Scope and coverage of the service directive

Any restrictions will have to meet the requirements as set out in the Directive concerning Overriding Reasons of Public Interest (see Recitals 40 and 41, and Articles 4(8) and 15 of the Directive).

Read more about the EU Services Directive on the BIS website.

• Was this helpful?
• 
• 

The Directive applies to both legislation and practices at both national and local level, which would include local authority standing orders.

Local authorities will need to screen their standing orders to ensure they are compliant.

• Was this helpful?
• 
• 

Forms for SEVs will be available once BIS have agreed the format with the lead department - this will probably simply be an amendment to the existing form.

• Was this helpful?
• 
• 

Greyhound regulation is definitely in scope of the PSC and a form must therefore be made available for local authorities to use. However, DEFRA - the lead department - has yet to confirm what they want to include on this form. BIS have asked them to consider the matter urgently.

• Was this helpful?
• 
• 

The Home Office is leading a review of lap-dancing legislation and all stakeholders will be informed of the outcome in due course.

• Was this helpful?
• 
• 

Some aspects of the alcohol and entertainment licensing regime that relate to the application process appear to be non-compliant with the Services Directive, such as the need to submit hard copies of application forms to several different authorities.

DCMS is considering the extent of the changes that are necessary and will advise in due course.

• Was this helpful?
• 
• 

A service is an economic activity normally provided for remuneration outside a contract for employment. This activity could be industrial, or commercial in nature, a craft or the activity of a profession. 'Remuneration' should be interpreted broadly, for example, money or payment in kind (but excluding wages). A service can be business to business or business to individual activity.

Services which are not provided for remuneration are not covered by the Directive. For example, non-remunerated house to house collections for charity would not be within scope.

• Was this helpful?
• 
• 

No. If an activity is illegal in the UK (or not already regulated in the UK) that will continue to be the case.

• Was this helpful?
• 
• 

Personal Licences are outside the scope of the Directive.

• Was this helpful?
• 
• 

The Services Directive does not affect private contractual arrangements.

• Was this helpful?
• 
• 

(These are commonly put in place to protect private commercial interests or for estate management reasons.)

To the extent that these are contractual rather than regulatory or administrative restrictions, we would not normally expect them to be caught by the Directive.

• Was this helpful?
• 
• 

No.

• Was this helpful?
• 
• 

There is no definitive test of what is a 'service' and in some cases it may not be possible to determine that a sector as a whole is concerned with either goods or services.

Three examples of our view:

1. Restaurants are providing a service.
2. Retail premises will generally be providing a service where activity is not exclusively concerned with a contract for the sale of goods.
3. Spray painting carried out in a car production plant is likely to concern goods. But where it is carried out in the process of repairing a car or provided as an independent service, it is likely to be a service.

Local Authorities may need to take a case by case approach with their legal advisers.

• Was this helpful?
• 
• 

No. Fireworks were ruled out at a late stage.

• Was this helpful?
• 
• 

List of formalities within the Services Directive on the National Archives website.

• Was this helpful?
• 
• 

The Directive covers a wide range of different services, including: Business Services: management consultancy; advertising; certification and testing; facilities management, including office maintenance; and the services of commercial agents.

Services provided to both business and to consumers: real estate services, estate agents and letting agents; construction architects; distributive trades; and the organisation of trade fairs.

Consumer Services: tourism, including tour operators and tour guides, leisure services and sports centres; amusement parks; plumbers; and electricians.

• Was this helpful?
• 
• 

The basic rule is that a service is within scope of the Directive unless it is explicitly excluded from it. The following is the list of services excluded from the Directive:

1. Financial services, such as banking, credit, insurance and re-insurance, occupational and personal pensions, securities, investment funds, payment and investment advice, including the business of credit institution.
2. Electronic communications services and networks, and associated facilities and networks as defined in five Directives on electronic communications and related matters in five 2002 Directives. These Directives were largely implemented in the UK by the Communications Act 2003. Such services and networks include, for example, voice telephony and electronic mail services.
3. Services in the field of transport including air transport, maritime and inland waterways transport, including port services, as well as road and rail transport, in particular urban transport, taxis and ambulances.
   Examples of services which are not covered by this exclusion are removal services, car rental services, funeral services and aerial photography services. Neither does the exclusion cover commercial activities in ports such as shops and restaurants.
4. Services of temporary work agencies. The HMG view is that this covers only the hiring out and placement of workers in temporary work, and does not cover other services provided by the same agency. BIS considers that “temporary work agency” should be defined as set out in the Employment Agencies Act 1973, section 13(3).
5. Healthcare services. This exclusion covers healthcare and pharmaceutical services provided by health professionals to patients to assess, maintain or restore their state of health where those activities are reserved to a regulated health professional in the Member State in which the services are provided.
6. Audiovisual services, including cinemas and broadcast services but not, in HMG’s view, storage of celluloid material for which a licence is currently required.
7. Gambling services, which involve wagering a stake for monetary value in a game of chance, including lotteries, gambling in casinos and betting transactions.
8. The exercise of official authority as set out on Article 45 of the Treaty.
9. Social services relating to social housing, childcare and the support of families in need, where these are provided by the State, by providers mandated by the State or by charities recognised as such by the State. The HMG view is that services provided on a charitable basis by Registered Social landlords are out of scope of the Directive. Services provided on a commercial basis by charitable organisations or their trading subsidiaries are, however, in scope of the Directive.
10. Private security services.
11. Services provided by notaries and bailiffs appointed by an Act of Parliament.

