Evaluation of restrictions: art. 15 and art TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

Summary I Article15: Restrictions on access to and exercise of a service to be evaluated II Article 39.5: Restrictions in application of Art.16 III Benefits for businesses TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

I Article 15: National screening (1) Member States shall examine their existing laws, regulations or administrative provisions regarding : (a) quantitative or territorial restrictions (b) a specific legal form restriction (c) requirements which relate to the shareholding of a company (d) requirements which reserve access to the service activity to particular providers (e) a ban on having more than one establishment in the territory of the same State (f) requirements fixing a minimum number of employees (g) fixed minimum and/or maximum tariffs (h) an obligation to supply other specific services jointly with the service TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

I Article 15: National screening (2) National requirements to meet the following conditions: (a) non-discrimination: according to nationality or to the location of the registered office or the professional domicile (b) justification : requirements must be justified by an overriding reason relating to the public interest (c) proportionality: requirements must be suitable for securing the attainment of the objective pursued (d) necessity: the requirement must not go beyond what is necessary to achieve the objective sought Member States shall adapt their laws, regulations or administrative provisions so as to make them compatible with all these conditions EXCEPTION: Legislation for services of general economic interest is concerned only insofar as the application of these paragraphs does not obstruct the performance, in law or in fact, of the particular task assigned to them TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

I Article 15: National screening (3) Member States’ obligation to report: (a) requirements to be maintained and justification (b) requirements abolished or made less stringent New restrictions must be notified to the Commission and communicated to the other Member States Such notification shall not prevent adoption of the restriction TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

I Article 15: National screening (4) The Commission shall examine the compatibility of any new requirements with Community law and, where appropriate, shall adopt a decision requesting the Member State in question to refrain from adopting them or to abolish them Notification will be in accordance with Directive 98/34/EC TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

II Art.39.5: Restrictions based on Art.16 (1) Art. 16.1: The Member States in which the service is provided have to ensure free access to and free exercise of a service activity within its territory to a service provider legally established in another Member State National requirements must respect the following principles: non-discrimination necessity proportionality TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

II Art.39.5: Restrictions based on Art.16 (2) Art. 16.2: Prohibited requirements e.g.: An obligation to have an establishment in their territory An obligation to obtain an authorisation from their competent authorities, except where provided for in instruments of Community law An obligation to possess an identity document issued by its competent authorities specific to the exercise of a service activity Requirements which affect the use of equipment and material which are a integral part of the service provided, except for those necessary for health and safety at work TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

II Art.39.5: Restrictions based on Art.16 (3) Art. 16.3: ( Art. 39.5) Derogation from freedom to provide services: Member State to which the provider moves to provide a service can impose national requirements with regard to the provision of services only if justified on the ground of: public policy, public security, public health, or protection of the environment Restrictions must also respect the non-discrimination necessity and proportionality principles TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

II Art.39.5: Restrictions based on Art.16 (4) MUTUAL EVALUATION: By 28 December 2009, the Member States to report to the Commission on: National requirements which fulfil under Art and their justification (i.e. evidence that are justified by one of the criteria (public policy, public security, public health, or protection of the environment and respect the non-discrimination, necessity and proportionality principles)) Any changes in their requirement and justification. The Commission will: a)communicate the transmitted requirements b)on an annual basis, provide analysis and orientations on the application of these provisions TAIEX Seminar on the EU Service Directive, 3 May 2007Carlos Almaraz

III Benefits for businesses National screening and reporting will ensure: more transparency by virtue of the notification level-playing field through peer pressure between Member States opportunity to simplify existing regulations and procedures increased legal certainty reduction of requirements applied to incoming service providers Impact of mutual evaluation: competition between Member States to create a national “business-friendly” environment less restrictive conditions TAIEX Seminar on the EU Service Directive, 3 May 2007 Carlos Almaraz

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