STATUTORY INSTRUMENTS.
S.I. No. 533 of 2010
EUROPEAN UNION (PROVISION OF SERVICES) REGULATIONS
2010
PART 2
Rights and Obligations of Providers and Recipients
Chapter 1
Providers
Reference to freedom to provide a service
Freedom to provide a service
(3) A competent authority in the State may not restrict the freedom of a provider established in another Member State to provide services in the State by imposing on the provider any of the following:
(a) a requirement to maintain an establishment in the State;
(b) a requirement to be authorised by the authority or by any other competent authority in the State, or to be registered with a professional body established in the State, unless such a requirement is otherwise expressly provided for by the Services Directive or some other European act;
(c) a prohibition on the provider establishing a particular kind of infrastructure in the State, such as an office or chambers, that the provider may need in order to provide a particular service;
(d) a requirement that a specific contractual arrangement be applied between the provider and a recipient that prevents or restricts the provision of a service by persons who are self-employed;
(e) a requirement that the provider possess an identity document issued by the authority or another competent authority in the State that specifically relates to the performance of a service activity;
(f) a requirement that affects the use of equipment and material that are an integral part of the service provided by the provider unless such requirement is necessary in order to protect the health and safety of persons at work;
(g) any restriction of the kind referred to in Regulation 9.
(4) Paragraph (3) does not prevent a competent authority in the State from imposing a requirement in relation to the performance of a service activity if the requirement is—
(a) justified for reasons of public policy, public security, public health, or the protection of the environment, and
(b) consistent with paragraphs (1) and (2).
(5) Paragraph (3) does not prevent a competent authority in the State from imposing a requirement in relation to the performance of a service activity in the requirement relates to employment conditions, including those prescribed in collective agreements.
(6) A requirement imposed in contravention of this Regulation has no effect.
PART 3
Freedom of Establishment for Providers
Chapter 1
Special provisions applicable to authorisation schemes
Application of this Chapter
12. This Chapter does not apply to those aspects of authorisation schemes that are governed directly or indirectly by European acts other than the Services Directive.
When providers are subject to authorisation schemes
13. A competent authority in the State responsible for administering an authorisation scheme relating to a service activity shall not make access to, or the performance of, the service activity by a provider subject to the scheme unless—
(a) the scheme does not discriminate against the provider,
(b) the need for the scheme is justified by an overriding reason relating to the public interest, and
(c) the objective of the scheme cannot be attained by means of a less restrictive measure, for example, because an after-the-event inspection would be too late to be genuinely effective.
General requirements for authorisation schemes
Criteria and conditions for granting an authorisation
(e) objective,
15.(3) Subject to paragraph (5), a competent authority in the State responsible for administering an authorisation scheme shall ensure that any conditions to be fulfilled prior to granting an authorisation to a provider to enable the provider to become established in the State do not duplicate requirements that are equivalent or are essentially comparable, as regards their purpose, to those to which the provider is already subject whether in the State or in another Member State.
15. (4) A provider to whom paragraph (3) applies and the liaison officer, shall assist a competent authority in complying with that paragraph by providing the necessary information regarding the requirements referred to in that paragraph.
15. (5) Paragraph (3) shall not apply to a provider who fails to assist the competent authority when requested to do so under paragraph (4) within a reasonable time after such request.
15. (6) A competent authority in the State that grants an authorisation to a provider relating to a service activity shall ensure that the authorisation enables the provider to have access to, and to perform, the activity throughout the State, including by means of setting up agencies, subsidiaries, branches or offices in the State.
15. (7) An authorisation may limit the provider to whom it is granted, to providing its services—
(a) in respect of a particular establishment, or
(b) to a specified part of the State, if such limitation is justified by an overriding reason relating to the public interest.
Duration of authorisations
(b) the number of available authorisations is limited by an overriding reason relating to the public interest, or
(c) a limited period can be justified by an overriding reason relating to the public interest.
16. (3) A provider who has been granted an authorisation shall notify the competent authority in the State responsible for administering the scheme to which the authorisation relates of the occurrence of either of the following:
(a) any creation of a subsidiary (within the meaning of the Companies Acts) whose activities fall within the scope of the scheme;
(b) any change in relation to the provider in consequence of which any condition subject to which the authorisation was granted, is no longer being met.
16. (4) This Regulation does not affect the power of a competent authority in the State to withdraw an authorisation if a provider is no longer complying with any condition subject to which the authorisation was granted.
Power of competent authority in the State to apply a selection procedure in certain cases
17. (3) In the circumstances referred to in paragraph (1), the responsible competent authority in the State—
17. (4) Subject to paragraph (1) and to Regulations 12, 13 and 15, in establishing rules for a selection procedure, a competent authority in the State may take into account (in so far as consistent with the law of the European Union) the following matters:
(a) public health considerations;
(b) social policy objectives;
(c) the health and safety of employees or self-employed persons;
(d) the protection of the environment;
(e) the preservation of cultural heritage;
(f) other overriding reasons relating to the public interest.
