Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a proportionality test before adoption of new regulation of professions
Date: 2017-01-10
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: access to a profession, free movement of workers, freedom to provide services, job creation, principle of proportionality, professional qualifications, provision of services, right of establishment, simplification of legislation, single market

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   EUROPEAN COMMISSION  Brussels, 10.1.2017  COM(2016) 822 final 2016/0404 (COD)   Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a proportionality test before adoption of new regulation of professions (Text with EEA relevance) {SWD(2016) 462 final} {SWD(2016) 463 final}  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

A deeper and fairer internal market is a top priority of the Commission: "to put policies that 
create growth and jobs at the centre of the policy agenda".1 The European Council considered 
that “delivering a deeper and fairer Single Market will be instrumental in creating new jobs, 
promoting  productivity  and  ensuring  an  attractive  climate  for  investment  and  innovation”2. 
The significant role of professional services in the EU economy cannot be over-estimated and 
there  are  numerous  studies  demonstrating  the  untapped  benefits  to  furthering  the  Single 
Market in services. 

In the absence of harmonised requirements at EU level, the regulation of professional services 
remains a prerogative of the Member States. It is up to each Member State to decide whether 
there is a need to intervene and impose rules and restrictions for the access to or pursuit of a 
profession, so long as the principles of non-discrimination and proportionality are respected. 
In  the  majority  of  cases,  regulation  is  justified  and  even  welcome,  as  for  example  when  it 
comes to health and safety issues. However, to ensure regulation is fit for purpose and does 
not create unjustified burdens, it ought to be thoroughly considered so as to fully appreciate 
its  effect  upon  stakeholders  and  the  broader  business  environment.  In  line  with  the 
Commission's jobs and growth priorities, ensuring an optimal regulatory environment is key. 
This is why steps to introduce an ex-ante 'proportionality test' when reforming the regulation 
of professional services was announced under the Single Market Strategy3.  

The right to work in the sense of the freedom to pursue one's chosen profession or to conduct 
a business is enshrined in the Charter of Fundamental Rights of the EU. The key benefits of 
the  EU  Single  Market  include  the  freedom  of  establishment  and  the  freedom  to  provide 
services. Limitations  to these  freedoms are particularly burdensome  for SMEs to  overcome. 
As  such,  regulatory  measures  must  be  duly  justified  as  achieved  through  a  thorough 
proportionality assessment.  

'Regulated  professions'  refer  to  activities  where  a  specific  professional  qualification  is 
required  and  such  professions  are present throughout  all  sectors  of  the  economy.  Over  time 
different regulations have been introduced by each Member State reflecting long established 
traditions,  either  in  the  form  of  State  regulation  or  as  self-regulation  by  professional 
associations.  Generally  there  have  been  good  reasons  for  regulation,  based  on  the  need  to 
protect  essential  public  interest  objectives  and  this  brings  value  to  society  by,  for  example, 
clarifying  the  technical  knowledge,  training  and  competences  which  professionals  should 
have to ensure citizens are protected. However, inappropriate regulation can place a burden on 
the  professional,  business  and  consumer;  these  burdens  can  include  disproportionate 
qualification  requirements,  extensive  reserved  activities,  compulsory  membership 
in 
professional  associations  or  other  measures.  In  this  regard,  the  Court  of  Justice  has 
consistently  held  that,  even  if  applied  without  any  discrimination,  national  regulation  of 
professions and any requirements concerning qualifications are liable to hinder or make less 

1 
2 
3 

https://ec.europa.eu/priorities/index_en. 
http://www.consilium.europa.eu/en/press/press-releases/2016/06/28-euco-conclusions/. 
https://ec.europa.eu/growth/single-market_en. 

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attractive the exercise of fundamental freedoms by EU citizens and companies, guaranteed to 
them  by  the  Treaty4.  The  Court  also  held  that  the  fact  that  one  Member  State  imposes  less 
strict  rules  than  another  Member  State  does  not  mean  that  the  latter's  rules  are 
disproportionate  and  incompatible  with  EU  law.  It  is  for  the  Member  States  to  assess  on  a 
case-by-case  basis,  taking  into  account  the  entirety  of  the  regulatory  context  for  that 
profession,  whether  it  is  necessary  to  place  restrictions  on  the  access  to  and  conduct  of 
professional activities and what restrictions are best fit to address the specific public interest 
concerns. 

In  2013,  Directive  2005/36/EC,  the  Professional  Qualifications  Directive,  was  amended  by 
Directive  2013/55/EU  with  the  view  to  modernise  Union  law  in  the  area  of  regulated 
professions.  It  also  introduced  a  transparency  and  mutual  evaluation  exercise  between  the 
Member States of all their regulated professions. Based on the information submitted by the 
relevant  competent  authorities  during  the  mutual  evaluation  process,  it  appears  that 
conducting such an assessment presented a challenge to many Member States5. The fact that 
the  majority  of  the  assessments  lacked  proper  reasoning  suggests  an  underlying  problem 
concerning how the need for regulation  and its effects on the broader business environment 
are evaluated. The mutual evaluation process revealed that regulatory decisions are currently 
not  always based  on  sound  and  objective  analysis  or  carried  out  in  an  open  and  transparent 
manner.  Further,  and  despite  the  in-depth  discussions  and  the  guidance  provided  by  the 
Commission so far, it has not prevented the introduction of new restrictive measures without 
objective and comprehensive analysis since. Member States have introduced new regulations 
such as for instance for the exercise of the legal profession, or have introduced or broadened 
reserves of activities  for  instance  for  tax advice or  for tourist  guides without  or  with  only  a 
very superficial assessment of proportionality. 

The  current  uneven  scrutiny  of  the  regulation  of  professions  across  the  EU  has  a  negative 
impact  on  the  provision  of  services  and  the  mobility  of  professionals.  Action  by  individual 
Member  States  alone  will  not  ensure  a  coherent  EU  legal  framework  for  assessing  the 
proportionality  of  envisaged  national  regulation  and  address  the  existing  problems  faced  by 
national  authorities.  The  main  objectives  of  the  action  to  introduce  more  clarity  to  the 
applicable  criteria,  strengthening  reliability,  transparency  and  comparability  across  Member 
Stares  and  ensuring  that  rules  are  applied  in  an  equal  manner  so  as  to  prevent  further 
burdening  and  fragmenting  the  Single  Market,  could  be  achieved  more  successfully  at  EU 
level  by  virtue  of  its  scale  and  effects  through  the  introduction  of  a  common  EU-wide 
assessment  mechanism,  applied  by all  Member  States  and in  a  comparable  way.  In  view  of 
frequent changes to professional regulation, without EU action, there is the risk that the gap 
between 
those  who  already  apply  good  regulatory  practices  and  properly  assess 
proportionality before deciding whether to adopt regulation6 and those who do not will widen, 
thus increasing divergence in the quality of regulation. This ultimately has a negative effect 
on access to professions and negative consequences for consumers and economics alike.  

