EUU, Alm.del - 2015-16 - Bilag 594: Høringssvar vedr. revision af notifikationsproceduren under servicedirektivet

Europaudvalget 2015-16
EUU Alm.del Bilag 594
Offentligt

NOTE

April 2016

Danish response to consultation on the proposal to reform the notifi-

cation procedure under the Services Directive

General remarks

The Danish government fully supports the Commission’s initiative to create

a level playing field for businesses, including the need to address unlawful

national barriers that hamper cross-border trade. Every year between 800-

1000 national requirements are notified to the Commission, making it diffi-

cult for businesses to operate cross-border since they have to follow differ-

ent rules in different Member States. To achieve this goal the Commission

should strive towards an ambitious proposal for a revision of the notifica-

tion procedure under the Services Directive, ensuring that the procedure

applies to draft laws and is effective, transparent and introduces guidelines

for binding proportionality tests as well as strengthens the follow-up mech-

anisms by the Commission.

The Danish government agrees with the objective of the forthcoming pro-

posal to reform the notification procedure for services (proposal) and the

shortcomings of the current model for notifications. This calls for action at

different levels and this paper contains suggestions on how to improve the

functioning of the notification procedure for services.

Comments and suggestions

Draft laws

Member States often notify already adopted regulation. This limits the pos-

sibility for the Commission, Member States and stakeholders in terms of

commenting legislation before it enters into force. As a result, there is a risk

to encumber the free movement of services.

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Suggestion:



The procedure should

apply to draft laws

to ensure that all new na-

tional measures could be examined before they enter into force.

Clarify the obligation to notify

Today, it is unclear which regulatory measures that should be notified, and it

appears that Member States have not implemented the notification proce-

dure in a uniform manner resulting in various interpretations of the scope,

the concept of proportionality and the reasons of justification in accordance

with the Services Directive. It is, therefore, essential to ensure a more com-

mon approach to the assessment of new national requirements.

The Danish government finds it necessary that the proposal clarifies the

scope of the notification procedure more precisely, thereby making it clear,

which regulatory measures Member States are obliged to notify under the

Services Directive. Furthermore, we welcome the idea to assess whether the

procedures and enforcement measures concerning temporary cross-border

provision of services and establishments should be aligned.

Suggestion



The Commission should

clarify the scope

of the notification obli-

gation (i.e. what should be notified) and assess the potential of align-

ing the notification process for temporary cross-border provision of

services and establishments.

Procedural clarifications

There is currently no streamlined process for handling notifications, leaving

national authorities in a limbo when discussing notifications with the Com-

mission. The Danish government urges the Commission to present a thor-

ough framework of all steps in the notification process i.e. how comments

from the Commission and other parties should be handled (e.g. obligations

to respond and follow-up etc.) and by setting fixed deadlines applicable for

both the Commission and the Member States.

Moreover, a consultation period (stand-still) with a proper timeframe allow-

ing Member States, the Commission and stakeholders to react to notifica-

tions should be introduced. In this way new national measures could be

examined before they are brought in, as is the case for goods. The Commis-

sion should, however, consider different models e.g. the possibility to short-

en the period and present specific cases of exemptions to meet the concerns

of some Member States in regard to the national procedures.

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National authorities should not obtain prior approval from the Commission

before adopting legislation, but the Commission should be required to fol-

low-up in cases of reactions to Member States’ notifications. In that way

Member States get a better understanding of the whole process i.e. clarifying

any potential uncertainty in relation to other Member State and Commission

comments.

Suggestion



The proposal for a revision should provide

procedural clarifica-

tion

to ensure that the process for notification is transparent, clear

and structured.

Better proportionality assessments

Today, Member States provide insufficient or in some cases non-existing

proportionality assessments. The Danish government would like to see the

introduction of guidance on proportionality, including the reasons of justifi-

cation in accordance with the Services Directive, to help Member States

decide if new national measures are disproportionate.

Suggestion:



The proposal should contain an obligation for Member States to

provide a thorough proportionality assessment. This must go hand

in hand with an improved level of information and guidance e.g.

an-

alytical framework for binding proportionality tests.

In this way

new rules would be subject to the same level of examination in all

Member States.

More transparency

The notification procedure for services lacks transparency, as Member

States notifications are presently circulated in a closed system (IMI) between

Member States and the Commission. Furthermore, Member States are al-

lowed to notify some requirements for service providers through the notifi-

cation procedure for goods. This has the adverse effect of not registering all

service notifications in the same system, which makes it more difficult for all

parties to become aware of and react to the notifications.

The Danish government welcomes the focus on transparency in the consul-

tation. To obtain a fully functioning Single Market it is important to find a

solution that ensures that stakeholders can be granted access to notifica-

tions, and the reasoning for them. This would indeed enable stakeholders to

identify applicable rules as well as actively intervene in case of doubtful

rules.

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The IMI-system could be used for that purpose. However, it is a pre-

requisite that the system is combined with a public dimension and improved

in regard to translation and search functions. All parties should be able to

easily search for and navigate among the notifications, including the possi-

bility to subscribe to email alerts to make it easier to react to notifications

within their field of responsibility.

Suggestions



Member States notifications should be made

public online (at EU-

level)

in an open user-friendly database so that businesses and relevant

authorities have the opportunity to react to them before they are intro-

duced.



In order to avoid unlawful barriers in cross-border trade the Commis-

sion should evaluate the possibility to

integrate the notification pro-

cedures for goods and services

since changes in the regulation of ser-

vices are very likely to impact the manufacturing production and vice

versa.

Better enforcement

Currently, there are no legal consequences when Member States refrain

from notifying and it is unclear how the Commission chose, examine and

follow-up on national requirements and to what extent unlawful measures

are in fact enforced within the procedure. Thus there is a need to create

consistent and transparent follow-up mechanisms to prevent unlawful

measures from being adopted, but also to strike the right balance between

informal dialogue and enforcement measures, keeping in mind that informal

discussions in some cases may be more fruitful.

Suggestions



The proposal for a revised notification procedure should

clarify the

legal consequences of non-notifications.

Preferably in line with

the legal jurisprudence for goods where in case of failure to notify,

the new requirement is inapplicable.



The Commission could assess whether it could be an idea to distin-

guish between comments, i.e.

comments vs. detailed opinion,

fol-

lowing the model in accordance with the Transparency Directive.

This could create more clarity about the level of consequences relat-

ed to questions posed by the Commission.

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

The Commission could take a more

targeted approach,

based on

clear and transparent criteria, including economic cross-border sig-

nificance and prevalence of permitted restrictions.

Final remarks

The proposal to reform the notification procedure under the Services Di-

rective may require changes in the Danish legislative process in regard to

timing if e.g. an obligation to notify draft legislation, proportionality assess-

ments and a consultation period is introduced. The proposal should, how-

ever, also entail changes in the Commission. It is important to ensure the

Commission performs effective follow-up and enforcement to overcome

the unlawful national barriers hampering cross-border trade in EU.