Services Directive: Assessment of Implementation Measures in Member States

Transcription

1 Services Directive: Assessment of Implementation Measures in Member States National Report for Germany Part One: Analysis of the implementation of the freedom to provide services clause

2 This National Report has been prepared by Bernhard Borsche 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 One Analysis of the implementation of the freedom to provide services clause laid down in Article 16 of the Services Directive TABLE OF CONTENTS ABBREVIATIONS 1. Legal analysis Overview of national measures implementing Article 16 of the Services Directive Summary of correctness and completeness of implementing measures (Articles 16(1) and (2)) The right of Member States to impose certain requirements (Article 16(3)) Hierarchical status of the implementing measures Practical implementation The application of the transposing measures by national authorities and courts Gaps and deficiencies in implementation Conclusions ANNEX I ANNEX II List of national legislation Sources of information

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5 ABBREVIATIONS Section Bund BW Federal Trade Act Länder SA MV NRW Professional Qualifications Directive RP SA Services Directive SH the Federation (federal level) Baden-Württemberg Federal Trade, Commerce and Industry Regulation Act the 16 Federal States Saxony-Anhalt Mecklenburg - West Pomerania North-Rhine Westphalia Directive 2005/36/EC on the recognition of professional qualification Rheinland-Pfalz Saxony-Anhalt Directive 2006/123/EC on services in the internal market Schleswig-Holstein

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7 1. Legal analysis 1.1 Overview of national measures implementing Article 16 of the Services Directive Overview of national legislation regulating services Legislative competences In Germany, the competence to legislate on services as defined in Article 4(1) of the Services Directive is divided between the Federation (Bund), the 16 Federal States (Länder), the municipalities and professional associations. The Basic Law (Federal Constitution GG) divides the legislative power, including the power to legislate on services, between the Bund and the Länder. In general, the Basic Law vests the legislative power in the Länder except for those cases (of which there are many) where the Basic Law explicitly confers it to the Bund (Article 70 GG). Municipalities are entitled to regulate local affairs on a selfgoverning basis while being required to comply with federal and Länder legislation (Article 28 GG). In addition, the Bund and the Länder have delegated legislative power to professional associations to administrate and control certain professions. On this basis professional associations are entitled to adopt regulations and to subject service providers to certain requirements. Professional associations are entities governed by public law (Körperschaften des öffentlichen Rechts) that are entitled to exercise public authority. In accordance with Article 74 paragraph 1 point 11 of the Basic Law the Bund has legislative power on the law relating to economic matters (mining, industry, energy, crafts, trades, commerce, banking, stock exchange and private insurance). Article 74 paragraph 1 point 1 of the Basic Law confers the power to the Bund to legislate on the provision of legal advice (lawyers). Article 74 paragraph 1 point 19 distributes the power to legislate on the admission to the medical profession and to ancillary professions or occupations and the law on pharmacies to the Bund. In addition, the Bund has the competence to legislate on many other matters that indirectly cover services. For instance, the Bund has the power to legislate on soil related matters including soil protection 1 (Article 74 paragraph 1 point 29 GG). This includes the competence to set the regulatory framework for private experts and inspection services that carry out specific tasks to support the competent authorities in controlling the compliance with requirements under the Federal Soil Protection Act, e.g. the examination of a contaminated site. Since the Basic Law does not subject all services to the legislative competence of the Bund, the Länder are entitled to legislate on various services including media services, catering services (supply of drinks or food to public customers that are consumed at the point of sale), interpretation and translation services before the courts, expert and inspection services, and professions including architects and construction engineers etc. The Basic Law also entitles the Bund to transfer legislative power to the federal government, federal ministries or to Länder governments by virtue of federal laws (Article 80 GG). The Federal Soil Protection Act, for example, entitles the Länder to regulate the procedure for the authorisation of private experts and inspection bodies carrying out expert services under this federal act. In addition, the Federal Ordinance on Installations for Handling Substances Hazardous to Water (Verordnung über Anlagen zum Umgang mit wassergefährdenden Stoffen) refers to the Länder legislation to regulate the authorisation of private experts responsible for the control of these installations. 1 Pieroth in Jarass/Pieroth, Commentary to the Basic Law of the Federal Republic of Germany, Article 74 paragraph 37. National Report for Germany, June 2011 /1

