The Provision of Services Regulations 2009

Requirements which are prohibited or subject to evaluation

Prohibited requirements

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.

Requirements subject to evaluation

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.