The two rifts healed. I felt that the new draft "services" directive (which should no longer be called the "Bolkestein directive", as it has been changed so much) was one of the two European success stories of last week, alongside the agreement on financial perspectives 2007-2013. But its effects will be neither as immediate nor, in my opinion, as important as certain observers claim. This has nothing to do with the effects of relaunching all areas of Community activities, resulting from the new financial perspectives (see this column in our previous bulletin). At the time being, the repercussions of the compromise on the liberalisation of services will be mainly political and psychological. The controversy had caused a rift between the old and new Member States, the latter feeling that they were being discriminated against, on the basis of the following observation: the single market is based on four "freedoms of circulation": goods, capital, persons and services. The first two are working, to the advantage of the old Member States in the main; the two latter, which were to have redressed the balance, are either incomplete (salaried workers) or still in an embryonic stage (services). Just as important is the political rift between proponents of existing social rights and the neo-Liberals, with absurd extensions of this which led a left-wing party in France (and the academic world) to encourage others to reject the Constitutional Treaty (even though the Bolkestein directive came under the current institutional regime and despite the fact that the Constitution would have recognised services of general interest as one of the pillars of the European model of society). At the time being, these two rifts have been healed and the last of the four above-mentioned liberties is soon to exist, excluding from competition a proportion of social and health care services, social housing, education, and the obligation of "universal service" for services of general economic interest.
Politically, the way in which this new text saw the light of day is just as significant: it is a well-known fact that it was the European Parliament which achieved the compromise largely taken up by the Commission and which will constitute the basis for negotiations at the Council. It is impossible for the latter, despite vague statements on the part of certain governments and the pressure brought to bear by certain interest groups, to return to the Bolkestein draft, because: a) the Council needs unanimity in order to change the Commission's proposal, and it will have this unanimity only for a few minor aspects; b) at its second reading, the Parliament would reject any text which differs significantly from its compromise, with the end result that there would be no directive at all.
No rocking the boat. Beyond the political and psychological aspects, the economic and social effects will take longer and be less spectacular than it is claimed. The obligatory application of the directive in the Member States will not happen until the second half of 2008 or, more likely, in 2009, and then another three years are provided in certain provisions. And we mustn't expect an avalanche of service providers speeding from the new Member States to the old. Who looks abroad for someone to cut their hair or to nurse their flu? It is certainly true that a hairdresser or doctor from an Eastern European country can set themselves up in an old Member State, but that doesn't come under the heading of service provision, that has to do with right of establishment, which is not the same thing and, in any case, already exists. The effects of liberalisation will impact mainly on small and medium-sized enterprises, and the administrative simplification will be beneficial.
Much work remains to be done. Overall, increased competition in business-to-business services will be positive and will have no negative influence on existing social rights, given parallel clarifications to social and fiscal obligations for seconded workers. But analyses of the draft have shown that many questions will remain unanswered, and that certain provisions appear ambiguous, lending themselves to several interpretations. The legislator (i.e. the Parliament and the Council) need to clarify certain aspects in order to get rid of any legal uncertainty, so that the Court of Justice is not obliged to do this itself. The very notion of "country of origin", which has been removed from the text, is, however, implicit in certain provisions of the current treaty: its scope needs to be clarified. Additional legislative texts will be necessary to create a framework for services of general economic interest (SGEI); a great deal has been clarified in this field over the years, but nothing is definitively set in stone, particularly in the absence of the Constitutional Treaty.
We'll all be talking about services for many more years to come.
(F.R.)