8 In some cases the legislative competences of Bund and Länder overlap. In these cases the Basic Law determines the applicable law. The following overlaps are relevant for the services sector. Before the federalism reform in 2006, the Bund had the legislative competence to regulate catering services. On the basis of this competence, the Bund adopted the Federal Catering Act (Gaststättengesetz). The Länder had only adopted ordinances implementing the Federal Catering Act. As part of the federalism reform, the competence to legislate on catering services was transferred to the Länder. The Federal Catering Act remains applicable as long as the Länder do not adopt their own legislation (Article 125a (1) GG). Brandenburg, Bremen, Hessen, Saxony and the Saarland have adopted Länder Catering Acts that derogate from the authorisation requirement of the Federal Catering Act. Baden-Württemberg adopted a Catering Act, but this Act refers to the federal act and does not derogate from it. The Länder Acts take precedence over the federal Act. The Bund has the legislative power to legislate on nature conservation measures. On the basis of this competence the Bund adopted the Federal Nature Conservation Act (Bundesnaturschutzgesetz). This act, inter alia, subjects the commercial (gewerbsmäßige) collection of wild flora to an authorisation requirement by the competent Länder authority. In the cases listed in Article 74 paragraph 3 GG, the Länder have the legislative competence to derogate from the federal legislation. The conservation of nature is one of these cases (Article 74 paragraph 3 sentence 1 point 2 GG). Baden-Württemberg (BW), Brandenburg, North-Rhine Westphalia (NRW) and Thuringia adopted laws that also regulate the commercial collection of wild flora and slightly differ from the federal regulation. These Länder laws take precedence over the federal law according to Article 72 paragraph 3 sentence 2 GG. Municipalities are entitled to regulate their local affairs. For instance they are entitled to regulate the conditions under which persons are permitted to carry out services at local cemeteries, e.g. many municipalities of Baden-Württemberg have adopted municipal cemetery ordinances that, inter alia, regulate the conditions under which service providers are entitled to carry out services on cemeteries. Laws of the Länder and federal laws delegate the power to exercise public authority to professional associations. For example, Saxony s Act on the Association of healthcare professionals (Sächsisches Heilberufekammergesetz) establishes associations for various healthcare professions and entitles these associations to adopt ordinances regulating the advanced training of these professions and the authorisation procedure for training facilities. Legislation on services Services are regulated either through the cross-cutting Federal Trade, Commerce and Industry Regulation Act (Federal Trade Act) or under sector-specific legislation of the Bund, the Länder, the municipalities or professional organisations. Many services are regulated under the cross-cutting Federal Trade Act that was adopted on the basis of Article 74 paragraph 1 point 11 of the Basic Law. This Act regulates self-employed activities that are lawfully exercised on a permanent basis with the intent of making a profit (Gewerbe). 2 It excludes from its scope: primary production (natural production of plants and the breeding of animals and the processing of these natural products, e.g. fishery, mining and livestock breeding, agricultural production, forestry, gardening and wine activities, hunting and the collection of natural products); scientific, artistic and literary professions; and liberal professions (these are activities requiring higher education (e.g. a university degree) and the exercise of which requires a self-responsible and personal performance of the 2 Stober, administrative law of economics, part II, 45 V (1)ff. National Report for Germany, June 2011 /2

9 service provider 3 including educators, lawyers, notaries, financial auditors, tax advisers and handwriting experts). 4 Taking the scope of the Federal Trade Act into account it covers most services in the field of retail, tourism, food and beverages, real estate and crafts. Certification and expert services cannot unambiguously be subsumed under the Federal Trade Act. Nor does it cover most services in the field of agriculture, education and the regulated professions. Some activities falling under the scope of the Federal Trade Act are regulated in more detail in complementary federal legislation. For example, the Federal Crafts Code (Handwerksordnung) regulates craftsmen services in more detail and the Federal Catering Act and the Länder catering acts specify the requirements for bars, restaurants etc. Services not covered by the Federal Trade Act are regulated by sector-specific pieces of legislation. The Federal Immission Control Act (Bundesimmissionsschutzgesetz), for example, regulates the conditions under which private experts and inspection bodies are authorised to control emissions from installations and the building codes (Bauordnungen) of the Länder regulate the service to provide building documents (the entitlement to provide building documents is the precondition to construct buildings). Executive competences As a basic rule, the Länder are responsible for executing the federal laws (Article 30 GG) and the Länder laws. This includes the establishment of administrative procedures to implement, enforce and control the federal and Länder legislation. The Länder determine the competent authorities that are responsible for authorising and/or controlling service providers either by law or by administrative regulation. Local authorities are frequently responsible for the control of service providers including many services falling under the Federal Trade Act, 5 e.g. retailers of ordinary consumer goods. Many expert services are authorised and controlled by more specialised authorities or public entities of the Länder. For example, Hamburg s Chamber of Industry and Commerce is responsible for authorising private experts and inspection bodies that carry out expert services under the Federal Soil Protection Act. 6 By contrast, the Bavarian Agency for the Environment (Landesumweltamt) is responsible for authorising these experts in Bavaria. 7 Services of members from certain professions are regulated by associations, e.g. services from doctors, craftsmen, architects, engineers, lawyers etc. These associations provide the self-administration of professions. On the one hand, associations offer support to service providers, and on the other hand, they control service providers. In particular, they regulate the authorisation to exercise a profession and impose disciplinary measures if they identify a violation of professional requirements. For example, there are 28 associations of lawyers in Germany, each of which has jurisdiction in a different region. There is also one federal umbrella association. 8 These associations regulate the authorisation procedure for lawyers and control the exercise of their services. 3 Compare in relation to these negative characteristics of the definition of a commercial activity, Stober, administrative law of economics, part II, 45 VI (1)ff. 4 Many of these activities are explicitly excluded by 6 of the Trade, Commerce and Industry Regulation Act. 5 Stober, administrative law of economics, part II, 45 IV (2). 6 See Hamburg s Ordinance on experts and inspection bodies pursuant to 18 of the Federal Soil Protection Act (Hamburgische Verordnung über Sachverständige und Untersuchungsstellen nach 18 des Bundes- Bodenschutzgesetzes). 7 See the Ordinance on Experts and Inspection Bodies for Soil Protection and Contaminated Sites (Verordnung über Sachverständige und Untersuchungsstellen für den Bodenschutz und die Altlastenbehandlung in Bayern). 8 Website of the Federal Association of Lawyers, available at: National Report for Germany, June 2011 /3

10 Overview of Article 16 implementation measures Germany did not implement Article 16 of the Services Directive through a horizontal law reflecting the requirements of Article 16 of the Services Directive. Instead, Germany amended sector-specific laws at the federal, Länder and local level as well as ordinances adopted by professional associations. The Bund and the Länder implemented the Services Directive by virtue of one or more cross-cutting omnibus laws (Artikelgesetze), each of which amended a series of sector-specific laws. In addition, sector-specific omnibus-laws were adopted to implement the Services Directive. For example, each of the Länder adopted a law adjusting the authorisation procedures for private experts controlling installations handling substances hazardous to water to the requirements of the Services Directive. These laws seek to implement the entire Services Directive including amendments to adjust the national legislation to comply with Article 16. The following section lists the main omnibus laws at the federal and Länder level. 9 Several sector-specific amendments to adjust the national legislation to Article 16 were included in these laws. These amendments are outlined in more detail in Sections 1.2 and 1.3 of this Report: The Federal Act implementing the Services Directive in the Trade, Commerce and Industry Regulation Act and in further legislation of 17 July 2009 that mainly came into force on 28 December 2009 (Gesetz zur Umsetzung der Dienstleistungsrichtlinie im Gewerberecht und in weiteren Rechtsvorschriften)10 abbreviated: Federal Services Directive Act Trade. The Federal Act implementing the Services Directive in the Field of Environmental Law and amending environmental provisions of 11 August 2010 that came into force on 18 August 2010 (Gesetz zur Umsetzung der Dienstleistungsrichtlinie auf dem Gebiet des Umweltrechts sowie zur Änderung umweltrechtlier Vorschriften) 11 abbreviated: Federal Services Directive Act Environment. Federal Ordinance Implementing the Services Directive in the Field of the Environment and Amending environmental provisions of 9 November 2010 that came into force on 16 November 2010) (Verordnung zur Umsetzung der Dienstleistungsrichtlinie auf dem Gebiet des Umweltrechts sowie zur Änderung umweltrechtlicher Vorschriften) 12 abbreviated: Federal Services Directive Ordinance Environment. Federal Act Implementing the Services Directive in the Judiciary and Amending further provisions of 22 December 2010 that came into force on 28 December 2010 (Gesetz zur Umsetzung der Dienstleistungsrichtlinie in der Justiz und zur Änderung weiterer Vorschriften) 13 abbreviated: Federal Services Directive Act Judiciary. Bavarian Ordinance Amending the Engineers Association Procedure Ordinance of 22 Oktober 2009 that came into force on 1 November (Verordnung zur Änderung der Baukammernverfahrensverordnung und weiterer Rechtsverordnungen) abbreviated: Bavarian Services Directive Act Engineers Association. Act amending the Bavarian Press Act and other laws of 22 December 2009 that came into force on 1 January 2010 (Gesetz zur Änderung des Bayerischen Pressegesetzes und anderer Gesetze) 15 abbreviated: Bavarian Services Directive Act Press. Act amending the Bavarian Construction Code, the Bavarian Construction Association Act and the Bavarian Monuments and Historic Buildings Act of 27 July 2009 that came into force on 1 August 2009 (Gesetz zur Änderung der Bayrischen Bauordnung, des Baukammergesetzes 9 All laws explicitly transposing the Services Directive include in their abbreviation a reference to the Services Directive. 10 Federal Law Gazette (BGBl.), I no. 44 of 24 July 2009, p Federal Law Gazette (BGBl.), I no. 43 of 17 August 2010, p Federal Law Gazette (BGBl.), I no. 56 of 15 November 2010 p Federal Law Gazette (BGBl.), I no. 67 of 27 December 2010 p Law Gazette of Bavaria (GVBl.) no. 21 of 30 October 2009, p Law Gazette of Bavaria (GVBl.) no. 25 of 29 December 2009, p National Report for Germany, June 2011 /4

11 und des Denkmalschutzgesetzes) 16 abbreviated: Bavarian Services Directive Act Construction. Act amending the Bavarian Soil Protection Act of 23 July 2010 that came into force on 1 August 2010 (Gesetz zur Änderung des Bayerischen Bodenschutzgesetzes) 17 abbreviated: Bavarian Services Directive Act Soil Protection. Bavarian Act amending the Translators Act and the Act implementing the Federal Court Constitution Act and federal procedural laws of 22 December 2009 that came into force 1 January 2010 (Gesetz zur Änderung des Dolmetschergesetzes und des Gesetzes zur Ausführung des Gerichtsverfassungsgesetzes und von Vefahrensgesetzten des Bundes) 18 abbreviated: Bavarian Services Directive Act Interpreter. Baden Württemberg s Act Amending the Act Implementing the Federal Food and Consumer Goods Act of 19 October 2009 that came into force on 23 October 2009 (Gesetz zur Änderung des Gesetzes zur Ausführung des Lebensmittel- und Bedarfsgegenständegesetzes) 19 abbreviated: BW s Act on Food and Consumer Goods. Services Directive Act of Baden Württemberg of 17 December 2009 that came into force on 24 December 2009 (Gesetz zur Umsetzumng der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12 Dezember 2006 über Dienstleistungen im Binnenmarkt in Baden-Württemberg) 20 abbreviated: BW s Services Directive Act. Act of Berlin implementing Directive 2006/123/EC on Services in the internal market of 18 November 2009 that mainly came into force on 28 December 2009 (Gesetz zur Umsetzung der Richtlinie 2006/123/EG über Dienstleistungen im Binnenmarkt) 21 abbreviated: Berlin s Services Directive Act. Act introducing the single contact points for the Land Brandenburg and amending further provisions (Gesetz zur Einführung des Einheitlichen Ansprechpartners für das Land Brandenburg und zur Änderung weiterer Vorschriften) 22 abbreviated: Brandenburg s Services Directive Act Single Contact Points. Brandenburg s Act revising the general administration of oaths by interpreters and entitlement of translators 7 July 2009 that came into force on 16 July 2009 (Gesetz zur Neuregelung der allgemeinen Beeidigung von Dolmetschern und Ermächtigung von Übersetzern) 23 abbreviated: Brandenburg s Services Directive Act Interpreters. Brandenburg s First Act Amending Brandenburg s Interpreters Act of 15 July 2010 that came into force on 16 July 2010 (Erstes Gesetz zur Änderung des Brandenburgischen Dolmetschergesetzes) 24 abbreviated: Brandenburg s Professional Qualifications Directive Act Interpreters. Brandenburg s Act Amending Brandenburg s Waste Act and Brandenburg s Act on the Environmental Impact Assessment of 27 May 2009 that came into force on 4 June 2009 (Gesetz zur Änderung des Brandenburgischen Abfallgesetzes und des Brandenburgischen Gesetzes über die Umweltverträglichkeitsprüfung) 25 - abbreviated: Brandenburg s Act Amending the Waste Law Act implementing the EU Services Directive in Bremen and amendment of further provisions of 24 November 2009 that came into force on 28 December 2009 (Gesetz zur Umsetzung der EU-Dienstleistungsrichtlinie im Land Bremen und Novellierung weitere Rechtsnormen) 26 abbreviated Bremen s Services Directive Act abbreviated: Bremen s Services Directive Act. 16 Law Gazette of Bavaria (GVBl.) no. 14 of 27 July 2009, p Law Gazette of Bavaria (GVBl.) no. 14 of 30 July 2010, p Law Gazette of Bavaria (GVBl.) no. 25 of 2009, p Law Gazette of Baden Württmenberg (GBl.) no. 18 of 22 October 2009, p Law Gazette of Baden Württmenberg (GBl.) no. 23 of 23 December 2009, p Law Gazette of Berlin (GVBl.) no. 29 of 28 November 2009, p Law Gazette of Brandenburg (GVBl.) no.12 of 16 June 2009, p Law Gazette of Brandenburg (GVBl.) no. 11 of 15 July Law Gazette of Brandenburg (GVBl.) no. 26 of 15 July Law Gazette of Brandenburg (GVBl. no. 8 of 4 June 2009 p Law Gazette of Bremen (GBl.) no. 65 of 9 December 2009, p National Report for Germany, June 2011 /5

