Conditions and procedures to obtain authorisation to access the service market Carlos AlmarazTAIEX Seminar on the EU Service Directive, 3 May 2007

2 Summary IFRAMEWORK FOR AUTHORISATION SCHEMES IIELEMENTS OF THE AUTHORISATION IIIFORMALITIES FOR GRANT OF AUTHORISATION IVPROHIBITIONS VELECTRONIC PROCEDURE VIPOINTS OF SINGLE CONTACT VIIBENEFITS FOR BUSINESSES TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

3 I Framework for authorisation schemes (1) New conditions for the granting of authorisation, duration, procedures, etc. Mutual acceptance of equivalent documents between Member States (art.5/3) Member States report on national authorisation schemes by 2009 EU harmonised forms can be introduced (art.5/2) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

4 I Framework for authorisation schemes (2) Authorisation schemes must be evaluated as to their necessity As may only be maintained if they are –Non-discriminatory –Justified by an overriding public interest objective –Necessary, i.e. if there are no less restrictive means to protect public interest objectives such as monitoring or declarations TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

5 II Elements of the authorisation  CONDITIONS FOR AUTHORISATIONS MUST BE: ART.10 (a) non-discriminatory (b) justified by an overriding reason relating to the public interest (c) proportionate to that public interest objective (d) clear and unambiguous (e) objective (f) made public in advance (g) transparent and accessible Duplication of requirements and controls is not allowed (art.10/3) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

6 III Formalities for grant of authorisation (1)  DURATION Art.11 An authorisation granted to a provider shall not be for a limited period, except for some cases: the authorisation is being automatically renewed or is subject only to the continued fulfilment of requirements the number of available authorisations is limited by an overriding reason relating to the public interest a limited authorisation period can be justified by an overriding reason relating to the public interest NB: « Overriding reason relating to the public interest » developed on a case-by-case basis by the Court of Justice. It covers: public policy, public security, public health, the maintenance of order in society, social policy objectives, consumer protection, the protection of workers, animal welfare, the maintenance of press diversity, the protection of the environment etc. (rec. 40) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

7 III Formalities for grant of authorisation (2)  PROCEDURES (art.13) shall be clear shall be made public in advance shall provide the applicants with a guarantee that their application will be dealt with objectively and impartially shall not be dissuasive shall be easily accessible any charges shall be reasonable and proportionate authorisation shall be processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

8 III Formalities for grant of authorisation (3) All applications for authorisation shall be acknowledged (art.13) The acknowledgement must specify: (art.13/5) a)the period referred to b)the available means of redress c)where applicable, a statement that in the absence of a response within the period specified, the authorisation shall be deemed to have been granted (= tacit authorisation) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

9 III Formalities for grant of authorisation (4) « Tacit authorisation »: if a provider applies for authorisation to provide a service and the competent authority has not responded within the time period set, the authorisation shall be deemed to have been granted, ), except where justified by overriding reasons relating to the public interest The applicant shall be informed of the rejection (art.13/7) TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

10 IV Prohibitions (1) Member States cannot impose the following prohibitions regarding the access to, or the exercise of, a service activity in their territory: (art.14) discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office a prohibition on having an establishment in more than one Member State or on being entered in the registers or enrolled with professional bodies or associations of more than one Member State restrictions on the freedom to choose between a principal or a secondary establishment TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

11 IV Prohibitions (2) conditions of reciprocity with the Member State in which the provider already has an establishment the application of an economic test making the granting of authorisation subject to proof of the existence of an economic need or market demand the direct or indirect involvement of competing operators, including within consultative bodies an obligation to provide or participate in a financial guarantee or to take out insurance from a provider or body established in their territory an obligation to have been pre-registered, for a given period, in the registers held in the national territory TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

12 V Electronic procedure (1) Art. 8: Member States have to "ensure that all procedures and formalities relating to access to a service activity and to the exercise thereof may be easily completed, at a distance and by electronic means, through the relevant point of single contact and with the relevant competent authorities." Exceptions for: 1)inspection of premises on which the service is provided 2) inspection of the equipment used by the provider 3)physical examination of the capability or the personal integrity of the provider or his responsible staff TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

13 V Electronic procedure (2) What are “electronic means”? Network for e-procurement must be open and everybody must be able to connect to it, and that these generally available means cover internet and Electronic procedures does not mean that Member States cannot provide for other means to complete such procedures and formalities. Different means can coexist TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

14 VI Points of single contact (1) Establishment of a one-stop shop for: a)Access to information (art.7) (e.g. databases and access to public registers) b) Completion of procedures and formalities (art.6) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

15 VI Points of single contact (2) Fees may be charged by points of single contact for their services, they should be proportionate and not include other administrative fees, such as the fee of supervisory bodies (rec.49) The establishment of points of single contact shall be decided by each Member State (can be administrative authorities, chambers of commerce, private bodies etc) and their number may vary according to regional or local competencies (rec.48) TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

16 VII Benefits for businesses Administrative simplification: (recital 43) a)National screening and duty to simplify b)New framework for authorisation (e.g. limitation of the obligation of prior authorisation, principle of tacit authorisation) c)Creation of national points of single contact Efficiency: a)Modern and good administration b)Transparency c)Easy access to information d)Up-to-date information e)Reduction of delays, costs TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

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