To address the issue, the Commission announced in the Single Market Strategy an initiative 
laying down a proportionality test to be used by Member States before adopting or amending 

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see Cases C-340/89 Vlassopoulou and C-55/94 Gebhard. 
As  more  fully  explained  in  the  accompanying  Impact  Assessment;  around  a  third  of  proportionality 
assessments  are  still  not  conducted  almost  a  year  since  transposition.  Of  those  that  were  received 
around  70%  took  the  decision  to  maintain  the  status  quo  based  on  underdeveloped  conducted 
assessments. 
The  World  Bank  Regular  Economic  Report  Fall  2016:  Growth,  Jobs  and  Integration:  Services  to  the 
Rescue, http://www.worldbank.org/en/region/eca/publication/eurer.  

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national regulations of professions. There is considerable potential to enhance the creation of 
growth  and  jobs  by  Member  States  through  increasing  the  transparency  of  their  regulated 
professions and completing a more thorough analysis of their proportionality before adopting 
any  new  rules  while  simultaneously  completing  reforms  in  their  regulated  professions  to 
modernise  their  requirements.  As  described  in  the  impact  assessment  accompanying  this 
proposal, numerous studies show how poor regulatory choices are liable to distort competition 
by restricting market entry and thus may result in substantial lost employment opportunities, 
higher  prices  for  consumers  and  hinder  free-movement.  In  terms  of  job  creation  alone,  an 
academic  study  suggests  around  700  000  more  jobs7  could  be  created  in  the  EU  through 
addressing unnecessary and disproportionate regulations. 

The  proportionality  test  is  therefore  designed  to  support  better  regulatory  practices  and 
ultimately their outcomes. It applies to newly introduced or reviewed requirements on access 
to or the pursuit of a regulated profession. It consolidates the case-law of the Court of Justice 
on the proportionality of requirements restricting access to or pursuit of regulated professions 
but  leaves  the  decision  of  what  to  regulate  and  how  to  Member  States,  this  decision  is 
evidence-based  following  a  thorough,  transparent  and  objective  assessment.  It  takes  full 
account of the specificity of each profession and its regulatory environment. The benefits of 
this  initiative  for  professionals,  consumers  and  public  administrations  lie  largely  in  the  fact 
that it would ensure the better regulation of professions by preventing disproportionate rules 
from  being  adopted.  The  objective  of  this  proposal  is  to  a  large  extent  the  codification  of 
established case-law of the Court of Justice. Departure from this case-law could denature the 
proposal. The Commission may withdraw a proposal if it is denatured. 

An  EU  Directive  would  significantly  facilitate  the  obligation  for  Member  States  to  comply 
with  the  proportionality  principle  and  would  guarantee  that  Member  States  implement  the 
proportionality  test  in  an  equivalent  manner  at  all  levels  of  regulation  in  order  to  avoid 
fragmentation of the Single Market.  

The initiative aims at introducing clarity and promotes objective, reliable and comprehensive 
proportionality tests in order to increase confidence and innovation through regular reviews of 
national regulation of professions. Underlying this action is the aim of not only supporting the 
Member  States  accomplish  these  shared  objectives  but  to  do  so  in  a  structured  and 
streamlined way so as to ease their administrative duties. 

• 

Consistency with existing policy provisions in the policy area 

The  proposal  is  consistent  with  and  complements  the  existing  provisions  of  Directive 
2005/36/EC. 

• 

Consistency with other Union policies 

The  proposal  is  consistent  with  the  Commission’s  priorities  as  set  out  in  its  Single  Market 
Strategy  (SMS)  as  well  as  the  EU  objectives  of  creating  growth  and  jobs,  ensuring  the  free 
movement of professionals, improving the environment for businesses and offering choice to 
consumers. 

Another  action  announced  in  the  SMS  is  the  periodic  guidance  on  specific  needs.  This 
initiative aims at identifying problems per country and per profession where the reform of the 
regulatory framework would be economically beneficial, and based on which the Commission 

7 

“Measuring  Prevalence  and  Labour  Market  impacts  of  Occupational  Regulation  in  the  EU”,  Maria 
Koumenta, Queen Mary University of London and Mario Pagliero, Collegio Carlo Alberto Torino. 

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will  recommend  Member  State  level  action.  These  two  actions  are  complementary,  in  the 
sense  that  the  proportionality  test  will  provide  the  general  framework  of  criteria  to  be  used 
when  assessing  the  proportionality  of  envisaged  regulation,  a  'sunrise'  clause,  whilst  the 
periodic  guidance  on  reform  needs  will  focus  on  specific  issues,  identified  in  the  existing 
regulation of certain professions or sectors. 

The  present  proposal  is  consistent  with  and  complements  the  initiative  to  improve 
notifications  under  the  Services  Directive.  Whereas  the  latter  complements  the  existing 
notification  procedure  applicable  for  restrictions  under  the  Services  Directive,  the  present 
proposal  provides  clarity  on  the  criteria  to  be  used  by  Member  States  when  assessing  the 
proportionality of draft national laws regulating professions and falling under the Professional 
Qualifications  Directive.  Some  requirements  in  national  regulation  of  professions  (such  as 
legal  form  or  shareholding  requirements)  fall  under  both  the  Professional  Qualifications 
Directive  and  the  Services  Directive.  In  such  cases,  the  proportionality  assessment  would 
follow  the  rules  in  this  proposal  and  the  information  to  be  provided  in  the  notification 
procedure  falling  under  the  Services  Directive  would  have  to  be  based  on  and  reflect  this 
assessment.  Consistency  between  these  instruments  is  being  ensured  and  this  proposal  does 
not introduce any new notification procedures.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal is based on Articles 46, 53(1) and 62 TFEU. 

The  European  Union  has  the  right  to  act  in  the  field  of  regulation  of  professions  for  the 
achievement of the Internal Market objectives based on the articles in the TFEU on the free 
movement  of  persons  and  services.  In  particular,  Article  46  TFEU  provides  for  specific 
provisions  to  be  adopted  in  the  area  of  the  free  movement  of  workers,  Article  53(1)  TFEU 
provides  for  issuing  Directives  concerning  the  taking-up  and  pursuit  of  activities  as  self-
employed persons and Article 62 of the TFEU is the basis for legal acts on the exercise of the 
freedom to provide services.  

• 

Subsidiarity (for non-exclusive competence)  

According  to  the  subsidiarity  principle,  the  EU  should  only  act  where  the  objectives  of  the 
proposed action cannot be achieved sufficiently by Member States and where the objectives 
can  be  better  achieved  by  the  EU.  As  evidenced  by  the  information  obtained  in  the  mutual 
evaluation,  the  criteria  used  and  the  intensity  of  assessments  vary  significantly  between 
Member  States.  This  current  uneven  scrutiny  of  the  proportionality  of  regulation  of 
professions across the EU, and the impacts stemming from this, has a substantial impact on 
the  wider  economy  of  the  EU,  the  provision  of  services  and  the  mobility  of  professionals. 
Studies,  independently  conducted  as  well  as  those  contracted  by  the  Commission  show  that 
disproportionate  regulation  has  a  negative  impact  upon  job  creation,  growth,  consumer 
choice, prices, innovation, investment and trade8. In addition we have seen what benefits may 

8 

See  for  example  in  COM(2013)676;  "The  Cost  of  Non-Europe  in  the  Single  Market  for  services", 
European  Parliament  Research  Service,  2014;  "Estimation  of  service  sector  mark-ups  determined  by 
structural  reform  Indicators",  European  Commission,  2015;  "Regulatory  heterogeneity  as  obstacle  for 
international  services  trade",  H.  Kox,  A.  Lehour,  2005;  "The  discriminatory  effect  of  domestic 
regulations  on  international  services  trade:  evidence  from  firm-level  data",  EFIGE,  2012;  "Business 
services  –  Assessment  of  Barriers  and  their  Economic  Impact",  European  Commission,  2015;  "The 
Economic 
Impact  of  Professional  Services  Liberalisation",  European  Commission,  2014, 
http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8525&lang=en.  