12 Act of Hamburg implementing the European Services Directive and to amend further legislation of 15 December 2009 that mainly came into force on 28 December 2009 (Hamburgerisches Gesetz zur Umsetzung der Europäischen Dienstleistungsrichtlinie und über weitere Rechtsanpassungen) 27 abbreviated: Hamburg s Services Directive Act. Ordinance of Hamburg implementing the European Services Directive of 21 December 2010 that came into force on 25 December 2010 (Hamburgerische Verordnung zur Umsetzung der Europäischen Dienstleistungsrichtlinie) 28 Hamburg s Services Directive Ordinance. Act of Hessen implementing Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market and to amend further provisions of 15 December 2009 that mainly came into force 28 December 2009 (Hessisches Gesetz zur Umsetzung der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vo m 12 Dezember 2006 über Dienstleistungen im Binnenmarkt und zur Änderung von Rechtsvorschriften) 29 abbreviated: Hessen s Services Directive Act. Hessen s Act Implementing Directive 2006/123/EC of the European Parliament and the European Council of 12 December 2006 on Services in the Internal Market in the Catering Law of 15 December 2009 that came into force on 28 December 2009 (Gesetz zur Umsetzung der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12. Dezember 2006 über Dienstleistungen im Binnenmarkt im Gaststättenrecht) 30 abbreviated: Hessen s Services Directive Act Catering. Act Amending Lower Saxony s Architects Act, Lower Saxony s Engineers Act and Lower Saxony s Construction Code of 11 October 2010 that came into force on 20 October 2010 (Gesetz zur Änderung des Niedersächsischen Architektengesetzes, des Niedersächsischen Ingenieursgesetzes und der Niedersächsischen Bauordnung) 31 abbreviated: Lower Saxony s Services Directive Act Construction. Act Amending Lower Saxony s Construction Engineering Test Ordinance of 23 November 2010 the came into force on 8 December 2010 (Verordnung zur Änderung der Bautechnischen Prüfungsverordnung) 32 abbreviated: Lower Saxony s Services Directive Ordinance Construction Engineering Test. Act implementing Directive 2006/123/EC on services in the internal market in Mecklenburg- Pomerania of 17 December 2009 that came into force on 28 December 2009 (Gesetz zur Umsetzung der Richtlinie 2006/123/EG über Dienstleistungen im Binnenmarkt in Mecklenburg Vorpommern) 33 abbreviated: MV s Services Directive Act. Act implementing the EU Services Directive in the framework of the evaluation of requirements in North-Rhine Westphalia and amending further provisions of 17 December 2009 that came into force on 28 December 2009 (Gesetz zur Umsetzung der EG- Dienstleistungsrichtlinie im Rahmen der Normenprüfung in Nordrhien-Westfalen und zur Änderung weiterer Vorschriften) 34 abbreviated: NRW s Services Directive Act. Rheinland-Pfalz s First Act implementing Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market of 27 October 2009 that mainly came into force on 28 December 2009 (Erstes Landesgesetz zur Umsetzung der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12. December 2006 über Dienstleistungen im Binnenmarkt) 35 abbreviated: RP Services Directive Act (I). Rheinland-Pfalz s Second Act Implementing Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on Services in the Internal Market of Law Gazette of Hamburg (HmbGVBl.) no. 55 of 22 December 2009, p Law Gazette of Hamburg (HmbGVBl.) no. 46 of 24 December 2010, p Law Gazette of Hessen (GVBl.) no. 22 of 23 December 2009, p Law Gazette of Hessen (GVBl.) no. 22 of 23 December 2009, p Law Gazette (Nds. GVBl.) no. 25 of 19 October 2010, p Law Gazette (Nds. GVBl.) no. 29 of 7 December 2010, p Law Gazette of Mecklenburg-Pomerania (GVOBl.) no. 20 of 30 December 2009, p Law Gazette of North-Rhine Westphalia (GV.NRW.) 2009, p Law Gazette of Rheinland- Pfalz (GVBl.) no. 17 of 30 October 2009, p National Report for Germany, June 2011 /6

