Act No 222 / 2009 Coll.
Law on the free movement of services
Valid
Law
Effective from 28.12.2009
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222
THE LAW
of 17 June 2009
on the free movement of services
Parliament has decided on this law of the Czech Republic:
Subject matter
This law implements the relevant provisions of the European Community1) and regulates the cross-border provision of services, the rights and obligations of service providers, the rights of service recipients, the points of single contact, their activities and arrangements, the creation of a legal authorisation to provide services and the supervision of service providers in the internal market of the European Union.
Scope of the law
(1) This law does not apply to:
(a) carrying out activities carried out by bank2) under legislation governing the activities of banks, even if such activity is carried out by another person under another legislation28);
(b) the provision of an investment service, including the provision and conclusion of transactions relating to an investment service, the organisation of a regulated market in investment vehicles, the keeping of records of investment instruments, the carrying out of a quality assessment activity of an investment instrument or a capital market participant and the operation of a settlement system under another law governing the capital market business (3);
(c) the organisation of commodity trading and commodity derivatives on the commodity exchange (27);
(d) the collection of funds from the public for the purpose of joint investment and the activities of the depositary relating to such gatherings (4);
(e) the operation of insurance or reinsurance activity (5);
(f) the operation of insurance intermediaries (6);
(g) the pursuit of the activities of institutions for occupational pensions (7);
(h) gambling;
(i) electronic communications services 9),
(j) radio and television broadcasting 10),
(k) recognition of professional qualifications and other competence of nationals of Member States of the European Union and of certain nationals of other States under other legislation11).
(2) The activities referred to in this paragraph shall be covered only by the provisions on points of single contact referred to in Sections 13 to 17; these are:
(a) services of legal or natural persons, provided that they are authorised to arrange employment (employment agency), consisting of the temporary secondment of a staff member to work for another legal or natural person (12);
(b) the provision of healthcare (13);
(c) notary activity (14);
(d) the activity of court executors 15),
(e) services in transport16),
(f) social services 17).
(3) This law is without prejudice to legislation governing:
(a) the conditions of entry and residence of a stranger in the territory of the Czech Republic and his departure from that territory under another legislation (18);
(b) the rights and obligations governed by other laws and regulations of the European Communities on taxes and duties19).
Definition of terms
For the purposes of this Act:
(a) a service of providing any performance other than the performance of dependent work, normally for consideration or consideration within the meaning of Article 50 of the Treaty on European Community; a service of general interest of a non-economic nature is not regarded as a service,
(b) the service provider is a person offering or providing a service established in the territory of a Member State of the European Union, of another State forming the European Economic Area and of the Swiss Confederation, to the extent that the obligations for the Czech Republic arising from the Agreement between the European Community, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons,
(c) the recipient of the service is a person who, in accordance with the laws of a Member State, resides in the territory of a Member State if, for professional or non-professional purposes, uses or intends to use the service in the territory of a Member State;
(d) the cross-border provision of a service of temporary or occasional provision of services in the territory of a Member State other than that in which the provider is established (hereinafter referred to as the State of establishment);
(e) a service of general economic interest, such a service which is provided in a universal and permanent manner and the provider of which a specific legal act confers specific rights and obligations; such a service is in particular postal service, electricity or gas supply, operation of airports or ports, public transport, water supply and waste water collection and treatment or management of municipal waste.
Authorisation to provide services
(1) When determining the conditions for the provision of a service, it shall be carried out in such a way that, directly or indirectly, one service provider is not restricted to the detriment of another, the conditions laid down must be adequate and necessary to protect interests protected by other legislation.
(2) Where the number of authorisations is limited due to a limited number of natural or other resources or technical capacities, the service provider shall be selected in a proper and transparent manner.
(3) The right to perform the service shall always be issued for the whole territory of the Czech Republic, unless otherwise provided by other legislation.
(4) A service authorisation shall be issued for an indefinite period, unless otherwise provided by other legislation.
(5) The fact that a service is provided on a temporary or occasional basis shall be assessed individually in the light of the nature and duration, frequency, regularity and continuity of the service.
