- Email: [email protected]
The European directive of services: Bolkestein directive
Available online at www.sciencedirect.com Available online at www.sciencedirect.com
ScienceDirect ScienceDirect
Procedia Manufacturing 00 (2017) 000–000 Available online atatwww.sciencedirect.com Available online www.sciencedirect.com Procedia Manufacturing 00 (2017) 000–000
ScienceDirect ScienceDirect
www.elsevier.com/locate/procedia www.elsevier.com/locate/procedia
Procedia Manufacturing 13 (2017) 1421–1425 Procedia Manufacturing 00 (2017) 000–000 www.elsevier.com/locate/procedia
Manufacturing Engineering Society International Conference 2017, MESIC 2017, 28-30 June Manufacturing Engineering Society Conference 2017, International Vigo (Pontevedra), Spain2017, MESIC 2017, 28-30 June 2017, Vigo (Pontevedra), Spain
The European directive of services: Bolkestein directive
The European of services: Bolkestein directive Manufacturing Engineeringdirective Society International Conference 2017, MESIC 2017, 28-30 June a a b 2017, Vigo (Pontevedra), Spain A.S. Rodríguez de la Fuente , A. Sánchez Lite , J. Gejo García , M. García Garcíab,* A.S. Rodríguez de la Fuentea, A. Sánchez Litea, J. Gejo Garcíab, M. García Garcíab,*
University of Valladolid, Valladolid, Spain Costing models forDistance capacity optimization inMadrid, Industry 4.0: Trade-off UniversityNational of Valladolid, Valladolid, Spain Education University (UNED), Spain Distance Education National University (UNED), Madrid, Spain between used capacity and operational efficiency a
b
a
b
Abstract Abstract A. Santanaa, P. Afonsoa,*, A. Zaninb, R. Wernkeb One of the main Treaty rules is to create aa competitive market in services. This is essential to promote economic growth and create of Minho, 4800-058 One Treaty rules Actually, is to createtheaUniversity competitive market in services. This their isPortugal essential to promote growth and create jobs of in the main European Union. SMEs have lot of barriers toGuimarães, extend operations beyondeconomic their national borders. This b Unochapecó, 89809-000 SC,their Brazil jobs the European Union. Actually,about the SMEs have barriersChapecó, to extend operations beyond their national This paperinstudies the different regulations services in lot theof domestic market. Principally the Directive 2006/123/EC of borders. the European paper studies theofdifferent regulations about services domestic market. Principally theand Directive of thethis European Parliament and the Council of 12 December 2006,inasthe well as some other Spanish Laws Royal 2006/123/EC Decree regarding matter. Parliament and of the Council 12 December 2006, as wellEuropean as some other andget Royal Decree market regarding matter. Only removing those barriers, of while ensuring an advanced socialSpanish model,Laws we can an internal thatthis takes into Only removing those barriers, while ensuring an advanced European social model, we can get an internal market that takes account other general interest objectives, including the protection of the environment, public security and public health. Theseinto are Abstract account other general interest objectives, including protection thewhen environment, public security and public These are all of high importance due to the clear impact and thethe key role they of play it comes to receiving permission forhealth. the development all of high importance to the clear impact and the key role they play when it comes to receiving permission for the development of economic activities.due Under the concept of "Industry 4.0", production processes will be pushed to be increasingly interconnected, of economic activities.Published by Elsevier B.V. © 2017 The Authors. information based on a real time basis and, much more efficient. In this context, capacity optimization © 2017 The Authors. Published by B.V.necessarily, Peer-review under responsibility of Elsevier the scientific committee of the Manufacturing Engineering Society International Conference © 2017 The Authors. Published by of Elsevier B.V.maximization, contributing also for organization’s profitability and value. goes beyond the traditional aim capacity Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. Indeed, 2017. lean management and continuous improvement approaches suggest capacity optimization instead of
maximization. The study of capacity and costing an important research topic that deserves Keywords: Directive 2006/123/EC; Directive ofoptimization Services; Bolkestein Directive;models Europeanis social model. Keywords: Directive Directive of Services; Bolkestein Directive; European social model. contributions from2006/123/EC; both the practical and theoretical perspectives. This paper presents and discusses a mathematical model for capacity management based on different costing models (ABC and TDABC). A generic model has been 1. Origin and subjects developed and itoverall was used to analyze idle capacity and to design strategies towards the maximization of organization’s 1. Origin overallcapacity subjectsmaximization vs operational efficiency is highlighted and it is shown that capacity value. Theand trade-off The European is seeking to strengthen ever closer links between the States and peoples of Europe and to optimization mightUnion hide operational inefficiency. TheThe European Union is seeking toThis strengthen closer linksand between the States andconsolidated peoples of Europe to © 2017 Authors. Published by Elsevier B.V.is statedever ensure economic and social progress. in the Preface the Article 14 of the versionand of the ensure economic and social progress. This is stated in the Preface and the Article 14 of the consolidated version of the Peer-review under responsibility the scientific committee of the Manufacturing Engineering Society International Conference European Union PerformanceofTreaty. European Union Performance Treaty.is essential in order to promote economic growth and the creation of employment 2017. A competitive market in services A competitive market in services is essential in order to promote growth and the creation of employment in the European Union. Currently, there are many barriers in theeconomic internal market to access the service provider, Keywords: Cost Models; ABC; TDABC; Capacity Capacity; Efficiency in the European Union. Currently, thereManagement; are manyIdle barriers inOperational the internal market to access the service provider, 1. Introduction
* Corresponding author. Tel.: +0-000-000-0000 ; fax: +0-000-000-0000 . * Corresponding Tel.: +0-000-000-0000 ; fax: +0-000-000-0000 . E-mail address:author. [email protected] The cost of idle capacity is a fundamental information for companies and their management of extreme importance E-mail address: [email protected]
in modern©production systems. In general, it isB.V. defined as unused capacity or production potential and can be measured 2351-9789 2017 The Authors. Published by Elsevier 2351-9789 2017responsibility The Authors. Published by Elsevier B.V.hours Peer-review of the scientific committee of the Manufacturing Engineering Conference in several©under ways: tons of production, available of manufacturing, etc.Society The International management of the 2017. idle capacity Peer-review underTel.: responsibility the761; scientific committee the Manufacturing Engineering Society International Conference 2017. * Paulo Afonso. +351 253 of 510 fax: +351 253 604of741 E-mail address: [email protected]
2351-9789 © 2017 The Authors. Published by Elsevier B.V. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. 2351-9789 © 2017 The Authors. Published by Elsevier B.V. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. 10.1016/j.promfg.2017.09.157
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especially SMEs, to extend operations beyond their national boundaries and take advantage of the Internal Market. All these lease to a weakening of the worldwide competitiveness of service providers within the European Union [1]. The Bolkestein Directive responds to the project which solid base this standard is set was created by Former European Commissioner neo-liberal trends (Frits Bolkestein) to become the most competitive and dynamic knowledge-driven economy in the world. One of its fundamental aims is the creation of a legal system and to delete the legal aspects, those measures impeding the effective operation of an internal market [2]. The Parliament Council Directive 2006/123, December 12th, (Services Directive), also known as the Bolkestein Directive, pretends to boost the European Internal Market, joining the Members States legal system and removing restrictions and obstacles to facilitate the adequate system necessary for the freedom of establishing and providing services. The initiative to develop the Directive emerges also with the aim of “promoting a harmonious, balanced and sustainable development of the economic activities within the Community, a high rate of employment and social protection, the equality between males and females, a sustainable and non-inflationist growth, a high level of competitiveness and convergence of the economical results, a high level of protection and an improvement in the quality of the environment, the increase of the level and quality of life, the economic and social cohesion, and the solidarity among the Member States” [3]. The author Fuertes M., expressed in her article “Luces y Sombras en la incorporación de la Directiva de Servicios” (2011) [1], her rejection towards the said Directive, stating the following: “Confusing, Imprecise, twisted, ambiguous, contradictory... those are just some of the adjectives used by the specialised opinion to address the Directive of services. Its initial aim seemed to be praiseworthy, even though the objective has been repeated over a thousand times and lacks of common sense”. Among the different defects pointed out from the Directive of services, some include its complex grammar, its ambiguous interpretations, translation mistakes, confusing expressions and collocations... All of it together with the fact that many consider the Directive to be a war between two extremes: the Social Europe and the latest neoliberal trends [4]. It is important to add that many professional groups requested to be excluded from the area and the extent of application of the Directive, thus resulting in several negotiations among political parties, the European Commission and the European Council, which lead to all sectors considering the normative as abstruse. Apart from the evident difficulties to interpret the Directive, and apart from the characteristics it has, excluding just a few collectives of professionals from its domains, another problem is added to the equation, which is that each country of the European Union, in which the Directive is to be adopted, already have their own normative and legislations used to control both local and national commerce and businesses, and, in some cases, the Directive and the local regulations do not support each other [5]. The Directive of services, indirectly, does not constitute just a Directive, used to guarantee a common market for services, but also affects the internal activities of the country, where national operators are especially affected by it. By adopting a Directive that aims to provide an answer to the issue of intervening within the services sector of a country can result in an extensive effort of the European context, taking into account the magnitude of the activities affected and the diverse requirements of general interest involved; this all has lead the Directive to determine which is the most common area where it will be applied, and the answer was clear: the small and medium sized businesses [6]. It is important to remember that, from the 27 countries coexisting in the European Union there are at least two different management models, some exert their control before the business is created- and have an extensive list of requisites to be met before the project can be approved- as are the German and the Spanish systems, that manage from professional qualifications required to develop the business to the type of infrastructures the business will have; in the other hand, other models, such as the English and all the others developed from it, have a larger participation and involvement from the public, limiting their control to the initiation of the activity and the development it has once it has been established. What could be considered as an extension of the effects of the internal affairs, has a reason to be, trying to avoid any kind of discrimination towards the national operators working in each of the Member States. Obviously this option causes several problems directly attacking the legitimacy of the community authorities due to the deregulatory nature
