COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document 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

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 10.1.2017  SWD(2016) 463 final   COMMISSION STAFF WORKING DOCUMENT  IMPACT ASSESSMENT  Accompanying the document Proposal for a Directive of the European Parliament and of the Council on a proportionality test before adoption of new regulation of professions {COM(2016) 822 final} {SWD(2016) 462 final}  
 
 
Table of Contents 

1.  Context ............................................................................................................................... 4 

1.1.  Policy context .............................................................................................................. 4 

1.2. 

Legal context ............................................................................................................... 7 

1.3. 

Economic context ........................................................................................................ 8 

2. 

Procedural aspects and consultation of interested parties ............................................. 13 

Problem  definition  –  Fragmentation  of 

3. 
from 
disproportionate regulation .................................................................................................... 17 

the  Single  Market 

resulting 

3.1. 

Experience from the Mutual Evaluation ................................................................... 19 

3.2. 

Insufficient 'quality' proportionality assessments .................................................... 21 

3.3.  Conclusions from this analysis .................................................................................. 22 

3.4. 

The drivers of the problem ....................................................................................... 24 

3.5.  Who is affected, in what ways and to what extent? ................................................ 30 

3.6.  How would the problem evolve, all things being equal? .......................................... 30 

4. 

EU right to act and subsidiarity ........................................................................................ 31 

5.  Consistency with other EU policies and with the Charter for fundamental rights.......... 32 

6.  Objectives......................................................................................................................... 33 

6.1.  General policy objectives .......................................................................................... 33 

6.2. 

Specific policy objectives ........................................................................................... 34 

7. 

Policy options ................................................................................................................... 34 

7.1.  Baseline scenario: no new action .............................................................................. 35 

7.2.  Policy option 1: Guidance approach ......................................................................... 35 

7.3.  Policy option 2: EU proportionality test for regulated professions – common set of 
criteria .................................................................................................................................. 35 

7.3.1. Option 2a Legally binding instrument (Directive) .................................................. 35 

7.3.2. Option 2b Non-binding instrument (Recommendation) ....................................... 37 

7.4.  Policy option 3: Comprehensive modifications of the existing system .................... 37 

7.4.1. Option 3a Legally binding instrument (Directive) .................................................. 37 

7.4.2. Option 3b Non-binding instrument (Recommendation) ....................................... 38 

8.  Analysis of impacts ........................................................................................................... 38 

2 

 
 
 
8.1.  Baseline scenario ....................................................................................................... 38 

8.2.  Policy option 1: Guidance approach ......................................................................... 39 

8.3.  Policy option 2: EU proportionality test for regulated professions .......................... 41 

8.3.1. Policy option 2a EU proportionality test for regulated professions (legislative) .. 41 

8.3.2.  Policy  option  2b  EU  proportionality 
regulated  professions 
(Recommendation) .......................................................................................................... 45 

test 

for 

8.4.  Policy option 3: Comprehensive modification of the existing system ...................... 46 

8.4.1. Policy option 3a Comprehensive modification of the existing system (legislative)
.......................................................................................................................................... 46 

8.4.2.  Policy  option  3b  Comprehensive  modification  of  the  existing  system 
(Recommendation) .......................................................................................................... 48 

9.  Comparison of options ..................................................................................................... 49 

9.1.  Comparison in terms of effectiveness, efficiency and coherence ............................ 50 

9.2.  Preferred option / Justification for no preferred option .......................................... 52 

9.3. 

Subsidiarity and proportionality of the preferred option ......................................... 52 

10.  Monitoring and evaluation ........................................................................................... 53 

11. 

Annexes ......................................................................................................................... 53 

11.1. 

Annex 1: Procedural information .......................................................................... 53 

11.2. 

Annex 2: Stakeholder consultation ....................................................................... 55 

11.2.1.  Methodology .................................................................................................. 55 

11.2.2. 

Demographics ................................................................................................. 55 

11.2.3. 

Quality and Proportionality in National Action Plans (NAPs) ........................ 57 

11.2.4. 

General Awareness of Proportionality ........................................................... 58 

11.2.5. 
EU 

Responses regarding the current state of proportionality assessments in the 
59 

11.2.6. 

Public Authorities ........................................................................................... 68 

11.3. 

Annex 3 Single Market Strategy 'Guidance Initiative' ........................................... 73 

11.4. 

Annex 4: Analytical models used in preparing the IA ............................................ 73 

11.5. 

Annex 5 Forms of Regulatory Intensity ................................................................. 84 

11.6. 

Annex 6 Article 59 of Directice 2005/36/EC .......................................................... 86 

3 

 
 
 
 
 
1.  Context  
The Commission's priority is "to put policies that create growth and jobs at the centre of the 
policy agenda".  

Unnecessary  regulation  places  unjustified  burdens  upon  European  economies.  Removing 
such  barriers  opens  up  opportunities  and  has  a  positive  impact  on  the  productivity  and 
competitiveness  of  the  EU  economy.  It  is  for  this  reason  that  the  following  impact 
assessment  proposes  the  implementation  of  systematic  proportionality  tests  in  the 
regulation of professions, so as to  

  ensure the better development of regulation through objective ex-ante analysis and 

transparency;  

  resist the introduction of unnecessary measures; 
  identify instances of disproportionate professional regulation;  
  guard  against  inflicting  economic  constraints  on  national  administrations  and  the 

Single Market in Services;  

  enable  Member  States  to  fully  comply  with  their  implementation  of  EU  law  and 

proportionality in the most straight forward and transparent manner. 

1.1. Policy context 

The regulation of professional service providers is a fundamental European issue insofar as 
it  relates  firstly  the  freedom  of  movement,  as  it  relates  to  people  as  well  as  services,  and 
secondly as a central pillar of the European Single Market. Professionals and their activities1 
are regulated by Member States at national, regional or sometimes local level. Sometimes 
regulation is devolved to professional authorities outside of central government. In order to 
facilitate the movement of professionals between Member States Directive 2005/36/EC on 
the  recognition  of  professional  qualifications  defines  the  way  through  which  professional 
qualifications  are  recognised  between  Member  States  so  that  services  may  be  provided 
across borders. Despite this, great disparities lie between the Member States in how they 
choose  to  regulate  a  profession.  Those  wishing  to  provide  their  services  may  find 
themselves  either  unable  to  or  forced  to  undergo  costly  and  time  consuming  procedures 
before gaining access. In 2013 the Directive was amended by Directive 2013/55/EU with the 
view to simplifying the rules organising the recognition of professional qualifications. It also 

1 Professional services often require a high degree of education and training and make specialised knowledge 
and skills available to clients who may be other business users or private individuals. These services cover, for 
example:  architectural,  engineering  and  technical  services,  legal,  accounting,  translation  and  interpretation, 
veterinary services etc.  Regulated professions are defined in the  Professional Qualifications Directive Article 
3(1)(a)  as  professions  where  one  needs  a  particular  professional  qualification  to  be  allowed  to  exercise  the 
profession.  

4 

 
 
                                                       
introduced a transparency and Mutual Evaluation exercise2  between the Member States of 
their regulated professions (Article 59 – Annex 6)3.  

This  exercise  culminated  in  a  requirement  for  Member  States  to  submit  'National  Action 
Plans'  by  18th  January  2016  outlining  and  justifying  any  decisions  taken  as  a  result  of  this 
analysis to maintain or amend professional regulations4.   

To help Member States deliver their obligations as described above and during the mutual 
evaluation, the Commission developed a  questionnaire to guide their assessments, based 
on the existing case-law of the  Court of Justice. Alongside  this, a group of Member States 
also proposed, in February 2015, a framework for a methodology for considering regulation 
of  professions,  supported  by  case  studies  of  different  regulatory  approaches  taken  by 
participating Member States5. 

However,  having  now  finalised  the  initial  two  year  Mutual  Evaluation,  it  is  clear  that 
conducting  such  an  assessment  presented  a  challenge  to  many  Member  States.  Such 
assessments are a basic tenet of good policy making and that so many assessments lacked 
proper reasoning suggests an underlying problem concerning how the need for regulation 
and  its  effects  on  the  broader  business  environment  is  evaluated.  Fundamentally,  the 
Mutual  Evaluation  process  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 manner6. 

This presents an obstacle to the shared objective of improving the regulatory landscape and 
by extension for the ramifications it has on Member States' ability to appropriately comply 
with the Professional Qualifications Directive. More fundamentally, no action on the issues 
set out in this Impact Assessment would be a wasted opportunity  to address substantial 
barriers to delivering on the Single Market's full potential.  

From reviewing the information gathered during the Mutual Evaluation it became clear that 
the regulation of even similar professions varies substantially between Member States and 
in  interrogating  many  of  these  instances  it  was  found  that  such  differences  could  not  be 
objectively explained; thus casting doubt upon their underlying utility.  

2 See information on the transparency and Mutual Evaluation exercise in Annex 5 
3 Starting in 2014, this process required Member States firstly to introduce all the professions they regulated 
into  the  Regulated  Professions  Database  alongside  all  the  regulatory  measures  they  implemented  for  each 
profession notified, using this information they were then required to review the impact of such measures and 
to consider their value in protecting legitimate public interests. 
4 The national action plan is part of the legal obligations Member States have to fulfil in the transposition of 
the  Professional  Qualifications  Directive.  Not  delivering  any  plan  exposes  Member  States  to  infringement 
proceedings  against  them.  By  May  2016,  18  Member  States  have  submitted  their  action  plans,  while  most 
others  said  they  would  submit  them  within  the  next  2  months.  See  table  2  with  the  latest  list  of    national 
action plans 
5 See Note from the CZ, DK, DE, EE, LT, LV, MT, NL, NO, SE and UK delegations on the results of Frontrunners 
Projects to improve the Single Market, 6198/1/15 REV 1,  
 http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%206198%202015%20REV%201  
6 See the section on problem definition. 

5 

 
 
                                                       
The issue of proportionality and what the Commission may do to encourage comprehensive 
proportionality  assessments  is  one  that  the  European  Council  and  Parliament  return  to 
repeatedly7. In this context, the Commission's Single Market Strategy (SMS) for goods and 
services  of  28th  October  20158,  announced  actions  to  improve  the  national  regulation  of 
professions, namely the introduction of an analytical framework for proportionality analysis 
(“proportionality test”) precisely in order to assist Member States in targeting instances of 
disproportionate and unnecessary regulation: 

The Commission will also set out an analytical framework for Member States to use 
when  reviewing  existing  professional  regulations  or  proposing  new  ones.  This 
framework  will  contain  a  methodology 
for  comprehensive  proportionality 
assessments  of  professional  regulations.  Member  States  will  need  to  demonstrate 
that public interest objectives cannot be achieved through means other than limiting 
access to, or conduct in, the professional activities in question. 

Alongside this, guidance on specific reform needs per country and per profession (“guidance 
for  reforms”)  was  also  proposed  [annex  3].  These  actions  constitute  the  initiatives  to  be 
presented by the Commission on the basis of Article 59(9)  (see annex 6) of the Professional 
Qualifications  Directive,  the  first  being  the  subject  of  this  paper.  The  two  initiatives  were 
endorsed  by  the  European  Parliament9  and  Council10  in  2016.  In  its  conclusions  of  29th 
February 2016 the Council again emphasised the need for more consistent proportionality 
assessments  of  regulatory  requirements  regarding  professions  and  welcomed  country 
specific guidance on regulated professions11. 