Time limits for dealing with applications for authorisations
(a) the publicly notified period referred to in paragraph (1)(a) in relation to the application, and
18. (7) A competent authority in the State may put different arrangements in place that are justified by overriding reasons relating to the public interest (including the legitimate interest of third parties) and where such arrangements are in place, paragraph (5) shall not apply.
Other requirements relating to applications for authorisations
(c) either—
(i) that in the absence of a determination of that application before the end of the period referred to in Regulation 18(1)(a) (or, if that period is extended under Regulation 18(4), that period as so extended), the authorisation is taken to have been granted at the end of that period or extended period, or
(ii) if arrangements of the kind referred to in Regulation 18(7) are in place, a statement of the general effect of those arrangements, and
Chapter 2
Requirements prohibited or subject to evaluation
Prohibited requirements
(a) a discriminatory requirement based directly or indirectly on nationality or, in the case of a provider that is a body corporate, the location of that body’s registered office, including—
(i) a requirement relating to the nationality of the provider, the provider’s staff, persons holding the share capital or members of the provider’s management or supervisory bodies, or
(ii) a requirement that the provider, the provider’s staff, persons holding the share capital or members of the provider’s management or supervisory bodies be resident in the State;
(b) a prohibition—
(i) on being established in more than one Member State, or
(ii) on being entered in a register kept by, or on being enrolled with, a professional body established in more than one Member State;
(c) a restriction on the freedom of the provider to choose between a principal and a secondary establishment, in particular—
(i) an obligation on the provider to have its principal establishment in the State, or
(ii) a restriction on the freedom to choose between establishments in the form of an agency, branch or subsidiary in the State;
(d) a condition requiring reciprocity with a Member State in which the provider is already established, except in the case of a condition requiring reciprocity in accordance with a European act concerning energy;
(iii) an assessment of the appropriateness of the activity in relation to the economic planning objectives set by the authority;
(f) subject to paragraph (3), the direct or indirect involvement of competing operators—
(i) in the granting of an authorisation by the authority, or
(ii) in adopting other decisions made by any other competent authority in the State (other than a professional body or other organisation acting as the relevant competent authority in the State);
(g) subject to paragraph (4), a requirement to provide or participate in a financial guarantee or to take out insurance from a person established in the State;
(h) a requirement that the provider-
(i) has been pre-registered, for a specified period, in a register kept in the State, or
(ii) has previously exercised the activity for a specified period in the State.
20. (2) Paragraph (1)(e) does not apply to planning requirements that do not pursue economic aims but serve overriding reasons relating to the public interest.
20. (3) Paragraph (1)(f) does not apply to any consultation with organisations (such as chambers of commerce or organisations representative of employers and employees) on matters other than individual applications for authorisations, or to a consultation with the public at large.
20. (4) The prohibition on the imposition of a requirement referred to in paragraph (1)(g) does not affect—
(a) any requirement on a provider to provide an insurance or financial guarantee as such, or
(b) any requirement relating to the participation in a collective compensation fund (such as for members of a professional body or organisation).
Requirements relating to gaining access to, and performing, a service activity
21. (2) The requirements referred to in paragraph (1) are:
(a) quantitative or territorial restrictions, including in particular restrictions fixing limits according to population, or according to a minimum geographical distance between providers;
(b) that a provider assumes a specific legal status, such as that of a body corporate;
(c) in the case of a provider that is a company that has issued shares, a requirement that relates to the holding of shares in the company;
(d) a requirement that, because of the specific nature of the service activity concerned, restricts access to that activity to particular providers (other than a requirement relating to a matter covered by the Qualifications Directive or another European act);
(e) that a provider have more than one establishment in the State;
(f) fixing a minimum number of employees that a provider is obliged to employ;
(g) fixing a minimum or maximum tariff with which a provider must comply;
(h) that a provider provide other specified services in addition to the services that the provider normally provides.
21. (4) Paragraphs (1), (2) and (3) apply in relation to a requirement that applies to a person entrusted with the provision of a service of general economic interest only insofar as the application of those paragraphs does not impede the performance of the particular task assigned to that person.
21. (5) A competent authority in the State which imposes a requirement set out in paragraph (2) by means of an administrative provision shall notify the Minister of the provision, together with the reasons for the imposition of the requirement as soon as possible after the imposition.
21. (6) The Minister shall notify the European Commission of any new enactment or administrative provision which introduces a requirement set out in paragraph (2), together with the reasons for the imposition of the requirement.
