Princip země původu v komunitárním právu (v kontextu legislativního vývoje směrnice o službách)

There is a fundamental difference between the prevailing harmonization approach and the coordination approach, on which the country of origin principle (“COP”) is based. The harmonization approach together with the principle of unitary launching of services on the market and mutual recognition is narrower and applies only to requirements on services defined by a concrete directive, white the coordination approach is connected with competence in a certain field and is not dependent on whether the field has been harmonized or not. The latter approach is therefore connected with trust in the regulation quality regardless of the accomplished harmonization. The analysis of community law leads to the result that the COP has not been implemented yet into the different market segments, while the preferred approach is the partial harmonization of questions which are considered fundamental with regard to the pursuing of generally accepted interests. COP is applied only in the form of the principle of mutual recognition and trust in the proper implementation of directives. The only exception is the field of electronic commerce where the definition of the coordinated field was introduced and the requirement of trust in the proper harmonization was replaced by the requirement of trust in the legal regulation. The application of the COP requires us to assume a generally comparable legal regulation. Comparability, but not unification, of legal orders of the member states is the basic and primary requirement that allows the application of the country of origin principle to be assessed. The above mentioned exceptions to the application of COP demonstrate that, because of the variety of national regulations, the difference in the approaches to the matter and requirements, the effective functioning of the country of origin principle is not possible. One of the key factors of the services directive proposal was the application of the COP as an instrument for the more effective realization of the free movement of services. COP was originally based on a very broad approach. Therefore the original proposal of the services directive contradicted not only other European regulations and principles but was also very difficult to enforce especially with regard to control. For effective control COP requires the activity of authorities of the country of the seat of the provider and the application of relevant provisions concerning the authorities of the country of destination. Therefore it is difficult to ensure the ensure the quality of services as the administrative and judicial authorities of the country of destination must be farniliar with 24 different legal regulations in foreign languages. The above deficiencies of the original proposal of the services directive leading especially to the problematic application of the COP on the one hand, and numerous important exceptions from the field of application of the directive and the COP on the other hand, caused serious doubts with regard to the use of the proposed regulation, especially regarding its key factor, which is the COP. The main reason for the difficult application is a very broadly designed COP leading to absolute results such as the assessment of criminal responsibility of action taken in the country of destination pursuant to the law of the country of origin. COP is a far too robust instrument to be taken as a universal qualification rule. lt is therefore necessary to use other instruments in cases of providing services, like traditional or modernized qualification rules as foreseen in Rome I and Rome II. Using the COP for the conduct of control especially of the quality of the provided services cannot work well. lt is therefore necessary to conduct the control according to the rules of the country of providing. As result the services directive turned away from the COP and replaced it with the CDP. lt is questionable however, whether the new regulation can add a certain quality value compared to the existing state. COP undoubtedly gives incentives for the development of free movement. This must to used but not to the full and exclusive extent, especially in the field of service provision. In this field it also becomes a general qualification rule and contradicts other regulations. The full application is especially not possible with regard to the control of service provision. The solution should therefore from our point of view consist in a compromise approach that with regard to access to services would allow the full application of COP while the conduct and control of service provision would turn towards the CDP. This approach requires further steps by the Community, especially with regard to the harmonization of fields which might be characterized or covered by service provision. Typical examples are consumer protection and the technical aspects of service provision.