Cross-border service provision
The service provider, which is not a service of general economic interest, may provide cross-border services in the territory of the Czech Republic to the extent and on the basis of the authorisation of the State of establishment, unless another legislation provides for the provision of cross-border services otherwise.
Recognition of compliance
Where a service provider is obliged to comply with certain requirements under other legislation for the granting of a service authorisation, those requirements shall be deemed to have been met if the service provider proves that it has met requirements which are equivalent in another Member State or, for a purpose which is in principle comparable to those laid down in the legislation of the Czech Republic.
Recognition of documents
Where the service provider is obliged to submit proof of compliance under other legislation for the authorisation to provide the service, that obligation shall be deemed to have been fulfilled by submitting a document from another Member State, provided that the document serves the same purpose or that it is clear that that obligation has been fulfilled.
Recognition of compulsory insurance
(1) If the service provider has an obligation to arrange insurance in the event of liability for damage to health, life or property caused in connection with the provision of the service in the Czech Republic, such insurance may be replaced by comparable insurance or guarantee agreed in another Member State in which the provider is established. Compliance with this obligation may also be demonstrated by a certificate issued by a credit institution or insurance undertaking established in another Member State. Comparability shall be assessed in terms of purpose, scope of insurance, limits of insurance benefits and exclusions.
(2) If the compulsory insurance or guarantee referred to in paragraph 1 is only partially comparable, the service provider shall, to the missing extent, be obliged to achieve comparability by further insurance or by obtaining an additional guarantee.
Submission of documents
Where the service provider is obliged to submit the document to the administrative department 20) for the purpose of granting an authorisation to provide a service or in the course of the provision of a service, this obligation shall be fulfilled by submitting a copy of it and an uncertified translation thereof, provided that the facts in the copy referred to in paragraph 30 can be established by means of an electronic system with the competent administrative authority of another Member State. If the administrative authority agrees (20), a copy may be submitted without translation or a copy and an uncertified translation in the official language of one of the Member States.
Obligation to make information available
(1) The service provider is obliged to make the following information available to the service recipient before the conclusion of the contract or, where appropriate, before the provision of the service:
(a) the name and surname or business name and, where appropriate, the name;
(b) their contact details, in particular postal address, fax number or e-mail address and telephone number;
(c) information on whether the service provider is registered in a commercial or other similar register, if so, then information on its registration number or other appropriate means of identification of the service provider in that register;
(d) the registered office of the service provider in the case of a legal person or the place of business of the service provider in the case of a natural person;
(e) where his activity is subject to authorisation, the name and address of the authority which granted the authorisation;
(f) the tax identification number, if assigned;
(g) information as to whether the service provider is a member of the professional chamber, including the professional title which results from such membership;
(h) information on terms and conditions or clauses or contractual provisions relating to the choice of law, in so far as the relationship between the service provider and the recipient of the service is governed by them;
(i) information on the scope, conditions and manner of application of guarantees not provided for by law, if any;
(j) the price of the service, where the provider is established in advance;
(k) a basic description of the service provided;
(l) information on liability insurance and, where appropriate, other guarantees, including contact details of persons providing them and information on their material and territorial scope.
(2) The information referred to in paragraph 1 shall be made available by the service provider through:
(a) information available at the place where the service is provided or where the contract is concluded;
(b) the documents supplied to the recipients of the service in which the service provided is described; or
(c) remote access, in particular through an electronic address.
Obligation to communicate information upon request
At the request of the service recipient, the service provider shall provide the following information:
(a) an estimate of the price if the price is not fixed in advance; where the price cannot be estimated, the service provider shall at least communicate the method of calculating the price;
(b) information on the existence of the professional rules by which the service provider is bound and information on the possibilities of familiarity with those rules;
(c) where the service provider is bound by codes of conduct resulting from membership of the professional chamber, it shall provide information on the codes of conduct governing its activities, including, where possible, language versions and information on remote access to those codes,
(d) information on the possibility of out-of-court dispute resolution, including how to obtain detailed information on the conditions for the use of such solutions.
Prohibition of discrimination against service recipients
(1) The service provider must ensure that the conditions of access to the services provided are not discriminatory, in particular as regards the nationality of the recipients of the services or their place of residence.
