The direct antecedents of this Ordinance are limited to the regulating ordinance of funerary companies definitively approved by agreement of the Plenary of the Corporation of February 10, 1983, that has been outdated and surpassed by the changes of the sector and by the publication of diverse normative industry, which requires its adaptation.
Funeral services have followed a long process of liberalization in the last fifteen years, with a series of stages and essential consequences in the legal and economic sphere, although still needing adaptations and reforms. Thus, it is mandatory to take into account a series of normative milestones in the said process:
Royal Decree-Law 7/1996, of June 7, on urgent tax measures and promotion and liberalization of economic activity, which liberalized the provision of funeral services, removing them from the list of essential services reserved for local entities and establishing that the town councils could submit the provision of funeral services to a regimen of regulated authorization numerous suspects, so that all the operators who fulfilled the required requirements and who could prove that they had the necessary material means to carry out the transport of corpses could carry out the activity.
Law 24/2005, of November 18, reforms to boost productivity, concerning the funeral sector, which recognized the political effectiveness of the authorization for the activity of transfer of corpses. It also stipulated that the requirements for obtaining the approval should be established by the minimum criteria set by the State and the Autonomous Communities, as the case may be. He also warned that the regulations that regulated the requirements of the authorizations for the provision of funeral services could not establish conditions that would distort the purported liberalization of the sector.
Directive 2006/123 / EC, of the European Parliament and of the Council, of 12 December 2006, on services in the internal market (DSMI), establishes a new regulatory framework for service activities, advocating the establishment of ex-ante administrative control regimes post, when the business has already started, instead of ex ante controls on the market, which act as entry barriers, often unnecessary and / or disproportionate. In the establishment of an authoritarian regime is exceptional, and can only be established if it is due to overriding reasons of general interest (principle of need), and if it complies with the principles of non-discrimination, proportionality and minimum distortion.
Law 17/2009 has established a new framework for the regulation of service activities included in its scope of application, such as funeral services. In line with the Services Directive, it foresees that any measure that implies a limitation to access or exercise of a service activity, such as, for example, an authorization regime, must be justified, be proportionate and not discriminatory
Law 25/2009, of a fundamental nature and with an ambitious approach concerning the provisions of the Services Directive, is necessary for the municipalities due to the modifications made, among others.
The Law Regulating the Bases of Local Regime introduces in the means of intervention in the activity of citizens, together with the submission to previous license and other acts of preventive control, the prior communication or responsible declaration and the subsequent control at the beginning of the activity, to verify compliance with regulations.
The Law on the Legal Regime of Public Administrations and the Common Administrative Procedure incorporates a necessary legal regime of the means of intervention in the activity of citizens through the responsible declaration and prior communication. The sectoral legislation must specify this minimum regulation and completed for the specific civil actions in the service activities by the Local Ordinances.
The seventh additional provision of Law 25/2009 established that, within six months of its entry into force, the State Government should conduct a study on funeral services and propose, where appropriate, the necessary regulatory changes to guarantee the freedom of choice of funeral service providers, as well as to promote the elimination of other obstacles derived from current regulations.
However, over the years it has been found that the opening of the private market to the funeral market has been more theoretical than practical.
Funeral services and the difficulties to guarantee the free choice of the provider, made some recommendations, among which were:
– Review the regulations governing access to the activity, with the aim of establishing a more proportionate rating system.
– Declare free, within the State, the transfer of dead bodies for a cause that does not represent a health hazard, once the procedures for the death certificate and the Civil Registry, within 48 hours after the death. It is specified that, in these cases, the transfer should not be conditioned to any authorization since it does not involve any health risk.
– Obliging the funeral companies to offer the price list to their clients in a visible place, to increase transparency.
– Strengthen the regime of infractions and sanctions and inspection services.
– In the line of protection of the users, to avoid certain inappropriate practices of reception of services in the hospitals and geriatric residences, and to guarantee that the information offered in these centers about the providers of funeral services Sydney is transparent and favorable to the competition.