13 October 2009 (Zweites Landesgesetz zur Umsetzung der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12. Dezember 2006 über Dienstleistungen im Binnenmarkt vom 27. Okotober 2009) 36 abbreviated: RP Services Directive Act (II). Act no adapting the Construction Code of Saarland, the Architects and Engineers Association Act and the Ordinance Implementing the Architects and Engineers Association Act to Directive 2006/123/EC of the European Parliament and the Council of 12 December 2006 on Services in the Internal Market of 16 June 2010 that came into force on 17 June 2010 (Gesetz Nr zur Anpassung der Landesbauordnung, des Saarländischen Architekten- und Ingenieurkammergesetzes und der Verordnung zur Durchführung des Saarländischen Architekten- und Ingenieurkammergesetzes an die Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12. Dezember 2006 über Dienstleistungen im Binnenmarkt) 37 abbreviated: Saarland s Services Directive Act. Ordinance Amending the Ordinance on experts and inspection bodies for Soil Protection and the Treatment of Contaminate Sites in the Saarland of 21 October 2009 that came into force on 13 November 2009 (Verordnung zur Änderung der Verordnung über Sachverständige und Untersuchungsstellen für den Bodenschutz und die Altlastenbehandlung im Saarland) 38 abbreviated: Saarlands Act Amending Soil Protection Experts. Act implementing the European Services Directive in Saxony of 13 August 2009 that mainly came into force on 28 December 2009 (Gesetz zur Umsetzung der Europäischen Dienstleistungsrichtlinie im Freistaat Sachsen), 39 - abbreviated: Saxony s Services Directive Act. Act implementing the European Services Directive in Saxony-Anhalt of 16 December 2009 that mainly came into force on 28 December 2009 (Gesetz zur Umsetzung der europäischen Dienstleistungsrichtlinie in Sachsen-Anhalt) 40 abbreviated: SA s Services Directive Act. Act amending the Saxony-Anhalt s Construction Code of 16 December 2009 that came into force on 22 December 2009 (Gesetz zur Änderung der Bauordnung des Landes Sachsen- Anhalt) 41 abbreviated: SA s Services Directive Act Construction. Saxony-Anhalt s Ordinance Adjusting soil protection and water related provisions to the Services Directive of 2 September 2010 that came into force on 1 October 2010 (Landesverordnung zur Anpassung bodenschutzrechtlicher und wasserrechtlicher Vorschriften an die Dienstleistungsrichtlinie) 42 abbreviated: SA s Services Directive Ordinance Soil and Water. Act implementing the European Services Directive in Schleswig-Holstein of 9 March 2010 that came into force on 26 March 2010 (Gesetz zur Umsetzung der Dienstleistungsrichtlinie in Schleswig-Holstein) 43 abbreviated: SH s Services Directive Act. Act of Thuringia implementing Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market of 8 July 2009 that mainly came into force on 31 July 2009 (Thüringer Gesetz zur Umsetzung der Richtlinie 2006/123/EG des Europäischen Parlaments und des Rates vom 12 Dezember 2006 über Dienstleistungen im Binnenmarkt) 44 abbreviated: Thuringia s Services Directive Act. Germany did not adopt all implementation measures before the 28 December 2009 and thus did not comply with the deadline set by Article 44 paragraph 1 of the Services Directive. For example, the Federal Services Directive Act Judiciary came into force on 28 December 2010 and SH s Services Directive Act that came into force on 26 March Law Gazette of Rheinland-Pfalz (GVBl.) no. 17 of 30 October 2009, p Law Gazette of Saarland (Amtsbl.) no. 24 of 16 September 2011 p Law Gazette of Saarland (Amtsbl.) no. 45 of 12 November 2009, p Law Gazette of Saxony (GVBl.) no. 11 of 5 September 2009, p Law Gazette of Saxony-Anhalt (GVBl.) no. 24 of 21 December 2009, p Law Gazette of Saxony-Anhalt (GVBl.) no. 24 of 21 December 2009, p Law Gazette of Saxony-Anhalt (GVBl.) no. 16 of 2 September 2010, p Law Gazette of Schleswig-Holstein (GVOBl) no. 8 of 25 March 2010, p Law Gazette of Thuringia (GVBl.) no. 10 of 30 July 2009, p National Report for Germany, June 2011 /7

14 Germany has not adopted any guidelines on the national implementing measures. Any information on the application of the measures is found in Section 2. Information on the point of single contact is also found in Section Summary of correctness and completeness of implementing measures (Articles 16(1) and (2)) Germany has not adopted horizontal legislation implementing Article 16 of the Services Directive. Hence, the correctness and completeness of the national measures implementing this Article must be assessed on the basis of an analysis of the cross-cutting Federal Trade Act and the sector-specific legislation of the Bund, Länder, municipalities and professional organisations. When regulating cross-border services, the federal and the Länder legislation follow different approaches to define cross-border services. Some laws, for instance section 4 of the Federal Trade Act, refer to service providers from other Member States that occasionally and temporarily (or temporarily ) carry out services in Germany. Other laws, for example, the Construction Code of Baden-Württemberg (Landesbauordnung) regulating the service to provide building documents refer to service providers established in other Member States that occasionally and temporarily carry out services in Germany. Further laws, for instance Lower Saxony s Construction Code (Landesbauordnung), again in relation to the service to provide building documents, refer to service providers that have neither their main residence nor their professional establishment in Germany and provide temporary and occasional services. Note that this regulation of Lower Saxony s Construction Code also lays down criteria on how to interpret the term occasional and temporary services. It states that the temporary and occasional character of a service should be determined by taking into account its time duration, frequency, regular recurrence and continuity. Provisions of many other laws cover cross-border services and non-cross-border services and hence do not define cross-border services. They simply refer to service providers from other Member States. The Bavarian Soil Protection Act (Bayrisches Bodenschutzgesetz), for instance, entitles private experts and inspection bodies to carry out their services in Germany under the condition that the service provider holds an equivalent authorisation granted by another Member State. The term establishment is only defined under the Federal Trade Act, where the national definition implements the definition of establishment as stipulated by Article 4(4) of the Services Directive. Section 4 paragraph 3 of the Federal Trade Act dealing with cross-border services defines establishment as fixed office (feste Einrichtung) on the basis of which businessmen virtually exercise their commercial businesses on a self-employed basis and for an undefined time. This definition does not explicitly apply to services not regulated under the Federal Trade Act. However, since the sector-specific legislation implementing Article 16 of the Services Directive refers to the term establishment without separately defining it, the sector-specific legislation should be construed so that the definition of establishment under the Federal Trade Act is analogously applicable to the sector-specific legislation. This section outlines and analyses the national implementation measures that completely abolished establishment, authorisation and registration requirements for cross-border services so that there is no need for justification under Article 16(3) of the Services Directive. Implementation measures that either modified authorisation requirements or only conditionally abolished national requirements or replaced authorisation requirements with notification requirements and hence must be justified under Article 16(3) of the Services Directive are analysed under Section 1.3. National Report for Germany, June 2011 /8

