The Provision of Services Regulations 2009

Made: 11th November 2009

Coming into force: 28th December 2009

These Regulations are made in exercise of the powers conferred by section 2(2) of the European Communities Act 1972 .

The Secretary of State is a Minister designated in relation to services in the internal market for the purposes of section 2(2) of that Act.

In accordance with paragraph 2(2) of Schedule 2 to that Act a draft of this instrument has been laid before Parliament and approved by resolution of each House of Parliament.

Accordingly the Secretary of State makes the following Regulations.

PART 1 — INTRODUCTORY

Citation and commencement

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• (1) These Regulations may be cited as the Provision of Services Regulations 2009.

• (2) These Regulations come into force on 28th December 2009.

“Service”

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• (1) In these Regulations “service” means any self-employed economic activity normally provided for remuneration (as referred to in Article 57 of the Treaty).

• (2) These Regulations do not apply to—

• (a) financial services, such as banking, credit, insurance and re-insurance, occupational or personal pensions, securities, investment funds, payment and investment advice, including the services listed in Annex I to Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 relating to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC;

• (b) electronic communications services and networks, and associated facilities and services, with respect to matters covered by—

Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities ,

Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services ,

Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services ,

Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services , or

Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector ;

• (c) services in the field of transport, including port services, falling within the scope of Title VI of the Treaty;

• (d) services of temporary work agencies (which for the purposes of these Regulations include any employment business as defined by section 13(3) of the Employment Agencies Act 1973 );

• (e) healthcare services, whether or not they are provided via healthcare facilities, and regardless of the ways in which they are organised and financed at national level or whether they are public or private;

• (f) audiovisual services, including cinematographic services, whatever their mode of production, distribution and transmission, and radio broadcasting;

• (g) gambling activities which involve wagering a stake with pecuniary value in games of chance, including lotteries, gambling in casinos and betting transactions;

• (h) activities which are connected with the exercise of official authority (as set out in Article 51 of the Treaty);

• (i) social services relating to social housing, childcare and support of families and persons permanently or temporarily in need which are provided by the State, by providers mandated by the State or by charities recognised as such by the State;

• (j) private security services;

• (k) services provided by notaries or bailiffs, if or to the extent that they are appointed by an official act of government to provide those services.

• (l) services provided by a person holding a licence (“a code manager licence”) under section 7AC of the Gas Act 1986 or section 6(1)(g) of the Electricity Act 1989.

“Competent authority”

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• (1) In these Regulations “competent authority” means a body or authority having supervisory or regulatory functions in the United Kingdom in relation to service activities (and includes in particular a professional body, professional association or other professional organisation, that regulates access to, or the exercise of, a service activity).

• (2) In paragraph (1)—

• (a) the reference to a body or authority includes a body or authority acting on behalf of the Crown;

• (b) the reference to supervisory or regulatory functions includes the function of maintaining a register or other record of persons entitled to have access to, or to exercise, a service activity.

• (3) Parts 3 and 6 of these Regulations do not apply to competent authorities to the extent that their functions involve the making of subordinate legislation.

Interpretation: general

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In these Regulations—

• “authorisation scheme” means any arrangement which in effect requires the provider or recipient of a service to obtain the authorisation of, or to notify, a competent authority in order to have access to, or to exercise, a service activity;

• “enactment” includes Acts of the Scottish Parliament, Northern Ireland legislation, Acts and Measures of the National Assembly for Wales and subordinate legislation;

• “establishment”, in relation to the provider of a service, means the actual pursuit of an economic activity, as referred to in Article 49 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 (and references to “established”, in relation to the provider of a service, are to be construed accordingly);

• “notary”—in England and Wales, includes a person who, for the purposes of the Legal Services Act 2007 , is an authorised person in relation to any activity which constitutes a notarial activity (within the meaning of that Act), andin Scotland, means a notary public duly admitted in Scotland;

• “professional liability insurance” means insurance taken out by the provider of a service in respect of potential liabilities to recipients and, where applicable, third parties arising out of the provision of the service;

