomplete and may cause legal ambiguity as there seems to be nothing in the legislation which would prevent the legislator from introducing such requirements in the future. According to the Services Directive, requirements can only be imposed on cross-border service providers if justified by one of the reasons listed in its Article 16(1) and (3). Reference to the four justification reasons is reproduced in the Services Act. However, it is noted that Article 7(1) of the Services Act adds two additional criteria to the exhaustive list of the Services Directive. These additional criteria could fall under the broadly interpreted notion of public policy. With regard to the National Report for Hungary, May 2011 /1

8 principles of non-discrimination and proportionality, the Services Act does not include equivalent clauses. In order to complete the sections below, both the primary and the secondary legislation was reviewed. This includes legislation which was amended due to the implementation of the Services Directive, and legislation which in general terms is relevant for the given sector. The aim of the review was to confirm whether or not any of the Article 14, 15(2) and 16(2) prohibitions remains in place in the reviewed sectors. National Report for Hungary, May 2011 /2

9 2. Retail 2.1 Overview It is noted that some of the legislation reviewed would also be relevant for other sectors such as for food and beverages. As an example, Ministerial Decree 52/2010 (IV.30.) on the production and marketing of food by small-scale producers lays down provisions applicable to the sale of food products by small-scale producers. In addition to these rules, some paragraphs of the Ministerial Decree set the rules applicable to catering activities provided by such producers. As these latter provisions constitute only minor part of the Ministerial Decree, and its main aim is to set rules applicable to the selling of food products, the assessment of the Ministerial Decree is covered under this section. For the purpose of the study, the following legislation was reviewed: Act XLVIII of 1993 on mining Act CXVI of 1996 on atomic energy Act XLII of 1999 on the protection of non-smokers, the consumption and trade of tobacco products Ministerial Decree 16/2000 (VI. 8.) on the implementation of certain provisions of Act CXVI of 1996 on Atomic Energy 1 Act CVIII of 2001 on certain issues of electronic commerce services and information society services Government Decree 191/2002 (IX.4.) on the placing on the market and supervision of explosives for civil uses Act LII of 2003 State recognition of plant varieties and the production and marketing of propagating material Government Decree 94/2003 (XII. 18.) on the authorisation and supervision of activities which related to the bottling of liquid propane butane gases and butane gases Act CXXVII of 2003 on the excise duty (taxes) and the specific rules of selling excise goods Government Decree 162/2003 (X.16.) on the production and marketing of plants used to produce narcotic drugs Government Decree 175/2003 (X.28.) about the instruments particularly hazardous to public safety Ministerial Decree 7/2004 (XI. 23.) on the professional requirements for marketing, repairing and hiring of therapeutic equipment 2 Government Decree 16/2004 (II. 6.) on the authorisation of export, import, transfer and transit of military goods and services Act XXIV of 2004 on firearms and ammunition Ministerial Decree 37/2004 (IV.16.) on food supplements 3 Ministerial Decree 48/2004 (IV.21.) on the production and marketing of seeds 4 Ministerial Decree 49/2004 (VIII. 31.) on shooting-grounds, authority storage of firearms and ammunition and the theoretical and practical requirements of possession of firearms 5 Ministerial Decree 50/2004 (IV.22.) on the production and marketing of propagating material for vegetables Ministerial Decree 64/2004 (IV.27.) on the production and marketing of propagating material for fruits 1 Decree adopted by the Ministry of Health 2 Decree adopted by the Ministry of Health 3 Decree adopted by the Ministry of Health, Social and Family Affairs 4 Decree adopted by the Ministry of Agriculture and Rural Development 5 Decree adopted by the Ministry of Interior Affairs National Report for Hungary, May 2011 /3