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be brought by steps taken to reform regulation and which, in addition, were found to have no 
direct impact upon the protection of legitimate public interests: 

 

 

 

In Italy, the Bersani reform of 2006 brought new entrants into the market, leading to 
higher overall employment of young pharmacists.9 

In  Poland,  the  reform  of  lawyers  introducing  objective  access  rules  led  to  almost  a 
tripling of the number of lawyers between 2005 and 2015 and almost a doubling of 
the number of legal advisers without negative effects on wages and quality.10 

In  Greece  reforms  resulted  in  lower  prices  for  consumers  of  services  of  real  estate 
agents,  legal  professions,  accountants,  tax  consultants  and  physiotherapists  which 
were liberalised by the reform enacted in 2011. The number of start-ups for notaries, 
auditors,  tourist  guides  and  chartered  valuers  has  more  than  doubled  in  2014 
compared with the yearly average before the liberalisation.11 

However,  isolated  action  by  individual  Member  States  alone  will  not  ensure  a  coherent  EU 
legal  framework  for  assessing  the  proportionality  of  national  regulation  and  address  the 
existing  problems  faced  by  national  authorities.  Therefore,  the  objectives  of  the  action, 
namely  the  reliability  and  comparability  of  proportionality  assessments  could  be  achieved 
more  successfully  at  the  Union  level  through  the  introduction  of  a  common  EU-wide 
assessment mechanism applied by all Member States in a similar way, by virtue of its scale 
and effects. National law would hence reflect the criteria set out in the proposed action and 
which would have to be considered by national authorities when assessing the proportionality 
of national regulation in the professions. 

An  EU  approach  would  thus  enable  national  authorities  to  perform  comprehensive  and 
comparable  proportionality  checks  through  creating  a  transparent  and  predictable  legal 
framework to assess barriers to regulated professions. The European Council has repeatedly 
called for action on this front. In February 2015 the European Council called for guidance12, 
following this the Council welcomed the proportionality test's inclusion in the Single Market 
Strategy saying that it 'reiterates that the Single Market is Europe’s main engine for growth 
and  job  creation  and  a  key  to  investment  and  increasing  European  competitiveness. 
Emphasises that strengthening and deepening the Single Market requires urgent and ambitious 
actions,  both  at  Union  and  national  level,  to  deliver  concrete  and  pragmatic  results  which 
directly benefit consumers and businesses, in particular SMEs13. Most recently in June 2016 
the  Council called  upon  the  Commission  to  take  steps  'to  vigorously  pursue  efforts  towards 
better regulation'14. 

• 

Proportionality 

This proposal is in line with the principle of proportionality, as set out in Article 5(4)  TEU. 
The selected policy option seeks to strike the right balance between securing public interest 
objectives and the quality of services on the one hand alongside improving the access to and 
exercise  of  regulated  professions  for  the  professionals  themselves,  whilst  ensuring  a  wider 
choice  for  consumers  on  the  other.  This  proposal  respects  the  principle  of  proportionality 

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12 

13 
14 

http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8525&lang=en.  
Ibid. 
Ibid. 
Council 

Single 
https://eu2015.lv/images/notikumi/2015_03_02_COMPET_conclusions_ST_6197_2015_INIT_EN.pdf. 

Conclusions 

Market 

March 

Policy 

2/3 

on 

http://data.consilium.europa.eu/doc/document/ST-6622-2016-INIT/en/pdf. 
http://www.consilium.europa.eu/en/meetings/european-council/2016/06/28-29/. 

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since  the  solutions  imply  cost-efficiency  and  reduce  the  overall  burden  on  public 
administration  as  it  provides  clear  criteria  to  conduct  proportionality  assessments  of  the 
regulation  of  professions  and  should  prevent  the  introduction  of  implementation  burdens 
brought  by  unnecessary  future  measures.  The  administrative  burden  of  conducting  a 
proportionality  test  was  already  assessed  in  the  context  of  the  revision  of  the  Professional 
Qualifications  Directive  of  2013.  In  line  with  this  assessment,  costs  stemming  from  the 
current proposal, to impose proportionality testing for future regulatory impositions, should be 
of limited impact15. This effect may be slightly higher for those Member States not currently 
in compliance with implementation of the Directive. However it is expected that there will be 
an overall positive effect in terms of administrative costs, because Member States will be less 
likely  to  be  faced  with  infringements  procedures  as  the  result  of  an  improved  system.  The 
Commission intends to work alongside Member States to further assist them in implementing 
this directive and with a view to further limiting costs. The proposal does not go beyond what 
is necessary to achieve the objectives pursued and indeed is best suited to its objectives. The 
mutual  evaluation  followed  a  'guidance'  route,  it  revealed  a  scarcity  of  evidence  to  suggest 
that regulatory  decisions are currently being based  on sound and objective  analysis or in  an 
open  and  transparent  manner.  Nearly  three  years  since  launching  the  mutual  evaluation 
around a third of proportionality tests are still not submitted and of those received around 70% 
put  forward  the  conclusion  to  maintain  their  regulatory  status  quo  despite  a  weak 
accompanying  proportionality  test.  In  addition  to  this,  the  rate  of  regulatory  change  in  the 
professions is high and the Commission is aware of a continued drive to place new regulatory 
burdens on professionals without conducting proper prior proportionality based analysis into 
the need, value or impact of such burdens.   

• 

Choice of the instrument 

The  instrument  chosen  is  a  new  Directive,  giving  Member  States  a  degree  of  flexibility  in 
terms of transposition and implementation so as to be able to capture the legal essence and the 
multi-faceted nature of the proportionality principle. A Directive is binding as to the result to 
be achieved and thus constitutes an appropriate instrument for the achievement of the Internal 
Market from the point of view of the free movement of workers, the freedom of establishment 
and the freedom to provide services. As well as these being objectives of the European Union, 
the Treaty also places legal expectations upon Member States so that whereas the choice as to 
whether and how to regulate a profession remains their competency it must remain within the 
remits of justification, proportionality and necessity.  

The impact assessment describes fully the scale of the issue in the  regulation of professions 
and  the  effects  that  unnecessary  regulation  has  on  the  wider  European  economy  as  well  as 
underlining  the  issues  Member  States  face  in  appropriately  addressing  it.  A  Directive  will 
allow Member States to assimilate a comprehensive proportionality assessment into their own 
existing  legislative  procedures,  and  since  no  one  methodology  is  being  enforced  by  the 
Commission,  this  allows  the  Member  States  to  operate  with  a  level  of  discretion  that 
accommodates  their  own  structures  and  without  affecting  the  ultimate  objective  of  the 
Directive:  to  have  a  comparable,  transparent,  reliable,  objective,  evidenced  based  decision 
making  process.  For  these  reasons  the  Commission  has  judged  a  Directive  to  be  the  most 
appropriate and effective response. 

