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Screening flowcharts for Competent Authorities

This document will help guide you through the steps involved in reviewing (or ‘screening’) any 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 Competent Authorities screen’ (see below)

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 and registration processes) (please see this webpage for an explanation of a ‘requirement’) which 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. Any requirements that can be justified under the terms of the Directive must be reported on by BIS to the EU Commission by the 28th December 2009.

Document 2 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. Later in the year we will update the website with those authorisation schemes, authorisation scheme procedures or other requirements that HMG views are not justified together with the amendments that are being made as a result to legislation. Please look out for this information, so that you are aware of how you may have to change your processes – we shall ensure that your Primary Liaison Point (PLP) is kept informed.

Action for competent authorities

You now need to check if your procedural rules or other requirements placed on service providers within scope comply with the Directive. The following flowcharts are designed to assist you with this process.

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

Many competent authorities will have responsibility for overseeing authorisation schemes or enforcing requirements which have been implemented in national legislation. Where this is the case, competent authorities should look for the relevant legislation in Document 2 - it should already have been screened and a decision made by the responsible department as to whether it is justified or if amendments are needed.

If you have responsibility for imposing your own requirements and authorisation schemes, or the relevant legislation is not shown on our list, then you will have to screen your requirements as explained in the flowcharts.

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 Services Directive Regulations, 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: 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).

Please note that regulation 24 is not applicable to professional bodies already complying with the Mutual Recognition of Professional Qualifications (MRPQ) Directive. If you fall into this category and your rules already comply with the MRPQ Directive, then you do not have to check whether they comply with regulation 24 and whether they can be imposed on service providers not seeking to establish in the UK. Other derogations to regulation 24 exist – please see regulation 25 for a full list.

Reporting to BIS

As a result of using the flowcharts, you may need to complete a reporting form (a link to which is below) explaining why an in-scope authorisation scheme or other requirement can be justified under the Directive or alternatively will need to be amended in order to comply with the Directive. The reporting form consists of 7 questions, which ask for details of the authorisation scheme or requirement, what you intend to do with it (i.e., abolish it, amend it, keep it) and the reasons why. Please return reporting forms to servicesdirective@bis.gsi.gov.uk by no later than 16th October 2009. You need only report on legislative provisions not already picked up by our national screening exercise, not every administrative rule or practice, or condition attached to an authorisation scheme. You must screen such processes to ensure that they comply with the Directive; however, they do not need to be reported to BIS.

Competent Authority Flowchart Report (DOC, 33KB)

Reporting to the European Commission

BIS needs you to complete a reporting form only for those requirements that we need to report on to the EU Commission. From the reporting form BIS will be able to see how you plan to comply with the Directive and prepare a report on the requirement for the Commission.

Documents to help competent authorities screen

It is advisable that you have access to the following documents before attempting to use the flowcharts:

1. The Services Directive draft regulations

Draft regulations - if the numbering of these regulations changes, we will let you know.

2. Primary Legislation checklist

Primary Legislation checklists

Please find copies of the lists of primary legislation which Government Departments have been reviewing to check for compliance with the Services Directive. The tables list the Acts that have been or are being ‘screened’, indicating the lead Government departments and the results of the screening exercise, which are shown as one of the following:

In scope, but HMG views that the requirements imposed cannot be justified under the terms of the Directive and as such changes are needed so that the Act complies with the Directive (highlighted in aqua)
In scope, but HMG views that the requirements imposed can be justified under the terms of the Directive and as such a report is being prepared for the Commission explaining the rationale for keeping the Act (highlighted in yellow)
Not in scope of the Directive and raises no requirements under the Directive (highlighted in grey)
Act has been repealed (highlighted in grey)
Still under consideration by a Government Department (not highlighted)

In the Legislation list for England and Wales only: Act has been Devolved to National bodies (highlighted in grey)

For an Act still under consideration by a Government Department, the result of the screening exercise will be recorded in the table once it is known.

3. Guidance for competent authorities

The European Services Directive: guidance for competent authorities (DOC, 193KB)

A series of workshops were held with Competent Authorities in March-June 2009 where BIS advised you of your obligations under the Directive and issued you with a guidance booklet

The ‘Scope’ and ‘Screening’ sections may help you when using the flowcharts.