Further, this proposal runs complimentary to that proposed under the Services Directive to 
notify  draft  regulatory  changes  in  the  context  of  the  scope  of  that  Directive.  A  more 
systematic use of proportionality criteria is expected to enrich the shared policy objectives 

7  In  its  March  2012  conclusions,  the  European  Council  asked  Member  States  to  reduce  the  number  of 
regulated  professions  and  remove  unnecessary  or  disproportionate  barriers  to  entry  to  regulated 
professions.  In  its  recommendation  of  June  2012  the  European  Parliament  called  on  the  Commission  to 
identify areas where Member States are disproportionately blocking access to regulated professions. In the 
conclusions from its meeting on 24 and 25 October 2013, the European Council once again stressed the need 
for Member States to identify remaining barriers to accessing professions, assess their cumulative effect and 
take  appropriate  action.  In  July  2015  a  number  of  Member  States  called  for  a  more  uniform  application  of 
proportionality assessments [see annex x],  
8 COM(2015) 550 final 
9 European Parliament resolution of 26 May 2016 on the Single Market Strategy 
10 Council Conclusions on “The Single Market Strategy for services and goods" of 29 February 2016 
11  Council  Conclusions  of  29.2.2016  on  regulated  professions:  “REEMPHASISES  the  need  to  ensure  more 
consistent  proportionality  assessment  of  regulatory  requirements  and  restrictions  applicable  to  services 
markets.  Therefore  WELCOMES  the  analytical  framework  for  comprehensive  proportionality  assessment  of 
professional  regulations,  STRESSES  the  need  to  develop  as  soon  as  possible  the  framework  to  ensure 
consistency and that it should therefore build on existing case law. CALLS ON the Commission to extend the 
framework  to  cover  all  relevant  requirements  and  restrictions  impacting  access  to  and  pursuit  of  services 
activities,  regarding  both  professional  qualifications  and  other  regulatory  requirements.  WELCOMES  the 
periodic  country  specific  guidance  on  regulated  professions,  also  in  light  of  its  potential  to  ensure  that 
regulation  by  each  Member  State  is  proportionate  and  STRESSES  the  need  to  ensure  an  effective  and 
consistent follow-up.” 

6 

 
 
 
 
 
 
 
 
                                                       
to improve the Single Market in services for both Directives12. In terms of scope the Services 
Directive  relates  to  only  legal  persons  and  does  not  cover  the  medical  professions.  The 
Professional  Qualifications  Directive  refers  to  the  recognition  of  all  individuals  who  by 
legislation must be qualified except notaries. 

1.2. Legal context 

Prior to its substantial revision in 2013, Directive 2005/36/EC was the subject of a thorough 
evaluation13 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.  This  recalls  according  to 
responsibilities  under  the  Treaty  (Articles  45,  49  and  56  TFEU)  that  regulation  in  the 
Member States must be necessary, justified and not go beyond what is necessary. 

This  assessment  process,  carried  out  by  the  Member  States  included  all  regulated 
professions,  within  the  scope  of  the  Professional  Qualifications  Directive  and  therefore  is 
not applicable to activities which are explicitly excluded (e.g. notaries)14. 

Currently, Article 59 of the Professional Qualifications Directive describes the process which 
Member States must comply with:  

  Article 59(3) lays down a general obligation for Member States to examine whether 
requirements  restricting  access  to  a  profession  or  its  pursuit15  are  justified  and 
proportionate.  In  particular,  it  requires  without  further  detail  an  examination  of 
whether  those  requirements  are  "suitable  for  securing  the  attainment  of  the 
objective pursued" and do not "go beyond what is necessary to attain that objective". 
It  does  not  explicitly  provide  an  obligation  for  Member  States  to  eliminate 
immediately  any  disproportionate  regulation  and  thus  might  create 
legal 
uncertainty  as  to  whether  one  is  to  use  Article  59  to  preserve  its  practical 
effectiveness or the Treaty.   

12 Link to SD notifications 
13 See Impact Assessment SEC (2011) 1558 final. 
14  According  to  Recital  3  of  Directive  2013/55/EU  of  the  European  Parliament  and  of  the  Council  of  20 
November 2013 amending Directive 2005/36/EC, notaries who are appointed by an official act of government 
are excluded from the scope of Directive 2005/36/EC in view of the specific and differing regimes applicable to 
them in individual Member States for accessing and pursuing the profession. However, the rules of the Treaty 
as regards the proportionality of the restrictions on free movement apply to this profession, as confirmed by 
the Court of Justice Case C-47/08.   
15 By “requirement”, it is understood all conditions imposed on the access to and exercise of the profession 
such  as  activities  reserved  to  the  profession  (activities  no  other  profession  can  exercise),  academic 
qualification required, compulsory membership in a professional organisation or incompatibilities of activities 
(the professional may not exercise certain activities). 

7 

 
 
                                                       
  By  18  January  2016  Member  States  must  have  examined16  whether  requirements 
restricting  access  to  a  profession  or  its  pursuit  are  justified  and  proportionate  -
Article 59(5). This requirement resulted in the so-called Mutual Evaluation process. 
  Within six months of the their adoption, the Member States have to notify to the 
Commission  the  new  requirements  which  have  been  introduced  after  18  January 
2016,  together  with  the  reasons  for  considering  that  those  requirements  comply 
with the principle of proportionality Article 59(5).  

  By  18  January  2016  and  every  two  years  Member  States  have  to  notify  to  the 
Commission those requirements which have been removed or made less stringent - 
Article  59(6).  These  reports  take  the  form  of  National  Action  Plans,  based  on  in-
depth,  case-by-case  analysis  of  the  restrictions  and  listing  the  reforms  which  have 
been carried out or are foreseen in the future. 

  On the basis of the information received, 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  proportionality  assessments  conducted  by 
Member  States  to  the  European  Parliament  and  the  Council,  accompanied  where 
appropriate by proposals for further initiatives.  

Thus,  it  was  foreseen  during  the  revision  of  the  Professional  Qualifications  Directive  in 
2013  that  new  initiatives  concerning  the  proportionality  assessments  conducted  by 
Member States would have to be submitted by 2017. 

Furthermore, the present initiative will be reinforced by the related Guidance initiative on 
reform needs [see annex 3]. The two measures can be considered as complimentary in the 
sense  that  the  present  acts  pre-emptively  through  providing  a  general  set  of  criteria 
assisting  Member  States  in  a  thorough  ex-ante  assessment  of  justification  and  need  for 
future  regulation  of  professions  in  all  sectors,  while  the  Guidance  aims  at  prompting 
Member  States  to  make  concrete  adaptations  to  the  regulatory  framework  of  specific 
professions.  They  both  aim  at  refining  Member  States'  approaches  to  regulation,  not 
dictating  them,  but  rather  by  ensuring  better  regulatory  practices  guarantee  that  the 
requirement for proportionality and necessity of regulation is adhered to and that negative 
economic consequences avoided. 

1.3. Economic context 

A better functioning of the Single Market gives European Member States advantages at the 
national as well as global level. Total services account for 71% of GDP, representing € 8,58 
bn and 68% of total employment, the equivalent of 152,6 million persons17. However, it is 

16  Although  it  is  not  foreseen  in  Article  59  of  the  Professional  Qualifications  Directive,  during  the  Mutual 
Evaluation the Commission invited Member States to involve all interested parties while examining the impact 
of their regulations. 
17 Source:  National account statistics 

8 

 
 
                                                       
broadly acknowledged that more than 20 years after its creation the full potential of a single 
market in services remains unfulfilled.  

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.  One  such  recent  study  suggested  that  an  annual  potential  of 
€39billion  GDP  remains  to  be  captured18.  At  present,  based  on  what  Member  States 
notified  in  the  regulated  professions  database,  there  are  over  5500  regulated  professions 
across the EU19. This corresponds to an average of 199 regulated professions per Member 
State but with such large variances between countries that we see a range from the least, 
Lithuania reporting only 76, and Hungary with the most at 54320. However, these numbers 
in tell little about the intensity (or proportionality) of the regulation, its economic impact or 
the characteristics of people affected by it21 [see annex 2]. Nevertheless as a starting point 
to  the  present  analysis  it  does  serve  to  illustrate  the  scale  of  divergence  in  the  European 
Single Market for services.  

Measuring the precise impact of regulated professions is difficult owing to the lack of such 
type of occupations in any EU or international statistical classifications and until recently no 
figures even existed regarding the prevalence and effects of occupational regulation on the 
EU  labour  market22.  Therefore,  to  support  the  Mutual  Evaluation23  the  Commission 
contracted  the  first  ever  EU-wide  representative  survey  to  provide  the  data  necessary  to 
measure  the  prevalence  of  regulated  professions24.  Conducted  during  the  first  quarter  of 
2015  this  survey  contacted  over  26,600  European  citizens  and  concluded  that  22%  of  the 
European labour force, or over 47 million citizens are directly affected by the most stringent 
form  of    'licensing'  regulation25.  It  also  found  that  its  prevalence  varies  across  the  Union 
(from 14% in Denmark to 33% in Germany 26). 

Further to this an independent academic study was subsequently commissioned to analyse 
the impact on the labour market using this newly available data27.  This study provides us for 

18 http://www.europarl.europa.eu/EPRS/EPRS_Mapping_the_Cost_of_Non-Europe-June%202014.pdf 
19  See  interactive  map  in  the  EU  Regulated  Professions  Database  for  a  visual  representation  of  the 
occupational  regulation  across  the  EU  countries.  The  Database  includes  information  on  the  regulated 
professions covered by the Directive 2005/36/EC and shows that some 600 different “generic professions” are 
affected  by  occupational  regulation.  For  each  generic  profession  there  are  usually  many  more  professions 
corresponding  to  the  national  terminology,  because  under  a  generic  profession  there  are  several  sub-
professions, which brings the number of regulated professions in the EU up to c.a. 5500. 
20 EU Regulated Professions Database, June 2016 

22 Attempts made include matching microlevel EU Labour Force Survey results, which do not include questions 
on  whether  respondents  work  in  a  regulated  profession,  with  International  Standard  Classification  of 
Occupations (ISCO) codes and the EU Regulated Professions Database run by the European Commission. The 
estimates provided by Koumenta et al. (2014) show lower and upper bounds of those affected by occupational 
regulation in the EU: between 10 and 24% of the EU labour force.  
23 “Communication on evaluating national regulations on access to professions”, 2013, COM/2013/0676 final 
24 Reference to TNS work – Annex in M&M study 
25 I.e. reserves of activities (“licensing”).  
26 ISCO categories 
27 Koumenta and Pagliero (2016) 

9 

 
 
                                                       
 
the  first  time  ever  with  estimations  based  on  a  single  methodology  of  the  impact 
professional regulation has on labour market for the whole EU. The results are summarised 
in table 1. 

Table 1 The impact of regulated profession on labour market: 

Impact 
Wages 

Finding 
An aggregate wage premium of 
about 4% but with considerable 
variations (up to 19.2% in some 
crafts)28 

Job creation 

Suggest that licensing can be 
associated with a substantial loss 
in employment (up to 705,000 
jobs in the EU). 

Mobility 

26% less foreign-born workers in 
regulated occupations compared 
to unregulated ones. 

Skills 

“upskilling effect” of occupational 
regulation – was not confirmed 

Consumer 
information 

Commonly used justification is 
the asymmetry of information 
between professionals and 
consumers. Although caveated, 
the study rejected this 
explanation for the incidence of 
licensing in the EU.] 

Detail 
This is reflected in significant differences in wages 
across professional groups and suggest that 
licensing may significantly distort relative wages. 
Also suggests that professional regulation 
contributes to wage inequality in the European 
labour market, particularly benefiting those at the 
top of the income distribution. 
Depending on the occupation, there could be 
between 3 and 9% more people working in a given 
profession should access requirements be made 
less stringent.  

Amongst EU citizens  in another Member State 
almost 1/3 fewer work in regulated compared to 
unregulated professions. The study also found 
evidence that automatic recognition arrangements 
under PQD are effective in facilitating mobility.  

Certified workers who have no obligation to invest 
in training do so more than those who do (licensed 
workers), indicating that licensing is not the only 
way to promote upskilling.  
The perceived lack of information on behalf of the 
consumer is often given as the reason for requiring 
professional regulation so as to control the quality 
of service provided.  

Source:  “Measuring  Prevalence  and  Labour  Market  impacts  of  Occupational  Regulation  in 
the EU”29  

Corresponding with this, studies on the impact of regulated professions in specific sectors 
have been carried out recently in several Member States.  

28 Wage premiums and high profit margins are a common indicator of monopoly rents and which in turn leads 
to high prices for consumers and an overall lack of competition within the profession. 
29 Maria Koumenta, Queen Mary University of London and Mario Pagliero, Collegio Carlo Alberto Torino 

10 

 
 
 
 
 
 
                                                       
For instance, the French Inspection Générale des Finances conducted its own study in which 
it analysed 37 regulated professions chosen on the basis of their economic significance and 
on  their  subjection  to  at  least  two  different  forms  of  regulation30.  The  study  analysed  the 
regulations in place, the reserves of activities, the qualifications and the tariffs, and on that 
basis found the following: 

  Removing excessive regulations for these professions could increase French GDP by 

0.5%, employment by 120,000 and exports by 0.25% of GDP 

  That these sectors have profit margins 2.4 times higher than those seen in the rest 

 

of the economy31 
In the majority of cases it isn’t possible to argue that the regulations are aimed at 
promoting  principles  of  general  public  interest  or  the  economic  efficiency  that 
inspired them 

  That the regulated professions under examination are characterized by high levels of 

profitability which has no other explanation than the regulations in place.  

