1. General Remarks on the Transposition Strategy and General Comprehension of the Implementation
1.1 Main References Used in this Research
Please indicate the main references of your research (e.g., parliamentary documents and laws implementing the SD or adopted for the occasion of transposition…). We would be very pleased if you could indicate the place of publication, particularly if available online.
1.2 Impact of the Services Directive
1.2.1 Did the transposition of the SD give a profound cause to the national legislator to alter—beyond the minimum requirements and a one-to-one transposition of the SD—administrative laws in general?
1.2.2 Which authorities and partners were involved in the transposition process? Did close cooperation and coordination with the several levels of administration take place?
1.3 Scope of Application and Extension to Other Fields of Administrative Law
1.3.1 What is, according to the (prevailing) opinion in your Member State, the directive’s scope of application? Are the requirements of the SD perceived as binding only for providing transnational services/for transnational establishment, or are at least Articles 5-15 SD also seen as compulsory for the Member States with regard to purely domestic services/establishment?
1.3.2 Can only transnational service providers refer to the laws/regulations implementing the SD? Or are the implementing laws/regulations applicable also to domestic service providers and, if so, to what extent?
1.3.3 Are the laws/regulations implementing the SD also applicable (fully or partly) to everybody, that is, do they engender general and universal standards for the way authorities deal with all citizens or all economic stakeholders, so that these laws/regulations can be claimed by everybody?
1.3.4 In case your Member State did not treat transnational and domestic service providers equally, what was the intention for this? Was there at least a discussion about equal treatment?
1.4 Incorporation of the Transposing Legislation
1.4.1 How and to what extent were the requirements of the SD relating to administrative proceedings implemented in your Member State?
1.4.2 Did your Member State incorporate the new rules/regulations into existing statutes or was a new codification passed?
1.5 Relationship of the Services Directive to Primary EC (Now: EU) Law
1.5.1 How is the relation of the SD to Articles 43 and 49 EC Treaty (now Articles 49 and 56 TFEU) assessed?
1.5.2 Have any problems been identified in this context?
How did your Member State accomplish the ‘screening’ in concreto (e.g., authorities concerned, committees, division of tasks), and what were the results?
2. Individual Articles of the Services Directive
2.1 Article 6 SD: Point of Single Contact (POSC)
2.1.1 How were ‘points of single contact’ (POSCs) in concreto introduced in your Member State?
2.1.2 Does your legislator agree with a subjective understanding of the POSC? Or did your national legislator introduce only a few or even only one POSC in your Member State? How many POSCs will be introduced in your country (approximately)? Did your national legislator reallocate administrative competences (despite Article 6 (2) SD) with the introduction of the POSC(s)?
2.1.3 Were the POSCs introduced in your country as new and independent authorities/offices or were the tasks of the POSCs assigned to already existing authorities?
2.1.4 Were private partners involved in the introduction of POSCs? If so, in what way (e.g., by licence, accreditation)?
2.1.5 Who is liable for the mistakes of the POSCs? According to which principles?
2.2 Article 7 SD: Right to Information
2.2.1 Were the ‘rights to information’ extended in your national legislation during the transposition process?
2.2.2 For which fields have the ‘rights to information’ been implemented? Only within the scope of the SD or beyond?
2.3 Article 8 SD: Procedures by Electronic Means
2.3.1 How did your Member State establish electronic procedures in concreto?
2.3.2 Did the transposition in this context have a great impact or had your Member State already established electronic procedures to a comparable extent?
2.3.3 Did your Member State—in contrast to the intention of the SD (cf. Recital No. 52; Handbook 5.4.1)—remove other means of administrative proceedings?
2.4 Article 9 SD: Authorisation Schemes
2.4.1 In which areas of administrative law is an ‘a posteriori inspection’ pursuant to Article 9 (1) lit.c SD not seen as sufficient so that the national legislator maintains the ‘authorisation scheme’?
2.4.2 Which types of authorisation schemes/authorisation procedures exist in your Member State and which one usually applies? Which types had to be abolished or altered due to the requirements of the SD?
2.4.3 According to your national understanding, are simple notification requirements included in Article 9 ff. SD that had to be abolished?
2.5 Article 10 SD: Conditions for the Granting of Authorisation
2.5.1 Article 10 (3) SD implies the recognition of authorisations/requirements granted by other Member States. Where and how was this requirement implemented? Did problems occur in this context?
2.5.2 Was it difficult for your Member State to grant authorisations that give access to a service activity or grant permission to exercise an activity throughout the whole national territory? If it was difficult, how was this problem solved? If not, why?
2.5.3 Did your Member State identify areas of ‘overriding reasons to the public interest’ (Article 10 (4) SD) to justify regional authorisation only?