(2) Discrimination is not a determination of different conditions of access to services on the basis of objective criteria, in particular accounting for additional costs incurred as a result of distance or technical nature of service provision.
Single contact points
The municipal trade offices provided for in the implementing legislation and the electronic single point of contact shall be single points of contact.
(1) The single point of contact shall provide:
(a) information on the requirements applicable under other legislation to service providers, including in particular the elements of the application for authorisation to provide services or the processing of formalities related to its performance, and the contact details of the administrative authorities (20) responsible for processing the application under other legislation;
(b) general information on requirements relating to the taking up and pursuit of the service activity in other Member States;
(c) general information on appeals against decisions of the administrative authorities (20) and on the possibilities for resolving disputes between the service provider and the recipient of the service or between service providers;
(d) general information on consumer protection requirements in other Member States;
(e) contact details of the association or other legal persons, including the European Network of Consumer Centres, which may provide practical assistance to service providers or service recipients;
(f) information on the regulation of professions, including in particular:
1. the list of regulated professions and the conditions for their exercise, including information on the procedure for the recognition of professional qualifications, fees, document requirements and language knowledge;
2. information on the obligation to notify the competent administrative authority of the intention to provide the service in question in the Czech Republic and on the authorisation of the competent administrative authority before the first provision of the service to verify the professional qualifications of the service provider;
3. the list of professions for which there is a European Professional Card and the conditions for obtaining it;
4. a list of professions for which the competent authority is authorised to examine the professional qualifications of the service provider before the first provision of the service;
5. a list of regulated education and training with a specific structure;
6. contact details of the competent administrative authorities and assistance centre.
(2) The points of single contact shall provide the information referred to in paragraph 1 without delay, in a clear and comprehensible form and to an extent that takes into account the real needs of service providers, and shall ensure that it is up to date. Depending on the nature of the query, the single contact points provide information in the Czech or English language as well as in other official languages of the European Union as far as possible.
(3) The competent administrative authorities shall, upon request, provide information on the manner in which the requirements referred to in paragraph 1 are generally interpreted and applied. The information shall be provided without delay after receipt of the request, which may also be delivered electronically, in a clear and understandable language and shall include simple instructions on how to proceed. The information obligation referred to in this paragraph shall not have the character of legal advice on a case-by-case basis, but shall cover only general information in particular on the manner in which the requirements are normally interpreted or applied.
(4) The electronic single point of contact publishes information in a way that allows remote access by electronic means. The competent administrative authorities shall cooperate with the single contact points.
(1) The single point of contact shall receive and transmit without delay to the competent administrative authorities20) all submissions made pursuant to another legislation from persons authorised under another legislation, governing access to, or pursuit of, the service activity, in particular:
(a) applications for registration or notification based on other legislation21),
(b) social security notifications and notifications from natural persons to the extent provided for by other legislation22);
(c) notice of vacancy 23),
(d) notification and reporting of natural persons to health insurers to the extent provided for by other legislation24);
(e) submissions linked to the recognition of professional qualifications.
(2) All submissions and formalities referred to in paragraph 1 may be handled by means of points of single contact or competent administrative offices, including at a distance and by electronic means. The administrative authorities shall cooperate with the administrative authorities of the other Member States of the European Union by means of an electronic system for the exchange of information between Member States under specific legislation in order to demonstrate the relevant facts for administrative management.
(1) The single point of contact shall immediately transmit the submissions received by the competent administrative authorities pursuant to Article 15 (20), not assessing their completeness or accuracy.
(2) Where a time limit is set for the submission, it shall be maintained if the last day of the time limit is made at the single point of contact or if a postal consignment addressed to the single point of contact is lodged on that day. The time limit for the clearance of submissions shall begin with its submission at the single point of contact.
The service provider shall be entitled to choose any single point of contact for the transmission of submissions pursuant to Article 15 and to obtain information concerning the provision of services under Article 14.
Supervision of service providers established in another Member State who cross-border provide services in the Czech Republic
In the exercise of the supervision of compliance with the rights and obligations of service providers established in another Member State providing cross-border services in the territory of the Czech Republic (hereinafter referred to as the "foreign cross-border service provider '), administrative authorities 20) provide synergies to administrative authorities of other Member States.