A.S. Rodríguez de la Fuente et al. / Procedia Manufacturing 13 (2017) 1421–1425 A.S. Rodríguez de la Fuente / Procedia Manufacturing 00 (2017) 000–000
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of the normative. The reason for this is due to the Directive reducing the capacity of the countries to modify the regulatory model regarding the activity of services [7]. 2. Essential definitions of directive of services To gain a better understanding of the area of application of the Directive, it is important to set a series of basic concepts that can also found on its Article 4. Thus, among the essential concepts, we need to outline the following [3]: “Service”: any independent economic activity, normally provided in exchange of remuneration. Some of these activities are: services provided for businesses, office maintenance, business advertising, hiring of staff or commercial agent services [8]. All these are services related to business companies, but there are also services that can be used by both businesses and consumers. Some examples of these are: legal and fiscal advice, Real State companies, building companies, car renting or travel agencies. The Directive also includes services specific for consumers: tourist guides, recreational services (sports centres, theme parks...etc.). There are also some social services that have not been excluded, such as home assistance services and services for the elder. The definition for all these terms is covered in Articles 33 and 50 of the Treaty [9]. “Establishment”: described in Article 43 of the Treaty, the term states the actual pursuit of an economic activity for an indeterminate duration of time and through the use of a stable infrastructure that enables the providing of services. “Authorization scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service or activity or the exercise thereof. “Provider”: physical individual with a Member State’s citizenship, or legal entity performing a service supplying activity. The provider won’t be limited solely to the services given at an international level to any Member State, but also includes all those operators established within a Member State where they offer their services. (Art. 36). “Receiver”: The Directive considers the citizens from third countries benefiting from the services provided by Member States as receivers. These receivers, residents in the countries where the Directive is operative, meet a set of requisites expressed in different regulations by the EEC, where it is acknowledged the right of the European Union’s citizens to freely live and circulate among the Member States (Art. 36). “Overriding reasons relating to the public interest” means reasons recognized as such in the case law of the Court of Justice, including the following grounds: public policy, public security, public safety, public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives (Art 40). “Commercial communication” means any form of communication designed to promote, directly or indirectly, the goods, services or image of undertaking, organization or person engaged in commercial, industrial or craft activity or practicing a regulated profession. The following do not in themselves constitute commercial communications [10]: a) Information enabling direct access to the activity of the undertaking, organization or person, including in particular a domain name or an electronic-mailing address. b) Communications relating to the goods, services or image of the undertaking, organization or person, compiled in an independent manner, particularly when provided for no financial consideration. 3. Transposition of the directive and policy development In order for the Directive of Services to be implemented in Spain, there has been a series of regulations created so the normative can be adjusted into the already existing legislative framework of the country. To perform this transposition, two laws have been created: Law 17/2009, November 23rd, on the free access to service activities and their practice (colloquially known as the “Umbrella Law”). Law 25/2009, December 22nd, on the modification of
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several laws for the adaptation to the law of free access to service activities and their practice (known as “Omnibus Law”, that we will further discuss later in this essay) [11]. The transposition carried by the Government is ruled by the Competential Authority of the Spanish Constitution (Art. 149). Thus, and as mentioned before, a legislative process has been carried to modify various laws so they can adapt to the Directive of Services, known as Law 25/2009, December 22nd or “Omnibus Law” [12]. This law shows a series of terms created for the Directive of Services, as it talks about Previous Communications and Responsibility Declarations, instead of the Administrative Authorizations, admitting some of these will have validity in the entirety of the national territory. Despite this, it is quite criticised that one of the most obvious flaws of this normative is to maintain the regimen of “negative silence” in several of their operations, which can lead to a noncompliance of the community’s normative [1]. In regards to the different Regional Councils, they have seen themselves in the necessity to carry several operations and reforms to adequate the Directive to the different goals each Regional Council has. In some cases these changes have enabled the elimination of hundreds of regulations helping to speed up some processes and unify some other operations so it is the same throughout the national territory. This of course involves a long process where many factors interfere before an understanding among the different City Councils is reached. Still, and in certain cases, the Regional Council keeps working under their own regulation for a given type of services and processes related with the creation of businesses [13].
Fig.1. 2000 questions of urban licenses after directive of services.
