GOVERNMENT OF ROMANIA

1
GOVERNMENT OF ROMANIA DEPARTMENT FOR EUROPEAN
AFFAIRS Bucharest, 011864, 50A Aviatorilor Blvd.,
1st District, ROMANIA, tel. [phone], fax.
4021 318 55 24
The general and practical process of
transposition based on Romania's experience
Rodica Lupu
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SUMMARY

1. Framework and available tools
2. Characteristics of the SD transposition process
3. Romanian approach to the management of the
   process national framework
4. Screening of the legislation
5. Points of single contact
6. Administrative cooperation - Internal Market
   Information System
7. SWOT analysis and conclusions

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1. Framework and available tools

• 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

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1. Framework and available tools

• 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

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II. Characteristics of the SD transposition
process

• 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 doesnt apply
• Conclusion the transposition requires changes in
  specific legislation, which governs various
  services sectors need for thorough screening

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II. Characteristics of the SD transposition
process

• 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

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II. Characteristics of the SD transposition
process

• 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

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

• 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

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

• 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

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

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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 wasnt 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

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IV. Screening Legislation
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

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IV. Screening Legislation
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

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IV. Screening Legislation
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

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IV. Screening 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

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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

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V. Points of single contact
2. What can be done through the PSC?

• 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.

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V. Points of single contact
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

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V. Points of single contact
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

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V. Points of single contact
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

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V. Points of single contact
5. Romanian approach basic architecture
Competent Authority 1
Local Document Repository
Back office CA 1
Synchronize documents
Personal Computer
Competent Authority n
Synchronize documents
Local Document Repository
Back office CA n
Central Document Repository
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V. Points of single contact
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)

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V. Points of single contact
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

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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)

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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

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VI. Internal Market Information System
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

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VI. Internal Market Information System
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

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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)

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VI. Internal Market Information System
4. How we did it

• 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)

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VI. Internal Market Information System
5. IMI Actors in the system Romanian
architecture
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VI. Internal Market Information System
6. Results

• 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)

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VI. Internal Market Information System
7. Future

• 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).

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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 dont 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
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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 doesnt 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 doesnt end with the transposition
  deadline

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GOVERNMENT OF ROMANIA DEPARTMENT FOR EUROPEAN
AFFAIRS Bucharest, 011864, 50A Aviatorilor Blvd.,
1st District, ROMANIA, tel. [phone], fax.
4021 318 55 24
Thank you!
Rodica Lupurodica.lupu_at_dae.gov.rorodica.lupu.of
fice_at_gmail.com