of declarations and communications does not exempt the Administration from its duties of verification, control, and inspection, as carefully articulated in Article 69(4). Broadly speaking, the new regulatory framework derived from the Services Directive shifts administrative control from a priori authorizations and licenses to a posteriori oversight. This shift neither alters nor modifies the public interest in ensuring that these activities are established and developed in accordance with statutory requirements. It is true that such public interest is more conspicuous in activities that impact society’s general interests with greater intensity—such as those affecting the core values cited in Article 4(8) of the Directive and reproduced in Article 3(11) of Law 17/2009—the presence of which allows for stricter conditions under an authorization regime due to ‘overriding reasons relating to the public interest’. But this does not mean that the public interest disappears or is weakened in other economic activities where prior administrative authorization is not required. The fact that it does not reach that maximum level of intensity does not warrant classifying it as weak or tenuous”. In short, the High Spanish Court argues that the public interest in activities devoid of overriding reasons relating to the public interest is exactly the same as in those where such reasons exist. The public interest does not disappear or diminish in activities exempt from ex-ante controls. Yet, a rigorous reading of the Services Directive suggests precisely the opposite. IV. THE HIERARCHY OF PUBLIC INTEREST: PROPORTIONALITY IN OVERSIGHT A close examination of Article 9 of the Services Directive reveals that the European legislator intended the exact opposite of the Spanish Supreme Court’s interpretation. The text of the provision reads as follows: Article 9 - Authorization schemes 1. Member States shall not make access to a service activity or the exercise thereof subject to an authorization scheme unless the following conditions are fulfilled: a) the authorization scheme does not discriminate against the provider in question; (silencio positivo) functions as a constructive approval or implied consent, granting the applicant the requested license or right by operation of law due to administrative inertia. 54 ALEJANDRO CORRAL SASTRE
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