Regulations of Services
In the case of services, regulation normally applies with reference to the authorisation, licensing status and qualifications of the service provider. A range of services providers must be licensed or authorised by a competent authority in an EU member state in accordance with common EU standards.
The general principle is that a service provider duly authorised in accordance with the relevant EU scheme in one state may provide services in that capacity into any other state. Generally, the service provider may also or alternatively establish a branch or presence in the host state. In this event, the service provider is generally regulated from a capacity or prudential perspective in the home state and is regulated from a doing business or consumer protection rules perspective by the host state.
The service provider may go further and establish an actual subsidiary or presence in the host state in which event the subsidiary is fully regulated by the host state in most cases.
Apart from areas where there are specific regimes such as in financial services, there is a general services directive and residuary EU Treaty freedom to provide services in other states without discrimination. This includes the right for an individual service provider to come to the latter/ host state to provide a service or to come to reside in the host state for the purpose of the full-time provision of the service. There is also a right to provide service cross-border from the home state to the host state.
EU legislation provides for the recognition of qualifications obtained in one EU state throughout the EU. Subject to conditions there is also provision for the recognition of the qualifications of EU citizens obtained in third countries.
The directives allow for professionals established in one member state to move and provide regulated professional services in another state on a temporary or occasional basis. This may be permitted subject to a prior declaration as may be required by the host state. It may also require a prior check in relation to qualifications in certain professions if this is necessary to avoid damage to the health and safety of service providers
There are general EU provisions which apply to most qualifications. Other EU rules provide for recognition of professional qualifications in respect of particular professions such as lawyers and auditors
After withdrawal UK nationals will no longer enjoy the benefit of the recognition of qualifications provisions. The position of EU and Irish nationals in the UK will depend on the particular legislation adopted by the UK. The recognition of qualifications of UK nationals in the EU state may be governed by national policies and rules
Temporary or occasional services provided by UK nationals in the other EU states are governed by the rules of that state. Equally the provision by EU nationals of such services into the UK would be governed by UK law.
Services and Bilateral Arrangements
The effect of Brexit may be in some contexts and particularly in certain industries that a UK provider can no longer lawfully provide services in an EU state such as Ireland. In some sectors, the EU regulation may be exclusive and “fill the field” so that a member state such as Ireland would not be entitled to legislate to accept the service from this provider as it fails to meet EU requirements.
In most regulated sectors, the host state such as Ireland may be entitled to recognise service providers in the UK under its domestic law even if it is not recognised under EU law.
The position with service providers between Ireland and the UK may be somewhat better than the position between other EU states and the UK, at least in some sectors. The Common Travel Area covers the free movement of persons between Ireland, the United Kingdom the Isle of Man and the Channel Islands.
The may be some scope for expansion of the concept of the Common Travel Area to cover the provision by service providers of their home country service in the other jurisdiction in that capacity. The historic Ireland / UK recognition of qualifications in some sectors as a basis for registration as a host state may be revived and reinstated.
It is in the nature of a policy and practice dating back to the separation of Ireland from the UK, and its full extent has not been worked out. However, it may include the right to travel to the other jurisdiction to provide services in the latter jurisdiction
The Common Travel Area may be given expression beyond the mere right to travel in itself to something in the nature of a right to be become established in an employment or in a profession or business on a close to automatic basis. The position would need to be considered with reference to the recognition of the particular qualification concerned.
Historical Pre-EU Linkages
In many sectors, the Irish and the UK labour markets and services markets were seamless in practice prior to the accession of both states to the European Union and the later formalisation of EU law rights to provide services. In many areas, prior to EU harmonisation, each of Ireland and the United Kingdom recognised qualifications obtained in the other jurisdiction for the purpose of qualification and being entered on the register in the host jurisdiction.
Services were much less a feature of the economy in the early 1970s prior to the accession of Ireland and the UK to the EEC. Cross-border services were relatively marginal. In some sectors, qualifications were very readily recognised in the other jurisdiction. In some sectors, there was or still is a single professional body in Ireland and the UK.
Prior to EU regulation, the Irish stock exchange and UK stock change had merged in 1973. Most financial services areas were self-regulated. The Institute of Banking formerly the Institute of Bankers in Ireland had been an all-island body prior to independence and operated in both jurisdictions.
Irish solicitors have long enjoyed favourable terms for requalification in the United Kingdom under the qualified lawyers’ transfer test.
Formerly there was an agreement between Great Britain and Ireland dating from 1927 regarding the registration of the other jurisdiction’s medical practitioners. This was set out in the relevant legislation in both jurisdictions. It was terminated in the late 1970s as unnecessary pursuant to the provision of common EU rights based on mutual recognition.
Similarly, an agreement in relation to dentistry was terminated in the 1980s when it was supervened by the European Union rights rules. Similarly in other medical professions and pharmacy training and qualifications were readily recognised by the relevant rules of the Accrediting Council or the agency.