10 Ministerial Decree 74/2004 (IV.29.) on inspection, verification and certification of precious metals 6 Government Decree 253/2004 (VIII. 31.) on arms and ammunition Ministerial Decree 52/2005 (XI. 18.) on the trade of drugs for human use 7 Act CIX of 2005 on the authorisation of production of military goods and of military services Government Decree 159/2005 (VIII. 16.) on drug precursors Act CLXIV of 2005 on trade Government Decree 301/2005 (XII. 23.) on the detailed rules of authorisation of production of military goods and of military services Act XCVIII of 2006 on general provisions relating to the reliable and economically feasible supply of medicinal products and medical aids and on the distribution of medicinal products Ministerial Decree 87/2006 (XII.28.) on the production and marketing of propagating material for grapes 8 Ministerial Decree 32/2007 (III. 19.) on the marking of military goods and the registration of military goods and services 9 Act LXXXVI of 2007 on energy Act XLVI of 2008 on the food chain and supervision by the authorities Act XL of 2008 on the supply of natural gas Ministerial Decree 45/2008 (IV.11.) on the marketing of propagating material for ornamentals 10 Act LXI of 2009 on the collection and sale of metals with the aim of minimising the abuse with these activities Ministerial Decree 79/2009 (VI.30.) on the standardisation, production, marketing, signature and control of agricultural and ecological products 11 Government Decree 210/2009 (IX.29.) on the conditions governing commercial activities Government Decree 41/2010 (II.26.) on keeping animals for leisure purposes and on the trade of pets Ministerial Decree 43/2010 (IV. 23.) on pesticides 12 Ministerial Decree 52/2010 (IV.30) on the production and marketing of food by small-scale producers Prohibited requirements - Article 14 analysis Article 14 checklist Reference Prohibited requirements Finding Notes Situation preimplementation Situation postimplementation 14(1) Requirements based directly or None identified. indirectly on nationality or residency 14(5) Economic tests None identified. 14(6) Involvement of competing operators None identified. in the decisions of competent authorities 14(7) Obligations to obtain financial None identified. guarantees or insurances from operators established in the same Member State 6 Decree adopted by the Ministry of Economy and Transport 7 Decree adopted by the Ministry of Health 8 Decree adopted by the Ministry of Agriculture and Rural Development 9 Decree adopted by the Ministry of Economy and Transport 10 Decree adopted by the Ministry of Agriculture and Rural Development 11 Decree adopted by the Ministry of Agriculture and Rural Development 12 Decree adopted by the Ministry of Agriculture and Rural Development 13 Decree adopted by the Ministry of Agriculture and Rural Development National Report for Hungary, May 2011 /4

11 Findings with respect to the Article 14 prohibitions None of the Article 14 prohibited requirements was identified in the reviewed primary and secondary legislation. This is in compliance with Article 4 of the Services Act, which lists the Article 14 prohibited requirements and states that such requirements cannot be imposed on service providers in Hungary. It is noteworthy that in Hungary only those service providers who are members of a dairy association can sell propagating materials. Such requirement is not discriminatory in the sense that such dairy associations can be established by anyone, regardless the nationality of the natural persons and the residency of the undertakings. However, it can be argued that such requirement makes the provision of services more burdensome to cross-border service providers already established in other Member States or seeking to establish in Hungary. 2.3 Requirements to be evaluated - Article 15 analysis Article 15(2) checklist Reference Requirements to be evaluated Finding Notes 15(2)(a) Quantitative or territorial restrictions X Tobacco products cannot be sold in public education, social, children welfare and public health institutions. Radioactive products can only be sold upon authorisation. The territorial scope of permission is limited to the area of competence of the administrative authority issuing the permit. Small-scale food producers can sell their products to e.g. small shops and catering establishments that are situated within 40 km from the place of production. Findings with respect to the Article 15 elements for evaluation, including justification analyses According to Article 5(1) of Act XLII of 1999 on the protection of non-smokers, the consumption and trade of tobacco products, tobacco products cannot be sold in certain places, such as in public health and education institutions. Such requirement which determines the geographic location or the physical place where a given service can be provided falls under Article 15(2)(a) of the Services Directive. A territorial restriction was identified in Article 20(1)(a) of Act CXVI of 1996 on atomic energy (Atomic Energy Act) and Article 14(3) of Ministerial Decree 16/2000 (VI. 8.) on the implementation of certain provisions of Act CXVI of 1996 on Atomic Energy (Ministerial Decree on atomic energy). According to Article 14(3) of the Ministerial Decree on atomic energy, the territorial scope of permissions issued by the Radio-hygiene Department (Sugarugyi Decentrum) is valid in the area of competence of the Radio-hygiene Department. The activities for which such permission would be required are listed in Article 20(1)(a) of the Atomic Energy Act, which includes inter alia the marketing of radioactive products. Moreover, a territorial restriction was identified in Article 4(1) and (2) of Ministerial Decree 52/2010 (IV.30.) on the production and marketing of food by small-scale producers. The Article restricts the territory where small-scale food producers can sell their products (i.e. raw materials), by stating that their food can only be sold to e.g. small food shops, catering establishment and markets which are situated within 40 kilometres from the place of production. In addition to the prohibition of Article 15(2)(a) of the Services Directive, other prohibited requirements were also identified. National Report for Hungary, May 2011 /5

