Freedom to provide services

According to EU law, services are considered "services" if they are provided for remuneration and are not governed by provisions relating to freedom of movement for goods, capital and persons.

In order to qualify as a service within the meaning of the provisions on freedom to provide services, said service must be:

• immaterial in nature (as compared to goods)^{German text}
• provided in return for remuneration;
• provided independently (as compared to freedom of movement of workers)
• exercised on a temporary and occasional basis in the member state (as compared to freedom of establishment (→ oesterreich.gv.at))

Services include, in particular:

• activities of an industrial character (e.g. real estate agent);
• activities of a commercial character (e.g. freelance sales representative);
• activities of craftsmen (e.g. fitter);
• activities of the professions (e.g. tax adviser).

Moreover, the legal requirements under commercial and labour law in the EU/EEA country in which cross-border services are to be provided must also be observed.

• Economic operators who are already authorised to carry out business activities in one EU Member State are allowed to temporarily provide their services in another EU Member State without having to become established there.
• The freedom to provide services includes the right of businesses to provide a service in another EU/EEA country using its own staff. If an employee performs work on a particular project in a different country for a limited period of time, they are deemed to be a posted worker. Special rules apply to the posting of workers in EU/EEA countries ^{German text}.
• The tools and machinery that are required in order to provide a cross-border service may be moved freely.

It is not permitted to restrict the movement of services within the EU for citizens of EU Member States, without exception. Access to the single market may not be impeded by national regulations.

If there are restrictions, they must apply to all. Such restrictions are only permitted under certain conditions, for example in the case of a risk to law and order and security. These restrictions must be reasonable, i.e. proportionate..

Moreover, a "prohibition of discrimination" also applies within the EU for service providers from another country, who may not be discriminated against based on their nationality. This means that Member States may not adopt legal provisions leading to either covert or overt discrimination.

The objective was to provide a boost to the burgeoning services sector across Europe by removing barriers to the free movement of services, cutting red tape and providing increased legal certainty. This is what the EU Services Directive aims to achieve. It entered into force in 2006. The Member States were given until the end of 2009 to implement the Directive in national law.

Points of Single Contact (PSC)

Businesses can submit all applications required to take up or exercise a service to the PSC in a bundle. Moreover, the Services Directive contains

• provisions on administrative cooperation,
• the rights of service recipients and
• reporting obligations.

Implementation in Austria

Due to the division of powers within Austria, the implementation of the EU Services Directive falls partly to the federal government and partly to the federal provinces.

In order to implement those elements of the EU Services Directive which are intended to apply equally to all regional authorities, a Dienstleistungsgesetz (DLG) was first drawn up, for which a constitutional provision subject to the approval of the Austrian Federal Council (clause on the division of powers) was required. The relevant government bill was adopted by the Austrian Council of Ministers on 28 July 2009 and assigned to the Austrian National Council for official deliberation.

As it was not possible to obtain the necessary constitutional majority for the clause on the division of powers, a "nine-plus-one solution" was opted for, whereby one federal law is adopted covering any issues falling under national legislative competence, and nine provincial laws are adopted containing provisions falling under the competence of the provinces. The national law, the "Dienstleistungsgesetz" was announced on 21 November 2011. The corresponding provincial laws all entered into force by early 2012. As a result, Austria was able to report full implementation of the EU Services Directive to the European Commission in the first quarter of 2012.

Index of registers

The Services Directive has been implemented in all EU Member States since 28 December 2009. One of the Directive's provisions is that it must be possible for all registers in which service providers have been entered to be consulted by the competent authorities in all other Member States.

For more information:

• For more information about the implementation of the Services Directive in various European countries, you can watch the information video "Points of Single Contact (→ EC)'' produced by the European Commission (→ EC)
• Details about the Directive can be found in the brochure "Die EU-Dienstleistungsrichtlinie – Neue Chancen für Österreichs Wirtschaft (→ WKO)"^{German text} published by the BMA and the WKO.
• Further information about the EU Services Directive and the points of single contact (PSC) can be found on the website of the National Services Directive Portal at unter → www.EAP.gv.at
• Broschüre "Die EU-Dienstleistungsrichtlinie – Neue Chancen für Österreichs Wirtschaft" (→ WKO) ^{German text}