15 

See accompanying impact assessment. 

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3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Prior to its substantial revision in 2013, Directive 2005/36/EC was the subject of a thorough 
evaluation on the shortcomings of the existing process for facilitating the free movement of 
professionals.  Based  on 
those  findings,  Directive  2013/55/EU,  amending  Directive 
2005/36/EC introduced, among other requirements, an obligation for Member States to assess 
the  proportionality  of  their  professional  regulations.  On  the  basis  of  these  assessments, 
pursuant  to  Article  59(9),  by  January  2017  the  Commission  is  expected  to  submit  its  final 
findings  on  the  overview  of  national  regulations  of  professions  and  on  the  proportionality 
assessments  conducted  by  Member  States  to  the  European  Parliament  and  the  Council, 
accompanied  where  appropriate  by  proposals  for  further  initiatives.  This  proposal  has  not 
been  developed  from  an  overall  assessment  of  the  Directive  as  it  was  revised  only  recently 
however,  it  does  stem  from  the  Commission's  assessments  and  is  part  of  the  follow-up 
initiatives  prefigured  under  Article  59(9)  of  Directive  2013/55/EU  as  a  conclusion  to  the 
Commission's assessment. The possibility for a further proposal was therefore foreseen as part 
of follow-up steps to improve implementation and efficacy of the new provisions. 

• 

Stakeholder consultations 

A public consultation was carried out between 27 May and 22 August 2016. A total of 420 
responses were received. These included submissions from individuals, members of regulated 
professions,  professional  associations,  regulatory  bodies,  government  authorities  and 
academics.  There  was  a  broad  consensus  across  stakeholders  that  action  should  be  taken  at 
EU level to introduce clarity and a common approach as regards proportionality tests. Across 
respondent  demographics  we  received  majority  support  for  a  binding  (Directive)  solution: 
users; providers, both large and small business; public authorities and unions all endorsed the 
proposal.  Some  professional  associations  were  less  positive.  Specifically  the  German  and 
Austrian  crafts  sector,  who  organised  identical  responses  across  100  craft  associations,  to 
reject the idea of any action at an EU level either through a directive or a guidance approach. 
We  decided  to  maintain  the  organised  response16  in  collating  the  results  of  the  consultation 
and in doing so we are still able to maintain a majority support for our proposal. In addition 
the  consultation  showed  the  need  for  action  since  a  disparity  of  approaches  to  analysis  was 
uncovered not only across the EU but also within individual Member States. It found a lack of 
clarity  on  the  existence  of  any  analytical  and  proportionality  based  expectations  when 
designing regulation as well as a sporadic approach to consultation and transparency. 

A summary of the results can be found on: http://ec.europa.eu/internal_market/consultations/. 

In addition, a high level conference held by the Commission on 18 May 2016 allowed for a 
further exchange of views.  

The  issues  were  also  discussed  with  Member  States  at  the  High  Level  Group  meeting  of  3 
May 2016 and 10 November 2016. 

• 

Collection and use of expertise 

The  results  of  the  mutual  evaluation  of  regulated  professions,  conducted  by  the  Member 
States, together with the Commission contributed to the preparation of this proposal. 

16 

Accepted practice in such cases would be to count the organised responses as just one. 

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8 

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OECD studies show that labour mobility is a key determinant of productivity which enhances 
economic growth17. Furthermore, the Commission contracted economic studies on the effects 
of reforms to the regulatory requirements for accessing selected professions in four different 
countries: Germany, Greece, Italy and the United Kingdom18. 

In addition, according to a recent survey carried out in April 2015 in all 28 Member States, at 
least 21% of the labour force in the European Union (50 million people) can be considered as 
working in a regulated profession19. 

• 

Impact assessment 

In  line  with  its  "Better  Regulation"  policy,  the  Commission  services  conducted  an  impact 
assessment analysing the different policy options and their impact on stakeholders.20  

The different options examined in the impact assessment were: 

Option  1  -  issuing  proportionality  guidelines  and  in-depth  information  exchange  between 
authorities establishing an EU wide proportionality test for regulated professions which could 
encompass several options.  

Option 2a - Laying down the minimum criteria for conducting proportionality checks, based 
on  and  complementing  the  case-law  and  by  introducing  transparency  on  Member  States' 
assessments through a binding instrument (Directive).  

Option  2b  -  Implementing  the  same  approach  as  2a  but  through  the  means  of  a 
Recommendation.  

Option  3a  -  Further  including  procedural  aspects  to  those  of  option  2a,  such  as  public 
consultations and periodic review through a binding instrument (directive). 

Option  3b  -  As  with  those  same  aspects  of  option  3a  but  through  the  instrument  of  a 
Recommendation.  

Drawing  on  the  consultation,  experience  and  evidence  presented  through  an  impact 
assessment the Commission concluded that the best option to improve the existing situation is 
Option 3a: 

Option  1  -  A  guidance  approach  has  already  been  tested:  first  through  the  issuing  of  a 
Communication  in  2013  then  through  a  grid  and  guidance  provided  to  support  the  two 
yearlong  mutual  evaluation  and  which  proved  to  be  unable  to  adequately  address  the 
regulatory issues it uncovered. As well as this the Commission has been working intensively 
with  the  Member  States  to  encourage  them  to  attend  better  to  issues  of  proportionality 
(through visits to Member States, a Conference, Single Market Forums, and workshops).  

Option 2a - This would address the issues faced by Member States in interpreting the case law 
as well as clarity on the criteria to be evaluated and would thus go some way to improving the 
quality of the assessments and their ultimate outcomes. 

17 
18 
19 

20 

http://www.oecd.org/eco/growth/OECD-2015-The-future-of-productivity-book.pdf. 
http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8525&lang=en. 
M.  Koumenta  and  M.  Pagliero  (2016),  "Measuring  Prevalence  and  Labour  Market  Impacts  of 
Occupational Regulation in the EU". See: http://ec.europa.eu/DocsRoom/documents/20362. 
Commission Staff Working Document - Impact Assessment accompanying this proposal (SWD(2016) 
463). 

EN 

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Option 2b - Both this option and 3b have the same drawbacks as option 1. An 'optional' route 
would  not  address  the  issue  of  Member  States  disregarding  the  practice  of  conducting  a 
proportionality  test  and  thereby  cannot  be  foreseen  as  preventing  the  future  introduction  of 
unnecessary  burdens,  or  as  an  effective  mechanism  for  removing  issues  identified  through 
such reviews. Finally these same constraints would limit the possibility for information to be 
shared more transparently with citizens and stakeholders. 

Option 3a - periodic reviews would ensure that regulation which is no longer appropriate is 
removed whilst the inclusion of consultation would support that the better involvement of all 
stakeholders,  including  consumer  bodies  and  citizens,  to  ensure  that  their  interest  are  also 
accounted for. 

