GOVERNMENT OF ROMANIA DEPARTMENT FOR EUROPEAN AFFAIRS Bucharest, 011864, 50A Aviatorilor Blvd., 1st...

GOVERNMENT OF ROMANIADEPARTMENT FOR EUROPEAN AFFAIRS

Bucharest, 011864, 50A Aviatorilor Blvd., 1st District, ROMANIA, tel. +4021 308 53 00, fax. +4021 318 55 24

The general and practical process of transposition based on Romania's experience

Rodica Lupu

SUMMARY

I. Framework and available tools

II. Characteristics of the SD transposition process

III. Romanian approach to the management of the process – national framework

IV. Screening of the legislation

V. Points of single contact

VI. Administrative cooperation - Internal Market Information System

VII. SWOT analysis and conclusions


Framework

Complex directive – horizontal – rather general Extremely heterogeneous administrative structures

within EU Lack of knowledge of other MS’ legislation Provisions of the directive leave enough room for

interpretation – lead to a tendency for a protectionist approach

Deadline – 28 Dec 2009 – 3 years for the transposition process – apparently long time – lead to slow start and tendency to postpone / not treat as urgent

Commission – permanent monitoring – useful tool


Available Tools

DG MARKT permanent support Expert groups – almost monthly Discussions with Com experts and bilateral

discussion with experts from other MS Seminars/conferences organized with the

participation of DG MARKT experts

Resources – by the Com Guidelines for the transposition of the SD Training material for use of IMI Guidelines for alert mechanism and derogations Pilot for IMI in 2009

Other resources TAIEX ECJ Case law


The scope

SD applies to the services supplied by providers established in a Member State

The scope is not positively defined: art. 2 (2) lists the fields where it does not apply

Community acts governing specific aspects of access to or exercise of a service activity in specific sectors prevail to the Services Directive

However, the fact that the legislation in a certain services sector is already harmonized, does not automatically mean that the Services Directive doesn’t apply

Conclusion: the transposition requires changes in specific legislation, which governs various services sectors – need for thorough screening


Implementing measures

Administrative simplification requires legislative changes as well as implementing the points of single contact

Access to registers – legislative as well as implementing measures

Administrative cooperation – legal requirements as well as implementing the Internal Market Information System

Quality of services – legal provisions as well as producing means of information and making all the information available, as well as ensuring alternative means of redress

Conclusion1: the transposition requires also a change of approach as to the way the administration provides services to citizens and companies

Conclusion 2: there is need for a change of approach in processing requests by service providers, combined with a change of approach of the exercise of checks and inspections


Stakeholders

Large number of sectors, with different specificities and governed by different authorities → large number of authorities involved

Need to involve authorities at different levels: national as well as local

Regulated professions are covered → professional bodies need to be involved

Conclusion: the coordination of the process needs to be ensured by an authority with horizontal competences, which can objectively analyze the positions of various institutions in specific sectors and has the authority to get involved in the decision making process


One authority to lead the process: the Department for European Affairs – central body with horizontal competence, part of the Government Apparatus

Key ministries involved in the main decision making process: Ministry of Economy, Commerce and SMEs, Ministry of Communications and Information Society, Ministry of Administration and Interior, Ministry of Justice.

Legal framework: a memorandum in the Government, setting up inter-ministry working groups

Financial resources: none → objective: get European finance for the implementing measures – structural funds

Main fundamental decision: draw a horizontal law and afterwards start changing the specific legislation


Breakdown of the process in main pillars:

1. Legislation screening and actual transposition: freedom of establishment and freedom to provide services – mainly legislative changes

2. Administrative simplification – implementation of points of single contact (Chapter II) – legislative and implementing measures

3. Administrative cooperation – implementation of the Internal Market Information System (Chapter VI) - legislative and implementing measures

4. Quality of services (Chapter V) - legislative and implementing measures

5. Reporting and mutual evaluation (art.39; Interactive Policy Making) – legal provisions and ‘workload’ for the authorities


4 inter-ministry working groups

WG for legislative framework

Main objective: horizontal legislation – law + decrees related to the implementing measures (PSC and IMI)

WG for screening legislation and reporting in IPM

Main objective : identify all relevant legislation, evaluate – monitor changes and reporting in IPM

WG for Point of Single Contact and Electronic Procedures

Main objective : Decide upon the concept of PSC and all related aspects

WG for administrative cooperation

Main objective: Decide upon the architecture in IMI and come up with a plan for all the implementing measures

IV. Screening Legislation

Phase I Leading institutions: Ministry of Economy (national legislation) and Ministry of

Administration and Interior (local legislation)

Simple methodology for identifying the relevant legislation

Problems:

- Many institutions considered to be out of scope (ex. Ministry of Transport)

- When asked to evaluate whether they needed to change the legislation, most institutions thought it wasn’t the case

- Poor understanding of the Directive, law interest, reluctance to any change

- Permanent request for an exhaustive list of services covered by the directive

- No attention paid to other provisions than those in art. 9, 15, 16 and 25

- No correlation made to the implementing measures, which required in themselves legislative changes (electronic procedures, administrative cooperation, access to registers)

Results:

- Incomplete screening

- Lack of a clear picture of necessary amendments, due to the heterogeneous approach


Lessons learned from Phase 1

Institutions need serious training before they start the screening process

Need for a good framework, a clear detailed methodology and monitoring tools

Need to centralize the process eventually

The screening requires a case-by-case analysis, always double-checked by an unbiased authority

It is wiser to not leave out any of the provisions during the screening, or else the workload doubles, as all legislation needs to be screened again under other articles than the ones to be reported in IPM

Trainings should focus on legal provisions but should touch on PSC and administrative cooperation as well, to make it easier for experts to see the whole picture

Evaluating teams should not be made only by people with legal background

The faster you have the horizontal law published, the better


Phase II

Leading institutions: Department for European Affairs

Approach: more structured, while raising the profile of the directive in the Government

Set up an inter-ministry High Level Committee for monitoring the transposition process (membership at the level of State Secretary)

Drew up a complex methodology for the organization of the process

Task force: experts of the DEA, Ministry of Justice and Ministry of Economy

Evaluating Teams in all authorities, with a predefined structure

Detailed forms for the evaluation of the legislation

Scheduled bilateral meetings between each team in the ministries and the Task-force

Went through each piece of legislation in bilateral meetings and evaluated in detail, together with the competent authorities, each requirement


Phase II – the methodology

Clear description of the whole process and of the structured approach

Clear schedule – all authorities had the possibility to have as many bilateral meetings as necessary with the Task Force (at least one)

For each authorization scheme identified in the legislation, the experts had to fill in a detailed form and send it to the TF

The form was very detailed, but extremely simple to fill in, being built on the basis of yes/no questions

The questions were built starting from the provisions of the directive, taken in as much detail as possible – art. 9 – 16, 25,…

Not always a clear link between the directive and the questions (interpretation embedded in the form)

After discussing upon each authorization scheme, experts drafted the legislation proposals and sent them to the TF

In some cases bilateral meetings had to be organized again, to agree on the draft legislation


Results Some forms were not filled in correctly – lack of understanding, superficial

approach

Bilateral discussions were extremely useful and increased significantly the understanding as well as the interest of the experts for a correct transposition process

Increased interest in simplification of the procedures

Full inventory of the authorization schemes

Clear picture of the necessary measures to insure full transposition

Final decision on procedures: while at first the WG for legal framework considered the possibility to pass all the amendments as a law package, after the second screening it became clear that this was not possible, due to the different level of complexity of changes in different sectors + different level of legislation (from Laws to Minister Decrees)

Conclusion – this approach was the right one, only it came a bit late; energy and time wasted with the first screening. However, what made this approach possible and functional was the fact that we had passed the horizontal law and this had a strong effect on all stakeholders

[V. Points of single contact]

1. What is PSC?

Guichet unique?

The single institutional interlocutor for service providers who want to establish their business in a member state or to provide cross-border services

Can be organized in:

a single, existent organization with a territorial infrastructure

a single new organization, which does not necessarily undertake functions and/or powers of competent authorities

different organizations for different areas of services

electronic PSC only / electronic PSC + physical infrastructure

Differentiate between Single point of contact and Point of single contact

Key elements:

→ Communication with the service providers

→ Communication with the competent authorities (CAs)

→ Content management

Complete “(a) all procedures and formalities needed for access to service activities, in particular, all declarations, notifications or applications necessary for authorisation from the competent authorities, including applications for inclusion in a register, a roll or a database, or for registration with a professional body or association;” and “(b) any applications for authorisation needed to exercise his service activities”. (art.6 (1)).

Receive information (art.7(1)) on:

Requirements applicable to providers established in the respective MS in order to access and to exercise service activities

Access to public registers and databases on providers of services

Means of redress in the event of dispute (CA - Provider; CA – Recipient; Provider - Recipient; Provider – Provider)

Contact details of: the CAs, associations or organizations other than CAs, from which providers / recipients may obtain practical assistance.


