Authorisation Schemes

Authorisation Schemes in Europe

The identification and evaluation of authorisation schemes in relation to the E.U. Services Directive

The following is an examination of the identification and evaluation of authorisation schemes regarding the European Union Servicies Directive [1]:

The identification and evaluation of authorisation schemes: Authorisation schemes and procedures

The term “authorisation scheme” encompasses any procedure under which a provider or a recipient is in effect required to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service activity, or the exercise thereof61. When

Member States review their legislation to identify their existing authorisation schemes, the key element to look for is whether the legislation in question requires a decision from a competent authority, be it explicit or implicit, before the service provider can lawfully exercise the activity. The notion of authorisation scheme includes, for example, procedures by which a service provider needs to make a declaration to a competent authority and can only exercise the activity upon expiry of a certain time period if the competent authority has not reacted. It also includes cases in which declarations have to be made by the service provider, which then have to be acknowledged by the competent authority, insofar as this acknowledgement is necessary in order to commence the activity in question or for the latter to be lawful.

In accordance with the case law of the ECJ62and Article 9(1) of the Services Directive, authorisation schemes may be maintained only if they are non-discriminatory, justified by an overriding reason relating to the public interest and proportionate.

Thus, for each identified authorisation scheme a Member State will, first of all, have to verify whether the scheme is non-discriminatory, i.e. whether it does not provide, directly or indirectly, for different treatment of domestic providers and of providers from other Member States. Secondly, the Member State will have to assess whether the authorisation scheme pursues a public interest objective (one of the so-called overriding reasons relating to the public interest63) and whether the authorisation scheme is indeed suitable for securing the attainment of that objective. Finally, the Member State will have to assess whether the objective pursued cannot be achieved by other less restrictive means.

Member States should keep in mind that, in many situations, authorisation schemes can be simply abolished or replaced by less restrictive means, such as monitoring of the activities of the service provider by the competent authorities or simple declarations (which do not constitute an authorisation scheme) to be made by the service provider. In such cases, the maintenance of prior authorisation schemes would not be proportionate.

Article 9 not only requires Member States to evaluate their authorisation schemes and to abolish or modify those schemes which are not justified, but also to report to the Commission the reasons why they consider that the remaining ones are compatible with the criterion of non-discrimination, are justified by an overriding reason relating to the public interest and are proportionate.

Authorisation schemes and procedures in relation to the E.U. Services Directive

The following is an examination of authorisation schemes and procedures regarding the European Union Servicies Directive [1]:

Authorisation schemes and procedures: Freedom of Establishment

Authorisation schemes are one of the most common formalities applied to service providers in Member States and constitute a restriction to the freedom of establishment, as consistently recognised by the case law of the ECJ58. For this reason, the Services Directive provides that Member States have to review their existing authorisation schemes and make them compliant with Articles 9 to 13 of the Directive.

Articles 9 to 13 apply to all authorisation schemes relating to access to or exercise of a service activity. However, as stated in Article 9(3), these articles do not apply to those aspects of authorisation schemes which are governed, directly or indirectly, by other Community instruments59. Community instruments indirectly governing some aspects of authorisation schemes should be understood as those Community acts which, while not providing themselves for authorisation schemes, nevertheless explicitly make reference to the possibility for Member States to impose an authorisation scheme. Community instruments which do not contain any such explicit reference cannot be considered as governing indirectly such schemes.

As regards those aspects of authorisation schemes which are not governed by other Community instruments, the relevant provisions of the Services Directive are applicable. For example, the Directive on Waste60 explicitly requires Member States to subject certain activities relating to waste water to authorisation regimes and therefore those authorisation schemes will not be subject to evaluation pursuant to Article 9. However, since the Directive on Waste does not deal with specific aspects, such as the conditions for granting the authorisation, its duration or the applicable procedure, Articles 10 to 13 will be applicable to those aspects. Thus, Member States will have to ensure that such authorisation schemes (and their procedures) comply with the rules provided for in these articles.

Articles 9 to 13 establish a number of general principles for the review and adaptation of authorisation schemes. In order to avoid gaps in implementation and to ensure that these principles are complied with at all levels, Member States should consider embodying these principles in their horizontal framework legislation implementing the Directive or, if existing, in general legislation dealing with authorisation schemes such as codes of administrative procedures.

Authorisation schemes and procedures in relation to the E.U. Services Directive

The following reviews some of the entries in this European legal encyclopedia about authorisation schemes and procedures regarding the European Union Servicies Directive:

  • the identification and evaluation of authorisation schemes
  • the conditions for granting an authorisation
  • the non-duplication of requirements and controls
  • the duration of authorisations
  • the territorial scope
  • Limitations to the number of authorisations
  • the obligation to state reasons and the right of appeal
  • the authorisation procedures

Resources

Notes

  1. Information on authorisation schemes and procedures based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on the identification and evaluation of authorisation schemes based on the EU Services Directive Handbook, UK Government

See Also

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