Option 3b - as with 2b, an elective approach cannot ensure these steps are taken.  

Given  experience  and  the  assessments  made  in  preparing  this  proposal  it  can  be  concluded 
that a discretionary route, a Recommendation, would not compel the analysis necessary and 
especially in the most difficult cases. The general obligation to conduct periodic reviews, to 
inform  all  interested  parties  and  an  obligation  to  ensure  a  minimum  of  objectivity  and 
impartiality can only be addressed if implemented legally and this can only be guaranteed by 
a directive. 

On 9 October 2016 the Regulatory Scrutiny Board issued a positive opinion on this initiative. 
The  Board's  main  recommendations  were  that  the  proposal  should  further  expand  upon  its 
concurrence  with  other  initiatives,  explain  more  the  scale  of  the  problem  and  why  current 
structures are not capable of addressing it, develop further how the provisions in the proposal 
will  operate  and  expand  upon  the  views  of  stakeholders  as  well  as  the  impacts  on  SMEs, 
consumers and national authorities. This was duly taken into account. 

The opinion can be found at: 
http://ec.europa.eu/smart-regulation/impact/ia_carried_out/cia_2016_en.htm#grow.  

The  different  policy  options  and  their  impact  on  stakeholders  are  analysed  in  detail  in  the 
impact assessment which is available at the following website: 
http://ec.europa.eu/growth/tools-databases/newsroom/cf/itemdetail.cfm?item_id=8827. 

• 

Regulatory fitness and simplification 

A  mutual  evaluation  carried  out  by  the  Member  States,  together  with  the  Commission  in 
2014-2016  revealed  the  uneven  scrutiny  of  national  regulatory  measures  and  the  lack  of 
clarity  as  to  the  criteria  to  be  used  for  proportionality  assessments.  The  conclusion  is  that 
proportionality  assessments  carried  out  at  national  level  and  based  on  the  case-law  of  the 
Court  of  Justice  and  on  national  approaches  in  their  current  form  are  not  achieving  their 
potential for adding value to the achievement of the Single Market. 

• 

Fundamental rights 

The proposal is promoting rights enshrined in the EU Charter of Fundamental rights, namely 
the freedom to choose an occupation and the freedom to conduct a business. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no impact on the EU budget. 

EN 

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5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

The Commission would regularly report to the Council and the European Parliament on the 
implementation and performance of the proportionality test at national level. This evaluation 
is  planned  to  be  performed  at  the  same  time  as  the  evaluation  of  the  Professional 
Qualifications Directive. 

• 

Explanatory documents (for directives) 

This  proposal  does  not  require  additional  explanatory  documents  to  accompany  the 
transposition  into  national  law,  given  it  is  based  on  the  existing  case-law  and  basic  better 
regulation  principles.  Nevertheless,  where  necessary,  the  Commission  may  present  further 
guidance. 

• 

Detailed explanation of the specific provisions of the proposal 

Articles 1 and 2 deal with the subject matter and the scope of the Directive, namely to create a 
legal  framework  for  conducting  proportionality  assessments  before  introducing  new  or 
modifying existing legislative, regulatory or administrative provisions restricting access to or 
pursuit  of  regulated  professions.  Proportionality  tests  covering  the  regulation  of  specific 
professions, introduced by other EU instruments are not covered by this Directive.  

Article 3 sets out the definitions used in the proposal, which are to a large extent common to 
the definitions under Directive 2005/36/EC. In addition, definitions are provided for the two 
main  types  of  regulation  of  professions,  namely  "reserved  activities"  and  "protected 
professional title". 

Article  4  lays  down  an  obligation  for  Member  States  to  conduct  an  ex-ante  proportionality 
assessment, substantiated by qualitative and, wherever possible, quantitative evidence. 

Article  5  lists  the  justifications  on  grounds  of  public  interest  objectives  on  the  basis  of  the 
TFEU or recognised as such by the Court of Justice. Based on settled case-law, grounds of a 
purely  economic  nature  having  essentially  protectionist  aim  or  effects,  or  purely 
administrative reasons cannot constitute overriding reasons in the public interest. 

Article  6  (1)  lays  down  a  general  obligation  for  Member  States  before  introducing  new  or 
modifying  existing  provisions  restricting  access  to  or  pursuit  of  regulated  professions,  to 
assess whether these provisions are necessary and suitable for securing the attainment of the 
objective pursued and do not go beyond what is necessary to attain that objective. Article 6 
(2)  also  sets  out  the  main  criteria,  which  have  be  considered  by  the  competent  authorities, 
such as the nature of the risks, the scope of the activities, reserved to a profession,  the link 
between the qualification and the activities, the economic impact of the measure etc. Article 6 
(3) specifies the use of less restrictive means to achieve the objective pursued, such as the use 
of protected professional title, without reserving the activities to specific profession. Article 6 
(4)  gives  an  overview  of  the  elements  to  be  taken  into  account  when  examining  the 
cumulative effect of all the existing measures, restricting access to or pursuit of professions. 

Article  7  sets  out  an  obligation  to  inform  all  interested  parties  before  introducing  new 
measures and give them the possibility to express their views. 

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11 

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Article  8  provides  for  exchange  of  information  between  competent  authorities  of  different 
Member States, allowing the Member State which intends to reform a profession to gather the 
information on the experience of other Member States. 

Article 9 provides for transparency of the proportionality assessments. 

Article 10 foresees a periodic review of the Directive. 

Article 11 deals with the transposition of the Directive. 

Article 12 specifies the entry into force of the Directive. 

Article 13 sets the addresses of the Directive.   

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2016/0404 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on a proportionality test before adoption of new regulation of professions 

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 46, Article 53(1) and Article 62 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee21,  
Having regard to the opinion of the Committee of the Regions22,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

The  freedom  to  choose  an  occupation  is  a  fundamental  right.  The  Charter  of 
Fundamental  Rights  of  the  European  Union  guarantees  the  freedom  to  choose  an 
occupation,  as  well  as  the  freedom  to  conduct  a  business.  The  free  movement  of 
workers,  freedom  of  establishment  and  freedom  to  provide  services  are  fundamental 
principles  of  the  internal  market  enshrined  in  the  Treaty.  National  rules  organising 
access  to  regulated  professions  should  therefore  not  constitute  any  unjustified  and 
disproportionate obstacle to the exercise of those fundamental rights. 

In  the  absence  of  specific  provisions  harmonising  the  requirements  on  access  to  a 
regulated  profession  or  its  pursuit  laid  down  in  Union  law,  it  is  the  Member  States’ 
prerogative to decide whether and how to regulate a profession within the limits of the 
principles of non-discrimination and proportionality. 

The  principle  of  proportionality  is  one  of  the  general  principles  of  Union  law.  It 
follows  from  the  case-law23  that  national  measures  liable  to  hinder  or  make  less 
attractive the exercise of fundamental freedoms guaranteed by the Treaty should fulfil 
four  conditions:  they  should  be  applied  in  a  non-discriminatory  manner;  they  should 
be  justified  by  public  interest  objectives;  they  should  be  suitable  for  securing  the 
attainment of the objective which they pursue; and they should not go beyond what is 
necessary in order to attain it.  

