Legislative Review

Legislative Review in Europe

Objectives and basic approach in relation to the E.U. Services Directive

The following is an examination of objectives and basic approach regarding the European Union Servicies Directive [1]:

Objectives and basic approach: Review of Legislation and Mutual Evaluation Process

As a result of the Services Directive, Member States will have to review their legislation in a number of areas. Article 39 requests Member States to report to the Commission on the results of their review and sets up a process of “mutual evaluation”, which will ensure transparency and peer review. This process will provide an important opportunity for Member States to modernise their legal and administrative frameworks.

The review and assessment of national legislation is required by the Directive in two different contexts and with two different objectives. On the one hand, there is an obligation to review authorisation schemes and certain establishment related requirements (Articles 9, 15 and 25). In this context, Member States need to assess their existing legislation in the light of the Directive and to amend or abolish unjustified or disproportionate authorisation schemes and other requirements in question. On the other hand, pursuant to Article 39(5), Member States have to review requirements that they apply to service providers which are established in another Member State and provide services in their territory. This should be done in order to assess whether the application of such requirements is compatible with the conditions set out in Article 16. There are differences between the reporting of authorisation schemes and other establishment related requirements on the one hand (Article 39(1)) and the reporting linked to Article 16 on the other (Article 39(5)).

The reporting under Article 39(1) is in principle a one-off exercise (although complemented by a notification procedure in Article 15(7) concerning possible future legislation containing requirements of the kind listed in Article 15(2)), followed by a process of mutual evaluation involving the Commission, the other Member States, interested parties and the Committee referred to in Article 40(1) of the Directive. At the end of this process, and at all events one year after the implementation deadline at the latest, the Commission will “present a summary report to the European Parliament and to the Council accompanied where appropriate by proposals for additional initiatives” .

The reporting under Article 39(5), by contrast, is an ongoing process because there is a continuous obligation for Member States to report any changes in the requirements, including new requirements, they apply to incoming services. This is meant to achieve transparency and legal certainty for service providers, in particular SMEs, wishing to provide cross-border services. The first report under Article 39(5) and subsequent updates will be communicated to the other Member States, and the Commission will produce on an annual basis “analysis and orientations on the application of these provisions in the context of this Directive” .

More Details about Objectives and basic approach

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proper and coherent review of their regulatory framework will be a considerable challenge for Member States. The reason is the variety of services sectors covered by the Services Directive and the fact that requirements to be reviewed may be found not only in legislation specifically regulating such sectors but also in legislation of a horizontal nature (for example acts regulating commerce in general or rules on commercial communications).

It is clear that this process will require close co-operation between different parts of the national administrations both at the stage of identification of the relevant requirements and at the stage of assessment of their substance. Considering the scale of the exercise and the potential number of government departments and authorities involved, strong coordination at an appropriate level will be essential.

Member States are free to decide how to organise themselves internally. However, in order to ensure that all the relevant requirements are identified and coherently assessed, it would seem to be advisable for Member States to allocate to a particular body the task of coordinating and guiding the process. Moreover, to ensure coherence in the scope of the review and the assessments of identified provisions, it would appear advisable for Member States to consider internal guidelines together with standard forms for identification and assessment of the different types of authorisation schemes and requirements. In addition, and in order to assist Member States in reporting the results of their review and assessment of legislation, the Commission services will develop and propose to Member States a methodology and structure for the national reports and will also put in place arrangements for online reporting.

Reports to be submitted in relation to the E.U. Services Directive

The following is an examination of reports to be submitted regarding the European Union Servicies Directive [1]:

Reports to be submitted: the procedure provided for under Article 39(1) to (4)

Member States need to report to the Commission on their review of national legislation by 28 December 2009 at the latest. Each Member State will have to specify the requirements it intends to maintain and justify this on the basis of the criteria set out in Article 9(1)168, Article 15(3) and Article 25(1) respectively. In the case of Article 15, the requirements that have been abolished or made less stringent will also have to be reported.

The Commission will use its best efforts to find practical arrangements to assist Member States with their reporting obligation and to facilitate the subsequent transmission and use of the reports. This will include a structured manner of providing the information and an online tool to submit the reports. This would help to ensure that the reports are of an equivalent level and that the information provided by Member States is manageable (clearly structured and easily understandable) and comparable. A system of online reporting should also help to address translation problems and will contribute to the overall transparency of the reporting exercise.

Review and assessment of legislation in relation to the E.U. Services Directive

The following is an examination of review and assessment of legislation regarding the European Union Servicies Directive [1]:

Review and assessment of legislation: the procedure provided for under Article 39(1) to (4)

The first step Member States need to take is to review their legislation to identify the relevant requirements (all authorisation schemes covered by Article 9(1), all requirements of the kind covered by Article 15(2) as well as all restrictions on multidisciplinary activities covered by Article 25(1)) and to assess whether they comply with the relevant criteria in the Directive.

As explained in Recital 9, the Directive does not apply to requirements which do not specifically regulate or specifically affect service activities but have to be respected by providers in the course of their activity in the same way as by individuals acting in their private capacity. Member States should be careful, however, not to exclude too easily from the review requirements which, although contained in general law, nevertheless specifically affect service activities164. Equally, Member States do not need to review legislation which clearly does not concern access to or exercise of a service activity, for instance legislation in the area of labelling or safety of products. Again, Member States should be careful as there might be provisions in such legislation that concern service activities (for instance rules on the equipment used by service providers).

Another aspect to be kept in mind is the meaning of the term “requirement” as defined in Article 4(7) of the Services Directive165, which covers requirements established in law, regulations or administrative provisions. Also, the rules of professional bodies or collective rules of professional associations or other professional organisations which are adopted in the exercise of their legal autonomy constitute a requirement166and will need to be reviewed if they regulate or affect a service activity. This would be the case, for instance, if minimum or maximum tariffs for the provision of the services of a regulated profession are established and collectively applied by the professional body regulating such profession.

Requirements that need to be reviewed may be found in legislation at central level as well as legislation at regional level and, in some cases, also at local level.

Once Member States have identified the relevant requirements, they will have to assess in each case whether they are in conformity with the criteria set out in the respective articles of the Directive167and if necessary remove or replace them by less restrictive measures.

Review of Legislation and Mutual Evaluation Process in relation to the E.U. Services Directive

The following reviews some of the entries in this European legal encyclopedia about review of legislation and mutual evaluation process regarding the European Union Servicies Directive:

  • Objectives and basic approach
  • The procedure provided for under Article 39(1) to (4)
  • The procedure provided for under Article 39(5)

The procedure provided for under Article 39(1) to (4) in relation to the E.U. Services Directive

The following reviews some of the entries in this European legal encyclopedia about the procedure provided for under article 39(1) to (4) regarding the European Union Servicies Directive:

  • Review and assessment of legislation
  • Reports to be submitted
  • the mutual evaluation process
  • The review and assessment of requirements listed in Article 15(2) and services of general economic interest
  • Notifications of new requirements of the type listed in Article 15(2).

Resources

Notes

  1. Information on review and assessment of legislation based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on reports to be submitted based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on objectives and basic approach based on the EU Services Directive Handbook, UK Government

See Also

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