Requirements Review

Requirements Review in Europe

The procedure provided for under Article 39(5) in relation to the E.U. Services Directive

The following is an examination of the procedure provided for under article 39(5) regarding the European Union Servicies Directive [1]:

The procedure provided for under Article 39(5): Review of Legislation and Mutual Evaluation Process

The general approach to the review of and reporting on relevant requirements under Article 39(5) is in many aspects similar to the process under Article 39(1). It would therefore make sense for Member States to use in principle the same methodology. This means that, to identify the requirements which need to be reviewed, Member States will to a large extent be able to base themselves and draw on the work done for the review procedure provided for under Article 39(1), or vice versa.

Member States will have to assess whether the requirements they have identified as potentially applicable to service providers from other Member States comply with the criteria set out in the third subparagraph of Article 16(1) and in the first sentence of Article 16(3), i.e. that they are non-discriminatory, justified for reasons of public policy, public security, public health or the protection of the environment and do not go beyond what is necessary172.

If a requirement does not comply with the criteria set out in Article 16, Member States will have to ensure that it will not be applied to service providers from other Member States173.

On the basis of this review and assessment of requirements, Member States will have to present a report to the Commission by 28 December 2009 at the latest, specifying those requirements whose application could fall under the third subparagraph of Article 16(1) and the first sentence of Article 16(3) and give reasons why their application to service providers established in other Member States could be appropriate and compatible with Article 16. For example, if a Member State considers that it needs to apply a national rule limiting noise levels for certain activities for reasons of environmental protection, this rule needs to be specified together with the reasons for its potential application. Following the first report, Member States will have to subsequently notify any changes in the relevant requirements, including new requirements, or in their application, again specifying the reasons why their application could be justified under Article 16.

As with the report under Article 39(1), in order to facilitate the reporting obligation and to structure information, the services of the Commission will develop and propose to Member States a methodology and structure of online reporting.

The Commission will submit Member States' reports, as well as any later notification of modified or new requirements, to the other Member States and will, on an annual basis, provide analysis and orientations on the application of these provisions in the context of the Directive in order to enhance transparency and legal certainty for service providers.

The review and assessment of requirements listed in Article 15(2) and services of general economic interest in relation to the E.U. Services Directive

The following is an examination of the review and assessment of requirements listed in article 15(2) and services of general economic interest regarding the European Union Servicies Directive [1]:

The review and assessment of requirements listed in Article 15(2) and services of general economic interest: the procedure provided for under Article 39(1) to (4)

Services of general economic interest fall within the scope of application of the Services Directive to the extent that they are not covered by an explicit exclusion. Accordingly, Member States will have to review requirements applicable to services of general economic interest and assess their conformity with the criteria of nondiscrimination, necessity and proportionality.

However, Article 15(4) specifies that the application of Article 15(1) to (3) must not obstruct the performance, in law or in fact, of the particular task assigned to services of general economic interest. This is also confirmed by Recital 72, which further clarifies that “requirements which are necessary for the fulfilment of such tasks should not be affected by this process while, at the same time, unjustified restrictions on the freedom of establishment should be addressed”. In practical terms this means that Member States have to review but may maintain those requirements in the field of services of general economic interest that are proportionate and necessary for the fulfilment of the specific task entrusted to the service provider. This assessment has to be carried out in conformity with the case law of the ECJ relating to services of general economic interest169.

Resources

Notes

  1. Information on the review and assessment of requirements listed in article 15(2) and services of general economic interest based on the EU Services Directive Handbook, UK Government

See Also

Resources

Notes

  1. Information on the procedure provided for under article 39(5) based on the EU Services Directive Handbook, UK Government

See Also

Leave a Comment