Brussels, 18 March 2010
Freedom to provide services: Commission takes action against Belgium (temporary employment agencies), Germany (care service reimbursement) and Portugal and Austria (patent agents)
The European Commission has taken action to ensure respect of the principle of freedom to provide services in Germany, Belgium, Portugal and Austria. The Commission will refer Germany to the Court of Justice over its rules on reimbursement of cost of care services received in other Member States and Belgium over its rules on temporary employment agencies. In the area of patent agents – who obtain and enforce intellectual property rights on behalf of either individual inventors or organisations – Portugal will also be referred to the Court while Austria will receive a letter of formal notice requesting full information on its execution of a previous Court judgment.
The EU principle of the freedom to provide services enables a company or individual providing services in one Member State to offer services on a temporary basis in another Member State, without having to be established there. Sometimes national laws can restrict this freedom, resulting in disadvantages to citizens and businesses. In these cases, the Commission takes action to ensure that this principle is respected and that citizens and businesses can exercise their Internal Market rights freely.
Reimbursement of cost of care services received in other Member States – Germany
German rules on its care insurance scheme ("gesetzliche Pflegeversicherung") provide that care services received on a temporary stay in another Member State will not be reimbursed to the same level as care services received within Germany. On several occasions, the Court of Justice has recognised patients' rights to receive reimbursement of medical expenses incurred in other Member States through their health insurances. In the Commission's view, the same rule also applies in relation to care services received in other Member States. On this basis, the Commission is of the opinion that the German rules are in breach of EU Treaty principles on freedom to provide services, and so has decided to refer Germany to the Court of Justice.
Belgium – temporary employment agencies
According to EU principles, any company providing a service in a Member State (in conformity with the national law in force) has the right to provide the same service without restrictions in all other Member States. However, Belgium imposes a number of requirements on temporary employment agencies established in other Member States that wish to provide their services in Belgium. In particular, their scope is limited to activities related to human resources and they have to take on a specific legal form. In the Commission's view, these requirements are disproportionate and have the effect of limiting competition in this field. This situation is also likely to disadvantage employers and Belgian workers who use the services of these companies. For these reasons, the Commission has decided to refer Belgium to the Court of Justice.
Patent agents – Austria, Portugal
Despite its stated intention to change its rules in this area, Portugal still requires any patent agent established in a Member State who wishes to be represented before the Portuguese trademarks and patent office as a temporary service provider to be registered in advance with and be accredited to the Portuguese authorities. Furthermore, registration is subject to a prior check on professional qualifications. In the Commission's view, these requirements breach EU rules on the freedom to provide services and the recognition of professional qualifications. As such, the Commission has decided to refer Portugal to the Court of Justice.
Meanwhile Austria will be sent a letter of formal notice under Article 260 of the Treaty concerning its legislation requiring patent agents to have an address an Austria. Following a ruling by the Court of Justice (11 June 2009, C-564/07), Austria submitted a draft law to the Commission removing the provisions in question. However, the Commission has not still received official communication from the Austrian authorities that the amendments have been adopted.
About infringement procedures
The European Commission has powers to take legal action – known as infringement procedures – against a Member State that is not respecting its obligations under EU law. These procedures consist of three steps. The first is that the Member State receives a letter of formal notice and has two months to respond. In case the Member State does not entirely comply with EU legislation, the Commission can send a reasoned opinion. Again the Member State has two months to reply. If there is no satisfactory reply, the Commission can refer the matter to the Court of Justice in Luxembourg. It can also request that the Court impose a fine on the country concerned if it does not comply with the Court's ruling.
Freedom to provide services:
Latest information on infringement proceedings concerning all Member States: