implementing the services directive in germany€¦ · exercise of service activities within eu...

SME policy, new businesses, services

www.dienstleistungsichtlinie.de

Implementing the ServicesDirective in GermanyThe Trading Area of Barcelona Provincial CouncilJune 18, 2009

Gesa C. FörsterFederal Ministry of Economics and Technology, Germany

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Index

I. Basic setting in GermanyII. Points of single contactIII. ScreeningIV. Other tasksV. Impact on Trade

Implementing the Services Directive in Germany

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Basic Setting in Germany (1)

FederalismAdministrative proceedings are dealt with separately by 16 “Länder” and thousands of municipalities.

Limited influence of federal level due to constitutional limits.


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Basic Setting in Germany (2)

Role of Professional Chambers

Service providers usually are statutory members of professional chambers (chambers of commerce / crafts / free professions).

Multitude of chamber-own information offers.


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State Levels Concerned by the GermanImplementation Process

14 federal ministries and their authorities

16 Länder and their authorities

Thousands of local entities

Hundreds of chambers

Many other corporationsunder public law


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Implementation Process in GermanyFederal level

Overall coordination

Help in basic clarifications (e.g., Speyer report 2006)

Aim: Comprehensive, coherent and economic system

Coordination by a common committee

LänderExecute most German laws under self-defined conditions

Are to decide on operator(s) and details of the PSC system / details of electronic processing

IT-aspects:Common project

“Deutschland-Online”

Chambers / Local authoritiesDirectly involved in many

implementation steps; interest in operating the PSC system

Business / Social partners

Consultations Consultations


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Involvement of the Public

Contacts with the public / interested private parties are important to us.

Intensive discussions with business representatives, chambers, social partners, IT-providers, etc.

Internet-based information service: www.dienstleistungsrichtlinie.de


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Index

I. Basic setting in GermanyII. Points of single contactIII. ScreeningIV. Other tasksV. Impact on Town City Management


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PSC’s Duties According to the Directive“Information broker” for

service recipientsLegally binding advice on all domestic aspects of access to/ exercise of service activities, Art. 7

“Partner in proceedings” forservice providers

Legally binding advice on all aspects of access to / exercise of service activities, Art. 7

Comprehensive coordination of proceedings with competent authorities, Art. 6(1)

Acceptance of information on certain changes in situation, Art. 11(3)

Electronic processing, Art. 7(3), Art. 8 / Cooperation with a central website (recital 50)


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Municipalities

• close involvement in administrative proceedingsand hierarchies

Discussed Options of Responsible Bodies

Chambers

• Chamber- vs. Economicschamber model

Intermediate author-ities of the „Länder“

• not present in all Länder

Private responsiblebodies?

Cooperation models• synergetic effect, but grouping of

single problems• multifaced variations possible

(e.g., common institute, commonoffice)

Points of single contact in the Services Directive

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Basic Options for the Choice of a Responsible Body

Part of state administration (Municipal model)

Close involvement in administrative proceedings and hierarchiesExperience with One-stop- shops for citizens and start-ups Close links with municipal business developmentBut: Among the “competent authorities” also figure chambersNo restriction to certain professions, but regional limits

Self-administration by economic operators (Chamber model)

„Control from outside“Business-friendly; Experience from existing networks for start-upsPartially wide-spread networks in other EU countries (German Chambers of Commerce Abroad)Necessary inclusion in administrative structures creates new problems (e.g., need to follow instructions, liability)Restriction to adherent professions


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Index



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Purpose of ScreeningIdentification of prohibited requirements for service providers - Aim: Reduction of such requirements (e.g., authorisation schemes)

Effect of the elimination of barriers: Facilitation of the access to / exercise of service activities within EU Member States


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Overall ObjectivesFinish screening process in time in order to leave enough time to adapt legislation where necessary. (On federal level and in most of the Länder screening process is almost finished.)

Use existing experiences as far as possible.

Only one screening procedure at all levels to minimize cost.

One coherent reportadequate to the requirements of the Directivein time (end of 2009) on the basis of federal screening results, 16 Länder screening results including local law and screening results of chambers.


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Basic condition for coherence

Common standards for the screening at all levels

Challenges

Complex and time consuming process of coordination at all levels


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Who is in Charge of the Review?

Screening at all levels, each level responsible for its legislation.

The relevant issues are covered by many ministries at federal and Länder level.

Therefore: central coordination is needed.

Cooperation with federal ministries and with Länder in working groups.


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Approach to the Review of Legislation

Set up a working structure.Develop an electronic screening questionnaire. Develop an input mask.Develop and implement control mechanisms.Screen at all levels.Set up a central database for screening results from all levels.Evaluate results and adjust reviewed regulations where necessary.Report the results. Ensure future compliance.


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SummaryScreening is a very complex and challenging process with many parties involved.

The process needs broad coordination at all levels.

Work at national level is highly influenced by the European level (concerning the content as well as the reporting structure).

There is a strong need for consensus among Member States and with the Commission.


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Index



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Other Tasks

Administrative cooperation (IMI)

IT-related aspects

Amendments to administrative law

Quality standards


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Index



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Trade Provisions in Germany

Trade in Germany is generally not specificallyregulated.

However, trade is affected by horizontal provisions (e.g., commercial law and planningor construction law).


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Does the Implementation of the Services DirectiveAffect Trade in Germany?

Two conditions:

(1) Applicability of the Services Directive: Requirements are covered only if they regulate / affect the access to / exercise of a service activity (recital 9). The Directive does not apply to rules that have to be respected by providers in the same way as by individuals.

(2) Provisions applicable to Trade fall under Art. 9 (authorisationscheme), Art. 14 (prohibited requirement) or Art. 15 (requirement to be evaluated).


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Ad (1): Requirement not applicable to everyone?COM:

In general, no exemption of entire fields of law (e.g., „construction law“).

It is decisive whether the precise requirement imposes other / more extensive formalities on service providers than on individuals.


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Ad (2): Prohibited Requirements

Certain requirements are prohibited per se (Art. 14).

Other requirements may be justified (Art. 9, 15),

if they are non-discriminatory;

if there is an overriding reason relating to the public interest(e.g., public policy / security / health, protection of the environment); and

if they are proportionate, i.e., suitable for securing the attainment of the objective pursued.


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Commercial Law (1)

Example: Amendment of the Gewerbeordnung (German Trade Regulation Act)

Gewerbeordnung applies to many service providers.

Legislative procedure is currently underway.


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Commercial Law (2)

Gewerbeanzeige (business registration) will no longerbe necessary for the cross-border provision of services.

Several obligations to obtain an authorization and otherrequirements will also no longer apply to the cross-border provision of services.


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Planning / Construction Law (1)Example: Establishment of Retail Outlets

Competence: local governments (Gemeinden)

Legal basis: federal, Länder and local level

Content: planning law, construction law and regional / local urban-development plans

Authorization:

No difference between the rules for national and regional companies

Not based on “economic” considerations or competition.


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Planning / Construction Law (2)

Screening process on federal and Länder level is not finished yet. There are ongoing discussions.

Thus, it is not clear whether existing provisions relating to planning and construction law will have to be adapted, but probably no need for adaptation.


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For further Information: www.dienstleistungsrichtlinie.de

Gesa C. FörsterFederal Ministry of Economics and Technology,

Unit II A 3 (Implementation of the Service Directive)Scharnhorststr. 34-37

D-10115 BerlinTel.: +49 (0) 30 18 615 - 75 56

Fax: +49 (0) 30 18 615 - 50 75 56Mail: [email protected]


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