Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions
Date: 2018-06-28

num: Article 1
title: Subject matter
paragraphs: This Directive lays down rules on a common framework for conducting proportionality assessments before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, with a view to ensuring the proper functioning of the internal market, while guaranteeing a high level of consumer protection. It does not affect the Member States’ competence, in the absence of harmonisation, and margin of discretion to decide whether and how to regulate a profession within the limits of the principles of non-discrimination and proportionality.
num: Article 2
title: Scope
paragraphs: 1. This Directive shall apply to the legislative, regulatory or administrative provisions of the Member States restricting access to a regulated profession or its pursuit, or one of its modes of pursuit, including the use of professional titles and the professional activities allowed under such title, falling within the scope of Directive 2005/36/EC.
2. Where specific requirements concerning the regulation of a given profession are established in a separate Union act which does not leave Member States a choice as to the exact way in which they are to be transposed, the corresponding provisions of this Directive shall not apply.
num: Article 3
title: Definitions
paragraphs: For the purpose of this Directive, the definitions of Directive 2005/36/EC apply.
In addition, the following definitions apply:
(a)
‘protected professional title’ means a form of regulating a profession where the use of the title in a professional activity or group of professional activities is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of a specific professional qualification, and where the improper use of that title is subject to sanctions;
(b)
‘reserved activities’ means a form of regulating a profession where the access to a professional activity or group of professional activities is reserved, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to members of a regulated profession holding a specific professional qualification, including where the activity is shared with other regulated professions.
num: Article 4
title: Ex ante assessment of new measures and monitoring
paragraphs: 1. Member States shall undertake an assessment of proportionality in accordance with the rules laid down in this Directive before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions.
2. The extent of the assessment referred to in paragraph 1 shall be proportionate to the nature, the content and the impact of the provision.
3. Any provision referred to in paragraph 1 shall be accompanied by an explanation which is sufficiently detailed to make it possible to appraise compliance with the principle of proportionality.
4. The reasons for considering that a provision referred to in paragraph 1 is justified and proportionate shall be substantiated by qualitative and, wherever possible and relevant, quantitative elements.
5. Member States shall ensure that the assessment referred to in paragraph 1 is carried out in an objective and independent manner.
6. Member States shall monitor the compliance of new or amended legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, after adoption, with the principle of proportionality, having due regard to any developments that have occurred since the provisions concerned were adopted.
num: Article 5
title: Non-discrimination
paragraphs: When introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, Member States shall ensure that those provisions are neither directly nor indirectly discriminatory on the basis of nationality or residence.
num: Article 6
title: Justification on grounds of public interest objectives
paragraphs: 1. Member States shall ensure that the legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions that they intend to introduce and that the amendments that they intend to make to existing provisions are justified by public interest objectives.
2. Member States shall consider in particular whether the provisions referred to in paragraph 1 are objectively justified on the basis of public policy, public security or public health, or by overriding reasons in the public interest, such as preserving the financial equilibrium of the social security system; the protection of consumers, of recipients of services and of workers; the safeguarding of the proper administration of justice; ensuring the fairness of trade transactions; the combating of fraud and the prevention of tax evasion and avoidance, and the safeguarding of the effectiveness of fiscal supervision; transport safety; the protection of the environment and the urban environment; the health of animals; intellectual property; the safeguarding and conservation of the national historic and artistic heritage; social policy objectives; and cultural policy objectives.
3. Grounds of a purely economic nature or purely administrative reasons shall not constitute overriding reasons in the public interest, justifying a restriction on access to, or the pursuit of, regulated professions.
num: Article 7
title: Proportionality
paragraphs: 1. Member States shall ensure that the legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions that they introduce, and that the amendments that they make to existing provisions, are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary to attain that objective.
2. To that end, before adopting the provisions referred to in paragraph 1, Member States shall consider:
(a)
the nature of the risks related to the public interest objectives pursued, in particular the risks to service recipients, including consumers, to professionals or to third parties;
(b)
whether existing rules of a specific or more general nature, such as those contained in product safety law or consumer protection law, are insufficient for the attainment of the objective pursued;
(c)
the suitability of the provision as regards its appropriateness to attain the objective pursued and whether it genuinely reflects that objective in a consistent and systematic manner and thus addresses the risks identified in a similar way as in comparable activities;
(d)
the impact on the free movement of persons and services within the Union, on consumer choice and on the quality of the service provided;
(e)
the possibility of using less restrictive means to achieve the public interest objective; for the purposes of this point, where the provisions are justified by consumer protection only and where the risks identified are limited to the relationship between the professional and the consumer, and therefore do not negatively affect third parties, Member States shall assess in particular whether the objective can be attained by means that are less restrictive than reserving activities;
(f)
the effect of new or amended provisions, when combined with other provisions restricting access to, or the pursuit of, the profession, and in particular how the new or amended provisions, combined with other requirements contribute to and whether they are necessary for the achievement of the same public interest objective.