12 Requirements relating to the shareholding of companies are prohibited under Article 15(2)(c) of the Services Directive. According to Article 51(1) of Act XL of 2008 on the supply of natural gas, a service provider can sell propane butane (PB) gas to consumers if the majority of the PB gas network is owned by the given service provider. According to Article 15(2)(h) of the Services Directive, obliging an operator to supply other services jointly with his services is prohibited. Within the mutual evaluation process, Hungary reported a similar requirement. According to Article 6/A(1)(a)-(e) of Ministerial Decree 7/2004 (XI.23.) on the professional requirement for marketing, repairing and hiring of therapeutic equipment, a service provider who would like to sell therapeutic equipment must run a call centre, provide home delivery services, give instructions and set up equipment for those ordering it, return such equipment to the place where the service is provided and provide technical advices to customers. Moreover, a reference to the limitation on the choice of legal form was identified in Act CLXIV of 2005 on trade (Trade Act). According to Article 3(2) of the Trade Act, service providers are not obliged to take a special legal form in Hungary, unless otherwise stated in a government decree and justified. According to Article 2(1) Ministerial Decree 52/2010 (IV.30) on the production and marketing of food by small-scale producers, only natural persons can act as small-scale producers. According to the expert such requirement could be seen as contrary to Article 15(2)(b) of the Services Directive. Similar requirement was identified in Article 29/A of the Natural Gas Act, which states that only legal persons can sell natural gas to Hungarian consumers, or with respect to cross-border service providers only those which have a branch in Hungary (see also Section 2.4.). 2.4 Restrictions to the freedom to provide services - Article 16(2) analysis Article 16(2) checklist Reference Prohibited requirements Finding Notes 16(2)(a) Obligation to have an establishment in the None identified. territory where the service is provided 16(2)(b) Obligation to obtain an authorisation or a registration X The marketing of arms, paintball guns, ball bearing guns, ammunition (except for ammunitions in museums), Flobert ammunition, ammunition for ball bearing guns and alarm guns, and ammunition parts is subject to authorisation. It is noted that in many cases notification requirements were identified in the reviewed sectorspecific legislation. 16(2)(c) Ban on setting up an infrastructure None identified. 16(2)(d) Application of specific contractual None identified. arrangements between the service provider and the recipient restricting the provision of the service by the self-employed 16(2)(e) Obligation to possess a specific identity None identified. document 16(2)(f) Requirements affecting the use of None identified. equipment 16(2)(g) Restrictions on recipients None identified. Findings with respect to the Article 16(2) prohibitions, including justification analyses According to Article 3(1) of the Trade Act, service providers who would like to carry out trading activities in Hungary are obliged to give notice to the competent authorities. This general rule seems to be applicable to cross-border providers as well. According to Article 3(3) of the Trade Act, there are National Report for Hungary, May 2011 /6