The Omnibus Law introduces a new precept: Law 30/92 of the Legal Regimen and the Common Administrative Process, which has a basic nature. This is Art. 71 bis, and introduces two new terms in the area of administrative intervention: Previous Communications: Document through which managers notify the Public Administration about their willingness to start a new business, attaching all their personal information and other relevant documents required for the creation of said activity, according to what’s established in Article 70 of the Treaty. It is, in other words, the acquisition of an enabling title for them to commence the desired activity. Self-Declaration: This is the document signed by the providers in which they communicate to the competent authority, that they comply with the legal requirements to start the activity or the service; that they are in possession of valid entry documents, so the competent authority can verify the compliance of legal requirements [5]. 4. Conclusions From a practical point of view, it becomes unreachable to produce a thorough analysis of each of the local regulatory measurements that have been taking place in order to adjust to what’s been stated by the Directive of Services. The Directive of Services has produced a large impact in the current legislation in each of the Member States it affects,
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including Spain. In an attempt to facilitate the access to an interior market for both large and small sized retail companies, the Directive, an even though it has a laudable intention trying to improve the European framework for the market place, has disrupted the normative and the control exerting organisms both at a national level, but mostly at a regional level. It is hard to apply a normative, with such global and generalized features, since it has been created with a scope for the entire European Unions, and not something specific that can adjust to the particular circumstances of each Member State. In a country as it is ours, implementing such a broad normative has involved a large work of restructuration and reorganization of the existing national and local normative; so that all legislations could meet the requisites imposed by the normative. The reason is that each Regional Council has its own legislation, due to the competences given by the related Autonomy Statutes, and many Regional Councils have approved local normative that can differ from similar regulations in other regions of the country that they belong to. Because of all this, the Directive has been received with a large load of critiques. Many of the negative critiques were related to the lack of planning it has had, since it has not taken into account the diverse particularities each Member State has, nor it has evaluated the impact it would have on them and their need to re-adjust their legislations. Also, there have been critiques regarding the type of activities the Directive of services excludes from its scope, and how this affects the Government, leaving an ample legal void in certain areas that can translate into serious issues for the most unfavoured sections of the society, such as are homeless people, since the Directive will not be responsible for the way the services are provided for this collective. In the other hand, the key positive characteristics that can be highlighted from the Directive includes its obvious interest in improving the efficacy and rationality of the terms for granting a quicker answer for the service providers, a reduction in the bureaucracy proceedings, and the simplification of processes ultimate purpose of promoting a better constitution of companies and activity development, doing it in a controlled fashion and ensuring a certain amount of quality parameters, respecting the framework in which the regional normative is found, and granting the development at all the administrative levels. A series of laws have also been developed, as is the case of the colloquially know “Omnibus Law” , that aims to restructure the Spanish legislation so the transposition of the Directive of Services can be done minimizing the impact it will have in both the service providers and the Administration. References [1] J.M. García, La Directiva Bolkestein y Tratado Constitucional. Algunas Reflexiones, CPS 18. [2] M. Fuertes, Luces y Sombras en la incorporación de la Directiva de Servicios, Revista catalana de dret públicm, 42 (2011) 57-83. [3] Europe. Directiva 2006/123/CE del Parlamento Europeo y del Consejo de 12 de diciembre de 2006, relativa a los servicios en el mercado interior, Diario Oficial de la Unión Europea, 376 (2006) 36-68. [4] J.V. González, Autorizaciones, Comunicaciones previas y Declaraciones responsables en la Transposición de la Directiva de Servicios, REAF 11 (2010) 255-293. [5] J.R. Parada, Derecho Administrativo I. Parte General. 18th ed., Marcial Pons (2010). [6] Asociación ProHabitatge. Intermediari Social pero a l’accés a l’habitatge, La Directiva de liberalización de los servicios en la Unión Europea”. Informes. 9 (2005). [7] Europe, Sentencia del Tribunal de Justicia de las Comunidades Europeas, de fecha 3 de diciembre de 1974, asunto Van Binsbergen, sobre la libre prestación de servicios (1974). [8] Spain, Real Decreto-Ley 19/2012, de 25 de mayo, de medidas urgentes de liberalización del comercio y de determinados servicios. Boletín Oficial del Estado, 126 (2012) 37933-37951. [9] BBVA, La Ley Ómnibus o la liberalización del sector servicios (2015). [10] A.S. Rodríguez de la Fuente, et. Al., Las licencias urbanísticas tras la directiva de servicios. 2000 cuestiones para una aproximación teórica y normativa, Letras de autor. 746 (2016). [11] Europe, Sentencia del Tribunal de Justicia de la Comunidad Europea de 21 de junio de 1974, asunto Reyners, sobre la libertad de establecimiento. 1974. [12] T.R Fernández, Nueva Ordenación del comercio minorista en España. (1996) 217-350. [13] Spain, Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas. Boletín Oficial del Estado 236 (2015) 64-96.