Member States shall also consider the following elements where relevant to the nature and the content of the provision being introduced or amended:
(a)
the connection between the scope of activities covered by a profession or reserved to it and the professional qualification required;
(b)
the connection between the complexity of the tasks concerned and the need for those carrying them out to possess specific professional qualifications, in particular as regards the level, the nature and the duration of the training or experience required;
(c)
the possibility of obtaining the professional qualification by alternative routes;
(d)
whether, and why, the activities reserved to certain professions can or cannot be shared with other professions;
(e)
the degree of autonomy in exercising a regulated profession and the impact of organisational and supervision arrangements on the attainment of the objective pursued, in particular where the activities relating to a regulated profession are pursued under the control and responsibility of a duly qualified professional;
(f)
the scientific and technological developments which may effectively reduce or increase the asymmetry of information between professionals and consumers.
3. For the purposes of point (f) of the first subparagraph of paragraph 2, Member States shall assess the effect of the new or amended provision when combined with one or more requirements, bearing in mind the fact that such effects might be positive as well as negative, and in particular the following:
(a)
reserved activities, protected professional title or any other form of regulation within the meaning of point (a) of Article 3(1) of Directive 2005/36/EC;
(b)
obligations to undergo continuous professional development;
(c)
rules relating to the organisation of the profession, professional ethics and supervision;
(d)
compulsory membership of a professional organisation or body, registration or authorisation schemes, in particular where those requirements imply the possession of a specific professional qualification;
(e)
quantitative restrictions, in particular requirements limiting the number of authorisations to practise, or fixing a minimum or a maximum number of employees, managers or representatives holding specific professional qualifications;
(f)
specific legal form requirements or requirements which relate to the shareholding or management of a company, to the extent those requirements are directly linked to the exercise of the regulated profession;
(g)
territorial restrictions, including where the profession is regulated in parts of a Member State’s territory in a manner that is different to the way in which it is regulated in other parts;
(h)
requirements restricting the exercise of a regulated profession jointly or in partnership, as well as incompatibility rules;
(i)
requirements concerning insurance cover or other means of personal or collective protection with regard to professional liability;
(j)
language knowledge requirements, to the extent necessary to practise the profession;
(k)
fixed minimum and/or maximum tariff requirements;
(l)
requirements on advertising.
4. Before introducing new, or amending existing, provisions, Member States shall, in addition, ensure the compliance with the principle of the proportionality of specific requirements related to temporary or occasional provision of services, provided under Title II of Directive 2005/36/EC, including:
(a)
automatic temporary registration with or pro forma membership of a professional organisation or body, referred to in point (a) of the first paragraph of Article 6 of Directive 2005/36/EC;
(b)
a declaration to be made in advance pursuant to Article 7(1) of Directive 2005/36/EC, documents required pursuant to paragraph 2 of that Article or any other equivalent requirement;
(c)
the payment of a fee, or any charges, required for the administrative procedures, related to the access to, or the pursuit of, regulated professions which the service provider incurs.
This paragraph shall not apply to measures designed to ensure compliance with applicable employment terms and conditions that Member States apply in accordance with Union law.
5. Where provisions referred to in this Article concern the regulation of healthcare professions and have patient safety implications, Member States shall take account of the objective of ensuring a high level of human health protection.
num: Article 8
title: Information and involvement of stakeholders
paragraphs: 1. Member States shall, by appropriate means, make information available to citizens, service recipients and other relevant stakeholders, including those who are not members of the profession concerned, before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions.
2. Member States shall appropriately involve all parties concerned and shall give them the opportunity to make their views known. Where relevant and appropriate, Member States shall carry out public consultations in accordance with their national procedures.
num: Article 9
title: Effective remedy
paragraphs: Member States shall ensure that an effective remedy is available with regard to the matters covered by this Directive, in accordance with procedures laid down in national law.
num: Article 10
title: Exchange of information between Member States
paragraphs: 1. For the purposes of the efficient application of this Directive, Member States shall take the necessary measures to encourage the exchange of information among Member States on matters covered by this Directive and on the particular way that they regulate a profession, or on the effects of such regulation. The Commission shall facilitate such exchange of information.
2. Member States shall inform the Commission of the public authorities responsible for transmitting and receiving information for the purposes of applying paragraph 1.
num: Article 11
title: Transparency
paragraphs: 1. The reasons for considering that provisions, assessed in accordance with this Directive, are justified and proportionate, which, together with the provisions, are to be communicated to the Commission pursuant to Article 59(5) of Directive 2005/36/EC, shall be recorded by the Member States in the database of regulated professions, referred to in Article 59(1) of Directive 2005/36/EC and shall be made publicly available by the Commission.
2. Member States and other interested parties may submit comments to the Commission or to the Member State which has communicated the provisions and the reasons for considering that they are justified and proportionate. These comments shall be duly taken into account by the Commission in its summary report produced pursuant to Article 59(8) of Directive 2005/36/EC.
num: Article 12
title: Review
paragraphs: 1. By 18 January 2024 and every five years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the implementation and performance of this Directive, including, among other aspects, its scope and its effectiveness.
2. Where appropriate, the report referred to in paragraph 1 shall be accompanied by relevant proposals.
num: Article 13
title: Transposition
paragraphs: 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 July 2020. They shall immediately inform the Commission thereof.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.
2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.
num: Article 14
title: Entry into force
paragraphs: This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.