As explained in Part I of this Report, the European Union (Provision of Services) Regulations 20101 – a horizontal measure – gives effect to virtually all the provisions of the Services Directive in Ireland. The sole exception to this universal mode of transposition by a single legal instrument is Article 42 of the Services Directive which was implemented separately by the European Communities (Court Orders for the Protection of Consumer Interests) Regulation 2010.2 The transposition of Article 42 added the Services Directive to the list of Directives which are covered by Directive 2009/22/EC on injunctions for the protection of consumers’ interests.3 Since Article 42 of the Directive is not germane to the objectives of this study, neither that Article nor the second set of Irish Regulations will be examined further in the context of this Report.

Article 15 of the Services Directive contains three pivotal provisions, all of which interact with one another. Article 15(1) stipulates that Member States must, inter alia, ensure that certain requirements imposed on service providers -listed in Article 15(2)- are compatible with the conditions as to nondiscrimination, necessity and proportionality defined in Article 15(3) of the same Directive. Article 15 was transposed into Irish law by Regulation 21 of the 2010 Regulations. Under Regulation 21(1), the competent authorities in Ireland are prohibited from making “access to, or the exercise of, a service activity by a provider or recipient” subject to any of the requirements set out in paragraph 2 (which transposes Article 15(2) of the Directive almost verbatim into Irish law) “unless those requirements are non-discriminatory, necessary and proportionate.” The latter principles are defined in depth in Article 21(3)(a),(b) and (c) of the 2010 Regulations.

There is an obligation, under Article 15(6) of the Services Directive, for Member States to refrain from the introduction of new requirements contrary to any or all of the three principles as to nondiscrimination, necessity and proportionality. The deadline date for compliance with Article 15(6) was 28 December 2009. Ireland only implemented the Services Directive into Irish law on 10 November 2010. Furthermore, under Article 15(7) of the Services Directive, Member States are obliged to notify the Commission of any new “laws, regulations or administrative provisions” of the type identified in Article 15(6). Ireland implemented Article 15(7) of the Services Directive almost verbatim in the form of Regulation 20(6) of the 2010 Regulations.

Article 15(5) of the Services Directive made provision for a mutual evaluation report in which the Member States would specify: (a) non-discriminatory, proportionate and necessary requirements which they intended to maintain and (b) the requirements which they had abolished or made less stringent. Ireland participated in the mutual evaluation exercise by identifying requirements which it regarded as being in potential conflict with the Services Directive. As an example, Ireland identified the legislative rules relating to employment agencies as potentially problematic in the light of the provisions of the Services Directive. However, although the Irish government introduced an Employment Agencies Regulation Bill in July 2009 to remedy this perceived mischief, there was a change of government in March 2011 and there is no indication, as yet, that this Bill will be enacted into law in the near future. It is important to reiterate that Ireland still needs to adapt its sector-specific legislation in the services area to make it compatible with the Services Directive itself.

Article 16(1) of the Services Directive obliges Member States to “respect the right of providers to provide services in a Member State other than that in which they are established”. Both Article 16(1) and 16(2) of the Services Directive were transposed into Irish law by Regulation 6 of the 2010 Regulations. For the most part, Irish implementation of this provision was in compliance with both the letter and spirit of the Services Directive. However, there is a solitary question mark in relation to the manner in which Article 16(1)(c) was transposed into Irish law by Regulation 6(2)(c) of the 2010 Regulations. As already spelt out in the Table of Concordance annexed to Part I of this National Report, the Directive refers to a requirement being “suitable” in the context of its proportionality. Whereas Regulation 6(2)(c) of the Irish Regulations adopts a different yardstick by referring to a requirement being “necessary” in order to be proportionate. As explained earlier, this distinction could prove significant in practice insofar as there may be several “suitable” measures to achieve a goal (i.e. measures which, if adopted, can achieve the objective pursued), but not all of them will be necessary (i.e. essential for the attainment of the goal). Therefore, since the two terms do not have the exact same meaning, the transposition of the proportionality principle into Irish law – in the context of the provision of services – could be categorised as being ambiguous.

Ireland notified the European Union (Provision of Services) Regulations 2010 to the Commission as“the main provisions of national law” adopted “in the field” covered by the Service Directive.