• “provider”, in relation to a service, means a person who provides, or offers to provide, the service (but see regulation 5(4));

• “recipient”, in relation to a service, means a person who, for professional or non-professional purposes, uses, or wishes to use, the service (but see regulation 5(3));

• “regulated profession” means a professional activity or group of activities—access to which, the pursuit of which or one of the modes of pursuit of which is subject (directly or indirectly) by virtue of legislative, regulatory or administrative provisions to the possession of specified qualifications, orthe pursuit of which is by persons using a professional title which is limited by legislative, regulatory or administrative provisions to holders of a given professional qualification;

• “requirement” includes any obligation, prohibition, condition or limit;

• “service” has the meaning given by regulation 2;

• ...

• “subordinate legislation” means Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made or to be made under any Act or under any Act of the Scottish Parliament, Northern Ireland legislation or Act or Measure of the National Assembly for Wales;

• “the Treaty” means the Treaty on the Functioning of the European Union.

General exclusions and savings

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• (1) Nothing in these Regulations—

• (a) requires or prohibits—

• (i) the opening up to competition of services of general economic interest,

• (ii) the privatisation of public entities providing services, or

• (iii) the abolition of monopolies;

• (b) affects the functions of a competent authority in relation to the granting of aids covered by assimilated law on competition;

• (c) prevents a competent authority from determining ... what it considers to be a service of general economic interest, how services of general economic interest should be organised and financed in compliance with State aid rules in assimilated law and what specific obligations those services should be subject to;

• (d) affects the functions of a competent authority in relation to—

• (i) the law relating to employment conditions,

• (ii) the law relating to working conditions, including health and safety at work and the relationship between employers and workers, or

• (iii) the law relating to social security;

• (e) affects rules of private international law, in particular rules governing the law applicable to contractual and non-contractual obligations (including those which guarantee that consumers benefit from the protection granted to them in the United Kingdom).

• (2) Nothing in these Regulations applies in respect of the field of taxation.

• (2A) Nothing in these Regulations affects the interpretation, application or operation of any provision made by or under the Immigration Acts.

• (3) Nothing in these Regulations applies in relation to a recipient of a service who is not—

• (a) an individual who is a national of the United Kingdom, or

• (b) a business undertaking established in the United Kingdom.

• (4) Nothing in Parts 3 and 6 to 8 applies in relation to a provider of a service who is not—

• (a) established in the United Kingdom, and

• (b) either—

• (i) an individual who is a national of the United Kingdom, or

• (ii) a business undertaking.

• (5) In paragraphs (3)(b) and (4)(b)(ii), “business undertaking” means any entity, whether or not a legal person, that is not an individual and includes a body corporate, a corporation sole and a partnership or other unincorporated association, engaged in activities for the purpose of trading for profit, incorporated or formed under the law of any part of the United Kingdom.

Relationship with other requirements

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• (1) A requirement imposed by Part 2 ... or 6 of these Regulations on a competent authority or a provider of a service does not apply if, or to the extent that, the competent authority or provider cannot comply both with that requirement and with a requirement to which this paragraph applies.

• (2) Paragraph (1) applies to a requirement imposed by—

• (a) a provision of an enactment other than assimilated direct legislation, where—

• (i) the provision relates to specific aspects of access to, or the exercise of, a service activity,

• (ii) immediately before IP completion day, the provision implemented an EU obligation, and

• (iii) the enactment is passed or made before the day on which these Regulations are made, or

• (b) a provision of assimilated direct legislation, where—

• (i) the provision relates to specific aspects of access to, or the exercise of, a service activity, and

• (ii) immediately before IP completion day, the provision was contained in an EU instrument that came into force before these Regulations were made.

• (3) A requirement imposed by Part 3 ... of these Regulations on a competent authority does not apply if, or to the extent that, the competent authority cannot comply both with that requirement and with a requirement to which this paragraph applies.