15 The national implementation measures discussed under this section are assessed as being in compliance with Article 16 of the Directive, in all cases where they unconditionally abolished authorisation, registration and establishment requirements. Bund Judiciary Establishment requirements (Article 16(2)(a)) The Federal Services Directive Act Judiciary abolished an establishment requirement under the Federal Code of the Administrative Court Procedure (Verwaltungsgerichtsordnung). It abolished the requirement under this Act that in cases where clients are represented by university law professors, only university law professors from German universities were entitled to represent clients before the court. The law now allows also law professors from universities in other Member States to represent clients before this court. Länder Many Länder abolished establishment requirements to bring their legislation in line with the Services Directive, some of which are presented below. Different sectors Berlin s Services Directive Act amended 4a(5) sentence 1 of Berlin s Act on Professional Chambers (Berliner Kammergesetz) to abolish an establishment requirement as regards the ambulant work (to provide services for patients at their homes) of medical doctors, dentists, veterinary practitioners, psychotherapists, psychological psychotherapists and paediatric psychotherapists. To carry out ambulant work, these professions had to be established with their own office. After the amendment, the regulation lays down, that an establishment is only required if it is not in discord with the Services Directive. In order to comply with the requirement of Article 16(2)(a) of the Services Directive, this national provision must be interpreted so that the requirement to have their own practice only applies to cross-border services, if it can be justified under Article 16(3) of the Services Directive. Hamburg s Services Directive Ordinance abolished the requirement under 4(2) of Hamburg s Ordinance on Structural Inspection Engineers and Structural Inspection Experts and Technical Tests (Verordnung über Prüfingenieure, Prüfsachverständige und Technische Prüfungen) that structural inspection engineers and experts must have their registered office (Geschäftssitz) in Hamburg; and abolished the requirement under (former) 11(2) sentence 2 of Hamburg s Ordinance on Authorised Specialist Companies and Certification Organisations in the field of Property Drainage (Verordnung über anerkannte Fachbetriebe und Zertifizierungsstellen auf dem Gebiet der Grundwasserentwässerung) for authorised Specialist Companies and Certification Organisations. RP s Services Directive Act (II) abolished the requirement under 15(1) point 2 Rheinland-Pfalz (RP) s Constitutional Court Act (Landesgesetz über den Verfassungsgerichtshof) that only university law professors from a German university can represent clients before RP s constitutional court by allowing law professors from universities in other Member States to represent clients before this court. National Report for Germany, June 2011 /9

16 Authorisation, registration and notification requirements (Article 16(2)(b)) Bund The cross-cutting Federal Trade Act The Federal Services Directive Act Trade abolished the requirement to notify all on-premises businesses (Stehende Gewerbe) that fall under the Federal Trade Act under the condition that they are temporarily and occasionally carried out by a service provider from another Member State and are not subject to authorisation ( 4(1) of the Federal Trade Act). 45 As a consequence, it abolished the notification requirement for a large number of cross-border services, in particular in the retail and tourism sector. The Federal Trade Act does not define on-premises businesses. The meaning of this term can be implied a contrario from the definition of off-premises businesses that is defined in the Federal Trade Act and which is reflected below. In addition, Federal Services Directive Act Trade abolished the authorisation requirement for auctioning services, services of estate agents and property developers and property development managers as well as services dealing with the purchase and sale of certain products, e.g. high quality consumer products ( 4(1) of the Federal Trade Act). Eventually, it abolished the general authorisation requirement for off-premises businesses (Reisegewerbe) that was applicable to all services falling under the scope of the Federal Trade Act irrespective of the sector concerned ( 4(1) sentence 2 and 55(2) of the Federal Trade Act). Offpremises businesses is defined as businesses, where the provider offers goods or services to a consumer without having been requested to offer them and outside his commercial establishment or without having such ( 55(1) point 1 of the Federal Trade Act). Regulated professions Already in the context of the implementation of the Professional Qualifications Directive, the Bund and the Länder abolished various requirements for service providers of several regulated professions (architects, medical practitioners, craftsmen etc.) to register in lists maintained by the respective professional associations or to be subject to mandatory membership of such an association. For instance, the Bund abolished the requirement for craftsmen to register under the Federal Craftsmen Ordinance (Handwerksordnung). Before the implementation of the Professional Qualifications Directive, certain services of craftsmen, e.g. hairdressing services, were subject to the requirement that craftsmen were registered in a list maintained by the craftsmen associations of the Länder (Handwerksrolle). 7 of the Federal EU/EEA Craftsmen Ordinance (EU/EWR-Handwerk- Verordnung) stipulates that service providers established in another Member State that temporarily and occasionally carry out services in Germany do not need to register. Implementing the Services Directive, some Länder abolished further registration requirements and mandatory memberships. Saarland s Services Directive Act, for instance, amended 32 of Saarland s Architects and Engineers Association Act (Saarländisches Architekten- und Ingenieurskammergesetz) so that engineers established in another Member State that have their main residence in Germany are not subject to obligatory membership in the architect and engineer association. Before the amendment, service providers that had their main residence in the Saarland, but were established in another 45 In relation to the scope of the Federal Trade Act, see Section 1. National Report for Germany, June 2011 /10