13 exceptions from the general rules described in Article 3(1). The Article states that authorisation requirements could apply to service providers if it is stated in a separate government decree and can be justified by one of the following reasons: public policy, public security, the protection of the environment and public health. In line with Article 3(1) of the Trade Act notification requirements were identified in the following sector-specific legislation: - According to Article 118/A(2) of the Natural Gas Act, cross-border service providers are obliged to notify the competent authorities before starting to sell liquid propane butane gas in bottles, or bottling propane butane gas from pressure bottles into camping bottles. - According to Article 18/C(1) of Act XXIV of 2004 on firearms and ammunitions, crossborder service providers can sell explosives for civil use upon notification. The precondition set by the Article is that cross-border service providers need to be authorised in their country of origin. - According to Article 15(1) of Act LII of 2003 on the state recognition of plant varieties and the production and marketing of propagating materials, cross-border service providers are obliged to notify the competent Hungarian authorities, in order to sell seeds, and reproductive materials for grapes, fruit trees, plants, vegetables, forests as well as for trees used for energy purposes. - According to Article 44(3) of Act XLVIII of 1993 on mining, the marketing of explosives for civil use is subject to notification for cross-border service providers. - According to Article 11(4) of Act XCVIII of 2006 on general provisions relating to the reliable and economically feasible supply of medicinal products and medical devices (also called medical aids) and on the distribution of medicinal products, the marketing of medical devices by cross-border service providers is subject to prior notification. - According to Article 23/A(1) of Act XLVI of 2008 on the Food Chain and Supervision by the Authorities, certain activities carried out by cross-border service providers are subject to prior notification. These activities cover inter alia the marketing of food treated with ionised energy, or the marketing of wild mushrooms. In line with Article 3(1) of the Trade Act, authorisation requirements were identified in the following sector-specific legislation: - According to Article 4/A of Act XXIV of 2004 on firearms and ammunition, cross-border service providers need to possess an authorisation in order to sell arms, paintball guns, ball bearing guns, ammunition except for ammunitions in museums, Flobert ammunition, ammunition for ball bearing guns and alarm guns, and ammunition parts. - According to Article 2/A of Act CIX of 2005 on the authorisation of production of military goods and of military services, the marketing of military products by cross-border service providers is subject to prior authorisation. Following the authorisation, the competent authorities register the cross-border service provider. At this point it is noteworthy that authorisation requirements were also found with regard to the sale of natural gas and energy. However, reference to such authorisation requirements is not provided in the checklist above, as in line with Article 17 of the Services Directive, services related to gas and electricity are exempted from the scope of Article 16, to the extent they are covered by Directives 2003/54/EC 14 and 2003/55/EC. 15 Article 16(2)(a) of the Services Directive prohibits requirements which would oblige cross-border service providers to set up an establishment in the territory of the host Member State. According to 14 Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity and repealing Directive 96/92/EC - Statements made with regard to decommissioning and waste management activities, OJ L 176, , p Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC, OJ L 176, , p National Report for Hungary, May 2011 /7

14 2.5 Conclusions for retail sector Since the implementation of the Services Directive, most of the sector-specific legislation has been amended. Despite the amendments made, certain requirements of Articles 15 and 16 were identified in the reviewed sector-specific legislation. Among the requirements listed in Article 15 of the Services Directive, the following ones were identified: territorial restrictions which determine the geographic location or the physical place where a given service can be provided (Article 15(2)(a)); obligation to take a specific legal form if the service providers want to provide services (Article 15(2)(b)); requirement relating to the shareholding of companies (Article 15(2)(c)); obligation to supply other services jointly with the services of the service provider (Article 15(2)(g)). The identified Article 16 requirements relate to authorisation and notification (Article 16(2)(b)). National Report for Hungary, May 2011 /8