• (4) Paragraph (3) applies to a requirement imposed by—

• (a) a provision of an enactment other than assimilated direct legislation, where—

• (i) the provision relates to specific aspects of access to, or the exercise of, a service activity, and

• (ii) the enactment is passed or made before the day on which these Regulations are made, or

• (b) a provision of assimilated direct legislation, where—

• (i) the provision relates to specific aspects of access to, or the exercise of, a service activity, and

• (ii) immediately before IP completion day, the provision was contained in an EU instrument that came into force before these Regulations were made.

PART 2 — DUTIES OF SERVICE PROVIDERS

CHAPTER 1 — INFORMATION

Duty to make contact details available

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• (1) The provider of a service must make available contact details to which all recipients of the service can send a complaint or a request for information about the service.

• (2) Those contact details must include in particular—

• (a) a postal address, fax number or e-mail address,

• (b) a telephone number, and

• (c) where the service provider has an official address, that address.

• (3) In paragraph (2)(c) “official address” means an address which a person is required by law to register, notify or maintain for the purpose of receiving notices or other communications.

Other information to be made available

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• (1) The provider of a service must make the following information available to a recipient of the service—

• (a) the provider's name;

• (b) the provider's legal status and form;

• (c) the geographic address at which the provider is established and details by which the provider may be contacted rapidly and communicated with directly (including, where the provider may be contacted and communicated with by electronic means, the details of how the provider may be so contacted and communicated with);

• (d) where the provider is registered in a trade or other similar public register, the name of the register and the provider's registration number or equivalent means of identification in that register;

• (e) where the activity is subject to an authorisation scheme in the United Kingdom, the particulars of the relevant competent authority or the electronic assistance facility referred to in regulation 38;

• (f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (g) where the provider exercises an activity which is subject to VAT, the identification number referred to in Article 22(1) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the member states relating to turnover taxes – Common system of value added tax: uniform basis of assessment or the registration number as defined in regulation 2(1) of the Value Added Tax Regulations 1995;

• (h) where the provider is carrying on a regulated profession, any professional body or similar institution with which the provider is registered, and the professional title;

• (i) the general terms and conditions, if any, used by the provider;

• (j) the existence of contractual terms, if any, used by the provider concerning the competent courts or the law applicable to the contract;

• (k) the existence of any after-sales guarantee not imposed by law;

• (l) the price of the service, where a price is pre-determined by the provider for a given type of service;

• (m) the main features of the service, if not already apparent from the context;

• (n) where the provider is subject to a requirement to hold any professional liability insurance or guarantee, information about the insurance or guarantee and in particular—

• (i) the contact details of the insurer or guarantor, and

• (ii) the territorial coverage of the insurance or guarantee.

• (2) For the purposes of paragraph (1), information is made available to the recipient if—

• (a) it is supplied by the provider to the recipient on the provider's own initiative,

• (b) it is easily accessible to the recipient at the place where the service is provided or the contract for the service is concluded,

• (c) it is easily accessible to the recipient electronically by means of an address supplied by the provider, or

• (d) it appears in any information document supplied to the recipient by the provider in which the provider gives a detailed description of the service.

Information to be supplied on request etc

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• (1) The provider of a service must, on the request of a recipient of the service, supply the following information to the recipient—

• (a) where the price is not pre-determined by the provider for a given type of service—

• (i) the price of the service, or

• (ii) if an exact price cannot be given, the method for calculating the price so that it can be checked by the recipient, or a sufficiently detailed estimate;

• (b) where the provider is carrying on a regulated profession, a reference to the professional rules applicable ... and how to access them;

• (c) information on other activities undertaken by the provider which are directly linked to the service in question and on the measures taken to avoid conflicts of interest;

• (d) any codes of conduct to which the provider is subject and the address at which these codes may be consulted by electronic means, specifying the language available.

• (2) The information referred to in paragraph (1)(c) must be included in any information document in which the provider gives a detailed description of the service.

Information about dispute resolution

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