As the debate on the Bolkestein directive goes through the European Parliament (see first report-back on this issue in this bulletin), here are a few factors that complete or clarify the general observations made in this section yesterday.
1. Parliament will only have any weight if it agrees to the compromise. The EU is faced with two legitimate compromises: a) put the provision of services into practice - this represents one of the elements making up the single extended market; b) do not threaten the social acquis or right of citizens to access essential services of good quality and at reasonable prices throughout the Union. Three tendencies are at loggerheads at the European Parliament, which rapporteur Evelyne Gebhardt has described as, “The super protectionists who do not want the directive; the ultraliberals who want to impose the rule of the country of origin and the pragmatists who are looking for a balanced solution”. She is in the third category, the only one capable of getting a majority. Differences do not only exist between the political groups but also within each of the two main groups (EPP-ED and the Socialists). There are also differences between countries, the new Member States lining up behind the liberal solution because it would allow their nationals to be free to provide services throughout the EU. But Ms Gebhardt has pointed out that some of the countries from Central and Eastern Europe have understood that “in the medium and long term they are in danger themselves of being on the receiving end of social dumping from other countries” and that they therefore have an interest in not calling for an unbridled application of the principle of the country of origin.
2. Current draft compromise is reasonable but contains several ambiguities. The essence of the draft compromise on the table and the main reactions it has provoked were summarised in our bulletin 9129. The solution supported by Ms Gebhardt and the negotiator for the EPP-ED group Malcolm Harbour in an effort to get round the extremely controversial “country of origin” concept is very clever: replace the debate on doctrine by criteria defining the limits of legal restrictions. Obstacles to trans-national service providers should, in order to be lawful, be non-discriminatory, necessary and proportional to the objective. For example, Gebhardt explained that a Polish plumber making repairs in Belgium would not be compelled to use a car with a Belgian number plate to transport his materials, which is currently the case. Nevertheless, the material being transported should respect environmental standards or those in keeping with consumer protection and others of the host country. But the interpretation of the terms “necessary” and “proportional” could provoke endless litigation and if the European Court of Justice is called on to reach a verdict, Harlem Désir believes that it would come down on the side of the liberals.
Other question marks remain with regard to significant aspects: the list of services excluded from liberalisation, the cross-border regime etc. We will have to wait for Thursday's vote to find out which formulas have got majority support, formulas which often remain ambiguous for both adversaries and supporters of the directive, who are inflexibly sticking to their positions on the original text. Pressure from the different areas that have an interest in the matter is very strong too.
3. Confusion over providing services and the right of establishment, as well as self-employed workers and employees, continues to poison debate. The distinction should be made clear. If an entrepreneur, a lawyer, doctor etc want to set up shop in another Member State, it is not a provision of a service, and the rules of the country of destination apply across the board. In the same way, if a service provider has employees, he has to apply the rules of the country where the service is provided with regard to working hours, minimum wage, social provision etc. Only a self-employed service provider is free to set his prices and conditions as he deems fit while being subject to the rules indicated in point 2. Many misunderstandings will be avoided if these points are clarified.
The case remains a difficult one because aspects provoking passionate and ideological responses are being clung onto tenaciously. Francis Wurtz, president of the United Left (GUE/NGL) reasserted that the Bolkestein directive “shifts the passage to European construction based on legislative harmonisation onto integration based on competition and less regulation”. On the other side of the fence, one could remind him that for workers from Central and Eastern Europe it would mean greater regulation and that a certain degree of competition is good for everyone. If these doctrinal differences persist, no compromise will be possible. While waiting for one, Evelyne Gebhardt has to find solutions to the left, Malcolm Harbour to the right.