21 
22 
23 

OJ C , , p. . 
OJ C , , p. . 
Case C-55/94 Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano [1995] 
ECR I-4165. 

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13 

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(4) 

(5) 

(6) 

(7) 

Directive 2005/36/EC of the European Parliament and of the Council24 established the 
obligation  for  Member  States  to  assess  the  proportionality  of  their  requirements 
restricting  access  to  or  pursuit  of  regulated  professions  and  to  communicate  to  the 
Commission  the results of the assessment, launching the so-called  mutual  evaluation 
process.  That  process  meant  that  Member  States  had  to  carry  out  a  screening  of  all 
their legislation on all professions regulated in their territory.  

to  be  used  by  national  competent  authorities  when  assessing 

The results of the mutual evaluation process revealed a lack of clarity as regards the 
criteria 
the 
to  or  pursuit  of  regulated 
proportionality  of  requirements  restricting  access 
professions, as well as uneven scrutiny of such measures at all levels of regulation. To 
avoid  fragmentation  of  the  internal  market  and  eliminate  barriers  to  taking-up  and 
pursuit  of  certain  employed  or  self-employed  activities,  it  is  therefore  necessary  to 
establish  a  common  approach  at  Union  level,  preventing  disproportionate  measures 
from being adopted. 

In  its  Communication  of  28  October  2015:  ‘Upgrading  the  Single  market:  more 
opportunities  for  people  and  businesses’25,  the  Commission  identified  the  need  to 
adopt  an  analytical  proportionality  framework  for  Member  States  to  use  when 
reviewing existing regulations of professions or proposing new ones.  

The  activities  covered  by  this  Directive  should  concern  the  regulated  professions 
falling  within  the  scope  of  Directive  2005/36/EC.  This  Directive  should  apply  in 
addition to Directive 2005/36/EC and without prejudice to other provisions laid down 
in  a  separate  Union  act  concerning  access  to,  and  the  exercise  of  a  given  regulated 
profession. 

(8)  Member  States  should  be  able  to  rely  on  a  common  regulatory  framework  based  on 
clearly  defined  legal  concepts  concerning  the  different  ways  to  regulate  a  profession 
across  the  Union.  There  are  several  ways  to  regulate  a  profession,  for  instance  by 
reserving  access  to  or  the  pursuit  of  a  particular  activity  to  holders  of a  professional 
qualification. National provisions may also regulate one of the modes of pursuit of a 
profession in laying down conditions for the use of professional titles.  

(9) 

(10) 

The burden of proof of justification and proportionality lies on the Member States. The 
reasons for regulation invoked by a Member State by way of justification should thus 
be  accompanied  by  an  analysis  of  the  appropriateness  and  proportionality  of  the 
measure adopted by that State and by specific evidence substantiating its arguments. 

It is appropriate to monitor the proportionality of the provisions restricting access to or 
pursuit of regulated professions on a regular basis and with a frequency appropriate to 
the  regulation  concerned.  A  review  of  the  proportionality  of  restrictive  national 
legislation  in  the  area  of  regulated  professions  should  be  based  not  only  on  the 
objective of that  legislation at the time  of its adoption,  but also on the effects of the 
legislation,  assessed  after  its  adoption.  The  assessment  of  the  proportionality  of  the 
national  legislation  should  be  based  on  developments  found  to  have  occurred  in  the 
area since the legislation was adopted. 

(11)  Member  States  should  carry  out  proportionality  assessments  in  an  objective  and 
independent manner, including where a profession is regulated indirectly, by giving a 
particular professional body the power to do so. In particular, while the assessment of 

24 

25 

Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  of  7  September  2005  on  the 
recognition of professional qualifications (OJ L 255, 30.9.2005, p.22). 
COM (2015)550 final. 

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the  local  authorities,  regulatory  bodies  or  professional  organisations,  whose  greater 
proximity to local conditions and specialised knowledge could in certain cases make 
them better placed to  identify the best way of meeting  the public interest objectives, 
there is particular reason for concern in cases where the policy choice made by those 
authorities or bodies provides benefits to established operators at the expense of new 
market entrants. 

(12)  Where  the  taking-up  and  pursuit  of  certain  employed  or  self-employed  activities  are 
conditional  on  complying  with  certain  provisions  relating  to  specific  professional 
qualifications, laid down directly or indirectly by the Member States, it is necessary to 
ensure  that  such  provisions  are  justified  by  public  interest  objectives,  such  as  those 
within  the  meaning  of  the  Treaty,  namely  public  policy,  public  security  and  public 
health or by overriding reasons of general interest, recognised as such in the case-law 
of  the  Court  of  Justice.  It  is  important  to  ensure  that  public  interest  objectives  are 
adequately  identified  in  order  to  determine  the  intensity  of  the  regulation.  For 
example, in order to ensure a high level of protection of public health, Member States 
should enjoy a margin of discretion to decide on the degree of protection which they 
wish  to  afford  to  public  health  and  on  the  way  in  which  that  protection  is  to  be 
achieved. It is also necessary to clarify that among the overriding reasons of general 
interest, recognised by the Court of Justice, are preserving the financial equilibrium of 
the  social  security  system;  the  protection  of  consumers,  recipients  of  services  and 
workers;  the  safeguarding  of  the  proper  administration  of  justice;  fairness  of  trade 
transactions;  combating  fraud  and  prevention  of  tax  evasion  and  avoidance;  road 
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. 
According 
to  settled  case-law,  purely  economic  reasons,  having  essentially 
protectionist  aims,  as  well  as  purely  administrative  reasons,  such  as  carrying  out 
controls  or  gathering  statistics  cannot  constitute  an  overriding  reason  of  general 
interest. 

(13)  Where  a  Member  State  intends  to  regulate  a  profession  or  to  amend  existing  rules, 
account  should  be  taken  of  the  nature  of  the  risks  related  to  the  public  interest 
objectives  pursued,  in  particular  the  risks  to  consumers,  to  professionals  or  third 
parties. It should also be borne in mind that, in the field of professional services, there 
is  usually  an  asymmetry  of  information  between  consumers  and  professionals. 
Professionals  display  a  high  level  of  technical knowledge  which  consumers  may  not 
have  and  consumers  therefore  find  it  difficult  to  judge  the  quality  of  the  services 
provided to them. 

(14)  To  meet  the  requirement  of  proportionality,  the  measure  should  be  suitable  for 
securing the attainment of the objective pursued. A measure should only be considered 
suitable for securing the attainment of the objective pursued, if  it genuinely reflects a 
concern  to  attain  that  objective  in  a  consistent  and  systematic  manner,  for  instance 
where similar risks related to certain activities are addressed in a comparable way and 
where  any  exceptions  to  the  restrictions  involved  are  applied  in  line  with  the  stated 
objective.  Furthermore,  the  national  measure  should  contribute  to  achieving  the 
objective pursued and therefore, where it has no effect on the ground for justification, 
it should not be considered as suitable. 

(15)  Requirements linked to professional qualifications should be considered as necessary 
only where existing measures, such as consumer protection law, cannot be regarded as 
being suitable or genuinely effective to achieve the aim pursued. 

