European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The Services Directive applies to a wide range of services but there are some exceptions (Art. 2) . The handbook on the implementation of the directive, published by the Commission in 2007, states that the directive applies to all services which are not explicitly excluded from it . 
The concepts of “establishment”, “service”, “provider” or “recipient” are defined in Article 4. The concept of “ser …

Scope of application

The Services Directive applies to a wide range of services but there are some exceptions (Art. 2) . The handbook on the implementation of the directive, published by the Commission in 2007, states that the directive applies to all services which are not explicitly excluded from it . 

The concepts of “establishment”, “service”, “provider” or “recipient” are defined in Article 4. The concept of “services” is defined as at the very least “any self-employed economic activity, normally provided for remuneration”, as referred to in Article 57 TFEU . The directive does not cover non-economic services of general interest  reserved to public or private entities, monopolies existing on the date of its entry into force  or areas governed by a European provision relating to the aspects of access to an activity of services or its performance in areas or for specific professions (Art. 2) . However, according to the Court, the criminal law aspect of a rule cannot exempt it from the application of Directive No 2006/123, insofar as it affects access to or exercise of a service activity .

Requirements relating to access or provision of a service activity or its completion on the territory of the Member State are subject to the same legal regime and establishment is clearly distinguished from the provision of cross-border services . In line with the case law of the Court of Justice, the Services Directive defines establishment as “the actual pursuit of an economic activity, as referred to in Article 43 [49 TFEU] of the Treaty by the provider for an indefinite period and through a stable infrastructure from where the business of providing services is actually carried out” , “provider” as any natural person who is a national of a Member State or any legal person as referred to in Article 54 of the Treaty and established in a Member State, who offers or provides a service and “recipient” as any natural person who is a national of a Member State or who benefits from rights conferred upon him by EU acts, or any legal person as referred to in Article 54 of the Treaty and established in a Member State, who, for professional or non-professional purposes, uses, or wishes to use, a service . The service activities may involve services requiring the proximity of provider and recipient, services requiring travel by the recipient or the provider and services which may be provided at a distance, including via the internet . The Services Directive only applies to “services supplied by providers established in a Member State” (Art. 2). The EU court interprets the notion of provision of service broadly. National legislation which makes the storage of pyrotechnic articles intended for the retail trade subject to dual authorization therefore falls within the scope of the directive even though it does not relate to access to the activity of retail trade in those articles, insofar as the storage of pyrotechnic articles to be sold constitutes, for the “operators”, a prerequisite to that activity of retail trade, which itself constitutes a service . 

In response to a question regarding the scope of application of the directive, the Court of Justice clarified the extent of the exclusions set out in Article 2, which include, inter alia, social services and transport services . Social services thus cover any activity intended to assess, maintain or restore the state of health of patients, where that activity is carried out by healthcare professionals recognized as such by the Member State concerned and any activity relating to the care and assistance of elderly persons, where that activity is carried out by a private service provider which has been mandated by the State by means of an act conferring, in a clear and transparent manner, a genuine obligation to provide such services under specific conditions .  In addition, healthcare services excluded under Article (2)(2)(f) of Directive No 2006/123 from the scope of the directive are those, according to recital 22, which are “provided by health professionals to patients to assess, maintain or restore their state of health” - which implies that they are provided to humans - and it cannot be argued, therefore, that the profession of veterinary surgeon falls outside its scope of application . According to the Court of Justice , the concept of services in the field of transport covers roadworthiness tests for motor vehicles which are ancillary to the transport service and take place as a pre-condition, indispensable to the exercise of the main activity of transport. On the other hand, an activity which consists in providing, for payment, a service of carrying passengers on a boat for a waterway tour of a city for event-related purposes is excluded from the scope of the Services Directive, insofar as it is intended to provide the recipients of that service with the pleasant context of a celebration rather than point-to-point transport in the city in question . This is also the case for an intermediation service, the purpose of which is to connect, by means of a smartphone application and for remuneration, non-professional drivers using their own vehicle with persons who wish to make urban journeys . Further, according to the Court of Justice, although Article 2(2)(l) of Directive No 2006/123 does not cover the services provided by notaries and bailiffs who are appointed by an official act of government,  this is not the case for the profession of civil engineer which is not mentioned in that provision, given that the exceptions are subject to strict interpretation .