17 Member State, were subjected to the mandatory membership. 46 Most Länder had already abolished registration requirements and mandatory memberships in the context of the transposition of Directive 2005/36/EC. The experts did not identify further laws in the context of the transposition of the Services Directive. Bund Other requirements The federal legislation abolished maximum tariffs under the Federal Ordinance for Architects and Engineers (Verordnung über die Honorare für Architekten- und Ingenieurleistungen) for architects and engineers providing cross-border services by restricting these tariffs to professionals established in Germany ( 1 of this Ordinance). It remains to be seen whether further requirements such as legal form and shareholding requirements which are still in force for regulated professions in Germany have been removed for cross-border service providers. Länder Editor in chief To bring their Press Acts in line with the requirements of Article 16(1), the following acts were amended with the result that the profession of editor in chief is not any more reserved to service providers that have their general residence (gewöhnlichen Aufenthalt) in Germany, but is also accessible to those that have their main residence somewhere else in the European Union. The Bavarian Services Directive Act Press amended 2(5) point 1 of the Bavarian Press Act (Bayrisches Pressegesetz), BW s Services Directive Act amended 9(1) its Press Act (Landespressegesetz), Berlin s Services Directive Act amended 8(1) point of Berlin s Press Act (Berliner Pressegesetz), Hamburg s Services Directive Act amended 9(1) Hamburg s Press Act (Hamburgerisches Pressegesetz) MV s Services Directive Act amended 8(1) MV s Press Act (Landespressegesetz für das Land Mecklenburg-Vorpommern) Saxony s Services Directive Act amended 7(1) point 1 of Saxony s Press Act (Sächsisches Gesetz über die Presse) SH s Service Directive Act amended 8(1) point 1 of SH s Press Act (Landespressegesetz) In addition, 8(1) point 1 of SA s Press Act (Landespressegesetz), 9(1) point 1 of Saarland s Media Act (Saarlaendischess Mediengesetz), 9 (1) point 1 of Hessen s Press Act (Hessisches Pressegesetz), 9(1) point 1 of Lower Saxony s Press Act (Niedersaechsisches Pressegesetz), 10(1) point 4 of RP s Media Act (Landesmediengesetz) do not subject editors in chief to discriminatory or establishment related requirements. Only Brandenburg ( 10(1) point 1 Brandenburg's Press Act (Pressegesetz)), Bremen ( 9(1) point 1 Bremen's Press Act (Pressegesetz)), North-Rhine Westphalia ( 9(2) point 1 of NRW s Press Act (Pressegesetz für das land Nordrhein-Westfalen)) and Thuringia ( 9(1) point 1 of Thuringia s Press Act (Thüringer Pressegesetz)) still require that editors in chief must have their main residence in Germany. These requirements are probably not in compliance with Article 16(2)(a) of the Services Directive, because they do not seem to be justified for any of the reasons provided for in Article 16(3). 46 For further information on this amendment see the explanatory memorandum to Saarland s Services Directive Act, Printed paper of the Länder Parliament of the Saarland, 14/79, p.43; National Report for Germany, June 2011 /11

18 1.3 The right of Member States to impose certain requirements (Article 16(3)) The federal and Länder laws implementing the Services Directive did not abolish all requirements for cross-border services falling under the scope of Article 16 of the Services Directive. These requirements are only in line with Article 16 of this Directive if they are non-discriminatory, necessary and proportionate and can be justified for reasons of public policy, public security, public health or the protection of the environment (Article 16(3) of the Directive). According to the Handbook on Implementation of the Services Directive there is strong presumption that requirements falling under Article 16(2) of the Directive cannot, in principle, be justified. 47 This section outlines and analyses national implementation measures that did not completely abolish national requirements falling under Article 16 of the Services Directive, but which amended them, so that they can be justified (or not) under Article 16(3) of the Services Directive. In addition, it compares amendments to Länder legislation within different service sectors and points out the differences in implementation. Note that the national legislation does not expressly indicate the reason why requirements imposed on service providers are justified. Rather, for each requirement, this reason must be derived from the objectives of the laws and the context in which it is imposed. Authorisation requirements and requirements to register on a list maintained by a professional association (Article 16(2)(b)) The national implementation measures, as regards the authorisation of services, in particular addressed three different categories of services, i.e. private expert and inspection services in the field of the environment, services in relation to the construction of buildings and services of interpreters and translators ordered by courts or authorities. In the implementation process, authorisation requirements under this Directive were abolished, modified or replaced by notification procedures. Note that in Germany most authorisations are based on qualification requirements falling under the scope of Article 7 of the Professional Qualifications Directive and other requirements falling under Article 16 of the Services Directive. Requirements falling under Article 16 are, for instance, such relating to the good reputation of the service provider or their technical equipment. Further note that Bund and Länder abolished various authorisation procedures or replaced them with notification procedures on the condition that the service provider was already subject to an equivalent authorisation in another Member State. These requirements apply to secondary establishments as well as to cross-border services. In these cases it is often not clear from the text of the legislation, whether and when (before or after the start of the service) the equivalence of the authorisations is controlled. If the competent Länder authorities control the equivalence of the authorisations before the service provider is entitled to carry out his service, then, de facto, this may have the effect of an authorisation procedure. 47 DG MARKT, Handbook on Implementation of the Services Directive, 2007, p. 39. National Report for Germany, June 2011 /12

19 Bund Services of private experts and inspection bodies in the field of the environment The Federal Services Directive Act Environment and the Federal Services Directive Ordinance Environment amended various authorisation procedures for private experts and inspection services (experts) that control installations or other activities. These measures are presented below. Environmental experts under federal legislation (1) In several federal environmental laws, the Federal Services Directive Act Environment or the Federal Services Directive Ordinance Environment abolished a control of requirements not related to the qualification of the service provider under the following conditions. Firstly, the service provider must be established in another Member State and intend to carry out the service temporarily and occasionally in Germany. Secondly, the service provider must subject his professional qualification to the verification of the competent authority in accordance with the national requirements implementing Article 7 of the Professional Qualifications Directive in the trade legislation that is based on a notification procedure ( 13a of the Federal Trade Act). Such regulations can be found under the following pieces of legislation: 11(5) of the Federal Electrical and Electronic Equipment Act (Elektro- und Elektronigerätegesetzes); 2(18) of the Federal Batteries Act (Batteriegesetz); 6 of the Federal End-of-Life Vehicles Ordinance (Altfahrzeug-Verordnung); 16(3) of the Federal Major Accidents Ordinance (Störfallverordnung); and Annex I no. 2(4) of the Federal Packaging Ordinance (Verpackungsverordnung) Notification requirements set for private experts and inspection bodies under these laws are probably in compliance with Article 16. In their procedures the competent national authority only verifies that service providers from other Member States comply with the qualification related requirements as provided for by the national legislation transposing the Professional Qualifications Directive. As a consequence, it abolished the verification of requirements falling under the Services Directive. To subject qualification related requirements to the national legislation transposing the Professional Qualifications Directive is justified under Article 17(6) of the Services Directive that excludes these requirements from the scope of Article 16 of the Services Directive. Environmental experts under federal legislation (2) In several federal environmental laws, the Federal Services Directive Act Environment or the Federal Services Directive Ordinance Environment amended national legislation. The amended requirements apply to service providers having a secondary establishment in Germany and cross-border service providers. After the implementation the national legislation lays down that equivalent authorisations granted in other Member States for private experts and inspection bodies have the same effect as national authorisations. In addition, before the start of his services, the service provider must present documents demonstrating this authorisation to the competent authority. If the service provider does not provide for an equivalent authorisation, he is subject to the national authorisation, in the procedure of which the competent authority must accept documents produced in other Member States. In some cases there are specific regulations for cross-border service providers in relation to the verification of their professional qualifications transposing the requirements of Directive 2005/36/EC. Regulations as described in this subsection are laid down in the following acts: 26 und 29a of the Federal Immission Control Act (Bundes-Immissionsschutzgesetz); 49(2a) and (2b) of the Federal Waste Management Act (Kreislaufwirtschaft- und Abfallgesetz); National Report for Germany, June 2011 /13

20 6(7) and (8) of the Federal Waste Wood Ordinance (Altholzverordnung); 3(8a) and (8b) of the Federal Organic Waste Ordinance (Bioabfallverordnung); 9(7) and (8) of the Federal Commercial Waste Ordinance (Gewerbeabfallverordnung); 3(11) and (12) of the Federal Sewage Sludge Ordinance (Klärschlammverordnung); 10a of the Federal Ordinance on Immission Control and Hazardous Incident Representatives (Verordnung über Immissionsschutz- und Störfallbeauftragte); and 16(3) of the Federal Hazardous Incidence Ordinance (Störfall-Verordnung). The requirement of an equivalent authorisation is probably necessary for the protection of the environment, because it serves to ensure that environmental experts carry out their services properly and hence protect the environment from substantial damage. It is often not clear, whether service providers are entitled to carry out their services before or after the competent authority has verified the equivalence of their authorisations. According to case-aw of the Court of Justice of the European Union, time-consuming prior controls like authorisation and registration procedures are only proportionate in exceptional cases where it is demonstrated that a posteriori controls are not sufficient to protect the public goods stipulated in Article 16(3) of the Services Directive. 48 In addition, whether de facto authorisation procedures would be proportionate under these conditions cannot be assessed in this report, because such an assessment would require a risk assessment that goes beyond a legal analysis. It would need to consider each individual service and the measures to control its risks as well as include technical and scientific analyses. Environmental experts under federal legislation (3) The Federal Services Directive Act Environment amended 4(4) of the Federal Waste Water Charge Act (Abwasserabgabengesetz) so that authorisations granted in other Member States should have the same effect as equivalent authorisations granted in Germany. Note that the national legislation does not distinguish between cross-border and domestic services. It is considered that the regulation of these expert services may be necessary for environmental protections reasons. Environmental experts under federal legislation (3) The Federal Services Directive Act Environment and the Federal Services Directive Ordinance Environment amended further authorisation requirements. They maintained the authorisation procedure, but modified the procedure for service providers from other EU Member States. The amended laws require the competent Länder authorities to accept documents produced in another Member State when verifying the service provider s compliance with the authorisation requirements. In some of these cases, there are specific regulations for cross-border services in relation to requirements related to professional qualifications. These amendments can be found under the following pieces of legislation. Note that these regulations do not distinguish between cross-border services and non-cross-border services. 19b of the Federal Chemicals Act (Chemiegesetz); 6a of the Federal Act on the Protection against Non-ionizing Radiation for Human Use (Gesetz zum Schutz vor nicht ionisierender Strahlung bei der Anwendung am Menschen); 10a of the Federal Environment Audit Act (Umweltauditgesetz); 5(3) of the Federal Green House Gas Emission Trading Act (Treibhausgas- Emissionshandelgesetzes); DG MARKT, Handbook on implementation of the Services Directive, 2007, p.39 and Court of Justice caselaw e.g. Commission v Italy, Case C-131/ Note that the Federal Green House Gas Emission Trading Act transposes Directive 2003/87/EC establishing a scheme for greenhouse gas emission allowance trading. Article 15 of this Directive requires the Commission to adopt a regulation on the authorisation procedure for verifiers. Once this regulation is in place, it will take precedence over Article 16 of the Services Directive. National Report for Germany, June 2011 /14