(1) The administrative authorities20) are authorised, on their own initiative or at the request of the State of establishment of the service provider, to carry out factual checks against foreign cross-border service providers. the request must be justified.
(2) Administrative authorities20) are required to comply with the request referred to in paragraph 1 in an appropriate manner. They shall immediately inform the requesting Member State of the results of the check. Such checks shall be carried out in a way that is designed to fulfil the purpose of the application.
Where administrative authorities 20) find out the infringement of the obligations laid down by the law of a foreign cross-border service provider and other laws do not allow them to take action against it or impose sanctions on it, request that measures be implemented or impose sanctions on the authorities of the State of establishment of that service provider.
Supervision of service providers established in the Czech Republic who cross-border provide services in other Member States
Supervision of compliance with the rights and obligations of service providers established in the Czech Republic who provide services across borders in the territory of other Member States is exercised by the administrative authorities 20) in cooperation with the authorities of other Member States. They shall do so in accordance with the provisions of this law and other legislation.
Administrative authorities 20) may request the authorities of other Member States to carry out checks on service providers established in the Czech Republic providing cross-border services on the territory of those Member States.
(1) Where an administrative authority (20) receives a reasoned request from a Member State authority to implement an appropriate measure or to grant a sanction on the basis of the facts established within the supervisory powers of the requesting Member State, it shall implement measures or penalties, if possible, and the request shows the reasons for the implementation of that measure or the penalties granted.
(2) Where an administrative authority (20) receives a reasoned request from a Member State authority to carry out a check or to carry out measures to prevent a safety threat to the service, it shall implement measures to remedy if it finds justified. The administrative authority20) shall inform the requesting authority of the results of the inspection and of the measures taken or of why it has not taken any measures.
Warning mechanism
Where an administrative authority (20) finds that the activity of a service provider established by:
(a) there is a risk of serious harm to the health, safety of persons or the environment in other Member States in the territory of the Czech Republic; it shall immediately inform the competent authorities of the Member States and the European Commission;
(b) in another Member State there is a risk of serious harm to the health or safety of persons or the environment in the territory of the Czech Republic or other Member States, it shall inform the State of establishment of the service provider, the Member States concerned and the European Commission without delay.
Exchange of information on the internal market of the European Union
(1) Where necessary for the assessment of compliance with the requirements and verification of other facts necessary for the granting of a service authorisation, and where appropriate for the exercise of supervisory powers, the administrative authorities 20) request information from the competent authorities of the Member States on service providers established in their territory.
(2) The administrative authorities20) provide the competent authorities of the Member States with information on service providers established in the Czech Republic on a reasoned request.
Information system
(1) Administrative authorities20) provide information and submit requests concerning individual service providers under this Act to the administrative authorities of the Member States through an information system designated for this purpose. In particular, the information provided and transmitted by this system shall be the information necessary for the recognition of documents to verify compliance with the requirements for the provision of services and other facts in cross-border provision of services or establishment, information related to the exercise of supervisory powers by administrative authorities and information related to the risk to the security of the service and the use of an alert mechanism.
(2) In order to assess the integrity of the service provider for the purposes of the exchange of information within the information system designated by the administrative authorities (20), an extract from the Register of Penalties shall be requested under another legislation25). An application for an extract from the Register of Penalties and an extract from the Register of Penalties shall be sent in electronic form in a way that allows remote access.
(3) Access to personal data (20), the retention period of personal data and other aspects related to the protection of personal data are governed by Commission Decision 2008 / 49 / EC of 12 December 2007 concerning the implementation of the Internal Market Information System (IMI) as regards the protection of personal data.
Common provisions
(1) The requests made pursuant to paragraphs 20 to 26 of this Law must be clear and duly substantiated. Data obtained under such an application may be used only for the purpose for which it was requested.
(2) Where requests made under this law by a Member State's authority cannot be met for reasons which could not be influenced by the administrative authority (20) or cannot be complied with within a time limit appropriate to the purpose of the request, the administrative authority shall inform the requesting authority of the Member State of these facts and shall provide it with the necessary synergies in the implementation of the measures to be taken to fulfil the purpose of the request.
