In this article we address the current situation and the measures being taken by the Spanish Government to implement the Bolkestein directive. On 18 October 2008 the Spanish Government submitted a draft law on Free Access and the exercise of service activities (also known as the “Umbrella Law”).
The draft law is based on the principles of freedom of establishment and freedom to provide services. This is reflected by its elimination of administrative authorisations and the prohibition of restrictions, limiting them to cases where they are necessary, proportionate, not discriminatory and can be justified by a reason of general interest. Reasons of general interest cannot be those related to economic policy. Similarly, the draft law is designed to strengthen the rights and protection of consumers and users. It also imposes more restrictions on service providers as to how they can use customer information.
The draft law also establishes the concept of a “single portal” in an attempt to simplify administration and provide a source where citizen can obtain information and arrange at distance by internet the establishment of services in any country within the European Union. This will be possible at all different Spanish administrative levels (state, autonomous regions and local), excluding those formalities which require approval in person, and will provide for Public Bodies accepting documents from other member states without the necessity to provide original documents, certified copies or sworn translations, except in cases provided for in Community legislation, or those that can be justified on grounds of public order and safety.
In this way as a general rule, administrative silence, that is failure to receive a reply from the relevant administrative body, will constitute approval of an application to provide services.
The number of authorisations may only be limited where justified by a scarcity of administrative resources or for technical reasons. In relation to time limits, authorisations will be granted for an undefined period being able to be limited in duration provided that they are renewed automatically, the number of authorisations is limited for that there exists a reason for general interest. Authorisations will permit the service provider to enter and exercise their service throughout Spain, with limitations to this being only justifiable on grounds of public order, the environment, public safety or public health, and in this case only when proportionate and not discriminatory.
In relation to cooperation between different public bodies, for the effective control of service providers, it is essential that providers supply the authorities with certain information needed to monitor compliance with the national legislation. This information will include that necessary to facilitate a warning mechanism to alert the competent authorities to acts causing serious prejudice to the recipients of the services.
It is also worth mentioning that this law seeks to improve the quality of services provided, eliminate unjustified restrictions on multidisciplinary service provision and prevent service providers from being obliged to exercise a single activity exclusively.
Finally it is important to note that, as set out in the Second Final Resolution, any competent public bodies who fail to comply with the requirements of this draft law will assume responsibility for those actions attributable to it, and cause Spain to be sanctioned by the European Institutions.
Alongside the draft law referred to, at the end of October 2008 the Spanish Ministry of Trade “Ministerio de Comercio” referred a preliminary draft of a draft law to reform commercial retail, the “Proyecto de Ley de Reforma de la Ley de Ordenación de Comercio Minoritario” 7/96, in which modification of commercial regulation is sought in order to comply with the Bolkestein Directive.