In  2016,  the  Competition  and  Markets  Authority  in  the  UK  launched  a  market  study  into 
legal  services  in  England  and  Wales  to  see  if  they  were  working  well  for  consumers  and 
small  businesses.  The  interim  report32,  published  in  July  2016  considered  in  particular  the 
potential for regulation to adversely affect competition in several ways, namely by creating 
unnecessary  and  disproportionate  costs  for  consumers  and  by  creating  barriers  to  entry, 
expansion or innovation. When analysing whether regulation and regulatory framework go 
beyond  what  is  necessary  to  protect  consumers,  the  analysis  focused  on  the  impact  of 
"reserved activities and on the impact of "regulation by the title", but also on the impact of 
the  overall  framework  for  legal  services  regulation  on  competition.  The  interim  report 
highlighted in particular that the reservation of activities may reduce competition to some 
extent. Consequently, reducing their scope could have the potential for generating greater 
competition in the future33. 

The  economic  impact  of  the  liberalisation  of  the  profession  of  real  estate  agent  has  been 
assessed in the Netherlands34. In the framework of the Mutual Evaluation, the Netherlands 

https://assets.publishing.service.gov.uk/media/577f76daed915d622c0000ef/legal-services-market-study-

30http://www.ladocumentationfrancaise.fr/var/storage/rapports-publics/144000569.pdf 
31 Wage premiums and high profit margins are a common indicator of monopoly rents and which in turn leads 
to high prices for services recipients and an overall lack of competition within the profession. 
32 
interim-report.pdf  
33 See also example cited in Annex 4 that was introduced to the database: "It should be noted that previous 
requirements were higher and more stringent. Current ones are the result of the 2013 deregulation process… 
Introduction of new requirements resulted in a substantial increase in the number of granted authorizations in 
the field. On average, 212 individuals a year received professional qualifications during 2009-2013. Upon entry 
into force of the new requirements, in 2014, 420 individuals received a new professional authorizations, while 
in  2015,  381  individuals.  The  same  time  the  number  of  professional  liability  enquiries  before  and  after  the 
changes  in  granting  authorizations  does  not  indicate  that  there  is  the  decrease  in  the  quality  of  services 
provided. It was concluded that measures put in place have achieved desired result and that current level of 
qualification requirements is not too high." 
34 http://ec.europa.eu/DocsRoom/documents/15486/attachments/1/translations 

11 

 
 
                                                       
stressed that after liberalising the profession, market entry of new agents became easier. In 
2010, the amount of real estate agencies in the Netherlands was 12.339, compared to 7.931 
in 2000. Also, after 2005, commission rates went down, which could be seen as a result of 
increasing competition. 

Recognition of the consequences of inappropriate professional regulation may also be found 
in  the  context  of  the  European  Semester:  since 2011  an  average  of  11  countries  per  year 
including  the  regulated 
has  received  recommendations  on  professional  services, 
professions.  The economic  value brought about through  opening up  access to services is 
further  acknowledged  as  a  priority  in  the  economic  reforms  necessary  to  support 
regeneration  for  some  of  Europe's  most  economically  challenged  Member  States35 
Further,  a  number  of  studies  recently  contracted  by  the  Commission  show  that  making 
regulation  more  proportionate  and  adapted  to  market  reality  by  e.g.  relaxing  the  most 
restrictive  and  unjustified  requirements  resulted  in  improved  market dynamics  specifically 
leading  to  more  market  openings,  more  start-ups  and  new  innovative  services  brought  to 
market by new entrants36.  

Other  recent  studies  further  enforce  findings  that  excessive  occupational  regulation  has 
negative and multi-layered impacts on the economy, leading as it does to: 

  A  distortion  of  competition  by  keeping  unnecessarily  high  entry  barriers  for 
newcomers, therefore limiting the number of people and businesses authorised to 
provide services. A greater number of suppliers may increase levels of innovation via 
stronger competition. 

  Reduced  competition  can  lead  to  a  suboptimal  allocation  of  resources  and 
excessive price mark-ups, which can be translated into higher prices of services for 
consumers.  

  The  organisation  of  entry  requirements  to  access  a  profession  according  to 
transparent  and  objective  criteria  may  increase  significantly  the  number  of 
professionals, without undermining the quality of the service37. 

  Disproportionate  barriers  can  act  as  a  deterrent  to  innovation  by  preventing  new 
service  providers  with  innovative  solutions  to  compete  with  market  incumbents. 

35    http://ec.europa.eu/economy_finance/publications/european_economy/2014/pdf/ee5_en.pdf    as  well  as 
http://business.cardiff.ac.uk/sites/default/files/working-papers/e2015_16_0.pdf 
36The effects of reforms of regulatory requirements to access professions: country-based case studies     

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

37 See, Rojek M., Masior M., “The effects of reforms liberalising professional requirements in Poland”, Warsaw 
School  of  Economics,  forthcoming.  The  reforms  of  2005  and  of  2009  removed  the  possibility  for  local  bar 
associations  to  organise  separately  access  to  the  profession  and  gave  authority  to  the  Ministry  of  Justice  to 
organise at national level the entry exams according transparent and objective criteria. Other reforms include: 
the  obligation  for  lawyers  to  register  in  a  local  bar  when  changing  jurisdiction  was  replaced  by  a  simple 
notification  to  the  bar.    The  most  visible  effect  of  the  reform  shows  that  the  number  of  lawyers  and  legal 
advisers almost doubled between 2005 and 2016. Available data on the quality of legal services gathered by 
professional bodies show a 50% decrease in the number of complaints per active lawyer for the period 2010-
2013  compared  to  the  period  1998-2001  and  a  decrease  in  the  number  of  complaints  for  professional 
malpractice. 

12 

 
 
                                                       
 
Excessive  entry 
opportunities for professionals38.  

regulation  may  also  unnecessarily 

reduce  employment 

  Because of their fundamental part in value chains as users of other sectors' inputs 
and  in  turn  as  contributors  to  the  production  process  of  other  sectors,  their 
economic role is even greater than its face value. For example, €1 of final demand 
for architectural and engineering services generates €1.9 of gross production in the 
whole economy39.  

  This  highlights  the  pan-economic  impact  of  regulation  in  professional  services  and 
one  study  found  the  positive  effect  of  previous  structural  reforms  in  German 
business  services  "on  the  net  value  added  in  the  downstream  manufacturing 
production as well as in the overall economy"40  

  Another  paper  makes  the  link  with  innovation  and  knowledge  spill-overs  but  also 
with Foreign Direct Investment (FDI), noting the significant proportion of FDI which 
goes to the services sector and that 'domestic reforms are crucial in contributing to 
attract FDI41':  

At macroeconomic level this all adds up to a restraint on economic growth and the loss of 
employment  opportunities  not  only  for  the  Member  State  directly  concerned  but  also  for 
the  internal  market  as  a  whole  because  of  the  interrelationships  between  neighbouring 
economies whose exports depend on the accessibility of their neighbours’ markets. Because 
of  their  predominance  in  key  sectors  (business  services,  construction,  health  and  social 
services,  etc.),  the  regulated  professions  contribute  significantly  to  the  rest  of  the 
economy  and  are  needed  for  economic  growth  and  employment.  It  has  therefore  a 
substantial impact on Europe’s competitiveness as a whole and in this context such issues 
need to be tackled at a European level.  

2.  Procedural aspects and consultation of interested parties  
The evidence base for this impact assessment stems from the on-going Mutual Evaluation 
exercise undertaken in the last two years, the information provided by national competent 
authorities  in  the  Regulated  Professions  Database  and  the  various  reports  on  specific 
sectors,  drafted  in  agreement  with  the  Member  States  and  published  by  the  Commission. 
Additionally a public consultation was carried out between 27th May and 22nd August 2016. 
A total 420 responses were received.  

A  fuller  extrapolation  of  results  may  be  found  in  annex  11.2.  Summarised  here  are  the 
higher level conclusions which may be drawn as they relate firstly to the problem drivers as 

38 Extensive academic research has been produced on these effects and is summarised in the Communication 
on  evaluating  national  regulation  on  access  to  professions  (COM  (2013)  676)  and  in  the  Staff  Working 
Document accompanying the Communication on Upgrading the Single Market (COM(2015) 550). 
39 Canton et al. (2014) For legal and accounting activities the corresponding figure is 1.8 EUR 
40https://www.iwp.uni-koeln.de/fileadmin/contents/dateiliste_iwp-
website/publikationen/DP/owiwo/OWIWO_DP_01b_2015.pdf 
41 http://trade.ec.europa.eu/doclib/docs/2006/march/tradoc_127733.pdf 

13 

 
 
                                                       
set  out  in  this  Impact  Assessment  and  secondly  a  review  of  responses  regarding  the 
introduction of a common proportionality test. In summary: 

  Regarding  the  quality  of  analysis  found  in  National  Action  Plans  (NAPs)  [11.2.3  of 

annex]: 

When controlled for the organised views of interests around 37% found that NAPs 
were based upon the most relevant information on the impact of regulation on the 
market  and/or  professionals  (e.g  empirical  studies,  reports  by  professional 
associations  and  consumer  protection  bodies,  reports  and/or  opinions  of  other 
national  authorities  such  as  competition  authorities)  and  around  35%  that  'all 
impacts of regulation were thoroughly analysed'. [section 11.5 of annex] 

  Regarding  current  regulatory  checks  and  balances  already  in  place  [section  11.6  of 

annex]: 

When  asked  what  proportionality  related  assessing  was  already  in  place  in  their 
Member State: around 38 % said there was a systematic methodology, 38% that is 
was done on a case by case basis and 24% that no methodology exists.   

Regarding existing criteria according to EU law 39% were unaware of any, of these 
were 43% of those who responded as a 'public authority'  
Transparency  issues  were  addressed  in  relation  to  consultation  practices:  in  the 
region  of  61%  focussed  consultations  only  on  the  professions  concerned  and  the 
publication of the results of any analysis is not done in many cases.  
  Regarding the introduction of a proportionality test[section 11.7 of annex]: 

Around 93% of respondents agreed that authorities should analyse the impact of 
the professional regulations they introduce.  
56%  that  proportionality  should  be  analysed  with  a  set  of  common  minimum 
criteria  to  assess  the  impact  of  regulation  so  that  the  most  relevant  factors  are 
considered by all regulators.  
Of the 61% aware of current proportionality analysing procedures, 45% thought it 
needed no further clarification but this number drops to 26% when controlled for 
organised responses.  

  Top  concerns  with  current  procedures  reflected  those  in  this  IA,  namely:  quality, 
compliance,  comparability  and  transparency  according  to  the  best  principles  of 
proportionality in regulation. 

  Respondents  agree  that  issues  around  wider  economic  impact  and  cumulative 

regulatory effects should be part of such a test. [section 11.6.2 of annex] 

  The  rate  of  regulatory  change  is  high  within  the  professions  with  around  50%  of 

respondents wishing for more [section 11.2.6 of annex] 

14 

 
 
  Aside from a general concurrence, those most reluctant to support any change to 
the ways through which proportionality is analysed or to acknowledge the benefits 
it  may  deliver,  come  largely  from  within  the  professional  representative  bodies. 
Almost  exclusively  the  German  and  Austrian  crafts  have  particularly  strong 
reservations  which  are  reflected  by  a  coordinated  response  to  the  consultation 
accounting 
to  current 
for  nearly  100 
proportionality approaches.42  

the  alteration 

responses 

refuting 

  Across Member States, attitudes towards an improved used of proportionality are: 

Those who replied yes to the above were then asked:  

42  These  may  be  found  under  the  demographic  category  of  'other'  in  the  consultation,  as  oppose  to  user, 
provider or authority (although a significant additional number also responded as authorities). The category of 
'other' is comprised of 173 contributions including 4 from research institutions and 17 from trade unions. The 
remaining  152  came  from  professional  associations  with  the  majority  of  the  respondents  accounted  for  by 
Austria (48) and Germany (46), the remaining are Belgium (2), the Czech Republic (2), Denmark (1), Finland (1), 
France  (20),  Ireland  (2),  Italy  (12),  Lithuania  (2),  Poland  (1),  Romania  (1),  Spain  (4),  Sweden  (1),  UK  (6),  EEA 
Country (1) and, International Organisation (2). Where organised responses are given it is common procedure 
to  count  them  as  1  however,  for  the  purposes  of  transparency  we  have  included  these  responses  though 
indicating  their  effect  should  we  not  have  chosen  this  route.  It  should  be  noted  that  the  majority  of  trade 
unions supported a mandatory route (see section 11.2.5 of annex) 

15 

 
 
 
 
 
 
 
 
                                                       
 
Looking at these responses according to stakeholder demographics we find: 

Should there be common guidance?  Should this guidance 

Yes 
No 
Yes 
No 
Yes 
No 
Yes 

30 
15 
85 
1 
75 
29 
64 (53) 

Public Authorities 

Users 

Providers 

(bracketed 
Other 
figures 
denote 
removal of organised 
responses) 

be mandatory? 
24 
6 
 5 
- 
64 
5 
46  

No 

93 ( 23) 

15 

16 

 
 
 
 
 
 
 
 
3.  Problem definition – Fragmentation of the Single Market resulting from 

disproportionate regulation 

The regulation of professions by definition does and means to create barriers. Such barriers 
may  be  necessary  to  guard  against  justifiable  risks.  The  reasons  for  introducing  regulation 
are  often  to  protect  the  consumer  of  the  service,  the  public  in  general  or  related  to 
environmental concerns. Obvious examples are health professions where the potential for 
risk  is  high  and  the  quality  of  practitioners  must  be  guaranteed  as  far  as  is  possible. 
However,  proportionality  in  regulation  is  not  an  intangible  abstraction  but  may  be 
objectively interrogated according to the benefits a regulation brings to guard against such 
risks alongside its impacts upon the broader market. In this way informed judgements may 
be taken as to the desirability of any trade-offs to the competitive environment. In view of 
their important social and economic  effects, such assumptions and choices must rest on 
solid evaluations. Where for whatever reason, failing to ask and properly investigate the 
fundamental questions underlying such decisions are lacking, the negative consequences 
of disproportionate and unnecessary regulation are likely to follow.  

Yet  the  disparity  observed  in  ensuring  proportionality  in  regulation  indicates  fundamental 
challenges  at  a  Member  State  level  to  properly  grasp  and  respond  to  issues  around 
proportionality.  Ultimately  this  results  in  regulatory  decisions  which  may  be  considered 
disproportionate or even entirely unnecessary.  

17 

 
 
 
  
Over  the  European  Union  more  than  550043  regulated  professions  were  notified  to  the 
Commission, 40% in the health and social services sector and 3% regulated by no more than 
two  Member  States.  The  most  striking  immediate  observation  was  in  the  area  of  civil 
engineering  where  the  subdivision  of  categories,  largely  related  to  the  scope  of  activities 
reserved  to  qualified  professionals  (i.e.  those  activities  which  can  only  be  performed  by 
qualified professionals) uncovered over 90 different classes of civil engineer.  For example, it 
is revealing to consider that there are regulations, adopted decades ago, which are not even 
applied in practice, but remain in force and thus have the potential to create barriers and 
may  jeopardise  legal  certainty.  Where  regulations  may  have  been  designed  decades 
previously, new technological developments have been taken into account only by a limited 
number of Member States44 when regarding the regulations currently in effect.  

Additionally,  even  within  a  Member  State,  the  approach  as  regards  proportionality 
assessments may vary significantly and one can find regional differences not only regarding 
which  professions  to  regulate  but  also  which,  and  how  many,  measures  to  apply.  For 
instance  in  Spain,  whereas  the  profession  of  real  estate  agent  has  been  liberalised  at 
national  level,  the  possibility  to  reintroduce  regulation  has  been  foreseen  and  already 
implemented at regional level in at least one region. However, according to the information 
submitted  during  the  Mutual  Evaluation,  there  has  been  no  impact  assessment  of  the 

be 

43 A full list of professions, according to generic title, and which have been notified to the Commission to date 
may 
http://ec.europa.eu/growth/tools-
databases/regprof/index.cfm?action=professions&quid=2&mode=asc&maxRows=*%20-%20top 
44  See  Sector  Report  on  real  estate  agents  and  in  particular  the  reform  of  the  regulatory  framework  of  the 
Netherlands,  taking  into  account  the  rise  of  the  internet,  reducing  the  asymmetry  of  information  between 
professionals and consumers. 

found 

here: 

18 

 
 
 
                                                       
different regimes in the different regions, nor has been a similar enquiry into the regulation 
of estate agents as a causal factor in property speculation45.  

As an extensive and retrospective exercise, often subject to the will of strong interests as 
well as a certain endowment bias, the Mutual Evaluation has not been able to deliver the 
meaningful reform that was expected.  

Whilst  the  Directive  requires  Member  States  to  apply  proportionality  when  making 
assessments  it  does  not  address  how  specifically  these  proportionality  assessments  are  to 
be made46 and, as shown through experience of the Mutual Evaluation, this lack of clarity is 
likely  to  hinder  the  Member  States'  ability  to  implement  the  Directive47.  Issues  of 
proportionality  and in particular the intensity and evidence-base of the assessment are to 
be found in case-law but in such a fragmented way that it hinders practitioners' ability to act 
with  clarity.  Case-law  by  its  nature  applies  to  specific  cases  and  extracting  the  general 
principles in the appropriate level of detail may not always be straightforward. As such this 
may present difficulties for Member States.  

Certain professional activities (for instance notaries) have not been subject to an in-depth 
review  due  to  fact  that  they  were  explicitly  excluded  from  the  scope  of  the  Professional 
Qualifications  Directive  and  thus  did  not  benefit  from  the  Mutual  Evaluation  exercise. 
However, in line with the Treaty, it has to be ensured that the proportionality principle is 
applied  in  a  consistent  way  to  all  sectors  of  activity,  while  duly  taking  into  account  the 
specificity  of  the  specific  profession  under  scrutiny  and  the  competency  of  the  Member 
State to regulate according to these principles.  

In  view  of  the  striking  divergence  in  the  regulation  of  similar  professions  across  Member 
States,  the  variety  of  approaches  and  apparent  confusion  in  assessing  the  value  of 
regulations,  the  objective  of  the  obligation  to  assess  the  proportionality  of  national 
regulations  under  the  Professional  Qualifications  Directive  and  the  Mutual  Evaluation  has 
not  been  reached  and  it  currently  does  not  fulfil  its  role  as  negotiations  intended.  The 
results of the Mutual Evaluation exercise show that Member States do not provide sufficient 
arguments,  if  any,  as  to  the  proportionality  of  their  professional  regulations  and  the 
consultation  indicated  a  disparate  and  disorganised  approach  to  regulatory  assessments. 
The  existing  obligations  clearly  do  not  prevent  the  adoption  of  disproportionate 
requirements. 

3.1. Experience from the Mutual Evaluation 

For  the  purposes  of  the  Mutual  Evaluation  the  Commission  developed  a  questionnaire 
according  to  existing  case-law48  to  help  Member  States  review  their  regulation  from  the 
point of view of proportionality. This process informed the proposal set out in this Impact 

45 See Sector Report on real estate agents and in particular the regulatory framework in Catalonia, Spain. 

47  See  the  annex  on  the  public  consultation:  section  11.6.2.  :  Responses  regarding  the  current  state  of 
proportionality assessments in the EU 
48 See footnote n°54. 

19 

 
 
                                                       
 
Assessment;  in  so  much  as  it  legally  required  Member  States  to  undergo  proportionality 
focussed  assessments  for  each  of  their  regulated  professions.  As  such,  an  appraisal  of  its 
success  and  any  underlying  problems  encountered  is  a  particularly  relevant  source  of 
information for this Impact Assessment.  

Table 1 illustrates the state of play in June 2016 regarding the proportionality assessments 
and National Action Plans submitted by Member States. The deadline for submission of this 
information was 18 January 2016.  

Table  2 – Proportionality assessments carried out by EU Member States, June 2016  

Total number 
of 
professions 
reported 
regulated by 
that Member 
State 
213 
128 
110 
114 
366 
162 
98 
140 
260 
151 
153 
275 
634 
149 
179 
267 
76 
125 
140 
135 
347 
239 
200 
299 

Proportionality 
assessments 
submitted 
[by 9.6.2016] 
102 
88 
99 
17 
366 
160 
84 
140 
234 
112 
1 
19 
301 
28 
170 
267 
76 
2 
2 
98 
345 
63 
119 
252 

% of 
proportionality 
assessments 
missing 
52% 
31% 
10% 
85% 
0% 
1% 
14% 
0% 
10% 
26% 
99% 
93% 
53% 
81% 
5% 
0% 
0% 
98% 
99% 
27% 
1% 
74% 
40% 
16% 

20 

AT 
BE 
BG 
CY 
CZ 
DK 
EE 
FI 
FR 
DE 
EL 
HR 
HU 
IE 
IT 
LV 
LT 
LU 
MT 
NL 
PL 
PT 
RO 
SK 

National 
Action Plan 
submitted 
(NAP) 

Yes 
Yes 
Yes 
No 
Yes 
Yes 
Yes 
Yes 
Yes 
Yes 
No 
Yes 
No 
No 
Yes 
No 
Yes 
Yes 
No 
Yes 
Yes 
Yes 
Yes 
Yes 

 
 
 
SI 
ES 
SE 
UK 
EU 

28 
103 
87 
170 
3533 

90% 
46% 
10% 
24% 
39% 

287 
192 
97 
224 
5760 

No 
No 
Yes 
Yes 
20/28 

Source: EU Database on regulated professions, extraction on 9.6.2016 

As  this  table  shows,  overall  around  39%  of  proportionality  assessments  are  yet  to  be 
submitted.  However,  as  detailed  further  below,  it  should  be  clearly  understood  that  the 
presence  of  submitted  information  says  nothing  regarding  the  intrinsic  'value'  of  that 
information to the issues at hand. Indeed, in many instances the information presented was 
insufficient,  analysis  often  relied  upon  assumption  rather  than  evidence  and  too  often 
conclusions were drawn despite an absence of robust examination. 

3.2. Insufficient 'quality' proportionality assessments 

The principles which should be followed to ensure that any national requirements imposed 
on service providers are proportionate have been defined in EU law as follows:  

"requirements  must  be  suitable  for  securing  the  attainment  of  the  objective 
pursued; they must not go beyond what is necessary to attain that objective and it 
must  not  be  possible  to  replace  those  requirements  with  other,  less  restrictive 
measures which attain the same result49."  

Consequently  the  European  Commission  developed  a  questionnaire  requesting  that 
Member States answer a number of questions including:  

 

the identification of the public interest objectives which the measure(s) in question 
are meant to fulfil;  

  specific risks (or benefits) the measures in question were designed to tackle;  
  how  the  measures  in  question  operate,  in  aggregate  where  multiple  measures  are 

put in place, to meeting their objectives;  

  whether the actual effects of the measures have been assessed and finally;  
  whether  any  amending  decisions  were  being  taken  as  a  result  of  this  analysis, 

notably maintain, improve or remove existing requirements.  

This  impact  assessment  covers  analysis  of  the  around  3500  proportionality  analysis 
responses  received  by  9th  July  2016  of  the  5700  professions  notified.  Crucially,  so  as  to 
establish  an  objective  starting  point,  this  analysis  was  based  upon  the  relevance  of  the 
responses  given  to  questions  instead  of  a  judgement  upon  the  value  (quality)  of  the 
assessment in and of itself. Therefore, rather than taking a position upon the veracity of the 
proportionality  case  presented,  the  analysis  sought  to  establish  the  relevance  of  the 

49 See Article 59(3) of Directive 2005/36/EC. 

21 

 
 
 
 
 
 
 
                                                       
information  given  for  each  response  in  a  disinterested  way  and  independent  from  the 
particular  profession  under  scrutiny.    As  such  it  is  important  to  note  that  the  following 
should  not  be  construed  as  judgement  by  the  Commission  on  the  conclusions  reached  by 
Member States (maintain, improve or remove the measure), but rather as an evaluation of 
the  pertinence  in  which  issues  were  considered.  And  as  a  consequence  there  are  many 
instances  where  the  regulation  is  place  could  be  entirely  justified  but  insufficiently 
reasoned or indeed the converse. 

Thus,  the  analysis  is  based  on  a  four  step  analysis  of  the  proportionality  assessments 
submitted  by  Member  States  to  ascertain  their  appropriateness  as  a  response  to  the 
questions posed50 [annex 1]. 

3.3. Conclusions from this analysis 

The conclusions are based on the instances where a specific risk or benefit was indicated as 
the motivation behind regulation rather than more generalised considerations such quality 
of services, consumer protection or general consumer safety without indicating any specific 
risks51.  The  analysis  of  the  question  on  how  specifically  a  given  measure  was  supposed  to 
tackle  these  risks  reveals  that  in  around  61%  (within  the  ca.  3500  analysed)  could  the 
responses be considered as adequate.  

Box 1. Some examples of inadequate risk identification by Member States: 

- To increase business reliability (clothes launderer) 

- Public policy (real estate agents)52 

- The protection of creditors (hairdressers) 

- The potential for knives to cut (cooks) 

- To create a fair and controlled market (information system engineer) 

- To promote the attractiveness of activity (boat master) 

50 Please see Annex 1 for details on the method used to assess the quality of the proportionality assessments 
submitted by Member States by 9.6.2016. Proportionality assessments are not public but their results should 
have  been  summarised  in  the  publicly  available  National  Action  Plans  for  those  Member  States  which 
submitted them. 
51 This does not necessarily imply that the risks identified were deemed at the appropriate level of potential 
harm  to  consumer  or  to  the  professionals  themselves.  We  have  focused  on  the  “specificity”  of  the  risks 
identified,  as per  the  way  Q3  is  phrased.  This  allowed  us  to  assess  the  answers  in  as  objective  a  way  as  we 
could think of. Examples where specific risks/ benefits were identified but the appropriateness of the potential 
harm  can  be  questionable  include:  [bakers  getting  burned  when  baking,  the  potential  of  knives  to  cut, 
responsibility of tourist guides to give an accurate account of history to tourists, etc.] 
52 See sector report on real estate agents. It should be noted that the concept of ‘public policy’, particularly as 
justification  for  derogation  from  the  fundamental  principle  of  the  freedom  to  provide  services,  must  be 
interpreted  strictly.  Thus,  public  policy  may  be  relied  on  only  if  there  is  a  genuine  and  sufficiently  serious 
threat to a fundamental interest of society (Case C-54/99 Église de Scientologie [2000] ECR I-1335, paragraph 
17). 

22 

 
 
                                                       
- To cut the risk of fraud or counterfeiting (interior designer) 

- To guard against the dissemination of inaccurate information or to ensure security of trade 
activities and in particular of loyal transactions, (for regulating tourist guides) 

- Risk of wrist injury / small explosions (watch maker) 

Analysing responses to the question on effects (Q5), reveals that the functioning of existing 
measures are being considered only in very few cases and even in these cases, the analysis 
is rather anecdotal than based on objective studies. In around 84% of cases, the effects of 
the measures were not analysed at all.  

Box  2.  Some  examples  of  inadequate  identification  of  effects  of  regulation  by  Member 
States: 

- The measures are preventative therefore difficult to measure (Private detective) 

-Has  been  regulated  since  1968  and  road  safety  records  have  improved  since  that  time 
(driving instructor) 

-  No  penalties  have  yet  been  imposed/recorded  (multiple  instances  by  the  same  Member 
State) 

- Is regulated at EU level, therefore proportionality is not applicable (lawyer) 

- Not applicable (accountant)* 

-  No  relevant  information  on  the  effects  of  measures,  however  the  goal  is  to  prevent 
unauthorised practice (multiple instances by the same Member State) 

- Gives the holder a competitive advantage (mechanical engineers) 

* one Member State responded n/a in around 140 instances, another in over half of the few assessments they supplied 

The  third  step,  regarding  the  cumulative  effect  of  multiple  measures,  found  that  in  the 
region  of  10%  made  no  analysis where  such  additional  restrictions  were  in place.  This  is 
even aside from consideration of broader measures in place such as consumer or health and 
safety law which could be considered additional protections in almost all instances. 

Finally, as a conclusion to this analysis regarding the conclusions reached by Member States 
from  their  preceding  analysis,  in  at  least  69%  of  cases  where  the  stated  intention  to 
“maintain the current system” were neither the risks that the measures were supposed to 
minimise  identified,  nor  the  effects  of  the  measures  analysed.  This  illustrates  the 
frequency  of  regulatory  decisions  being  made  upon  a  paucity  of  adequately  conducted 
proportionality assessments.  

Another sign that proper analysis is not being routinely pursued by administrations refers to 
the  amount  of  instances  where  recent  reforms  were  made  without  the  seeming  ability  to 

23 

 
 
present  the  supporting  information  for  these  decisions.  For  instance,  in  January  2016 
Bulgaria  introduced  regulations  concerning  the  professions  of  tourist  guide53  and  travel 
agent.  Despite  the  level  of  restrictiveness  of  the  new  rules  as  regards  the  scope  of  the 
reserved activities or the training requirements, a proportionality analysis of the measures 
before  their  adoption  does  not  seem  to  have  been  carried  out.  Similarly,  Italy  has 
introduced  new  requirements54  for  lawyers,  which  also  do  not  appear  to  have  been 
analysed according to proportionality principles prior to their adoption and which have not 
been substantiated by further justification. Furthermore, whereas in 2015 France conducted 
major  reforms55  in  several  legal  professions,  very  limited  changes  were  introduced  to 
improve access to ministerial offices, attributed to lawyers acting before the highest courts, 
as evidenced by the results of the public consultation carried out by the Commission.  

The fundamental and very real concern suggested by this analysis is that Member States 
are all too often basing far-reaching policy conclusions and implementing new regulations 
based upon inadequate arguments and without due diligence to the social and economic 
risks  of  such  decisions.  This  lack  of  assiduousness  risks  not  only  unnecessary,  detrimental 
and costly over regulation but also, in not fully appreciating the operation of a regulation on 
its  objectives,  to  inadequate  protections  where  the  public  interest  ought  to  rightly  be 
guaranteed.  

3.4. The drivers of the problem 

Multiple  drivers  may  be  put  forward  each  operating  to  lesser  or  greater  degree  within  a 
particular Member State but which overall negatively contribute to a collectively divergent 
approach to the overall regulation of professional services in the Single Market,  according 
to a highly individualised and generally insufficient use of proportionality.  

Before  outlining  these  it  is  also  necessary  to  consider  the  possibility  of  other  factors  that 
may have influenced our findings above.  For example, it may be that some Member States 
encountered  resourcing  issues  yet  even  so  they  still  encountered  difficulties  in  relatively 
fundamental  areas,  such  as  identifying  those  risks  necessitating  regulatory  protection  and 
where  data  gathering  is  not  required;  responses  were  too  often  lacking  credibility  or 
relevance. Although allocated over two years for the completion of this task some have still 
failed  to  deliver  and  additionally  we  are  aware  of  instances  where  Member  States 
encountered  opposition  from  their  competent  authorities  to  supply  the  necessary 
information.  This  has  not  however  prevented  new  regulatory  decisions  from  being  taken 

53  See  Ordinance  №  1  of  5  January  2016,  reserving  the  activity  of  accompanying  tourists  to  their 
accommodation only to qualified tourist guides, available at 
http://dv.parliament.bg/DVWeb/showMaterialDV.jsp;jsessionid=A84C95620C98DCBC4173DFAA93C50429?id
Mat=99918 
54 See for example the requirement for having dealt with at least 5 cases per year, Decree of 25 February 2016, 
n.  47  published  of  the  OJ  on  07/04/2016  "Regulation  laying  down  rules  for  the  assessment  of  the  effective 
exercise of the legal profession" 
55 See the Law on Growth and Economic Activity (so-called “Macron Law”), adopted on August 6th 2015. 

24 

 
 
                                                       
over  this  same  time  period.  Additionally,  one  of  the  motivations  behind  the  Mutual 
Evaluation exercise was to ensure that old regulations are screened against contemporary 
needs.  In  such  cases  where  a  regulation  was  adopted  decades  previously  it  may  be  that 
analysis  at  that  time  was  rudimentary  or  that  much  of  it  has  since  been  lost  and  as  such 
could  not  be  submitted  for  this  exercise.  Similar  to  the  above  however,  this  has  not 
prevented  new  measures  from  being  introduced  or  announced  during  the  course  of  the 
Mutual  Evaluation  and  without  any  concomitant  reasoning  or  reflection  in  the  responses 
submitted.  

Understanding this, the  present Impact Assessment has identified  four primary underlying 
drivers  behind  the  issue  of  Member  States  failing  to  properly  conduct  proportionality 
analysis and thereby guarantee against the negative effects or redundant and undesirable 
regulations: 

Driver  1:  Lack  of  clarity  as  regards  the  criteria  required  to  comply  with  the  principle  of 
proportionality  

The  necessary  criteria  required  to  comply  with  the  legal  requirement  to  examine 
proportionality  are  not  clearly  established  in  Article  59  of  the  Professional  Qualifications 
Directive,  making  assessment  and  prevention  of  disproportionate  regulation  difficult  to 
moderate. Currently, Article 59 (3) contains only a general obligation for Member States to 
examine  whether  national  requirements  are  "suitable  for  securing  the  attainment  of  the 
objective pursued" and do not "go beyond what is necessary to attain that objective". The 
criteria to conduct a proportionality test are scattered in the case-law, since each case dealt 
with  by  the  Court  of  Justice  is  specific  in  its  factual  and  legal  assessment  of  specific 
requirements.  Member  States  have  pre-existing  obligations  to  perform  proportionality 
checks under the Professional Qualifications Directive and the Treaty and going forward will 
be expected to notify changes to their regulatory environment according to proportionality 
principle56.  However,  despite  criteria  already  existing  in  the  case-law  of  the  Court  of 
Justice57,  the  fulfilment  of  existing  obligations  is  often  based  on  national  methodologies 
leading to a great deal of discrepancy and the inability to make workable comparisons. As 
the case law is dispersed, it is neither clear which criteria are the minimum and sufficient for 
a  proportionality  assessment  to  be  deemed  satisfactory  and  compliant  nor  how  to  most 
appropriately  frame  such  responses.  Such  ambiguity  breeds  uncertainty,  groundless 
diversity,  does  not  promote  capacity  building  across  the  Union,  risks  the  adoption  of 
risks  proper 
unsound  decisions  based  on  unsound  evaluations  and  ultimately 

56 See Article 59(3) and (5) of the Professional Qualifications Directive. 
57 See inter alia Case C-55/94, Reinhard Gebhard v. Consiglio dell'Ordine degli Avvocati e Procuratori di Milano, 
Case C-575/11 Nasiopoulos, Case C-539/11 Ottica New Line di Accardi Vincenzo, Case C-475/11 Konstantinides 
Joined Cases C 422/09, C 425/09 and C 426/09 Vandorou, Joined Cases C 372/09 and C 373/09 Josep Peñarroja 
Fa, C 340/89 Vlassopoulou, Case C 76/90 Säger, Case C-19/92 Kraus, Case C-3/95 Reisebüro Broede , Case C-
424/97  Haim,  Case  C-197/06  Van  Leuken,  Joined  Cases  C  94/04  et  C  202/04  Cipolla,  Case  C-451/03  Servizi 
Ausiliari Dottori Commercialisti, Case C-79/01 Payroll Data Services. 

25 

 
 
                                                       
implementation according to the objectives underlying the Directive. The prevalence of this 
issue was borne out by responses in the Public Consultation (see section 11.6 of Annex 2).  

Driver  2:  An  absence  of  preventive  structured  assessments  to  avoid  adoption  of 
disproportionate measures at all levels of regulation 

Existing obligations are not going far enough to promote best practice and thereby are not 
preventing the adoption of requirements out of line with the principle of proportionality, as 
demonstrated by the new regulations introduced in some Member States58. Since the case-
law  on  proportionality  in  professional  regulation  is  not  codified  and  more  importantly, 
neither  the  case-law  nor  Article  59  of  the  Professional  Qualifications  Directive  contain  a 
clear  obligation  for  Member  States  to  carry  out  a  detailed  and  structured  ex-ante 
proportionality check.  

The results of the consultation and Commission observations, as described above in regard 
to  the  Mutual  Evaluation,  demonstrate  the  lack  of  such  a  structured  approach.  Even 
Member  States  which  have  already  made  significant  efforts  to  comply  with  the  existing 
requirements  are  still  seeking  to  improve  their  assessment  processes59.  In  any  event,  the 
way these assessments might be done and in how far they reflect faithfully and coherently 
the aspects developed in the case law, differ widely, making any comparison impossible. 

Thus,  there  is  a  risk  that  regulation  is  adopted  without  a  prior  proportionality  assessment 
and  the  reasons  justifying  it  are  simply  routinely  drafted  and  communicated  to  the 
Commission  during  the  six-month  period  after  the  adoption.  Furthermore,  although 
Member  States  have  to  comply  with  the  principle  of  proportionality  at  all  levels  of 
regulation60 (even on regional or local level), it appears that the proportionality check is not 
always performed concerning secondary legislation61. 

Driver 3: Limited possibilities to identify and challenge disproportionate regulation  

EU citizens exercising their free movement rights and looking for a job are often requested 
to fulfil several categories of requirements, which may be seen as excessive, especially when 
they tend to safeguard inadequately the same public interest objective62. There are number 

58 See above the new rules on tourist guides and travel agents in Bulgaria, or the rules on the continuous and 
effective exercise of the profession of lawyer in Italy. 
59  See  for  instance  Poland  and  the  Czech  Republic,  which  have  been  very  active  throughout  the  Mutual 
Evaluation  as  regards  notification  and  justification  of  existing  legislation,  and  continue  producing  impact 
assessments, supported by economic evidence of their current reforms. 
60 See in that respect Case C-225/15 Politano.  
61  See  to  that  effect  examples  in  Bulgaria:  Ordinance  №  1  of  5  January  2016,  reserving  the  activity  of 
accompanying  tourists  to  their  accommodation  only  to  qualified  tourist  guides,  Poland:  The  Visiting 
Regulations for the Old Town of Kostrzyn nad Odrą, adopted by Regulation 32/2011 of the Museum’s Director, 
issued on 29 April, 2011, reserving visits of the whole town and not only of the Museum to locally qualified 
tourist guides. 
62 One example discussed during the Mutual Evaluation refers to citizens from one Member State crossing its 
border  to  study  at  another where  the qualification  and  training  criteria were less  stringent  before returning 

26 

 
 
 
                                                       
of instances where there is lack of correspondence between the qualifications required (in 
particular the nature, the level and the duration) and the nature of the tasks performed63. 
National regulatory systems do not always reflect current market realities and thus impede 
market  access  for  pro-competitive  innovations  (such  as  on-line  provision  of  professional 
services). 

In all these situations, EU citizens are faced with various practical difficulties, requested to 
undergo additional administrative formalities and to spend time and money to fulfil all the 
requirements, which might well go beyond what is necessary to practice the tasks, relevant 
for each regulated profession. 

Whereas  the  Commission  receives  complaints  concerning  disproportionate  regulation, 
based on Article 59 of the Professional Qualifications Directive, often it does not have the 
necessary  information  at  its  disposal  to  be  able  to  initiate  infringement  proceedings  and 
therefore  can  act  only  in  cases  where  it  identifies  clearly  disproportionate  and  excessive 
requirements.  

The difficulty to assess proportionality of a measure lies in the fact that regulation has to be 
assessed  in  its  national  context  against  the  backdrop  of  the  regulatory  system  in  that 
particular Member State or subdivision of it and the societal environment. Such information 
is  not  in  the  hands  of  the  Commission  but  rather  the  national  authorities  and  should  be 
adequately  considered  by  them  in  assessing  proportionality.  The  lack  of  structured  and 
comparable ex-ante assessments will often mean that neither the Commission nor citizens 
can get the necessary information to assess thoroughly and if  appropriate challenge the 
proportionality of the regulation. 

While in most cases national jurisdictions are better placed to determine the proportionality 
of  the  regulation,  the  continued  absence  of  an  EU  instrument  defining  the  criteria  to  be 
taken into account makes this analysis challenging64.  

The current system, designed by article 59 of the Professional Qualifications Directive does 
not  foresee  the  possibility  for  professionals,  consumers  or  even  other  Member  States  to 
access  the  notifications  on  any  newly  adopted  measures,  including  information  on  the 

home  to  claim  recognition  and  start  a  small  business.  Despite  this  Member  State  facing  particular 
unemployment issues, and these professionals not being found to pose a risk, the Member State indicated it 
was considering ways to address the 'loop hole' rather than address the underlying issue of overly burdensome 
national regulation. 
63 See Case C-79/01 Data Payroll Services, where the activities of preparing and printing pay slips, which are 
essentially  of  administrative  nature  do  not  require  any  specific  professional  qualities  have  been  exclusively 
reserved professionally qualified persons who are registered with the association of employment consultants, 
or with the associations of lawyers, accountants, or business consultants. 
64  In  this  regard,  see  for  instance  national  case-law,  applying  the  principle  of  proportionality  to  professional 
regulations,  based  on  competition  rules:    Belgium,  Cour  de  cassation,  25  September  2003,  C.03.0139.N, 
concerning the profession of lawyer. In France in line with the case-law on the complexity of the tasks (see in 
particular  Case  C-76/90  Manfred  Säger  v  Dennemeyer  &  Co.  Ltd.,and  Case  C-79/01  Payroll  Data  Services)  a 
French court decided that an activity, which merely consists in  publishing ads on a website for a fee, should 
not to be part of the activities, reserved to real estate professionals and thus, cannot be subject to criminal 
sanctions, CA Dijon, Chambre correctionnelle, 19.02.2009: JurisData n° 2009-374844. 

27 

 
 
                                                                                                                                                                         
proportionality  of  such  measures  or  to  express  their  views.  To  conclude,  the  lack  of 
adequate  expectations  around  issues  of  proportionality,  as  well  as  transparency  on  what 
grounds  such  decisions  are  taken,  renders  the  possibility  for  successfully  challenging 
instances of disproportionality at national or European level highly unlikely. 

Driver  4:  The  limited  number  of  impartial,  objective  and  comprehensive  proportionality 
assessments in all sectors of activities, taking into account the interests of all interested 
parties, including consumers  

It may be clearly seen from the Mutual Evaluation that Member States often deputized the 
completion  of  necessary  information  to  their  competent  authorities.    As  intimated  by  the 
Mutual  Evaluation  and  then  more  strongly  suggested  by  the  results  from  the  public 
consultation  Member  States  often  fall  short  in  their  duty  to  guarantee  the  quality, 
transparency and outcomes of their regulatory choices. Often, the reason given for this lack 
or  their  delays  in  communicating  their  proportionality  analysis  has  been  the  reluctance  of 
professional  bodies  to  submit  the  requested  information,  whereas  the  responsibility  to 
comply with the requirements of the Professional Qualifications Directive lies primarily with 
the Government, who should ensure the effective implementation of its provisions in case 
of delegation to professional bodies. 

As  the  ultimate  authority  accountable  for  regulation  it  is  the  duty  of  governments  to 
rigorously  assess  and  where  necessary  provide  sufficient  challenge  to  such  demands,  as 
such responsibility must remain with them and should be reinforced. Conclusions made by 
professional bodies appear to be too readily accepted by authorities. The burden of proof 
must ultimately rest with public authorities and supporting them through a strengthening 
their oversight and means of enquiry would assist them in properly meeting their duties 
and best interests. 

Often those who exert the strongest influence on regulatory decisions are those within the 
profession itself. Whilst it is undeniable that such persons are the best placed to advise on 
the  practicalities  and  technicalities  of  the  profession,  they  are  not  always  equipped  to 
properly assess, as one would expect, nor specifically tasked with consideration of the wider 
social and economic ramifications. It should also be acknowledged, as reflected during the 
Mutual  Evaluation,  that  commonly  the  pressure  to  regulate  stems  from  these  same 
professionals65.  In  this  way  often  the  interests  of  the  professionals66,  the  prestige  of  the 
profession  and  their  lobbying  for  regulation  was  not  only  reported  by  Member  States  but 
even  posited  as  a  suitable  justification  in  the  public  interest67.  This  was  reflected  in  the 

65 Though this was not routinely reflected by the same constituency in their consultation responses with many 
stated they wished for no change to the regulation of their profession. 
66 In this context it could be mentioned that, coming under professional pressure to regulate further, it is not 
unusual for Member States to contact the Commission seeking EU level legislation to support them is resisting 
such demands. 
67 See Sector report on real estate agents, and in particular the overriding reasons to regulate the profession 
put forward by Member States. 

28 

 
 
                                                       
consultation which received a significant proportion of responses from bodies representing 
the professions, often in an organised manner. In addition the consultation indicated that in 
around  61%  of  cases  these  same  bodies  constituted  the  main  consultative  constituency68 
and in a few no consultation of any sort was even routinely undertaken.  

It is also revealing to observe the difference between outcomes of public consultations on 
regulated  professions,  depending  on  the  respondents  targeted  by  those  consultations.  In 
the Czech Republic, the need to reform the professional regulators has first been subject to 
ex-ante  public  consultations  in  2012  (for  employees)  and  the  outcome  was  in  favour  of 
liberalisation,  whereas  the  results  of  the  second  public  consultation  carried  out  in  2014 
(targeting employers) were in favour of maintaining the status quo. In view of the results of 
the  public  consultation69,  most  national  regulatory  authorities  seem  to  consult  only 
professionals  and  no  other  interested  parties,  such  as  users  of  professional  services  or 
potential  new  entry  professionals  (young  professionals,  students),  business,  unions, 
competition authorities or consumer groups. 

A proper understanding of the broader impacts of regulation, attendance to such issues in 
considering  costs  to  benefits  judgements  and  an  exploration  of  less  restrictive  means  to 
achieve the same goals should therefore be more robustly demanded so as to balance the 
evidence base for regulation. This is reflected in around 84% of respondents who said that 
wider economic impacts and cumulative effects should be clarified for reviewing regulations 

Furthermore, the assessment process, carried out by Member States was supposed to cover 
all  regulated  professions,  within  the  scope  of  the  Professional  Qualifications  Directive, 
including  those  having  particular  harmonised  minimum  training  requirements  at  EU  level, 
with the purpose to avoid gold-plating, i.e. an excess of norms, guidelines and procedures 
accumulated at national, regional and local levels, which interfere with the expected policy 
goals to be achieved by such EU regulation. The justification submitted by Member States 
often referred only to the name of the EU legal instrument, without further assessment of 
the cumulative effect of all restrictions. In addition, due to the fact  that some professions 
are  excluded  from  the  scope  of  the  Directive,  Member  States  did  not  perform  systematic 
proportionality checks, which raised a number of inquiries and parliamentary questions70. 

Given  these  factors,  improving  transparency  going  forward  is  therefore  a  fundamental 
element.  Attendance  to  more  transparent  practices  should  ensure  that  views  from  a 
broader  range  of  stakeholders  are  engaged;  that  the  process  is  open  to  scrutiny  and,  it  is 
foreseen; that knowledge of this exposure  will fortify authorities' engagement in both the 

69 See results of the public consultation in Annex 2. 
70  In  its  answer to  a parliamentary question, the  Commission  invited  Member  States to  take  the  regulations 
they deem necessary in order to adapt the legal framework governing that profession of notary public to the 
current  economic  and  business  environment.  See  Parliamentary  question  E-007438/2014,  available  at  
http://www.europarl.europa.eu/sides/getAllAnswers.do?reference=E-2014-007438&language=SL  

29 

 
 
                                                       
 
process as well as its outcomes. Ultimately thereby, sharing best practices and approaches 
to the similar type of decisions faced by other Member States. 

3.5. Who is affected, in what ways and to what extent? 

As  outlined  above,  the  negative  effects  of  unnecessary  regulation  have  far  reaching 
economic implications. The impact is mostly negative for young professionals and potential 
new entrants, such as students, but also for consumers of professional services. Regulatory 
barriers  negatively  impact  both  domestic  and  foreign  EU  services  providers  seeking  to 
access the profession and to offer their services in the single market. They act to restrict the 
supply  of  professionals  thereby  constricting  employment  in  those  professions  and  in  turn 
placing  upward  pressure  on  wages  which  the  consumer  must  bear.  In  this  respect  it  is 
interesting to recall the high importance consumers placed upon costs as a deciding factor 
when choosing a professional to provide them with a service71. This in turn has ramifications 
for the competitive environment, again impacting upon consumers, but also leading to less 
innovation,  and  related  resilience,  within  business.  Given  the  predominant  place  of 
professional  services  in  the  European  economy,  unnecessary  costs  disperse  throughout 
sectors  including  manufacturing.    Those  most  directly  and  apparently  affected  are  those 
new professionals who wish to enter the sector (see economic section). The lack of clarity is 
also an obstacle for national administrations to conduct proper proportionality tests. 

3.6. How would the problem evolve, all things being equal? 

Without  further  intervention  at  an  EU  level,  the  problems  identified  during  the  Mutual 
Evaluation  are  likely  to  persist;  indeed  there  are  grounds  to  expect  that  the  situation  will 
worsen as Member States increasingly diverge from one another without any improvements 
to  current  methodologies  and  a  strengthening  of  expectations  in  line  with  conventional 
good regulatory practices. 

Member  States  are  likely  to  continue  to  take  action  in  isolation,  exacerbating  the  current 
divergence of approaches adopted by the Member States, thus increasing fragmentation in 
the  regulation  of  professional  services  across  the  Single  Market.  Fulfilling  their  existing 
obligations would be left to the individualised approach of each Member State, and as such 
is likely to prevent appropriate implementation.  

In  this  context,  despite  the  guidance  provided  by  the  Commission  during  the  Mutual 
Evaluation,  experience  shows  that  decisions  are  still  being  inadequately  or  openly 
interrogated and levels of scrutiny across the Member States are uneven. No action at the 
EU  level  would  mean  this  continuing  and  as  a  result  the  likelihood  that  ill-conceived 
regulation be adopted. This risks new regulatory obstacles further fracturing the market and 
thus  intensifying  those  economic  risks  already  identified  in  this  Impact  Assessment.  The 
quality gap between those countries who already prioritise proportionality testing into their 
legislative  process  and  those  who  have  not  is  evidenced  by  the  difference  between  some 

71 Eurobarometer: http://ec.europa.eu/public_opinion/archives/ebs/ebs_398_en.pdf 

30 

 
 
                                                       
countries, having incorporated the frontrunners'72 approach and others, making the internal 
market fragmentation all the more tangible73.   

More importantly, Article 59 of the Professional Qualifications Directive does not fully play a 
preventive  role  as  regards  the  adoption  of  new  disproportionate  regulations.  As  a 
consequence,  those  barriers  cannot  be  removed  solely  by  relying  on  Article  59  of  the 
Professional  Qualifications  Directive  and  on  the  Treaty,  since  initiating  infringement 
procedures  against  the  Member  States  on  a  case-by-case  basis  would  be  very  challenging 
for national and EU institutions, considering the huge number74 of professional regulations 
across  the  EU,  as  well  as  the  overall  duration  of  infringement  proceedings  from  their 
initiation to termination. Furthermore, in most cases the Commission cannot substitute its 
own  assessment  of  an  individual  situation  for  that  of  national  authorities  as  it  does  not 
possess  all  the  necessary  information  as  regards  the  particularities  of  the  market  and  the 
effects  of  the  regulations  in  place.  The  Commission  can  only  do  so  in  cases  where 
regulations are clearly excessive and disproportionate.   

4.  EU right to act and subsidiarity 
Depending  on  the  option  chosen,  the  legal  basis  could  be  either  Articles  46,  53(1)  and  62 
TFEU  (Directive  of  the  European  Parliament  and  of  the  Council)  or  Article  292  TFEU 
(Commission Recommendation). 

The EU 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 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.  

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.  The  current  uneven  scrutiny  of  the  regulation  of 
professions across the EU has a substantial impact on the wider economy as shown above, 
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 

72  The  Frontrunners  refers  to  a  group  of  Member  States  who  commonly  come  together  to  push  for  Single 
Market developments. For example; together theUK, NL, DK, LT, PT, SE and NO developed a methodology for 
considering regulation of professions, supported by case studies of different regulatory approaches taken by 
participating Member States to support the Mutual Evaluation process. 
73  UK  'Growth  Duty'  consultation  https://www.gov.uk/government/consultations/business-impact-target-
growth-duty-and-small-business-appeals-champion 
74 Currently there are more than 5700 regulations of professions across the EU, often implemented through 
multiple layers of regulation. 

31 

 
 
                                                       
of the national regulation and address the existing problems faced by national authorities. 
As  evidenced  by  the  information  obtained  in  the  Mutual  Evaluation,  the  criteria  used  and 
the intensity of the assessments vary significantly between Member States. 

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, enacted 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  the 
national  authorities  when  assessing  the  proportionality  of  national  regulations  of 
professions. 

Thus, by providing a common set of criteria as to the method that Member States need to 
use to carry out proportionality assessments, the proportionality test would ensure that the 
rules  are  applied  in  an  equal  manner  by  all  national  authorities.  At  the  same  time,  the 
initiative will reinforce the quality of the assessment of envisaged national legislation from 
which  national  governments  should  be  in  a  position  to  examine  alternative  mechanisms, 
draw conclusions and propose appropriate actions to modernise their national legislation.  

An  EU  approach  would  enable  national  authorities  to  perform  comprehensive  and 
comparable  proportionality  checks  by  creating  a  transparent  and  predictable 
legal 
framework to assess barriers to regulated professions.  

5.  Consistency with other EU policies and with the Charter for fundamental 

rights 

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

Apart  from  the  proportionality  test,  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  will  recommend  Member  States  level  action.    These 
information 
recommendations  will  be  developed  using  qualitative  and  quantitative 
gathered during the Mutual Evaluation exercise as well as follow-up reporting by Member 
States. 

These  two  actions  are  complementary,  in  the  sense  that  the  proportionality  test  would 
provide general framework for the criteria to be used when assessing the proportionality of 
envisaged  regulation,  while  the  periodic  guidance  on  reform  needs  will  focus  on  specific 
issues, identified in existing regulations in certain professions or sectors. 

32 

 
 
The  present  initiative  is  not  inconsistent  with  the  initiative  to  improve  notifications  under 
the  Services  Directive,  since  it  does  not  provide  for  additional  notification  procedure  and 
implies  that  proportionality  tests,  carried  out  in  the  context  of  regulated  professions  will 
continue to be communicated to the Commission on the basis of existing procedure, set out 
in Article 59 (5) and (6) of the Professional Qualifications Directive. Notifications under the 
Services  Directive  are  different  in  scope  in  terms  of  which  professions  and  situations  they 
apply to as well as which measures. There will be certain overlaps as far as requirements are 
concerned which are covered by the services directive, such as legal form and shareholding 
requirements, and which are also part of regulation of professions. Implementation will pay 
due consideration to such instances so as not to be onerous for MS and to ensure that COM 
services are linked up75. 

Action  at  EU  level  would  be  compatible  with  the  EU  Charter  of  Fundamental  rights  as  it 
ensures free movement of professionals, services, and the freedom of establishment. 

6.  Objectives 

6.1.  General policy objectives 

Following experience from the Mutual Evaluation therefore, our intention is to future-proof 
regulation from further the unsubstantiated and inadequately understood effects of future 

75  Proportionality  test  under  our  proposal  is  expected  to  inform  notifications  under  the 
Services  Directive  and  consistency  between  the  two  initiatives  will  be  ensured.  We  are 
currently  working  on  technical  ways  by  developing  IMI  modules  to  avoid  double 
notifications. 

33 

 
 
 
                                                       
 
regulatory decisions. The general objective of this initiative is to improve the functioning of 
the Single Market for professional service providers and citizens by improving the quality of 
regulation  in  the  professions  through  the  proportionality  assessments  and  thereby, 
ultimately,  regulatory  outcomes.  In  doing  so,  this  initiative  aims  at  ensuring  that  only 
proportionate regulation is put in place to achieve a modernised, simplified and improved 
access to professions across the EU. The objective implies focussing mainly on prevention, 
instead of ex-post control of disproportionate regulations. 

To be clear, this proposal would apply only to future regulatory reforms.  In this way the 
action is intended to stem the introduction of new burdensome requirements and to better 
inform  decision  makers  at  the  moment  when  they  are  already  considering  reforms. 
Following our experience we know the rate of change in the regulation of professions to be 
high  and  as  such  have  judged  that  the  pre-emptive  step  of  a  robust  evaluation  would  be 
more  efficient  than  retrospective  corrective  actions  following  injurious  or  unnecessary 
choices. As an indication, if from the 5700 professions we were to conservatively estimate a 
reform once a decade for each; it would represent 570 changes annually. Reflecting this; our 
public consultation showed 28 professions who alone accounted for 147 regulatory changes 
in the past decade. Given this preventative intention therefore, as well as the sheer scale of 
change  witnessed,  it  would  be  neither  desirable  nor  conceivable  for  COM  to  monitor 
changes and issue subsequent guidance along the lines of that currently being undertaken 
by  our  second  SMS  initiative  for  Reform  Guidance.  Additionally  and  according  to  this  high 
rate of regulatory change, we would expect the benefits of a better regulatory environment 
for service providers to accumulate over the longer term. 

6.2. Specific policy objectives 

In  order  to  achieve  the  general  objective  set,  the  following  specific  objectives  have  been 
defined as follows: 

  Clarify and systematise the minimum criteria to be used for proportionality analysis;  
  Make proportionality assessments more transparent, reliable, comparable, objective 
and  comprehensive  across  the  Member  States  to  ensure  that  the  regulation  they 
approve is best fit for their objectives and that all relevant interest are served; 

  Ensure that rules are applied in an equal manner by all MS at all levels of regulation 

to avoid fragmentation of the Single Market.  

7.  Policy options 
The policy options below can be considered for the content of the initiative, bearing in mind 
that  with  the  exception  of  the  baseline  scenario,  on  substance  the  different  elements  in 
most options are not mutually exclusive and could therefore be combined. 

34 

 
 
 
7.1.  Baseline scenario: no new action 

Under  this  option  the  Commission  would  continue  to  rely  on  the  existing  framework, 
without  undertaking  further  action  to  address  the  weaknesses  in  the  assessment  of 
proportionality in regulation or the lack of clarity as to the criteria to be used for conducting 
proportionality tests and complying with legal obligations.  

7.2. Policy option 1: Guidance approach  

Under  Option  1  the  Commission  would  support  Member  States'  actions  in  clarifying  the 
existing obligations on how to properly analyse the proportionality of national regulations. 
The following aspects could be included under this option: 

  Drawing up a Code of Conduct in agreement with the Member States, laying down a 
range  of  "best  practices",  "acceptable  practices"  and  "unacceptable  practices"  to 
guide  Member  States  when  carrying  out  proportionality  assessments,  based  on 
national experiences gathered during the Mutual Evaluation exercise; 

  Establishing  a list of the relevant case-law on specific professions providing concrete 

examples; 

  Facilitating  a  reinforced  information  exchange  between  regulatory  authorities, 
including  by  building  on  IMI  (a  system  already  available  at  EU-level  and  familiar  to 
national administrations).  

7.3. Policy option 2: EU proportionality test for regulated professions – common 

set of criteria 

Option  2  is  a  comprehensive  European  level  solution  setting  up  an  EU-wide  approach  for 
assessing  the  necessity  and  proportionality  of  national  regulations  in  the  professions.  The 
instruments  under  this  option  would  represent  a  tool  for  the  better  regulation  of 
professional services.  

7.3.1. Option 2a Legally binding instrument (Directive) 

The  objective  of  this  option  would  be  to  give  clarity  on  all the  aspects to  be  addressed  in 
assessing the proportionality of proposed legislation or modifications to the existing whilst 
setting  out  concrete  obligations  to  be  transposed  in  national  legislation.  Member  States 
would  therefore  apply  the  proportionality  test  during  the  adoption  process  of  new 
legislation, i.e. prior to adoption or when reviewing or modifying existing legislation.  

Under  this  option  the  existing  case-law  will  be  consolidated  into  one  comprehensive 
instrument,  laying  down  a  proportionality  test.    For  instance,  whereas  the  concept  of 
overriding  reasons  relating  to  the  general  interest,  developed  by  the  Court  of  Justice 
identifies specific legitimate interests to protect in each case, the new instrument could list 
the objectives already recognised as such, e.g. consumer protection, protection of workers 
etc.  in  a  comprehensive  way  in  order  to  facilitate  the  assessments  conducted  by  Member 
States.  The  instrument  could  also  limit  where  necessary  the  possible  justifications  for 

35 

 
 
regulating  a  profession76.  The  criteria  set  out  in  the  instrument,  suggested  in  option  2a 
would have to be considered by the national authorities in a structured way.  

