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The Provision of Services Regulations 2009

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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

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22.—(1) A competent authority must not make access to, or the exercise of, a service activity subject to any of the requirements specified in paragraph (2) unless the conditions specified in paragraph (3) are met.

(2) The requirements to which this regulation applies are—

(a)quantitative or territorial restrictions, in particular in the form of limits fixed according to population or of a minimum geographical distance between persons providing the service;

(b)an obligation on a provider of the service to take a specific legal form;

(c)requirements relating to the shareholding of a company;

(d)requirements, other than those—

(i)concerning matters covered by Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications(1), or

(ii)provided for in other Community instruments,

which reserve access to the service activity in question to particular persons providing the service by virtue of the specific nature of the activity;

(e)a ban on having more than one establishment in the United Kingdom;

(f)requirements fixing a minimum number of employees;

(g)fixed minimum tariffs or fixed maximum tariffs (or both) with which a provider of the service must comply;

(h)an obligation on a provider of the service to supply other specific services jointly with the service activity in question.

(3) The conditions are—

(a)non-discrimination, that is, the requirements must be neither directly nor indirectly discriminatory with regard to—

(i)nationality, or

(ii)in the case of companies, the location of the registered office;

(b)necessity, that is, the requirements must be justified by an overriding reason relating to the public interest;

(c)proportionality, that is, the requirements—

(i)must be suitable for securing the attainment of the objective pursued, and

(ii)must not go beyond what is necessary to attain that objective,

and it must not be possible to replace those requirements with other, less restrictive measures that attain the same result.

(4) The preceding paragraphs of this regulation do not apply in relation to any requirement applying to a person entrusted with the provision of a service of general economic interest where the requirement is proportionate and necessary for the provision of that service by that person.

(5) In paragraph (4) “service of general economic interest” means a service which the competent authority determines, in accordance with Community law, to be of general economic interest.

(6) A competent authority must notify the Secretary of State of—

(a)any proposal to introduce a new requirement specified in paragraph (2) affecting access to, or the exercise of, a service activity, and

(b)the reasons for that requirement.

(7) The notification must state the reasons why the authority considers that the application of the requirement meets the conditions in paragraph (3).

(1)

OJ No. L255, 30.9.2005, p.22.

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