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The Provision of Services Regulations 2009

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Draft Legislation:

This is a draft item of legislation. This draft has since been made as a UK Statutory Instrument: The Provision of Services Regulations 2009 No. 2999

Prohibited requirements

This sectionnoteType=Explanatory Memorandum has no associated

21.  (1)  A competent authority must not make access to, or the exercise of, a service activity subject to any of the following—

(a)discriminatory requirements based directly or indirectly on nationality or, in the case of companies, the location of the registered office, including in particular—

(i)nationality requirements for the provider of a service, their staff, their shareholders or members of their management or supervisory bodies;

(ii)a requirement that a provider, their staff, their shareholders or members of their management or supervisory bodies be resident in the United Kingdom;

(b)a prohibition—

(i)on being established in more than one EEA state, or

(ii)on being entered in the registers of, or enrolled with professional bodies or associations of, more than one EEA state;

(c)restrictions on the freedom of the provider of a service to choose between principal or secondary establishment, in particular—

(i)an obligation on the provider requiring principal establishment in the United Kingdom, or

(ii)restrictions on the freedom to choose between establishment in the form of an agency, branch or subsidiary;

(d)conditions of reciprocity with the EEA state in which the provider is already established, other than conditions of reciprocity provided for in Community instruments concerning energy;

(e)the case-by-case application of an economic test making the granting of authorisation subject to—

(i)proof of the existence of an economic need or market demand,

(ii)an assessment of the potential or current economic effects of the activity, or

(iii)an assessment of the appropriateness of the activity in relation to the economic planning objectives set by the competent authority;

(f)the direct or indirect involvement of competing operators, including within consultative bodies—

(i)in the granting of authorisations, or

(ii)in the adoption of other decisions of the competent authorities;

(g)an obligation to provide or participate in a financial guarantee or to take out insurance from a person established in the United Kingdom;

(h)an obligation—

(i)to have been pre-registered, for a given period, in registers held in the United Kingdom, or

(ii)to have previously exercised the activity for a given period in the United Kingdom.

(2) Paragraph (1)(e) does not affect planning requirements that do not pursue economic aims but serve overriding reasons relating to the public interest.

(3) Paragraph (1)(f)—

(a)does not prevent professional bodies and associations or other organisations acting as the competent authority, and

(b)does not affect the consultation of organisations, such as chambers of commerce or social partners, on matters other than individual applications for authorisation, or a consultation of the public at large.

(4) Paragraph (1)(g)—

(a)does not affect any requirement of insurance or a financial guarantee as such, and

(b)does not affect requirements relating to the participation in a collective compensation fund, for instance for members of professional bodies or organisations.

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