ScienceDirect ScienceDirect
Procedia Manufacturing 00 (2017) 000–000 Available online atatwww.sciencedirect.com Available online www.sciencedirect.com Procedia Manufacturing 00 (2017) 000–000
ScienceDirect ScienceDirect
www.elsevier.com/locate/procedia www.elsevier.com/locate/procedia
Procedia Manufacturing 13 (2017) 1421–1425 Procedia Manufacturing 00 (2017) 000–000 www.elsevier.com/locate/procedia
Manufacturing Engineering Society International Conference 2017, MESIC 2017, 28-30 June Manufacturing Engineering Society Conference 2017, International Vigo (Pontevedra), Spain2017, MESIC 2017, 28-30 June 2017, Vigo (Pontevedra), Spain
The European directive of services: Bolkestein directive
The European of services: Bolkestein directive Manufacturing Engineeringdirective Society International Conference 2017, MESIC 2017, 28-30 June a a b 2017, Vigo (Pontevedra), Spain A.S. Rodríguez de la Fuente , A. Sánchez Lite , J. Gejo García , M. García Garcíab,* A.S. Rodríguez de la Fuentea, A. Sánchez Litea, J. Gejo Garcíab, M. García Garcíab,*
University of Valladolid, Valladolid, Spain Costing models forDistance capacity optimization inMadrid, Industry 4.0: Trade-off UniversityNational of Valladolid, Valladolid, Spain Education University (UNED), Spain Distance Education National University (UNED), Madrid, Spain between used capacity and operational efficiency a
b
a
b
Abstract Abstract A. Santanaa, P. Afonsoa,*, A. Zaninb, R. Wernkeb One of the main Treaty rules is to create aa competitive market in services. This is essential to promote economic growth and create of Minho, 4800-058 One Treaty rules Actually, is to createtheaUniversity competitive market in services. This their isPortugal essential to promote growth and create jobs of in the main European Union. SMEs have lot of barriers toGuimarães, extend operations beyondeconomic their national borders. This b Unochapecó, 89809-000 SC,their Brazil jobs the European Union. Actually,about the SMEs have barriersChapecó, to extend operations beyond their national This paperinstudies the different regulations services in lot theof domestic market. Principally the Directive 2006/123/EC of borders. the European paper studies theofdifferent regulations about services domestic market. Principally theand Directive of thethis European Parliament and the Council of 12 December 2006,inasthe well as some other Spanish Laws Royal 2006/123/EC Decree regarding matter. Parliament and of the Council 12 December 2006, as wellEuropean as some other andget Royal Decree market regarding matter. Only removing those barriers, of while ensuring an advanced socialSpanish model,Laws we can an internal thatthis takes into Only removing those barriers, while ensuring an advanced European social model, we can get an internal market that takes account other general interest objectives, including the protection of the environment, public security and public health. Theseinto are Abstract account other general interest objectives, including protection thewhen environment, public security and public These are all of high importance due to the clear impact and thethe key role they of play it comes to receiving permission forhealth. the development all of high importance to the clear impact and the key role they play when it comes to receiving permission for the development of economic activities.due Under the concept of "Industry 4.0", production processes will be pushed to be increasingly interconnected, of economic activities.Published by Elsevier B.V. © 2017 The Authors. information based on a real time basis and, much more efficient. In this context, capacity optimization © 2017 The Authors. Published by B.V.necessarily, Peer-review under responsibility of Elsevier the scientific committee of the Manufacturing Engineering Society International Conference © 2017 The Authors. Published by of Elsevier B.V.maximization, contributing also for organization’s profitability and value. goes beyond the traditional aim capacity Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. Indeed, 2017. lean management and continuous improvement approaches suggest capacity optimization instead of
maximization. The study of capacity and costing an important research topic that deserves Keywords: Directive 2006/123/EC; Directive ofoptimization Services; Bolkestein Directive;models Europeanis social model. Keywords: Directive Directive of Services; Bolkestein Directive; European social model. contributions from2006/123/EC; both the practical and theoretical perspectives. This paper presents and discusses a mathematical model for capacity management based on different costing models (ABC and TDABC). A generic model has been 1. Origin and subjects developed and itoverall was used to analyze idle capacity and to design strategies towards the maximization of organization’s 1. Origin overallcapacity subjectsmaximization vs operational efficiency is highlighted and it is shown that capacity value. Theand trade-off The European is seeking to strengthen ever closer links between the States and peoples of Europe and to optimization mightUnion hide operational inefficiency. TheThe European Union is seeking toThis strengthen closer linksand between the States andconsolidated peoples of Europe to © 2017 Authors. Published by Elsevier B.V.is statedever ensure economic and social progress. in the Preface the Article 14 of the versionand of the ensure economic and social progress. This is stated in the Preface and the Article 14 of the consolidated version of the Peer-review under responsibility the scientific committee of the Manufacturing Engineering Society International Conference European Union PerformanceofTreaty. European Union Performance Treaty.is essential in order to promote economic growth and the creation of employment 2017. A competitive market in services A competitive market in services is essential in order to promote growth and the creation of employment in the European Union. Currently, there are many barriers in theeconomic internal market to access the service provider, Keywords: Cost Models; ABC; TDABC; Capacity Capacity; Efficiency in the European Union. Currently, thereManagement; are manyIdle barriers inOperational the internal market to access the service provider, 1. Introduction
