Authorisation Granting in Europe
The following is an examination of the conditions for granting an authorisation regarding the European Union Servicies Directive :
Whereas Article 9 requires Member States to assess the need to maintain an authorisation scheme as such, Article 10 contains specific obligations as to the conditions for the granting of an authorisation. These criteria, derived from ECJ case law, ensure on the one hand that authorisation schemes become less burdensome for service providers and, on the other hand, make them more predictable and guarantee transparency. The objective, as Article 10(1) states, is to make sure that service providers can be confident that decisions are not taken in an arbitrary manner.
Article 10(2) requires that the conditions for granting authorisations comply with a number of criteria. First of all, the conditions themselves have to be non-discriminatory, justified by an overriding reason relating to the public interest and must not go beyond what is necessary. Member States will have to make sure that the conditions for granting an authorisation – such as insurance requirements, requirements concerning proof of solvency or requirements related to the staff of the service provider – comply with the criteria of non-discrimination, necessity and proportionality.
Article 10(2) also requires that the conditions for granting authorisations be clear and unambiguous, objective, transparent and accessible, and made public in advance. Clarity refers to the need to make criteria easily understandable to everybody by avoiding ambiguous language. Objective criteria should not leave a margin of appreciation to the competent authority in a way that would allow for arbitrary decisions. This is necessary to ensure that all operators are treated fairly and impartially, and applications are assessed on their own merits. Transparency, accessibility and publicity guarantee that the authorisation scheme is comprehensible for all potential applicants and that the different steps in the procedure are known in advance. The criteria established in Article 10(2) should apply to authorisation schemes governing access to and exercise of service activities at all levels. In order to avoid gaps in implementation, Member States should consider incorporating them as part of the general principles in their horizontal framework legislation implementing the Directive or in general legislation dealing with administrative proceedings.
- Information on the conditions for granting an authorisation based on the EU Services Directive Handbook, UK Government