The Provision of Services Regulations 2009

Requirements which are prohibited or subject to evaluation U.K.

Prohibited requirements U.K.

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

F1 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F1 (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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;

F2 (g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

F3 (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F1 Reg. 21(1)(a)-(d) omitted (31.12.2020) by virtue of The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 13(1); 2020 c. 1, Sch. 5 para. 1(1)

F2 Reg. 21(1)(g) omitted (31.12.2020) by virtue of The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 13(1); 2020 c. 1, Sch. 5 para. 1(1)

F3 Reg. 21(4) omitted (31.12.2020) by virtue of The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 13(2); 2020 c. 1, Sch. 5 para. 1(1)

Requirements subject to evaluation U.K.

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 [F4 retained EU law which, immediately before IP completion day, implemented an obligation under] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications M1 , or

(ii) provided for in other [F5 retained EU law],

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—

F6 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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 F7 ... 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).

Textual Amendments

F4 Words in reg. 22(2)(d)(i) inserted (31.12.2020) by The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 14(1)(a) (as amended by The Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020 (S.I. 2020/1038), regs. 1(3), 3(2)(c)); 2020 c. 1, Sch. 5 para. 1(1)

F5 Words in reg. 22(2)(d)(ii) substituted (31.12.2020) by The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 14(1)(b); 2020 c. 1, Sch. 5 para. 1(1)

F6 Reg. 22(3)(a) omitted (31.12.2020) by virtue of The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 14(2); 2020 c. 1, Sch. 5 para. 1(1)

F7 Words in reg. 22(5) omitted (31.12.2020) by virtue of The Provision of Services (Amendment etc.) (EU Exit) Regulations 2018 (S.I. 2018/1329), regs. 1(1), 14(3); 2020 c. 1, Sch. 5 para. 1(1)

Marginal Citations

M1 OJ No. L255, 30.9.2005, p.22.