Conditions for cross-border/temporary provisions of activity or professions

Directive 2006/123/EC on services in the Internal Market (Services Directive) establishes the framework for the free movement of services within the internal market of the European Union.

The purpose of the Directive is to increase economic growth in the internal market services sector, improve the competitiveness of the economy, enhance the quality and security of services, significantly expand the choice for services users, and increase the transparency requirements in all EU Member States. Proper implementation of this directive should also increase the number of jobs available.

The Services Directive obliges Member States to cooperate with each other at the administrative level in order to ensure effective supervision of providers and their services in all Member States.

Services Directive  requires the establishment  of the electronic Point of Single Contact with all the necessary information for the provision of regulated service activities, including the possibility for execution of procedures for acquiring permits, if necessary.

 Services Directive also defines the level of assistance to be provided to recipients of services. It requires service providers to provide  all information on requirements and possibilities for compensation in the event of the improper provision of a service, as well as the contacts of the relevant organisations, e.g. professional associations, including European Consumer Network centres, where service users can get practical help.

The Services Directive is a horizontal act  which shows other competent authorities   regulating different services, the way to regulate a particular service with no prohibited requirements, no disproportionate and unnecessary conditions, but in such a way that the service remains safe and of good quality.

The many market services covered by the Services Directive include the following:

• commercial activities,
• construction services,
• crafts,
• tourism, hospitality, leisure,
• sports, fitness,
• professional activities (architects, engineers, lawyers, veterinarians, etc.),
• real estate business,
• agricultural and forestry activities,
• education (private schools, universities, language schools),
• the social services of private providers (retirement homes, childcare, home care, household assistance, etc.),
• services related to the field of culture (private museums and libraries, theatres, concerts, the organisation of outdoor events, etc.),
• ancillary health care services.

The Services Directive does not cover services such as:

• financial services,
• electronic communication and network services,
• transport services, with some exceptions of a commercial nature (driving schools, leisure flying, etc.),
• temporary employment agency services,
• health services, with the exception of veterinarians and market support services,
• audiovisual services and radio broadcasting,
• lotteries,
• social services (social housing, public childcare, state support to families in need of assistance) by contractors authorised by the state or charities certified by the state as appropriate. The services of private contractors are covered by the Services Directive,
• personal protection,
• notaries,
• bailiffs.

This Directive also aims to eliminate unjustified and disproportionate legal and administrative burdens that unnecessarily impede free movement, i.e. the operation of companies also across borders, in other Member States when they wish to provide their services for a limited time, on a temporary/cross-border basis in another Member States.

Cross-border/temporary/intermittent provision of services

If a service provider establishes itself in the Member State where it intends to provide its services, it is subject to the rules of the freedom of establishment, thus becoming a legal entity of the host country and subject to the rules of that country.

However, if the provider is established in the home Member State and wishes to operate in another Member State only on a temporary basis, he is subject to the rules on free movement of services or freedom to provide services. The case-law of the European Court of Justice provides that the duration, frequency, regularity of repetition and continuity of the service, on a case-by-case basis, are taken into account for the assessment of temporariness. The requirements for cross-border activity should be less than for establishment, and the conditions already fulfilled by the provider in the home Member State should be recognised.

Member States should not impose requirements prohibited by Articles 14 and 16 of the DSNT, such as re-registration in registers, re-registration with a professional association, prohibition on the use of certain basic infrastructure (e.g. offices), requirements for certain equipment and materials for the provision of the service, re-licensing, prevention of the provision of services to the self-employed.

The freedom to provide services across borders can only be restricted if there are important reasons of public interest. The establishment and provision of services may be restricted where the rules so provide and where all the following conditions are met:

• the restrictions or requirements are not directly or indirectly discriminatory as regards nationality or, in the case of legal persons, as regards the Member State in which they are established;
• the restrictions or requirements are justified on grounds of public policy, public security, public health or environmental protection;
• the restrictions or requirements are proportionate in order to achieve the objective pursued and do not go beyond what is necessary in order to achieve that objective and cannot be achieved by a less restrictive measure.

Zakon o storitvah na notranjem trgu (Internal Market Services Act) provides for exceptions or cases where the provisions relating to the free cross-border provision of services do not apply - Article 3(2): Act on services in the Internal Market (ZSNT)

Zakon o čezmejnem izvajanju storitev (The Law on Cross-Border Provision of Services) sets out the conditions under which legal and natural persons registered for the exercise of an activity and established in the Republic of Slovenia may temporarily provide services in another Member State of the European Union and the conditions under which legal and natural persons registered for the exercise of an activity and established in an EU Member State may temporarily provide services in the Republic of Slovenia: Act on Cross-Border Provision of Services (ZČmIS-1)

In cases where a foreign service provider or employer provides cross-border services on a temporary basis with its workers in Slovenia, it must obtain, for each of the workers seconded, a certificate of the social security legislation applicable to the holder (A1 certificate) or another appropriate certificate issued in accordance with the applicable international social security treaties binding on the Republic of Slovenia, before the workers are posted to work in the Member State in which the employer has its registered office. In addition, before starting to provide the service, he/she must complete an e-declaration or submit a written notification of the commencement of the service to the Employment Service of the Republic of Slovenia or to the Employment Service of the Republic of Slovenia, Rožna dolina, c. VI/7, 1000 Ljubljana, which includes information on:

• the name and registered office of the foreign employer;
• the personal name and date of birth of the responsible person of the foreign employer;
• the personal names, dates of birth, nationalities of the posted workers and the addresses of their places of residence in the RS;
• the type of service;
• the place and duration of the service;
• the personal name and date of birth of the designated posted worker who will be resident in the RS at the time of the provision of the service and who will be the link between the foreign employer and the competent supervisory authorities; and
• the customer of the service.

The Employment Service of the Republic of Slovenia shall issue a certificate of the online or written declaration.