15 3. Tourism 3.1 Overview In order to complete the analysis for tourism services, a review of primary and secondary legislation was undertaken. This includes legal instruments which were amended or adopted pursuant to the implementation of the Services Directive, as well as other legislation which is relevant for carrying out tourism activities. 16 It is noted that some of the legislation reviewed could also possibly fall under other service sectors, e.g. travel agents and tourist operators could also be relevant as regulated professions. 17 Since the relevant rules are laid down in tourism related legislation, the assessment of such cross-sectoral rules is covered in this section. For the purposes of the study, the following sector-specific legislation was reviewed: Act IV of 1959 on the Civil Code Act XI of 1991 on statutory health and administrative activity Ministerial Decree 12/1991 (VI.18.) on the hygienic requirements of the recreation and camping of the learning youth 18 Ministerial Decree 3/1992 (I.13.) on the qualification exams of travel agents 19 Government Decree 121/1996 (VII.24.) on establishing and operating public spas Government Decree 213/1996 (XII. 23.) on travel agent and tourist operator activities Ministerial Decree 5/1997 (III.5.) on the qualification requirements for conducting certain commercial, industrial and tourism activities 20 Ministerial Decree 13/1998 (V.6.) on the opening hours of caves and the conditions for their visiting, as well as on research in caves 21 Act XLII of 2000 on water transport Ministerial Decree 28/2000 (XII.18.) on the authorisation of shipping activities 22 Ministerial Decree 15/2001 (I.16.) on the qualifications required for shipping 23 Government Decree 173/2003 (X.28.) on the non-commercial public, and leisure accommodation services Act CLXIV of 2005 on trade Ministerial Decree 37/2007 (VII.23.) on the hygienic requirements of certain non-business community recreation lodgings 24 Ministerial Decree 14/2008 (XII.20) on providing equestrian services 25 Ministerial Decree 33/2009 (XII.18.) on tourist guides 26 Government Decree 239/2009 (X.20.) on the conditions applicable to provide accommodation and on issuing licences operating accommodations 16 According to Article 2(8) of Act CLXIV of 2005 on trade, the following activities can be considered as tourism related service activities in Hungary: tourist guides, horse-trainers, travel-agents, tour operators and service providers of short/long-stay accommodation. It is noted that there are other tourism related activities that are not covered by this definition, but are relevant for this section, e.g. shipping activities. 17 According to Article 6/F(2) of Act CLXIV of 2005 on trade, only those service providers can act as travel agents and tourist operators who have at least one employee possessing the necessary qualification and practice. 18 Decree adopted by the Ministry of Social Welfare 19 Decree adopted by the Ministry of Industry and Commerce 20 Decree adopted by the Ministry of Industry, Commerce and Tourism 21 Decree adopted by the Ministry of Environmental Protection and Rural Development 22 Decree adopted by the Ministry of Environmental Protection and Water 23 Decree adopted by the Ministry of Environmental Protection and Water 24 Decree adopted jointly by the Ministry of Health and the Ministry of Social Affairs and Labour 25 Decree adopted by the Ministry of Local Authorities 26 Decree adopted by the Ministry of Local Authorities National Report for Hungary, May 2011 /9

16 3.2 Prohibited requirements - Article 14 analysis Article 14 checklist Reference Prohibited requirements 14(1) Requirements based directly or indirectly on nationality or residency 14(2) Requirements limiting the establishment of service providers to one Member State Finding Notes Situation preimplementatioimplementation Situation post- X X Carrying out shipping activities is subject to authorisation. Only legal persons or unincorporated business associations having a registered office in Hungary can apply for authorisations. None identified. 14(3) Requirements limiting the choice of the None identified. service provider between principal and secondary establishment 14(5) Economic tests None identified. 14(7) Obligations to obtain financial None identified. guarantees or insurances from operators established in the same Member State Findings with respect to the Article 14 prohibitions Except for one case, no Article 14 prohibited requirement was identified in the reviewed primary and secondary legislation. Requirements based directly or indirectly on nationality or residency According to Article 3(1) of Ministerial Decree 28/2000 (XII.18.) on the authorisation of shipping activities, carrying out shipping activities is subject to authorisation. It is noted, that in accordance with Article 2(2)(d) of the Services Directive, services in the field of transport are outside the scope of the Services Directive. With this regard the prohibited requirement found in Article 3(1) of the Ministerial Decree would not be relevant. However, the definition of shipping activities 27 covers services (e.g. restaurants) which are not strictly speaking transport related and consequently could fall under the scope of the Directive. In line with Article 4(1) of the Ministerial Decree, only legal persons and/or unincorporated business associations with a registered office in Hungary can apply for authorisation. This can be considered as a direct discrimination based on the location of the registered office, as it excludes legal persons and/or unincorporated business associations with registered office in another Member State from providing shipping services. Such requirement is prohibited under Article 14(1) of the Services Directive. 3.3 Requirements to be evaluated - Article 15 analysis Article 15(2) checklist Reference Requirements to be evaluated Finding Notes 15(2)(a) Quantitative or territorial restrictions None identified. 15(2)(g) Obligations to apply fixed minimum or maximum tariffs None identified. 27 The scope of shipping activities is determined in Article 87 of Act XLII of 2000 on water transport and covers the water transport of passengers and goods, tugboats and other use of ships e.g. as restaurants. National Report for Hungary, May 2011 /10