Information for Government Departments

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 nearly complete. Any requirements that will be amended to comply with the Directive or can be justified under the terms of the Directive will be reported on by BIS to the EU Commission by the 28^th 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. Later in the year we will update the Services Directive website with details of those authorisation schemes, authorisation scheme procedures or other requirements that are being amended.

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 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.

Reporting to BIS

As a result of using the flowcharts, you may need to complete an Interactive Policy Making (IPM) reporting form (most Departments will have copies of these, if you do not please contact servicesdirective@bis.gsi.gov.uk) 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. For reporting on regulations 14.1-14.3 please use IPM reporting form 9, for reporting on regulation 22.2 please use IPM reporting form 15 and for reporting on regulations 24.1-24.3 please use IPM reporting form 16.

Later in the year we will send you a reporting form issued by the EU Commission, which will be used for reporting on new or amended requirements post-implementation (28^th December 2009).

Please return all reporting forms to servicesdirective@bis.gsi.gov.uk. Reporting forms on current requirements must be returned to BIS by no later than 30^th September 2009. Reporting forms on new or amended requirements must be returned to BIS when you are made aware of such requirements.

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.

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’ requirementmay 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 Departments screen

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

1. The Services Directive draft Regulations

Information about the Services Directive draft Regulations

If the numbering of these regulations changes, we will let you know.

Please look at the Services Directive draft Regulations 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

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.

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