PART 4
Quality of Services
Obligation of providers to give certain information about their services to recipients
(b) if the provider is registered in a trade or other similar public register the name of the register, the provider’s registration number (if any) or equivalent means of identification in that register, and details of where the register is kept;
(d) where the provider exercises an activity which is subject to value added tax, the identification number referred to in section 9 of the Value-Added Tax Act 1972 (No. 22 of 1972);
(e) if the provider is a member of, or registered with, a regulated profession, professional body or similar institution, the professional title (if any) and the Member State where that title was granted;
(f) the general terms and conditions (if any) used by the provider;
(g) if the provider includes in a contract for the provision of services contractual clauses concerning the law applicable to the contract, details of the clauses and of the courts (if any) competent to resolve disputes arising under the contract;
(h) if the provider gives an after-sales guarantee not imposed by law, details of the guarantee;
(i) if the service provided by the provider is one for which the provider has pre-determined the price, the price to be paid for the service;
22. (2) For the purposes of paragraph (1), a provider makes information available to a recipient if, at the option of the provider—
(a) the information is easily accessible to the recipient at the place where the service is provided or the contract for the provision of the service is entered into,
(b) the information can be easily accessed by the recipient electronically through an address supplied by the provider, or
(c) the information is contained in an information document that the provider supplies to the recipient, and the document gives a detailed description of the service that the provider provides.
(a) if the provider has not pre-determined the price of the service—
(i) the price of the service, or
(ii) if an exact price cannot be given, either the method by which the price can be calculated so that it can be checked by the recipient or a sufficiently detailed estimate of the price to be paid for the service;
(b) if the provider is a member of, or registered with, a regulated profession—
(i) a reference to the professional rules (if any) that are applicable to the provider in the Member State of establishment, and
(ii) details of how to access those rules;
(c) information on the multidisciplinary activities and partnerships which are directly linked to the service in question and on the measures taken to avoid conflicts of interest;
(e) if the provider is subject to a code of conduct, or is a member of a trade association or professional body that provides for disputes to be resolved by non-judicial means, details of the dispute resolution process, including how the recipient can obtain details about the characteristics of, and conditions for, the use of those means.
22. (4) In giving a description of a service by means of an information document, the provider shall ensure that the information referred to in paragraph (3) is also included in that information document.
22. (5) A provider shall ensure that the information required to be given in accordance with this Part is made available or communicated—
(a) in a clear and unambiguous manner, and
(b) before the terms of the relevant contract for the provision of the relevant service are settled or, if there is no written contract, before the service is provided.
Obligations of providers in dealing with complaints and the settlement of disputes
23. (1) Every provider shall make available to a recipient, including a recipient resident in another Member State
(a) details of where a complaint, or a request for information, about the services of the provider can be sent, and
(b) the address of the provider’s usual place of business if it is not the provider’s usual address for correspondence.
23. (2) The details referred to in paragraph (1)(a) shall include a postal address, a fax number or an electronic mailing address, together with a telephone number.
23. (3) A provider who receives a complaint or request from a recipient about the service the provider provides shall—
(a) acknowledge receipt in writing of the complaint or request not later than 14 days after such receipt, and
(b) in the case of a complaint, make every effort to resolve the complaint satisfactorily and without delay.
23. (4) Paragraph (3)(b) does not apply to a complaint that is vexatious.
23. (5) If a provider, in providing a service, is obliged to provide a financial guarantee in order to comply with a judicial decision, the obligation is satisfied by the production of an equivalent guarantee lodged with:
(a) a credit institution established in another Member State and authorised in that Member State in accordance with the Credit Institutions Directive;
(b) an insurer established in another Member State and authorised in that Member State in accordance with—
(i) First Council Directive 73/239/EEC of 24 July 197322 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, and
(ii) Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance.
23.(6) A provider who is subject to a code of conduct, or is a member of a trade association or professional body, shall, if the code, association or body provides for recourse to a non-judicial dispute resolution procedure
(a) inform the recipient of the availability of the procedure, and
(b) in any document that gives a detailed description of the service it provides, specify—
(i) the existence of the procedure, and
(ii) how a recipient can access detailed information about the procedure.
Obligations of certain providers to have professional liability insurance cover
24. (1) The Minister may, after consultation with the Minister for Finance and any other Minister of the Government that he or she considers appropriate, give a direction in writing in accordance with paragraph (2) to a provider whose services present, in the Minister’s opinion, a direct and particular risk to—
(a) the health or safety of a recipient of the service concerned or any other person, or
(b) the financial security of a recipient of the service concerned.
24. (2) A direction under paragraph (1) shall require the person the subject of the direction to—
(a) obtain and maintain professional liability insurance in respect of a risk specified in the direction, or
(b) undertake to indemnify a recipient of that service in respect of any loss incurred by the recipient in that receipt, within a period specified in the direction.