EN 

15 

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(16)  Among the elements to be taken into account by national authorities, the following are 
of most relevance: the link between the scope of professional activities covered by a 
profession  and  the  professional  qualification  required;  the  complexity  of  the  tasks  in 
particular as regards the level, the nature and the duration of the training or experience 
required; the existence of different routes to obtain the professional qualification; the 
scope  of  the  professional  activities,  reserved  to  holders  of  a  particular  professional 
qualification, and in particular whether the activities reserved to certain professionals 
can  be  shared  with  other  professionals;  the  degree  of  autonomy  in  exercising  a 
regulated profession in particular where the activities relating to a regulated profession 
are pursued under the control and responsibility of a duly qualified professional. 

(17)  Where a Member State regulates a profession, account should be taken of the fact that 
technological  developments  may  reduce  the  asymmetry  of  information  between 
consumers  and  professionals.  In  view  of  the  speed  of  technological  change  and 
scientific  progress,  up-dates  in  access  requirements  may  be  of  particular  importance 
for a number of professions. 

(18)  The economic impact of the measure, including a cost-benefit analysis with particular 
regard  to  the  degree  of  competition  in  the  market  and  the  quality  of  the  service 
provided,  as  well  as  the  impact  on  the  right  to  work  and  on  the  free  movement  of 
persons  and  services  within  the  Union  should  be  duly  taken  into  account  by  the 
competent  authorities.  Based  on  this  analysis,  Member  States  should  ascertain,  in 
particular,  whether  the  extent  of  the  restriction  of  access  to  or  pursuit  of  regulated 
professions  within  the  Union  is  proportionate  to  the  importance  of  the  objectives 
pursued and the expected gains. 

(19)  Member States should carry out a comparison between the national measure at issue 
and the alternative and less restrictive solutions that would allow the same objective to 
be attained but would impose fewer restrictions. Where the measures are justified by 
consumer  protection  and  where  the  risks  identified  are  limited  to  the  relationship 
between the professional and the consumer without negatively affecting third parties, 
the  objective  could  be  attained  by  less  restrictive  means  than  reserving  activities  to 
professionals,  such  as  protection  of  the  professional  title  or  enrolment  on  a 
professional register. Regulation by way of reserved activities should be used only in 
cases  where  the  measures  aim  at  preventing  a  risk  of  serious  harm  to  public interest 
objectives. 

(20)  The national authorities should carry out a global assessment of the circumstances in 
which  the  restrictive  measure  is  adopted  and  implemented  and  examine  in  particular 
the  cumulative  effect  of  imposing  several  requirements  in  addition  to  the  specific 
professional  qualification.  The  taking-up  and  pursuit  of  certain  activities  may  be 
conditional  on  complying  with  certain  provisions  such  as  rules  relating  to  the 
organisation  of  the  profession,  compulsory  membership  of  a  professional  body, 
the 
professional  ethics,  supervision  and 
cumulative  effect  of  the  measures,  the  competent  authorities  should  also  take  into 
account  other  existing  requirements,  such  as  continuous  professional  development, 
compulsory  chamber  membership,  registration  or  authorisation  schemes,  quantitative 
restrictions, specific legal form requirements and shareholding requirements, territorial 
restrictions,  multidisciplinary  restrictions  and  incompatibility  rules,  requirements 
concerning insurance cover as well as language knowledge requirements, to the extent 
necessary to practise the profession. A measure introduced by a Member State cannot 
be  regarded  as  necessary  to  achieve  the  objective  pursued  if  it  essentially  duplicates 

liability.  Therefore,  when  assessing 

EN 

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requirements  which  have  already  been  introduced  in  the  context  of  other  rules  or 
procedures. 

(21) 

It is essential for the proper functioning of the internal market to ensure that Member 
States  provide  information  to  citizens,  representative  associations  or  other  relevant 
stakeholders  before  introducing  new  measures  restricting  access  to  or  pursuit  of 
regulated professions and give them the opportunity to make known their views.  

(22)  To facilitate the exchange of best practices, each Member State should encourage the 
relevant  competent  authorities  to  share  adequate  and  regularly  updated  information 
with other Member States on the regulation of professions.  

(23) 

In  order  to  increase  transparency  and  promote  proportionality  assessments  based  on 
comparable criteria, it is important that the information  submitted by Member States 
be  easily  accessible  in  the  database  of  regulated  professions  to  allow  all  interested 
parties to submit comments.  

(24)  Since  the  objectives  of  this  Directive,  namely  the  removal  of  disproportionate 
restrictions  on  access  to  or  pursuit  of  regulated  professions  cannot  be  sufficiently 
achieved by the Member States but can rather, by reason of the scale of the action, be 
better achieved at Union level, the Union may adopt measures, in accordance with the 
principle  of  subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  European  Union.  In 
accordance  with  the  principle  of  proportionality,  as  set  out  in  that  Article,  this 
Directive does not go beyond what is necessary in order to achieve those objectives, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 

Subject matter  

This  Directive  lays  down  rules  on  a  common  framework  for  conducting  proportionality 
assessments  before  introducing  new  legislative,  regulatory  or  administrative  provisions 
restricting  access  to  or  pursuit  of  regulated  professions,  or  amending  existing  ones,  with  a 
view to ensuring the proper functioning of the internal market. 

Article 2  

Scope 

1. 

2. 

This  Directive  shall  apply  to  requirements  under  the  legal  systems  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. 

Where  specific  arrangements  concerning  the  regulation  of  a  given  profession  are 
established  in  a  separate  Union  act,  the  corresponding  provisions  of  this  Directive 
shall not apply.  

Article 3 

Definitions 

For the purpose of this Directive, the definitions of Directive 2005/36/EC shall apply. 

EN 

17 

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In addition, the following definitions shall apply: 

(a) 

(b) 

"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 to a particular professional qualification in the relevant field by virtue 
of  legislative,  regulatory  or  administrative  provisions,  either  directly,  or 
indirectly,  and  where  the  improper  use  of  this  title  is  subject  to  sanctions  or 
other measures. 

"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, including where the activity is shared with 
other regulated professions. 

Article 4 

Ex ante assessment of new measures 

1. 

2. 

3. 

4. 

5. 

1. 

2.  

Member  States  shall  ensure  that  before  introducing  new  legislative,  regulatory  or 
administrative provisions restricting access to or pursuit of regulated professions, or 
amending existing ones, the relevant competent authorities undertake an assessment 
of their proportionality in accordance with the rules laid down in this Directive. 

Any  provision  referred  to  in  paragraph  1  shall  be  accompanied  by  a  detailed 
statement  making  it  possible  to  appraise  compliance  with  the  principle  of 
proportionality. 

The reasons for considering that a provision is justified, necessary and proportionate 
shall be substantiated by qualitative and, wherever possible, quantitative evidence. 

Member  States  shall  monitor  the  proportionality  of  legislative,  regulatory  or 
administrative provisions restricting access to or pursuit of regulated professions on a 
regular  basis  and  with  a  frequency  appropriate  to  the  regulation  concerned,  having 
due regard to any developments that have occurred since the measure concerned was 
adopted.  