* Corresponding author. Tel.: +0-000-000-0000 ; fax: +0-000-000-0000 . * Corresponding Tel.: +0-000-000-0000 ; fax: +0-000-000-0000 . E-mail address:author. [email protected] The cost of idle capacity is a fundamental information for companies and their management of extreme importance E-mail address: [email protected]
in modern©production systems. In general, it isB.V. defined as unused capacity or production potential and can be measured 2351-9789 2017 The Authors. Published by Elsevier 2351-9789 2017responsibility The Authors. Published by Elsevier B.V.hours Peer-review of the scientific committee of the Manufacturing Engineering Conference in several©under ways: tons of production, available of manufacturing, etc.Society The International management of the 2017. idle capacity Peer-review underTel.: responsibility the761; scientific committee the Manufacturing Engineering Society International Conference 2017. * Paulo Afonso. +351 253 of 510 fax: +351 253 604of741 E-mail address: [email protected]
2351-9789 © 2017 The Authors. Published by Elsevier B.V. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. 2351-9789 © 2017 The Authors. Published by Elsevier B.V. Peer-review under responsibility of the scientific committee of the Manufacturing Engineering Society International Conference 2017. 10.1016/j.promfg.2017.09.157
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especially SMEs, to extend operations beyond their national boundaries and take advantage of the Internal Market. All these lease to a weakening of the worldwide competitiveness of service providers within the European Union [1]. The Bolkestein Directive responds to the project which solid base this standard is set was created by Former European Commissioner neo-liberal trends (Frits Bolkestein) to become the most competitive and dynamic knowledge-driven economy in the world. One of its fundamental aims is the creation of a legal system and to delete the legal aspects, those measures impeding the effective operation of an internal market [2]. The Parliament Council Directive 2006/123, December 12th, (Services Directive), also known as the Bolkestein Directive, pretends to boost the European Internal Market, joining the Members States legal system and removing restrictions and obstacles to facilitate the adequate system necessary for the freedom of establishing and providing services. The initiative to develop the Directive emerges also with the aim of “promoting a harmonious, balanced and sustainable development of the economic activities within the Community, a high rate of employment and social protection, the equality between males and females, a sustainable and non-inflationist growth, a high level of competitiveness and convergence of the economical results, a high level of protection and an improvement in the quality of the environment, the increase of the level and quality of life, the economic and social cohesion, and the solidarity among the Member States” [3]. The author Fuertes M., expressed in her article “Luces y Sombras en la incorporación de la Directiva de Servicios” (2011) [1], her rejection towards the said Directive, stating the following: “Confusing, Imprecise, twisted, ambiguous, contradictory... those are just some of the adjectives used by the specialised opinion to address the Directive of services. Its initial aim seemed to be praiseworthy, even though the objective has been repeated over a thousand times and lacks of common sense”. Among the different defects pointed out from the Directive of services, some include its complex grammar, its ambiguous interpretations, translation mistakes, confusing expressions and collocations... All of it together with the fact that many consider the Directive to be a war between two extremes: the Social Europe and the latest neoliberal trends [4]. It is important to add that many professional groups requested to be excluded from the area and the extent of application of the Directive, thus resulting in several negotiations among political parties, the European Commission and the European Council, which lead to all sectors considering the normative as abstruse. Apart from the evident difficulties to interpret the Directive, and apart from the characteristics it has, excluding just a few collectives of professionals from its domains, another problem is added to the equation, which is that each country of the European Union, in which the Directive is to be adopted, already have their own normative and legislations used to control both local and national commerce and businesses, and, in some cases, the Directive and the local regulations do not support each other [5]. The Directive of services, indirectly, does not constitute just a Directive, used to guarantee a common market for services, but also affects the internal activities of the country, where national operators are especially affected by it. By adopting a Directive that aims to provide an answer to the issue of intervening within the services sector of a country can result in an extensive effort of the European context, taking into account the magnitude of the activities affected and the diverse requirements of general interest involved; this all has lead the Directive to determine which is the most common area where it will be applied, and the answer was clear: the small and medium sized businesses [6]. It is important to remember that, from the 27 countries coexisting in the European Union there are at least two different management models, some exert their control before the business is created- and have an extensive list of requisites to be met before the project can be approved- as are the German and the Spanish systems, that manage from professional qualifications required to develop the business to the type of infrastructures the business will have; in the other hand, other models, such as the English and all the others developed from it, have a larger participation and involvement from the public, limiting their control to the initiation of the activity and the development it has once it has been established. What could be considered as an extension of the effects of the internal affairs, has a reason to be, trying to avoid any kind of discrimination towards the national operators working in each of the Member States. Obviously this option causes several problems directly attacking the legitimacy of the community authorities due to the deregulatory nature