2. What can be done through the PSC?


3. Other requirements

Information has to be provided “in a clear and unambiguous manner”

Information has to be

Easily accessible

Accessible at a distance

Accessible by electronic means

Kept up to date

Preferably “available in other Community languages

CONCLUSION:

top priority – build up electronic Point(s) of Single Contact which can be supported or not by a physical infrastructure


4. Approach across MS

Branding: member states agreed on the use of a common brand which would ease the access of service providers to information and the use of the platforms, regardless of the member state where they wish to provide services

“EU-GO” brand/logo (the majority of MS reserved or intend to reserve the “EU-GO” URL in their national web domain

Access points: Most MS will have a single PSC, that is a single electronic PSC portal; 2 MS will have multiple PSCs based on regional competences, accessible through a central portal

Competences: Generally, PSCs will just liaise between service providers and the CAs

Physical infrastructure: In some MS, the electronic PSC will be combined with physical infrastructures, which are generally existing offices run by local administrations; 12 MS do not foresee putting in place physical offices

Language: Many MS plan to provide the information in other Community languages than the national language


5. Romanian approach

Single Point of Single Contact

No physical infrastructure at this stage

Planning to have the information available in at least one other Community language

No competence in deciding on granting the authorization

Functionalities:

Provides all necessary information

Registration number for identification of the provider throughout the entire process

Collects all information/documents

Distributes relevant information to CAs

Collects information from the CAs and gets back to the provider

Possibility to follow progress of the application

Possibility to get information on means of assistance


5. Romanian approach – basic architecture

SEN

Institutie Publica Proprietar 1

Depozit Local de Documente

Internet

Depozit Centralizator de

Document

Conexiune

Computer Personal

User

Conexiune

Frontoffice SEN

Backoffice Institutie Publica 1

SincronizareDocumente

Institutie Publica Proprietar n

Depozit Local de Documente

Backoffice Institutie Publica n

Conexiune

SincronizareDocumente

Local Document Repository

Central Document Repository

Synchronize documents

Synchronize documents

Competent Authority 1

Competent Authority nPersonal Computer

Back office CA 1

Back office CA n

Local Document Repository


Role and responsibility of the service provider

Authentication:-Through the e-Guvernare webgate;-Authentication – persistent in the portal, in order to allow access to the operations fulfilled by the provider-The provider can recover / change credentials when needed

Application:-The provider sends the completed forms, as well as all documents and information required, in accordance with procedures as described by the Competent Authority (CA), online, through the PSC

What should the provider know about the workflow of the documents submitted? Nothing

How does the provider get the answer?-Through the PSC, with automatic notification to his/her mailbox-Direct download from the PSC

How does the provider interact with the CA for more documents or information- The provider will be informed by email that the responsible CA opened a chat window in

the PSC (link, credentials, date) or -The provider is notified by email as to the supplementary documents the CA requests, as well as to the rules of procedure on the basis of which the docs/information is required (also, the

date of the request)


Role and responsibility of the Competent Authority

How does a CA receive an application from a provider?-Through the PSC, with automatic email notification

How is the application to be treated?-Workflow of the CA-Each CA involved is responsible for treating the application-Tacit approval, where applicable

Links between several CAs involved in a single application-Through Standards directly established between CAs-The Standards would contain also deliverables, the duration of the processing and deadlines for delivery from one CA to another

How does a CA request for extra-information from the provider?-Through the PSC on the basis of a pre-approved procedure

How does the provider receive the result of the processing of the application?-Through the PSC, as a document signed electronically, with advanced/qualified sighnature of the CA

If a request is not resolved by the CA, tacit approval may apply Legal term for resolution of requests starts from the day when the application is posted on the PSC, unless different legal provisions apply The exchange of information and all documents are archived and accessible to the provider and the CA; no changes can be made to the content of the information/documents exchanged

VI. Administrative cooperation - IMI

General obligations – how we dealt with them

Exchange of information – obligations provided in the horizontal law and in specific legislation

Supervision: checks, inspections and investigations + take measures – detailed provisions in the horizontal law

Access to registers – provision in the horizontal law, set of filled in questionnaires on registers from authorities

- implementing measures: actions will be taken in the following 2-3 years to create electronic registers where they are not available and to standardize the content of the registers

Use of IMI (Internal Market Information System)

[VI. Internal Market Information System]

1. What is IMI?

Electronic network of competent authorities from all member states

System of communication and exchange of information

Support for several directives related to the Internal Market

Directive 2005/36/CE – Professional Qualifications

Directive 2006/123/CE – Services

Multilingual tool


2. General principles and features

Competent authorities communicate directly with each other

Search facilities allow for accurate identification of the competent authority from another MS, regardless of the difference in administrative structures

The exchange of information is based on pre-defined sets of questions

Requests through IMI have to be dully motivated

It does not serve for permanent and systematic checks of all documents submitted by service providers

If a user cannot identify the right CA on the basis of the search facility, it can address the request to the national or the delegate IMI coordinator

Flexible system that allows for each MS to set their own architecture and inter-connections between authorities


2. General principles and features

When receiving a request, a CA is obliged to answer in the shortest possible period of time

The system generates reminders to help managing the requests

When receiving a request, a user receives also an e-mail generated by the system

The system is secured and is designed exclusively for authorities; no access for the public

Coordinators can monitor the exchanges of information between CAs but cannot view the content of the requests