The Court of Justice has not only ruled on the exceptions from the scope of the directive, but has also defined the concept of services. Thus, an intermediation service the purpose of which is to connect, by means  of a smartphone application, non-professional drivers using their own vehicles with persons wishing to make an urban journey   or the renting out of furnished premises intended for habitation to a visiting  clientele not domiciled there for remuneration, carried out repeatedly  and for short periods of time, both on a professional and  non-professional basis  fall within the scope of the directive. Similarly, the Court has held that services provided under a long-term rental agreement for motor vehicles acquired by the lessor at the lessee's request, with a view to leasing them to the latter in return for a fee, do not constitute financial services .

The directive entered into force on 28 December 2006 and had to be transposed by 28 December 2009 , with the Member States having to remove discrimination prohibited per se and send a report to the Commission - and to the other Member States - concerning the requirements subject to evaluation they wish to safeguard. Through this cooperation mechanism, the Commission should be able to propose additional harmonization provisions. 

Financial services, transport, temporary work, healthcare services, audiovisual, gambling, social services are excluded.

Case C-137/17 Van Gennip BVBA, Judgment of 26 September 2018, LawLex201800001407JBJ.

C-320/16 Uber France (SAS), Judgment of 10 April 2018, LawLex201800000590JBJ, re-stating that the Member States may lay down criminal penalties for an unlawful transport activity in the context of an intermediation service provided by means of a smartphone application, without having to fulfill the obligation of prior notification of the draft law penalizing that activity to the Commission, insofar as the service which concerns a “service in the field of transport”, is excluded from the scope of application of the Services Directive.

Case C-57/12 Fédération des maisons de repos privées de Belgique, Judgment of 11 July 2013, LawLex201300001135JBJ.

Case C-209/18 Commission v Austria, Judgment of 29 July 2019,. 

Case C-168/14 Grupo Itevelesa SL, Applus Iteuve Technology, Certio ITV SL, Asistencia Técnica Industrial SAE v OCA Inspección Técnica de Vehículos SA, Generalidad de Cataluña, Judgment of 15 October 2015, LawLex201500001263JBJ.

Cases C-340/14 and C-341/14 Trijber, J. Harmsen v Burgemeester van Amsterdam, College van burgemeester en wethouders van Amsterdam, Judgment of 1 October 2015, LawLex201500001178JBJ.

Case C-434/15 Asociación Profesional Elite Taxi, Judgment of 20 December 2017, LawLex201800000032JBJ.

Case C-209/18 Commission v Austria, Judgment of 29 July 2019,.

Case C-434/15 Asociación Profesional Elite Taxi v Uber Systems SpainSL, Judgment of 20 December 2017, LawLex201800000032JBJ.

Cases C-724/18 and C-727/18 Cali Apartments SCI and HX v Procureur général près la Cour d'appel de Paris and Ville de Paris, Judgment of 22 September 2020, LawLex202000002160JBJ.

Case C-278/22 AUTOTECHNICA FLEET SERVICES d.o.o., Judgment of 21 December 2023, LawLex202400004481JBJ, which specifies that this is only the case if the contract includes an obligation to purchase the vehicle at the end of the lease period, if the fees paid by the lessee are intended to enable the lessor to fully amortize the costs of acquiring the vehicle, or if the contract includes a transfer of risks relating to the residual value of the vehicle upon expiry of the contract.

On 1 December 2010, 15 out of 27 States had transposed the directive: Germany, Austria, Belgium, Bulgaria, Cyprus, Denmark, Spain, Ireland, Italy, the Netherlands, Poland, Romania, Sweden, the Czech Republic, United Kingdom. To facilitate transposition, the Commission used the comitology procedure to adopt certain implementation measures. On 16 October 2009 it took a decision aimed at facilitating the cross-border use by undertakings of points of single contact, which obliges Member States to establish, update and publish “trusted lists” containing essential information on providers of certification services issuing Qualified Certificates to the public. On 2 October 2009, it issued a decision on the internal market information system (IMI) to be used for the purposes of cooperation between the Member States.

The handbook on the implementation underlines that these are services which are not provided for economic consideration and must not be mixed up with services of general economic interest which are provided for a consideration and thus, in principle, fall within the scope of application of the directive.

Case C-171/17 Commission v Hungary, Judgment of 7 November 2018, LawLex201800001676JBJ.

The directive does not apply to the areas governed by specific EU provisions: financial services, transport, audiovisual services.

Case C-393/17, hof van beroep te Antwerpen, Judgment of 4 July 2019, LawLex201900001315JBJ.

Handbook on implementation of the Services Directive, pt 7.1.1.

Directive No 2006/123 of 12 December 2006, Article 4(5).

Directive No 2006/123 of 12 December 2006, Article 4(2) and (3).

European Business Law

105. Scope of application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

105. Scope of application

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise