Information for Government Departments
What to do if your work affects service businesses
We have published practical guidance on how to remain compliant with the continuing obligations of the Services Directive:
What to do if your work affects service businesses: guidance for departments and competent authorities on the Provision of Service Regulations 2009 (PDF, 951 Kb)
The Directive was brought into UK law by the Provision of Services Regulations 2009, which came into effect on the 28th December 2009. The Regulations affect a very wide range of service businesses. This guidance is aimed at those bodies who set rules or requirements which service providers have to comply with, and those who are involved in authorising service providers (i.e. ‘competent authorities’). These bodies include Government Departments, Devolved Administrations, local authorities, licensing and authorisation bodies and other authorities such as professional bodies or bodies who maintain required registers or deliver required training qualifications. The guidance contains user friendly flowcharts which will guide you through the steps that you need to take, and point you to the sections of the guidance that you will need to look at.
Screening Flowcharts for Government Departments
BIS has been working with Government Departments and Devolved Administrations to ensure that National legislation is compliant with the Services Directive. The reviewing (or ‘screening’) of requirements that are derived from National legislation and imposed on service providers is now complete. Any requirements to be amended to comply with the Directive or justified under the terms of the Directive were reported by BIS to the EU Commission in December 2009.
However, screening will continue after this date for any proposed requirements, new requirements or changes in requirements affecting the access to, or the exercise of, a service activity. Such requirements will be reported on by BIS to the Commission as they arise.
This document provides updated guidance to help you through the steps involved in screening any (current or future) requirements that you impose on service providers for compliance with the Directive. Before attempting to use the flowcharts yourself it is advisable that you:
- have read the following information
- have access to the ‘Documents to help Departments screen’ (see below)
- have read through the worked examples
Background to screening
The Directive aims to make it easier for businesses to provide services in all member States (EU countries). One way of doing this is by the removal of unjustifiable barriers to service provision. All requirements (for example authorisation schemes, licence applications, certification, registration processes, approval systems and continuing requirements) that are imposed on service providers must be screened to ensure that they are for example non-discriminatory, necessary and proportionate. Any requirements that cannot be justified under the terms of the Directive will need to be amended or abolished in order to be compliant with the Directive.
Document 3 below will show you whether legislation in England, Wales, Scotland and Northern Ireland has been screened and justified under the terms of the Directive or will be amended to comply with the Directive.
Action for Departments
Screening
The flowcharts together with the worked examples are designed to assist you in checking if your requirements (existing, new or amended requirements) placed on service providers within scope comply with the Directive.
The first flowchart is for the screening of authorisation schemes that are imposed on service providers who want to establish in the UK. The second flowchart is for the screening of other requirements that are imposed on service providers operating in the UK, whether they are established here or are operating here without being established.
Screening considerations
Some different considerations pertain to requirements applying to service providers seeking to establish in the UK, as opposed to those who want to provide services in the UK but do not want to establish in the UK. You should refer to the Provision of Services Regulations (which implement the Directive, see below) , in particular regulations 14.1 to 14.2, 22.1 to 22.3 and 24.1 to 24.3, in order to ascertain the requirements applicable to each element of an authorisation scheme or other requirement. One point to note is that the test for necessity is narrower in relation to service providers who are not seeking to establish in the UK. For such service providers, a ‘necessary’ requirement can only be justified on one or more of four specified grounds: a fundamental threat to public policy, public security, public health or protection of the environment. The specific meanings of these terms have been established by European case law; refer also to Recital 41 of the Directive (see link below). However, where a service provider intends to establish in the UK a ‘necessary’ requirement may be justified on wider grounds, by an 'overriding reason relating to the public interest' (ORRPI). This term is defined in Article 4(8) and explained fully in Recital 40 of the Directive (see link below).
Checking old requirements (those in force before December 28th 2009)
All legislation which affects service providers should have been checked for compatibility with the Directive, so you may find that the legislation you enforce has already been screened by a Government Department. Legislation made before December 28th 2009 should feature on the list of screened legislation list.
Checking new requirements (those in force after December 28th 2009)
Government Departments, Devolved Administrations, local authorities and other competent authorities must ensure that all new requirements (in force after December 28th 2009) imposed on service providers in the UK are compliant with the Services Regulations:
http://www.opsi.gov.uk/si/si2009/uksi_20092999_en_1
Reporting requirements
As a result of screening, you may need to complete a reporting form explaining why an in-scope requirement is non-discriminatory, suitable for obtaining the objective pursued (proportionate) and necessary.
These forms are required by the European Commission and must be sent to BIS, who will check them and send them to the Commission.
Please use Form A if the new requirement applies only to service providers established in the UK: Notification form A for established service providers
Please use Form B if:
(i) The new requirement applies to cross border service providers
(ii) The new requirement applies to cross border service providers and providers established in the UK.
Notification form B for cross-border service providers
Documents to help Departments screen
It is advisable that you have access to the following documents before attempting to use the flowcharts:
1. The Provision of Services Regulations 2009
Information about the Provision of Services Regulations 2009
Please look at the Provision of Services Regulations 2009 transposition note, which presents in tabular form how the main Articles in the Directive have been implemented into the regulations.
2. Services Directive
Text of the Services Directive (external PDF)
3. Primary Legislation checklists
Primary Legislation checklists
This page links to copies of the lists of primary legislation which Government Departments have reviewed to check for compliance with the Services Directive There are four (is that right?): Legislation list for UK, where legislation applies to whole of the UK, Legislation list for England and Wales, Legislation list for Northern Ireland and Legislation list for Scotland.
