Simplification of Formalities

Simplification of Formalities in Europe

Simplification of procedures and formalities applicable to service providers in relation to the E.U. Services Directive

The following is an examination of simplification of procedures and formalities applicable to service providers regarding the European Union Servicies Directive [1]:

Simplification of procedures and formalities applicable to service providers: Administrative Simplification

According to Article 5(1), Member States have to examine all procedures and formalities applicable to access to a service activity and to the exercise thereof and must, if these procedures are not sufficiently simple, simplify them. This requires Member States to undertake a real effort of administrative simplification. When undertaking this exercise, Member States should examine and assess the procedures and formalities from the provider's perspective while keeping in mind that simplification of procedures will in turn reduce the administrative burden for the administration itself. Member States could take into consideration simplified administrative procedures used in other Member States and exchange best practice. The Commission will use its best endeavours to facilitate this.

The concept of procedures and formalities is a broad one and includes any administrative step which businesses are required to take, such as submission of documents, filing a declaration or registration with a competent authority. It covers not only procedures and formalities which are a pre-condition for the exercise of the service activity but also those imposed at a later stage, in the course of the exercise of the activity, or even upon its completion (for example an obligation to report on a yearly basis the details of transactions carried out).

In practical terms, Member States will have to assess whether their administrative requirements are indeed necessary or whether some procedures or parts of these procedures can be abolished or replaced by alternatives which are less burdensome for service providers. Member States will also have to assess the number of different administrative procedures a service provider has to deal with, their possible duplication, their cost, clarity and accessibility, as well as the delay and practical difficulties that these procedures imply for the providers concerned37.

Member States will furthermore have to assess whether all evidence and documents asked are necessary and whether it is necessary to demand that all evidence has to be produced by the service provider himself or whether certain information might be already available from other sources (for example other competent authorities). For example, rules by which a service provider is required to produce a full dossier, without any possibility of obtaining a waiver for some documents/evidence already in the administration's possession, are normally unnecessary and, if so, should be abolished. Likewise, procedures which require separate filings for different requirements could be simplified so as to permit single filings.

More Details about Simplification of procedures and formalities applicable to service providers

Member States will also have to assess whether it is justified to require that certain evidence is produced in a specific form, for example in its original form, as a certified copy or with a certified translation, or whether it would be sufficient to provide a non-certified copy or a non-certified translation. In any event and according to Article 5(3), Member States may only require documents to be produced in their original form, as a certified copy or to be accompanied by a certified translation if this is justified by an overriding reason relating to the public interest or if it is provided for by another Community instrument. It must be pointed out that the mere doubt as to the authenticity of a given document, or its exact content, can be addressed by appropriate contacts between competent authorities (in particular with the authority which has issued the document), notably through administrative cooperation. This should not be particularly burdensome since the Internal Market Information system (IMI)38 will allow for documents to be easily uploaded and checked at a distance.

Moreover, pursuant to Article 5(3), Member States have to accept documents from other Member States which serve an equivalent purpose or from which it is clear that the requirement in question has been satisfied. This implies an effort on the part of national administrations to assess the substance, rather than just the form, of documents issued by other Member States. For example, Member States may not require production of a certificate of nationality, or of residence, where other official identification documents (for example a passport or an identity card) already prove these details. Article 5(3) does not apply, however, to a number of documents referred to in the following Community instruments: the Professional Qualifications Directive39, the Public Procurement Directive40, the Lawyer Establishment Directive41and the First and Eleventh Company Law Directives42.

According to Article 5(2), the Commission may use the Comitology procedure referred to in Article 40(2) to introduce harmonised forms to serve as “equivalent to certificates, attestations and any other document required of a provider”. Harmonised forms may be introduced for specific certificates or similar documents, when divergences between national documents designed to serve similar purposes make it difficult for competent authorities to ascertain the content or the meaning of the certificate, and service providers, as a result, are faced with a multiplicity of different forms. For instance, proof of establishment in a Member State can be drawn from a number of different legal documents, which range from a certificate of incorporation issued by a public authority to an attestation of membership with a chamber of commerce or trade, depending on the Member State. If practical experience were to show that service providers continue to face a multitude of different forms (despite the assistance offered by the administrative cooperation to be established under the Directive), a harmonised form could prove to be an effective solution. This is, however, a decision that may only be taken at a later stage, on the basis of the experience gained with application of the Services Directive.

Resources

Notes

  1. Information on simplification of procedures and formalities applicable to service providers based on the EU Services Directive Handbook, UK Government

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