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of the normative. The reason for this is due to the Directive reducing the capacity of the countries to modify the regulatory model regarding the activity of services [7]. 2. Essential definitions of directive of services To gain a better understanding of the area of application of the Directive, it is important to set a series of basic concepts that can also found on its Article 4. Thus, among the essential concepts, we need to outline the following [3]: “Service”: any independent economic activity, normally provided in exchange of remuneration. Some of these activities are: services provided for businesses, office maintenance, business advertising, hiring of staff or commercial agent services [8]. All these are services related to business companies, but there are also services that can be used by both businesses and consumers. Some examples of these are: legal and fiscal advice, Real State companies, building companies, car renting or travel agencies. The Directive also includes services specific for consumers: tourist guides, recreational services (sports centres, theme parks...etc.). There are also some social services that have not been excluded, such as home assistance services and services for the elder. The definition for all these terms is covered in Articles 33 and 50 of the Treaty [9]. “Establishment”: described in Article 43 of the Treaty, the term states the actual pursuit of an economic activity for an indeterminate duration of time and through the use of a stable infrastructure that enables the providing of services. “Authorization scheme” means any procedure under which a provider or recipient is in effect required to take steps in order to obtain from a competent authority a formal decision, or an implied decision, concerning access to a service or activity or the exercise thereof. “Provider”: physical individual with a Member State’s citizenship, or legal entity performing a service supplying activity. The provider won’t be limited solely to the services given at an international level to any Member State, but also includes all those operators established within a Member State where they offer their services. (Art. 36). “Receiver”: The Directive considers the citizens from third countries benefiting from the services provided by Member States as receivers. These receivers, residents in the countries where the Directive is operative, meet a set of requisites expressed in different regulations by the EEC, where it is acknowledged the right of the European Union’s citizens to freely live and circulate among the Member States (Art. 36). “Overriding reasons relating to the public interest” means reasons recognized as such in the case law of the Court of Justice, including the following grounds: public policy, public security, public safety, public health; preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; fairness of trade transactions; combating fraud; the protection of the environment and the urban environment; the health of animals; intellectual property; the conservation of the national historic and artistic heritage; social policy objectives and cultural policy objectives (Art 40). “Commercial communication” means any form of communication designed to promote, directly or indirectly, the goods, services or image of undertaking, organization or person engaged in commercial, industrial or craft activity or practicing a regulated profession. The following do not in themselves constitute commercial communications [10]: a) Information enabling direct access to the activity of the undertaking, organization or person, including in particular a domain name or an electronic-mailing address. b) Communications relating to the goods, services or image of the undertaking, organization or person, compiled in an independent manner, particularly when provided for no financial consideration. 3. Transposition of the directive and policy development In order for the Directive of Services to be implemented in Spain, there has been a series of regulations created so the normative can be adjusted into the already existing legislative framework of the country. To perform this transposition, two laws have been created: Law 17/2009, November 23rd, on the free access to service activities and their practice (colloquially known as the “Umbrella Law”). Law 25/2009, December 22nd, on the modification of
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several laws for the adaptation to the law of free access to service activities and their practice (known as “Omnibus Law”, that we will further discuss later in this essay) [11]. The transposition carried by the Government is ruled by the Competential Authority of the Spanish Constitution (Art. 149). Thus, and as mentioned before, a legislative process has been carried to modify various laws so they can adapt to the Directive of Services, known as Law 25/2009, December 22nd or “Omnibus Law” [12]. This law shows a series of terms created for the Directive of Services, as it talks about Previous Communications and Responsibility Declarations, instead of the Administrative Authorizations, admitting some of these will have validity in the entirety of the national territory. Despite this, it is quite criticised that one of the most obvious flaws of this normative is to maintain the regimen of “negative silence” in several of their operations, which can lead to a noncompliance of the community’s normative [1]. In regards to the different Regional Councils, they have seen themselves in the necessity to carry several operations and reforms to adequate the Directive to the different goals each Regional Council has. In some cases these changes have enabled the elimination of hundreds of regulations helping to speed up some processes and unify some other operations so it is the same throughout the national territory. This of course involves a long process where many factors interfere before an understanding among the different City Councils is reached. Still, and in certain cases, the Regional Council keeps working under their own regulation for a given type of services and processes related with the creation of businesses [13].
Fig.1. 2000 questions of urban licenses after directive of services.