24. (3) When a provider established in another Member State becomes or seeks to become established in the State, the provider is not obliged to obtain professional liability insurance if the provider is already covered in the other Member State by professional liability insurance or a guarantee that is equivalent, or essentially comparable, as regards—
(a) its purpose, and
(b) the cover it provides in terms of—
(i) the insured risk,
(ii) the insured amount or a ceiling for the guarantee, and
(iii) possible exclusions from the cover, in the other Member State.
24. (4) If professional liability insurance held, or a guarantee provided by, a provider established in another Member State is not equivalent (within the meaning given by paragraph (3)), a relevant competent authority in the State may require the provider to obtain additional professional liability insurance or a further guarantee to cover those aspects not already covered.
24. (5) Where a provider is required to obtain professional liability insurance, or to provide a guarantee or enter into some equivalent arrangement, a competent authority in the State shall accept as sufficient evidence of that insurance cover a certificate issued by a credit institution or insurer established in a Member State where the provider is already established.
24. (6) Paragraphs (1) to (5) do not affect professional liability insurance or guarantee arrangements provided for in any European act.
PART 5
Administrative Simplification
Information to be provided to the Minister, point of single contact, providers and recipients
(iii) between providers;
(e) the contact details of any organisation (other than a competent authority in the State) from which a provider or a recipient can obtain practical assistance regarding access to, or the performance of, a particular service activity.
29. (3) The information referred to in paragraph (1) shall be made available to providers and recipients through the point of single contact.
29. (4) A point of single contact shall—
(a) respond as soon as practicable after receiving a request for information under paragraph (3), and
(b) if the request is defective or unfounded, inform the person making the request accordingly without delay.
29. (5) The information provided by the competent authority under paragraph (1) shall be—
(a) clear and unambiguous, and
(b) kept up-to-date by the authority.
Competent authority to provide certain information
30. (1) A competent authority in the State responsible for supervising or regulating a particular service activity shall comply with a request by a provider or recipient for information on the way in which the requirements referred to in Regulation 29(2)(a) are generally interpreted and applied by the authority or any other person authorised to interpret and apply the requirements.
30. (2) In providing information in compliance with paragraph (1), a competent authority in the State shall ensure that the information is in plain and intelligible language and where appropriate, includes a simple step-by-step guide.
30. (3) Information provided to a recipient or provider under this Regulation shall—
(a) be clear and unambiguous,
(b) be easily accessible at a distance and by electronic means, and
(c) be up to date.
30. (4) The obligation of a competent authority in the State to provide information to providers and recipients under this Regulation, requires the authority only to provide general information on the way in which requirements are usually interpreted or applied and does not require the authority to provide legal advice in an individual case.
30. (5) A competent authority in the State shall—
(a) respond as soon as practicable after receiving a request for information under this Regulation, and
(b) if the request is defective or unfounded, inform the person making the request accordingly without delay.
Power of Minister to designate person to undertake the responsibilities
of a point of single contact in respect of a particular service activity
31. (1) The Minister may designate by notice in writing a person to carry out the functions of a point of single contact under these Regulations with respect to a particular service activity, on such conditions as the Minister deems appropriate and in accordance with these Regulations.
31. (2) Where there is a relevant competent authority in the State in respect of a particular service activity, the Minister shall consult with the authority before designating a person under paragraph (1).
31. (3) The Minister may, at any time, revoke a designation under paragraph (1) if the conditions referred to in paragraph (1) are not complied with.
31. (4) In this Regulation, reference to a point of single contact does not include the National Point of Single Contact referred to in Regulation 2(2).
Completion of certain procedures by electronic means
(b) the website of the authority in the State provides access to the point of single contact.
32. (2) A point of single contact shall ensure that all procedures and formalities relating to access to a service activity, and to the ability to perform the activity, can be easily completed through the point of single contact at a distance by electronic means.
32. (3) Paragraphs (1) and (2) shall not apply to—
(a) the inspection of premises on which the service is provided or of equipment used by the provider, or
(b) the examination of the capability or personal integrity of—
(i) a provider of the service, or
(ii) the staff of such a provider.
PART 8
Miscellaneous Provisions
Responsibility of competent authorities in the State with respect to codes of conduct
49. A competent authority in the State that maintains a code of conduct with respect to the service activity which it supervises or regulates shall ensure that the code is made available on the internet.
Protection of personal data
50. (1) In applying these Regulations, a competent authority in the State shall comply with the rules on the protection of personal data as provided for in any enactment which gives effect to—
(a) the Data Protection Directive, and
(b) the Privacy Directive.
50. (2) A person who, in accordance with these Regulations, obtains personal data in relation to a provider shall comply with the rules referred to in paragraph (1).