Member  States  shall  take  the  necessary  measures  to  ensure  that  the  assessment  of 
proportionality  referred  to  in  paragraph  1  is  carried  out  in  an  objective  and 
independent manner including through involvement of independent scrutiny bodies. 

Article 5 

Justification on grounds of public interest objectives 

Member  States  shall  ensure  that  legislative,  regulatory  or  administrative  provisions 
restricting access to or pursuit of regulated professions they intend to introduce and 
amendments  they  intend  to  make  to  existing  provisions  are  justified  by  public 
interest objectives. 

The  relevant  competent  authorities  shall  consider  in  particular  whether  those 
provisions  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, 

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3. 

1. 

2. 

recipients of services and workers, the safeguarding of the proper administration of 
justice, fairness of trade transactions, combating fraud and prevention of tax evasion 
and  avoidance,  road  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. 

Grounds of a purely economic nature having essentially protectionist aim or effects 
or purely administrative reasons shall not constitute overriding reasons in the public 
interest, justifying a restriction on access to or pursuit of regulated professions. 

Article 6 

Proportionality 

Before introducing new legislative, regulatory or administrative provisions restricting 
access  to  or  pursuit  of  regulated  professions,  or  amending  existing  ones,  Member 
States shall assess whether those  provisions are necessary and suitable for securing 
the  attainment  of  the  objective  pursued  and  do  not  go  beyond  what  is  necessary  to 
attain that objective. 

When assessing the necessity and the proportionality of the provisions, the relevant 
competent authorities shall consider in particular: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

the  nature  of  the  risks  related  to  the  public  interest  objectives  pursued,  in 
particular the risks to consumers, to professionals or third parties; 

the  suitability  of  the  provision  namely  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; 

the  necessity  of  the  provision  and  in  particular  whether  existing  rules  of  a 
specific or more general nature, such as product safety legislation or consumer 
protection law, are insufficient to protect the objective pursued; 

the link between the scope of activities covered by a profession or reserved to it 
and the professional qualification required; 

the  link  between  the  complexity  of  the  tasks  and  the  necessary  possession  of 
specific professional qualifications, in particular as regards the level, the nature 
and the duration of the training or experience required, as well as the existence 
of different routes to obtain the professional qualification;  

the  scope  of  the  professional  activities  reserved  to  holders  of  a  particular 
professional  qualification,  namely  whether  and  why  the  activities  reserved  to 
certain professions can or cannot be shared with other professions; 

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; 

(h) 

the  scientific  and 
asymmetry of information between professionals and consumers; 

technological  developments  which  may  reduce 

the 

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3. 

4. 

(i) 

(j) 

(k) 

the  economic  impact  of  the  measure,  with  particular  regard  to  the  degree  of 
competition in the market and the quality of the service provided, as well as the 
impact on the free movement of persons and services within the Union;  

the  possibility  to  use  less  restrictive  means  to  achieve  the  public  interest 
objective;  

the  cumulative  effect  of  restrictions  to  both  access  to  and  pursuit  of  the 
profession, and in particular how each of those requirements contributes to and 
whether it is necessary to achieve the same public interest objective. 

For  the  purposes  of  paragraph  2(j),  where  the  measures  are  justified  by  consumer 
protection and where the risks identified are limited to the relationship between the 
professional and the consumer without negatively affecting third parties, the relevant 
competent authorities shall assess in particular whether the objective can be attained 
by protected professional title without reserving activities. 

For the purposes of paragraph 2(k), the relevant competent authorities shall assess in 
particular the cumulative effect of imposing any of the following requirements: 

(a) 

(b) 

(c) 

(d) 

reserved activities, existing alongside protected professional title; 

continuous professional development requirements; 

rules  relating  to  the  organisation  of  the  profession,  professional  ethics  and 
supervision;  

compulsory  chamber  membership,  registration  or  authorisation  schemes,  in 
particular  where  those  requirements  imply  the  possession  of  a  particular 
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  particular  professional 
qualifications; 

(f) 

(g) 

(h) 

(i) 

(j) 

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; 

territorial restrictions, in particular where the profession is regulated in parts of 
a Member State’s territory in a different manner; 

requirements  restricting  the  exercise  of  a  regulated  profession  jointly  or  in 
partnership, as well as incompatibility rules; 

requirements  concerning  insurance  cover  or  other  means  of  personal  or 
collective with regard to professional liability; 

language  knowledge  requirements,  to  the  extent  necessary  to  practise  the 
profession. 

Article 7 

Information and involvement of stakeholders 

Member States shall, by appropriate means, inform citizens, service recipients, representative 
associations  and  relevant  stakeholders  other  than  the  members  of  the  profession  before 

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introducing  new  legislative,  regulatory  or  administrative  provisions  restricting  access  to  or 
pursuit of regulated professions, or amending existing ones, and give them the opportunity to 
make known their views.  

Article 8 

Exchange of information between competent authorities 

1. 

For the purposes of the efficient application of this Directive, before introducing new 
legislative, regulatory or administrative provisions restricting access to or pursuit of 
regulated professions, or amending existing ones, Member States shall encourage the 
exchange  of  information  with  competent  authorities  of  other  Member  States  on 
matters  covered  by  this  Directive,  such  as  the  particular  way  they  regulate  a 
profession or the effects of regulation identified in similar sectors of activities, on a 
regular basis, or, where appropriate, on an ad hoc basis. 

2. 

Member States shall inform the Commission of the competent authorities responsible 
for transmitting and receiving information for the purposes of applying paragraph 1. 

Article 9 

Transparency 

The  reasons  for  considering  that  provisions,  assessed  in  accordance  with  this 
Directive, are justified, necessary and proportionate, and which are communicated to 
the  Commission  pursuant  to  paragraphs  5  and  6  of  Article  59  of  Directive 
2005/36/EC, shall be recorded by the relevant competent authorities in the database 
of  regulated  professions,  referred  to  in  Article  59  paragraph  1  of  Directive 
2005/36/EC and thereafter made publicly available by the Commission. 

Member States and other interested parties may submit comments to the Commission 
or to the Member State which has notified the provisions. 

Article 10 

Review 

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. 

Where  appropriate,  the  report  referred  to  in  paragraph  1  shall  be  accompanied  by 
relevant proposals. 

Article 11 

Transposition 

Member  States  shall  bring  into  force  the  laws,  regulations  and  administrative 
provisions  necessary  to  comply  with  this  Directive  by    at  the  latest.  They  shall 
forthwith communicate to the Commission the text of those provisions. 

1. 

2. 

1. 

2. 

1. 

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When  Member  States  adopt  those  provisions,  they  shall  contain  a  reference  to  this 
Directive  or  be  accompanied  by  such  a  reference  on  the  occasion  of  their  official 
publication. Member States shall determine how such reference is to be made. 

2. 

Member States shall communicate to the Commission the text of the main provisions 
of national law which they adopt in the field covered by this Directive. 

Article 12 

Entry into force 

This Directive shall enter into force on the [twentieth] day following that of its publication in 
the Official Journal of the European Union. 

Article 13 

Addressees 

This Directive is addressed to the Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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