The Omnibus Law introduces a new precept: Law 30/92 of the Legal Regimen and the Common Administrative Process, which has a basic nature. This is Art. 71 bis, and introduces two new terms in the area of administrative intervention: Previous Communications: Document through which managers notify the Public Administration about their willingness to start a new business, attaching all their personal information and other relevant documents required for the creation of said activity, according to what’s established in Article 70 of the Treaty. It is, in other words, the acquisition of an enabling title for them to commence the desired activity. Self-Declaration: This is the document signed by the providers in which they communicate to the competent authority, that they comply with the legal requirements to start the activity or the service; that they are in possession of valid entry documents, so the competent authority can verify the compliance of legal requirements [5]. 4. Conclusions From a practical point of view, it becomes unreachable to produce a thorough analysis of each of the local regulatory measurements that have been taking place in order to adjust to what’s been stated by the Directive of Services. The Directive of Services has produced a large impact in the current legislation in each of the Member States it affects,
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including Spain. In an attempt to facilitate the access to an interior market for both large and small sized retail companies, the Directive, an even though it has a laudable intention trying to improve the European framework for the market place, has disrupted the normative and the control exerting organisms both at a national level, but mostly at a regional level. It is hard to apply a normative, with such global and generalized features, since it has been created with a scope for the entire European Unions, and not something specific that can adjust to the particular circumstances of each Member State. In a country as it is ours, implementing such a broad normative has involved a large work of restructuration and reorganization of the existing national and local normative; so that all legislations could meet the requisites imposed by the normative. The reason is that each Regional Council has its own legislation, due to the competences given by the related Autonomy Statutes, and many Regional Councils have approved local normative that can differ from similar regulations in other regions of the country that they belong to. Because of all this, the Directive has been received with a large load of critiques. Many of the negative critiques were related to the lack of planning it has had, since it has not taken into account the diverse particularities each Member State has, nor it has evaluated the impact it would have on them and their need to re-adjust their legislations. Also, there have been critiques regarding the type of activities the Directive of services excludes from its scope, and how this affects the Government, leaving an ample legal void in certain areas that can translate into serious issues for the most unfavoured sections of the society, such as are homeless people, since the Directive will not be responsible for the way the services are provided for this collective. In the other hand, the key positive characteristics that can be highlighted from the Directive includes its obvious interest in improving the efficacy and rationality of the terms for granting a quicker answer for the service providers, a reduction in the bureaucracy proceedings, and the simplification of processes ultimate purpose of promoting a better constitution of companies and activity development, doing it in a controlled fashion and ensuring a certain amount of quality parameters, respecting the framework in which the regional normative is found, and granting the development at all the administrative levels. A series of laws have also been developed, as is the case of the colloquially know “Omnibus Law” , that aims to restructure the Spanish legislation so the transposition of the Directive of Services can be done minimizing the impact it will have in both the service providers and the Administration. References [1] J.M. García, La Directiva Bolkestein y Tratado Constitucional. Algunas Reflexiones, CPS 18. [2] M. Fuertes, Luces y Sombras en la incorporación de la Directiva de Servicios, Revista catalana de dret públicm, 42 (2011) 57-83. [3] Europe. Directiva 2006/123/CE del Parlamento Europeo y del Consejo de 12 de diciembre de 2006, relativa a los servicios en el mercado interior, Diario Oficial de la Unión Europea, 376 (2006) 36-68. [4] J.V. González, Autorizaciones, Comunicaciones previas y Declaraciones responsables en la Transposición de la Directiva de Servicios, REAF 11 (2010) 255-293. [5] J.R. Parada, Derecho Administrativo I. Parte General. 18th ed., Marcial Pons (2010). [6] Asociación ProHabitatge. Intermediari Social pero a l’accés a l’habitatge, La Directiva de liberalización de los servicios en la Unión Europea”. Informes. 9 (2005). [7] Europe, Sentencia del Tribunal de Justicia de las Comunidades Europeas, de fecha 3 de diciembre de 1974, asunto Van Binsbergen, sobre la libre prestación de servicios (1974). [8] Spain, Real Decreto-Ley 19/2012, de 25 de mayo, de medidas urgentes de liberalización del comercio y de determinados servicios. Boletín Oficial del Estado, 126 (2012) 37933-37951. [9] BBVA, La Ley Ómnibus o la liberalización del sector servicios (2015). [10] A.S. Rodríguez de la Fuente, et. Al., Las licencias urbanísticas tras la directiva de servicios. 2000 cuestiones para una aproximación teórica y normativa, Letras de autor. 746 (2016). [11] Europe, Sentencia del Tribunal de Justicia de la Comunidad Europea de 21 de junio de 1974, asunto Reyners, sobre la libertad de establecimiento. 1974. [12] T.R Fernández, Nueva Ordenación del comercio minorista en España. (1996) 217-350. [13] Spain, Ley 39/2015, de 1 de octubre, del Procedimiento Administrativo Común de las Administraciones Públicas. Boletín Oficial del Estado 236 (2015) 64-96.