2.5.4 According to Article 10 (5) SD, the applicant is entitled to get an authorisation once all conditions for the authorisations have been met. Is this any different from your existing administrative laws? To what extent will the courts review the decision by the granting of authorisation? Do courts also review the use of discretion by authorities? Did the transposition of Article 10 (5) SD change this in any way?
2.5.5 Was there a need to change national law due to the obligation to fully reason the decision of the authority (Article 10 (6) SD)?
2.5.6 The SD did not alter the reallocation of administrative competences with regard to the granting of authorisations (Article 10 (7) SD), as Article 6 (2) SD did with the POSC. Despite this intention, did your national legislator change the allocation of competences?
2.6 Article 11 SD: Duration of Authorisation
Was the principle of unlimited validity of authorisations implemented in a generally applicable rule/regulation? What exceptions were made according to Article 11 (1) SD in your Member State? Was there previously a prohibition on time-limited authorisations in your national legal system?
2.7 Article 12 SD: Selection from Among Several Candidates
To what extent did the requirements of Article 12 SD (regarding selection from among several applicants) change your legal system? Was there any need for the transposition of these requirements (since these requirements had previously been stated in the case law of the ECJ)?
2.8 Article 13 SD: Authorisation Procedures
2.8.1 Which authority determines a priori the duration of an administrative procedure? The legislator by law or the responsible authority by decision?
2.8.2 Did your national legislator establish a general rule on the duration of the procedures? Is this general rule only applicable within the scope of application of the SD or does it apply even beyond? If there is a generally fixed duration, how long is it? If not, did your legislator prescribe different durations in different, specific administrative laws?
In case the authority does not respond to the filed application within the prescribed time, the authorisation is “deemed to have been granted to the provider” (Handbook 6.1.8.).
2.8.3 Is it possible to differ from the prescribed durations of procedures? If so, is this possibility used?
2.8.4 Is a tacit (fictitious) authorisation already usual in your legal system? Is it usual in general administrative procedures law or only in specific administrative laws?
2.8.5 Does a tacit (fictitious) authorisation have only formal effects or also substantive ones?
2.8.6 Do the same rules apply to tacit (fictitious) authorisations as apply to formally granted administrative authorisations (e.g., nullity, revocability, or as regards imposing collateral/additional conditions later on…)?
2.8.7 Are other aspects concerning tacit (fictitious) authorisations worth mentioning?
2.9 Articles 14, 15, 16 SD
2.9.1 Did your national legislator identify a need to adapt national law to implement these articles? If so, how was this adaptation achieved?
2.9.2 Is there discussion about the self-screening of the Member States?
2.9.3 Are there further problems or discourses regarding these articles in your Member State?
2.10 Articles 14–19 SD
Are there any discussions with regard to prohibited requirements/restrictions (Articles 14, 15, 16, and 19 SD) and further exemptions (Articles 16 (3), 17, and 18 SD) in your Member State?
2.11 Articles 22–27 SD
Regarding the transposition of Articles 22-27 SD, have there been discussions? Do any issues of the SD transposition process impact on the modernisation of administrative law and administrative procedures law? How is the role of the Member State as an initiator of private regulation (Article 26 SD re certification schemes and quality charters) assessed?
2.12 Articles 28 ff. SD: Administrative Cooperation
2.12.1 Were there provisions on transnational administrative assistance in your Member State prior to the transposition of the SD? If so, were these provisions congruent with the rules on domestic administrative assistance (if any in your country)?
2.12.2 Did the requirements of the SD give cause to (re)arrange the provisions for administrative assistance in a general, maybe uniform way?
2.12.3 Are there provisions on financial compensation for the wide range of assistance?
2.12.4 Was there a need to change rules on data protection and professional secrets due to the wide range of information obligations? Have such rules only been adapted or did a profound change take place?
2.13 Article 29 SD: Mutual Assistance—General Obligations for the Member State of Establishment
To what extent is this article seen as problematic? Have there been discussions regarding the confirmation of not unlawful business conduct enshrined in Article 29 (1) SD?
2.14 Problems and Discourses on Administrative Cooperation
Were there any problems or discourses regarding Chapter VI (administrative cooperation) worth mentioning?
2.15 Convergence Programme (Chapter VII of the Services Directive)
Regarding this chapter, did any discussions take place in your Member State that you think are worth mentioning here? How is the role of the Member State as an initiator of private regulation in Article 37 SD (re codes of conduct) assessed?
3. Assessment of the Impact of the Services Directive
3.1 Extent of the Impact
In Germany, the impact of the SD on administrative procedures law, administrative law for business activities, and even beyond is assessed as severe. From the perspective of your Member State, do you agree?
3.2 Assessment of the Transposing Legislation
How is the transposition of the SD judged in your Member State? Is it perceived as a great success and an improvement or did only a minimum transposition take place? What aspects guide your assessment?
3.3 Most Important Changes Induced by the Services Directive
In your view, what is the most important and most profound change induced by the transposition of the SD in your Member State, and why?