Implementation of the Services Directive in the Netherlands: How do we work out the principles on...
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Implementation of the Services Directive in the Netherlands: How do we work out the principles on authorisation schemes? Mrs. Jacomien Zevenbergen, Ministry of Justice March 31st 2008, Warschau
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Transcript of Implementation of the Services Directive in the Netherlands: How do we work out the principles on...
Implementation of the Services Directive in the Netherlands: How do we work out the principles on authorisation schemes?
Mrs. Jacomien Zevenbergen, Ministry of Justice
March 31st 2008, Warschau
Services Directive Implementation Team
Today's menu
StartersMain provisions on authorisation schemes
SoupScreening operation
Main courseLegislation
DessertOther activities regarding authorisation
schemes
Services Directive Implementation Team
Starters: Main provisions on authorisation schemes
Definition authorisation schemes: art. 4(6)
Obligations on a service provider to be in someway authorised, accredited, licensed or registered by a competent authority before it can operate its service.
Services Directive Implementation Team
Starters: Main provisions on authorisation schemes
Chapter III: Freedom of Establishment
Article 9(1) subjects authorisation schemes to the following strict tests :- non discriminatory- proportionate- necessary (justified by public interest)
Article 9(2): obliges Member States to identify their authorisation schemes and to show their compatibility with paragraph 1 (Screening)Screening)
Services Directive Implementation Team
Starters: Main provisions on authorisation schemes
Chapter III Freedom of establishment
Articles 10 – 13: contain substantial and procedural provisions regarding authorisations
(No compulsory screening!)
Services Directive Implementation Team
Starters: Main provisions on authorisation schemes
Chapter IV Free movement of services
Article 16 (2) also refers to authorisations!
Netherlands view: difference between establishment and services is hard to make
Article 16 (3): an authorisation scheme that falls under Chapter IV can be maintained if:- non discriminatory- proportionate- justified for one of the following reasons:
public policy (fundamental interests of society) public security public health environmental protection
Services Directive Implementation Team
Soup: Screening operation
What? What? Authorisation schemes on articles 9 and 16
Who?Who? Legislation on the following levels: Centralised level: Ministries (11) Provinces (12) Municipalities (443) Waterboards (27) Public bodies for trades and businesses (17)
How? How? Coordination: Coordination: Services Directive Implementation Team Guidelines, report forms, 'road shows' Reporting to Services Directive Implementation Team ‘Double check’ by this team
Services Directive Implementation Team
Soup: Screening operation
Alas: no clear cut results yet! • Centralised level: ministries almost ready• Decentralised level: still ongoing process
First impression: majority of authorisation schemes complies with articles 9 en 16:
Existing community legislation; no new obligations
Recent simplification operations
Services Directive Implementation Team
Example: Copyright regulation
To operate as the contracting body with respect to copyright protection in case of public music perfomances an authorisation is needed. Regulation requires Dutch nationality for the founders of this legal body. • Article 16? No, derogated by article 17 (11)• Article 9? Measure is proportionate. Justified by
necessary protection of intellectual property. But: nationality requirement has discriminatory effect on the authorisation scheme.This authorisation scheme will be amended.
Services Directive Implementation Team
Soup: Screening operation
What happens with the results:
• Reporting to Commission
• If necessary sectoral legislation will be amended
• Results also identifies: legislation within scope authorities to be linked to Points of
Single Contact
Services Directive Implementation Team
Main course: Legislation
Three major Acts of Parliament:• The Services act (fall 2008):
Implementing in horizontal way
• The Modification Act (first half 2009): - Adjusting all relevant specific legislation
- Supplementing/correcting
• The Reparation Act (second half 2009):Repairs any technical mistakes
Services Directive Implementation Team
Main course: Legislation
• Provisions which contain instructions to
legislators will not be transposed
• Obligations which are already in existence in the Dutch legal order will not be implemented separately in legislation
article 9 (but: screening!) article 10 (mainly) article 12 (but: compliance test)
Services Directive Implementation Team
Main course: Legislation
What obligations do we plan to implement in the Services Act?• no ‘repetition’ allowed, art. 10 (3)• duration of authorisation, art. 11 • length of procedure, art. 13 (3) • Lex Silencio Positivo, art. 13 (4)• acknowledgement of application, art. 13 (5)• incomplete application, art.13 (6)
What do we do with the rest? Compliance Test • art.10 (4): territorial limitations• art. 11 (1): to ensure compliance• art.12: criteria for limited authorisation • art. 13 (2, 3 and 4): procedure
Services Directive Implementation Team
Dessert: Other activities
• Instructions to the legislative officers of all authorities concerned
• Monitoring system• ‘Road shows’ • Model regulation in line with Services Directive
The Netherlands is already busy simplifying bureaucracy, increasing accessibility and speed of authorities and developing e-government.
The Services Directive is supportive!
