Screening Flowcharts for Local 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 Local Authorities screen’ (see below)
- have read through the worked examples
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) 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.
Action for Local Authorities
Information to help Local Authorities
BIS has been working with Government Departments and Devolved Administrations to ensure that National legislation is compliant with the Directive. Document 2 below is a list of authorisations within scope of the Directive, which BIS believes are managed by Local Authorities. Document 3 will show you whether central government has justified the relevant legislation in England, or plans to amend it. When the outcome of the screening processes in the Devolved Administrations is available we will let you know by updating the Services Directive website and notifying your Primary Liaison Point (PLP). Later in the year we will also 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 National legislation. Please look out for this information, so that you are aware of how you may have to change your processes – again, we shall ensure that your PLP is kept informed.
Screening at a local level
You now need to check if your locally used Acts, bylaws, procedural rules or other requirements placed on service providers within scope comply with the Directive. The following flowcharts together with the worked examples are designed to assist Local Authorities with this process.
Screening flowchart for authorisation schemes that are imposed on service providers established in another member state who want to establish in the UK (PDF, 75KB)
Screening flowchart for requirements that are imposed on service providers operating in the UK (whether established in the UK or elsewhere) (PDF, 74KB)
Screening flowchart examples (DOC, 52KB)
The first flowchart is for the screening of authorisation schemes that are imposed on service providers established in another member State 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. You may find it beneficial to work with neighbouring councilswho have the same service provider requirements when using the flowcharts.
Where you have discretion under National legislation to impose requirements, for example, the treatment of certain fees or authorisation of certain establishments, BIS is discussing with LACORS whether we can jointly facilitate a small number of lead or champion Local Authority groups who would consider key common issues and then disseminate guidance to other Local Authorities. We will tell you shortly whether this will be the case.
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 30th September 2009. You need only report on local legislation (local Acts, county Acts, bylaws), not every administrative rule or practice, or condition attached to a licence, which is part of an authorisation process. You must screen such processes to ensure that they comply with the Directive; however, they do not need to be reported to BIS.
Screening flowchart for requirements that are imposed on service providers operating in the UK (whether established in the UK or elsewhere) (PDF, 74KB)
Screening flowchart for authorisation schemes that are imposed on service providers established in another member state who want to establish in the UK (PDF, 75KB)
Screening flowchart report (DOC, 36KB)
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. BIS will also seek to report key common guidance emerging from any lead or champion Local Authority groups (which may potentially go wider than local legislation).
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 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).
Documents to help Local 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
Link
If the numbering of these regulations changes, we will let you know.
2. List of ‘formalities’ within scope of the Services Directive, England
Link
This is an indicative list of formalities (licence applications/authorisations/procedures etc)that Local Authorities regulate, together with the parent Act.
3. Primary Legislation checklist
Link
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.
4. Frequently Asked Questions
Link
A series of workshops were held with Local Authorities in February and March 2009 where BIS advised you of your obligations under the Directive and issued you with a guidance booklet
The European Services Directive guidance for local authorities (PDF, 223KB)
As a result of these workshops this list of frequently asked questions was compiled, which will be added to during the period leading up to 28th December 2009. The‘Coverage of the Directive/Scope’ section may help you when using the flowcharts.