Services of a general economic interest (such as the Post Office), non-economic services of a general interest and taxation are also excluded from the Directive.

• Was this helpful?
• 
• 

Most services are caught by the Services Directive, but some service sectors such as financial, healthcare, gambling and private security are not.

This is because these sectors are already caught by another Directive that is already in force, or because of other exemptions agreed when the Directive was being negotiated.

For a more comprehensive list of services not covered by the Services Directive please see page 6 of the Guidance note.

Please note that unless a service is specifically excluded, the expectation is that it is covered by the Services Directive.

• Was this helpful?
• 
• 

The EU Services Directive page on the BIS website contains information on which national legislation has been screened in relation to the Directive and which HMG considers is out of scope, in scope but justified, or in scope and being amended to comply with the requirements of the Directive. The website also contains a near complete list of authorisations for which Local Authorities are responsible and which we believe to be within scope. Both documents are being updated, including for information from the devolved administrations.

In response to requests at the roadshows, we will be issuing further screening guidance and flowchart to help authorities understand how to use this information to identify the extent to which further screening is required at a local level.

The Government is still considering its position in relation to a number of areas of legislation. For example, the position of health and safety legislation in relation to the Directive. An alert will be sent to Primary Liaison Points within Local Authorities as and when the lists are updated.

• Was this helpful?
• 
• 

A "requirement", for the purposes of the Directive, is anything that restricts access to (e.g. an authorisation), or exercise of, a service activity. Therefore all licensing regimes, registration processes, approval systems and continuing requirements which affect service providers have to be checked to ensure they comply with the Directive.

A requirement could derive from national legislation, Local Authority Act or Bye Law, administrative rules, conditions attaching to licences, a standard contractual term which is part of an authorisation process or other restriction. Local Authorities, working with their legal advisers, need to apply the test of whether the rule in question is one with which a provider must comply in order to start to provide or carry on a service.

The Directive does not apply to private contractual arrangements. Subject to the point above about terms which are part of an authorisation process, we would not normally expect the terms of a contract between a Local Authority and a service provider to be caught by the Directive. However, a Local Authority should not use its standard terms of doing business with service providers as a way of evading its obligations under the Services Directive.

• Was this helpful?
• 
• 

The Directive only applies to requirements that affect access to, or the exercise of, a service activity.

Thus, rules relating to traffic, certain planning rules that are not specific to a business and building regulations that are non-discriminatory and which structure the market or regulate specific products rather than the provision of services, are not in scope of the Directive.

For example, the HMG view is that the the Building Control Act 1966 is not in scope of the Directive, but that the Building Regulations 2000 are in scope.

Local Authorities may, however, need to consider some decisions on a case by case basis with their legal advisers. For example, a decision not to permit a third hairdresser to open in a local shopping parade is a decision about a particular business and could be caught by the Directive.

• Was this helpful?
• 
• 

Yes. All markets are in scope of the Services Directive.

• Was this helpful?
• 
• 

This is an Authority policy decision.

If an Authority wishes to continue to implement a blanket policy to not allow sex shops in an area they must have very clear reasons for the imposing of the policy.

Any restrictions will have to meet the requirements as set out in the Directive concerning Overriding Reasons of Public Interest (see Recitals 40 and 41 and Article 4(8) and 15 of the Directive).

Note - it is still possible for a Service Provider or the Commission to challenge policies if they feel they do not support the sentiment of the EU Services Directive.

• Was this helpful?
• 
• 

Any suggestion of a 'Language test' will be in breach of articles of the following articles of the Services Directive:

• 9 (1) (a) the authorisation scheme does not discriminate against the provider in question;
• 10 (2) (a) non-discriminatory;
• 10 (2) (c) proportionate to that public interest objective;

If an authority believes they want to keep this interview step as part of the application process they can, however they must fill in an IPM the model will not apply to them.

If this is challenged and the authority is take to court (which BIS feel is likely), then the authority will have to pay the legal costs and damages should they lose.

• Was this helpful?
• 
•