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Regulation of authorities granting authorisations and l;icences
Tacit consent for official licences and authorisations

EU law

The EU Services Directive (Directive 2006/123/EC of the European Parliament and Council) requires (among other things - see Supply of services) EU member states to ensure that where the provider of a service is required to obtain the authorisation of, or to notify, a competent authority (i.e. the relevant government department, local authority or other regulatory body) in order to provide the service, the licensing or registration process meets certain requirements relating to clarity, timescales and other matters.

Certain services are excluded from these rules (e.g. audiovisual services, financial services, gambling activities, healthcare services, private security services, social services, temporary work agencies, transport and EU-wide regulated services.

Legal and regulatory information about doing business in other EU countries

The Services Directive led to the establishment  of Points of Single Contact (PSCs) which are online e-government portals that allow people to find out about the rules, regulations and formalities that apply to service activities.

PSCs allow completion of the administrative procedures online (by submitting the necessary application forms and supporting documents etc. electronically). Where such procedures are available, applicants will no longer have to go to the individual offices of different authorities in different countries, one by one. In each EU country, applications can be dealt with online through one single access point, the PSC.

Regarding the processing of applications, competent authorities must process applications for licences and registrations as quickly as possible and within set timescales. If the authority fails to meet a timescale, the licence or registration is deemed to be granted unless a different arrangement is in place in which case the arrangement must be justified by overriding reasons in the public interest. This is referred to as “tacit consent”.

United Kingdom

In the UK, this EU obligation is implemented by the Provision of Services Regulations 2009 (S.I. 2009 No 2999) Part 3. The main obligations of a competent authority are:

* The need for an authorisation scheme must be justified by an overriding reason relating to the public interest, and the objective pursued may not be attained by means of a less restrictive measure.


* The criteria applied by the competent authority must not be exercised arbitrarily and must be non-discriminatory, justified by an overriding reason relating to the public interest, proportionate, clear and unambiguous, objective, made public in advance, and transparent and accessible.


* An authorisation granted to the provider of a service by a competent authority under an authorisation scheme must be for an indefinite period, except where the authorisation is automatically renewed, or is subject only to the continued fulfilment of requirements, the number of available authorisations is limited by an overriding reason relating to the public interest, or a limited authorisation period can be justified by an overriding reason relating to the public interest.


* Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must be clear and made public in advance, and must secure that applications for authorisation are dealt with objectively and impartially.


* Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must not be dissuasive, or unduly complicate or delay the provision of the service.


* Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must be easily accessible.


* Any charges provided for by a competent authority which applicants may incur under an authorisation scheme must be reasonable and proportionate to the cost of the procedures and formalities under the scheme and must not exceed the cost of those procedures and formalities. For a legal challenge to a fee charged by an English local authority for a sex establishment licence, see:

R (on the application of Hemming (t/a Simply Pleasure Ltd) and others) (Respondents) v Westminster City Council (Appellant) [2015] UKSC 25


* Authorisation procedures and formalities provided for by a competent authority under an authorisation scheme must secure that applications for authorisation are processed as quickly as possible and, in any event, within a reasonable period running from the time when all documentation has been submitted. That period must be fixed and made public in advance.


* When justified by the complexity of the issue, that period may be extended once, by the competent authority, for a limited time. The extension and its duration must be notified to the applicant, with reasons, before the original period has expired.


* In the event of failure to process the application within the period set or extended in accordance with the preceding provisions of this regulation, authorisation is deemed to have been granted by a competent authority, unless different arrangements are in place.
* Any different arrangements must be justified by overriding reasons relating to the public interest, including a legitimate interest of third parties.


* All applications to a competent authority for authorisation under an authorisation scheme must be acknowledged as quickly as possible. The acknowledgement must specify the period within which the application will be processed, the available means of redress and whether the authorisation is deemed to have been granted in the absence of a response within the period specified.


* In the case of an incomplete application, the applicant must be informed as quickly as possible of the need to supply any additional documentation, and any possible effects on the period for processing.


* When a request is rejected because it fails to comply with authorisation procedures and formalities under an authorisation scheme, the applicant must be informed of the rejection as quickly as possible.

The Department for Business, Innovation and Skills (“BIS”) has published EU Services Directive Guidance to competent authorities which includes guidance on how to meet the tacit consent requirements.

Inconsistent application of the tacit consent principle

Legaleze comment: our research shows that in cases where local authorities are competent authorities, policy on tacit consent varies considerably. For example, regarding the licensing of premises for beauty treatments, some authorities applying tacit consent and some do not. In our view, consistency is required and central government should seek to reach agreement with the Local Government Association.

If you consider that an authority has failed to meet the above requirements, it will probably be appropriate to take the matter up with the authority concerned. If a local authority has denied tacit consent, but other local authorities do apply it for the same authorisation, it seems to us there is a strong case to take up this issue.

If there is no satisfactory response, in principle there should be a legal remedy, perhaps by way of an appeal to the relevant administrative Tribunal, or if none to the High Court. Legal advice should be taken.

[Page updated: 02/06/2015]

 

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