(3) Administrative authorities20) are required to provide the authorities of the Member States with information under this Act without undue delay.
Establishment of authorisation by expiry of the deadline
(1) If other legislation so provides, the authorisation to provide the service is due to expire in vain.
(2) In the case referred to in paragraph 1, the administrative authority (20) of its receipt shall issue the applicant with a certificate stating the date of receipt of the application, the time limit for the decision to be taken and the reasons for the failure to expire.
(1) If the application does not have the requirements laid down under other legislation20), the administrative authority shall invite the applicant to remedy the deficiencies and shall grant it a reasonable period of time or may suspend the administrative procedure. In those cases where the procedure is interrupted, the time limit for the decision shall run from the outset from the date on which the administrative authority 20) informs the participant that the proceedings are continued.
(2) In particularly difficult cases, the administrative authority 20) may, within 10 days of the date of receipt of the application by a resolution, extend the time limit for the decision to a maximum of twice that. This resolution cannot be appealed against. The provisions of the Administrative Rules on periods to be added to the decision-making period shall not apply.
(1) The administrative authority (20) shall, without undue delay, record the file and enter the authorisation holder in the register provided for by another law. Upon request, the certificate shall issue to the holder an authorisation indicating the information identifying the holder, the legal provisions on the basis of which the authorisation was obtained, the subject matter and, where applicable, the scope of the authorisation. The certificate shall also contain the designation of the administrative department which issued it, the reference number, the date of the copy, the name, surname, function or service number, the stamp of the official stamp and the signature of the authorised official.
(2) In the event that the conditions for the establishment of the authorisation have not been met and the administrative authority responsible for the decision on the application finds this subsequently, it shall decide that the authorisation ceases to exist. This decision may be taken within 3 years of the expiry of the time limit for the decision on the application. It shall apply mutatis mutandis in accordance with the provisions of the Administrative Rules on the initiation and conduct of the review procedure and the decision in the review procedure and its effects, with the exception of the provisions on the initiation of the procedure by a resolution within 1 year of the legal power of the decision and the provisions on the accelerated review procedure.
Harmonised forms
In the event that the European Commission adopts harmonised forms pursuant to the Directive of the European Community26) governing the area of freedom to provide services in the internal market, the Government shall, by regulation, establish models for such forms.
Authorisation provisions
The Ministry of Industry and Trade will issue a Decree implementing Section 13.
Efficacy
This Act shall take effect on 28 December 2009.
Wolf
Klaus v. r.
Fischer v. r.
1) Directive 2006 / 123 / EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market.
2) Act No. 21 / 1992 Coll., on Banks, as amended.
3) Act No. 256 / 2004 Coll., on Capital Market Business, as amended.
4) Act No. 189 / 2004 Coll., on Collective Investment, as amended. Act No. 42 / 1994 Coll., on supplementary pension insurance with a State contribution and on amendments to certain laws related to its implementation, as amended.
5) Act No. 363 / 1999 Coll., on Insurance, as amended.
6) Act No. 38 / 2004 Coll., on insurance intermediaries and liquidators, as amended.
7) Act No. 248 / 2008 Coll., amending Act No. 340 / 2006 Coll., on the Activities of Occupational Pensions Institutions from Member States of the European Union in the Czech Republic and amending Act No. 48 / 1997 Coll., on Public Health Insurance and on the Amendment and Addition of Certain Related Acts, as amended.
9) Act No. 127 / 2005 Coll., on electronic communications, as amended.
10) Act No. 231 / 2001 Coll., on radio and television broadcasting and amending other laws, as amended.
11) Act No. 18 / 2004 Coll., on the recognition of professional qualifications and other competence of nationals of Member States of the European Union and of certain nationals of other States and amending certain laws (Act on the Recognition of Professional Qualifications), as amended.
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Regulation Information
| Citation | Act No 222 / 2009 Coll., on the Free Movement of Services |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 20.07.2009 |
|---|---|
| Effective from | 28.12.2009 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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