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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
2
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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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
Implementing the Services Directive in Germany
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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
Implementing the Services Directive in Germany
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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
Implementing the Services Directive in Germany
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Implementing the Services Directive in Germany
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9
Index
I. Basic setting in GermanyII. Points of single contactIII. ScreeningIV. Other tasksV. Impact on Town City Management
Implementing the Services Directive in Germany
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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)
Implementing the Services Directive in Germany
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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
Implementing the Services Directive in 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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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
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in 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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Other Tasks
Administrative cooperation (IMI)
IT-related aspects
Amendments to administrative law
Quality standards
Implementing the Services Directive in 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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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).
Implementing the Services Directive in Germany
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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).
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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.
Implementing the Services Directive in Germany
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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]
Implementing the Services Directive in Germany
Thank you for your attention!