Data Protection – information is automatically deleted from the system in 6 months after the request was closed but can be deleted earlier, upon request by the service provider

Forms for requests and answers are generated in the language used by each CA

VI. Internal Market Information System

3. Characteristics of the Romanian administration with relevance for administrative cooperation

Most legislation – national level

Most authorization schemes – managed at national level or by local authorities subordinated to a national ministry or authority

Registers: mostly central, at national level; some are managed at local level, with regular feeding of information to the central register

Organizational culture – rather strict in terms of communication and decision making (top-down communication prevails; centralized approach)

General practice in managing information: paper based archives prevail

Need to formalize decision making processes, including in working groups

Background in administrative cooperation: some examples of good practice, but generally the cooperation between institutions is un-structured, paper based

Very strict in defining competences and especially limits of competency

Sensitive to legislation and less responsive to less formal ways of regulating (methodologies, strategies, action plans, guidelines, instructions, etc)


• Took responsibility in our hands to provide for the basic tools

• Made an action plan for the participation to the pilot – used the pilot as a trigger

• Put together training materials, based on the material provided by the Commission

• Held training sessions, with no special resources (simple hall, with a screen and a computer connected to the internet, demonstrating how IMI works)

• The training contained a session of legal notions and a practical session on the use of the system

• We only registered users after the training, so that they could actually use the system

• We gave everyone targets of fictive changes of information (although most of them did not reach their target, they at least engaged in a few exchanges, which ensured a minimum practice before the real system was released)

• With respect to the alert mechanism – everyone is responsible; all CAs at central level have access to the alert workflow (it will probably be restricted to central authorities)

4. How we did it


5. IMI Actors in the system – Romanian architecture

NIMICNational IMI Coordinator

Department for European Affairs

DIMICDelegate IMI Coordinator

DIMICDelegate IMI Coordinator




Competent Authority n

Competent Authority x


• In order to avoid too many management problems in the first phase, we registered a critical number of authorities to ensure a competent authority in the system for all the services sectors, but we did not register everybody

• In order to be able to make changes easily and to maintain control of the system at the beginning, we chose to register all authorities ourselves (instead of using the self-registration facility); of course, this was feasible because we did not have a huge number of authorities (as was the case for Germany, Netherlands and a few other MS)

√ 28 central authorities registered for Services

√ all users trained and able to use the system reasonably well

√ got financial support from structural funds for a 3 year long project designed for full implementation of the system (trainings, workshops and a national network for administrative cooperation)

6. Results


• In order to fully implement IMI and register all CAs, we needed a framework, time and money

• Since none were available, we submitted an application for European funds for a three year long project and we managed to get the financial support

• The project has as core objective to set up a network of national authorities - for the purpose of administrative cooperation, not necessarily restricted to the provisions of the directive

• Other objectives: train IMI users, improve registers, slight turn from paper based to electronic communication between institutions, improve legislation in services sector, publish easy guides for services (on specific sectors)

• How we plan to do these: protocols between authorities, training sessions, inter-ministry workshops, study visits in other MS, conferences; all of these with members of a huge working group (almost 200 people from about 50 core institutions).

7. Future

VII. SWOT analysis and conclusions

Strengths

- We simplified authorization schemes-The legislation has been screened thoroughly- Authorities are being involved in the mutual evaluation process

Weaknesses-There are uncertainties in relation to how the directive applies in specific sectors- Lack of experience – we don’t know how it will actually work in practice (esp. cross-border services)

- Network of experts who have a good understanding of the SD- Trained people in IMI - A three year project which offers a good framework to continue the work and improve results

- There is no guarantee of the stability of experts who ‘know’ and the core team is very small- Not all authorities are in IMI and there is still work to be done, while the profile of the SD is not so strong any more

Conclusions

The Services Directive requires a special approach, different from the general approach we all have to the transposition of European legislation

It is important to have a central authority in charge with the coordination of the process, but if the transposition of the SD is not seen and planed for as a huge project, it doesn’t pay good results

It is crucial not to underestimate the need for human and financial resources and the actual duration of the process

The transposition of the SD is a challenge but can also be used as an instrument to push towards administrative simplification, better regulation and changes, even if not radical ones, in the administrative culture

It can also lead to improvement of the services the administration provides

The transposition of the SD is an ongoing process, which doesn’t end with the transposition deadline

Thank youThank you!!

GOVERNMENT OF ROMANIADEPARTMENT FOR EUROPEAN AFFAIRS

Bucharest, 011864, 50A Aviatorilor Blvd., 1st District, ROMANIA, tel. +4021 308 53 00, fax. +4021 318 55 24

Rodica Lupu

[email protected]@gmail.com

GOVERNMENT OF ROMANIA DEPARTMENT FOR EUROPEAN AFFAIRS Bucharest, 011864, 50A Aviatorilor Blvd., 1st...

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