In particular, the proportionality test would cover the following aspects: 

 

 

Identification of the overriding reasons relating to the general interest which justify 
the measure;  
Identification  and  assessment  of  the  nature  of  the  risks  to  consumers,  to 
professionals  or  third  parties,  including  where  the  risks  can  be  reduced  by  new 
technological  developments.  Member  States  would  have  to  demonstrate,  on  the 
basis  of  evidence,  whether  and  why  rules  pursuing  the  same  objective  (such  as 
consumer protection law) are considered inadequate to protect the relevant public 
interest objectives;  

  Assessment of the necessity of requiring possession of specialised skills and training 
focussing  specifically  on  the  level,  the  nature  and  the  duration  of  the  training 
required for specific tasks, as well as on the existence of different routes to obtain 
the qualification; 

  Analysis of the scope of practice and the reserves of activities;  
  Estimating  the  effects  of  the  regulation  and  the  economic  impact  of  the  proposed 
measures  including  a  consideration  of  market  impacts  and  free  movement  of 
professionals; 
 Analysis  of  the  alternatives  to  regulation  or  less  restrictive  regulation  (such  as 
protected  title).  Obviously,  it  would  be  open  to  Member  States  to  consider  the 
impact of potential market restrictions, resulting from non-regulatory barriers, such 
as voluntary certification schemes, replacing regulation.  

 

  The  reasons  for  concluding  that  an  objective  cannot  be  better  achieved  by  less 
restrictive  means  would  have  to  be  substantiated  by  qualitative  and,  wherever 
possible, quantitative indicators (cost-benefit analysis). 

  Assessment of the cumulative effect of restrictions imposed on the same profession. 
As already mentioned in the Communication of 2 October 201377, multiple layers of 
regulation  will  have  to  be  carefully  designed,  in  order  to  avoid  the  risk  of 
duplication78.  Regulation  of  professions  should  be  maintained  only  where  existing 
safeguards are not sufficient. 

In  addition  to  consolidating  existing  case-law  and  best  practices,  the  instrument  would 
ensure better transparency and effectiveness of the existing legal framework as regards the 
possibility  for  other  Member  States  or  even  professionals  and  consumers  to  access  the 
information  concerning  new  regulations  and  their  proportionality  assessment,  which  have 
been  communicated  pursuant  to  Article  59.  This  would  give  them  the  opportunity  to 

76See by analogy Case C-593/13 - Rina Services e.a. 
77  See  Communication  on  Evaluating  national  regulations  on  access  to  professions  COM(2013)676  final, 
http://ec.europa.eu/internal_market/qualifications/docs/policy_developments/131002_communication_en.p
df  
78  Ibid.  The  cumulative  effect  of  multiple  layers  of  regulation  covering  for  instance  reserved  activities, 
compulsory membership to professional associations, additional safeguards offered by education systems or 
employers,  legal  form  and  shareholding  requirements,  continuing  professional  development,  language 
requirements will have to be assessed and only those requirements necessary to practise the profession would 
have to be maintained. 

36 

 
 
                                                       
express their views on the quality of the assessment provided and merit of its conclusions. 
Furthermore, this option would better enable the Commission to maintain a quality check 
on proportionality tests and thereby, over time, more intrinsically influence the assessments 
and  ultimate  outcomes  in  proportionate  regulatory  improvements.  Additionally,  it  would 
serve  as  a  transparent  alert  mechanism  for  those  Member  States  who  continuously 
misapply  the  proper  principles  and  thereby  offer  the  opportunity  to  improve  support  for 
them or in excessive cases to take more stringent enforcement action. 

The scope of this option as regards the professions covered would correspond to the scope 
of  the  Professional  Qualifications  Directive  and  it  would  cover  all  regulated  professions, 
except for those which are explicitly excluded (such as notaries). 

7.3.2. Option 2b Non-binding instrument (Recommendation) 

Under  this  option,  the  proportionality  test  could  be  in  the  form  of  a  non-binding  act,  i.e. 
Commission  Recommendation.  On  substance,  this  option  is  similar  to  option  2a  since  the 
instrument will include all the elements listed under that option, but given its non-binding 
nature, would serve only as 'optional' regarding how to analyse properly the proportionality 
of  the  envisioned  regulation.  However,  transparency  could  not  be  achieved  since  there 
would  be  no  obligation  for  the  Commission  to  give  other  Member  States  access  to  the 
information received or to make it publicly available to citizens and stakeholders. 

7.4. Policy option 3: Comprehensive modifications of the existing system 

7.4.1. Option 3a Legally binding instrument (Directive) 

In addition to the elements indicated under Option 2a, this option includes some procedural 
aspects. In particular, Option 3a covers the following elements: 

  An obligation to perform periodic reviews of existing national legislation (to 

ensure it is keeping pace with social and technological needs); 

  An  obligation  to  ensure  consultation  of  all  interested  parties,  e.g. individual 
professionals,  professional  organisations,  academic,  research,  competition 
authorities and consumers at national level prior to the introduction of new 
measures  (to  support  a  wider  view  of  the  costs/benefits/  impacts  of 
changes);  

  Requirements  for  national  authorities  conducting  proportionality  checks  (to 

ensure objectiveness and impartiality).  

Procedural  elements,  such  as  the  organisation  of  public  consultations  are  necessary  to 
evaluate objectively the potential impact of regulation. Extending to all Member States the 
obligation  to  perform  periodic  reviews  which  has  already  been  introduced  in  several 
Member  States,  in  particular  Austria,  Denmark  and  the  UK79,  and  which  is  generally 

79  See  sector  report  on  the  Overview  of  the  regulatory  framework  in  the  tourism  sector  by  using  the 
professions of tourist guides and of travel agents as example, published in 2016 
 http://ec.europa.eu/DocsRoom/documents/15486/attachments/1/translations  

37 

 
 
 
                                                       
accepted as best practice. Under this option, Member States will have to take the necessary 
measures  to  guarantee  that  the  proportionality  test  is  carried  out  in  an  objective  and 
independent  manner  in  order  to  ensure  its  effectiveness  and  appropriateness  and  that  its 
scope of enquiry goes beyond that of the already practising professionals.  

As regards the scope of this option, this approach requires covering all regulated professions 
in all sectors of activities currently covered by the Professional Qualifications Directive.     

7.4.2. Option 3b Non-binding instrument (Recommendation) 

Under option 3b, the proportionality test would take the form of a non-binding instrument, 
while on substance it will cover all the elements, listed in option 3a. Similarly to Option 2b 
however, the transparency aspect will not be addressed. 

8.  Analysis of impacts 
The depth of expected impacts will differ between the voluntary or mandatory nature of the 
options,  particularly  with  regard  to  their  level  of  implementation.  This  is  the  fundamental 
difference between the options, where for example the intensity of expectations regarding 
the rigorousness of the option ascends, the distinguishing feature between options 2b and 
3b on one side and 2a and 3a on the other relates to whether the 'process' aspect is of a 
compulsory or optional nature. The foreseeable effect on regulatory changes, which should 
either  be  better  designed  or  evaded  as  a  result  of  an  upfront,  shared  and  defined 
assessment  of  proportionality  will  accordingly,  improve  or  avoid  the  negative  economic 
consequences  defined  above  in  this  paper  [see  section  1.3].  In  all  cases,  and  following 
experience during the Mutual Evaluation, the exact formulation of any proportionality test 
will  be  developed  according  to  the  parameters  already  set  out  under  the  treaties  and 
elaborated upon by the settled case law of the European Court of Justice as well as those 
accepted  according  to  basic  better  regulatory  principles80.  It  is  expected  that  the 
Commission  would  work  closely  with  regulators  across  the  Member  States  to  design  and 
adopt  an  approach  that  is  least  burdensome  and  most  supportive  to  achieving  a  positive 
outcome through wherever possible by building upon practices already in operation.  

The analysis below will not assess the environmental impacts because none of the specific 
policy objectives or the assessed policy options have environmental dimensions. 

8.1. Baseline scenario  

This option would meet none of the objectives. Furthermore, this option does not entail any 
positive impact from an economic or social perspective and is even likely to have a negative 
impact, since it will not help to reduce the unnecessary and unjustified barriers. As regards 
the impact on the Single Market, no policy change at EU level would mean that the current 
uneven performance of proportionality checks and the differences of quality and intensity 

80 such as an analysis of evidence, evaluation of market impacts and options, broad stakeholder consultation, 
transparency of process and objective scrutiny. 

38 

 
 
                                                       
of  proportionality  assessment  conducted  by  Member  States  would  remain,  ultimately 
leading to distortions of the Single Market.  

From the consultation is was clear that many stakeholders, even those serving a regulatory 
role, were unclear abour obligations to proportionate regulation. In the continued absence 
of clear rules on the way to conduct proportionality tests, the existing general obligation to 
comply  with  the  proportionality  principle  would  continue  to  rely  on  ex-post  enforcement 
action, with the understanding that this could significantly increase litigation costs, linked to 
infringements  for  all  parties  concerned.  In  practice,  it  would  remain  difficult  to  identify 
disproportionate rules and it would not be efficient to challenge more than 5000 superficial 
assessments. 

Under the present circumstances launching infringements is problematic. This stems in large 
part  from  the  lack  of  information  available  to  the  Commission  on  which  to  inform  and 
pursue  cases.  The  judgement  as  to  the  proportionality  of  a  measure  rests  upon  a  holistic 
appreciation  of  the  regulatory  environment  in  which  that  measure  functions.  Such 
information is not only most amenable to the Member States rather than the Commission 
but also dependent upon the existence of a rounded enquiry into that environment such as 
through proportionally analysis. 

8.2.  Policy option 1: Guidance approach 

Impact on policy objectives 

As regards the impact on the specific policy objectives, to date the guidance approach has 
not  been  very  effective  in  solving  the  problems.  The  main  achievement  of  such  approach 
which can reasonably be expected would be to play an explanatory role in supporting those 
national authorities which have difficulties in performing proportionality checks but which 
are willing to improve. 

In that context, it should be emphasised that the Communication of the Commission from 
2nd October 2013, for the Mutual Evaluation, already provided guidance for Member States 
on the aspects to take into account when conducting proportionality assessments of their 
regulated professions. However, as discussed above, this proved insufficient to promote the 
conducting  of  adequate  proportionality  assessments,  including  the  assessment  of  the 
cumulative  effects.  Based  on  that  experience,  therefore,  it  could  be  concluded  that  the 
guidance approach would not deliver the desired outcomes. Although for the 12 professions 
under  focussed  discussion  during  the  Mutual  Evaluation,  the  quality  of  the  publically 
available proportionality assessments could be said to have gradually improved to a certain 
extent,  this  positive  effect  did  not  extend  to  the  remaining  professions  across  Member 
States  and  where  the  information  which  was  not  made  public.  Furthermore  this  positive 
effect  could  be  said  to  be  due  to  the  fact  that  there  was  a  peer  pressure  to  improve 

39 

 
 
proportionality arguments put forward by national authorities as preparation for intensive 
group discussions in Brussels81.  

Due to its dependency on the goodwill of individual authorities therefore, this option does 
not appear to be an effective approach and the current legal framework alongside those of 
different national initiatives has shown to be ineffective in addressing the issues. 

Economic impact 

The economic impact on operators is expected to be slightly positive in those areas where 
an  in-depth  exchange  of  information  between  Member  States  and  intensified  scrutiny  is 
facilitated by the Commission.  

Impacts on SMEs and microenterprises 

No costs are foreseen for SMEs and microenterprises. 

Impact on Member States Public Authorities and administrative costs 

Whereas 
in  principle  this  option  does  not  entail  significant  costs  for  national 
administrations,  as  proportionality  assessing  obligations  were  already  envisioned  by  the 
modernised  Directive,  due  to  the  shortcomings  of  this  option  to  achieve  the  policy 
objectives, it may lead to costs for those authorities who have yet to comply with these pre-
existing  obligations.  This  cost  was  already  calculated  and  presented  in  the  impact 
assessment  SEC  (2011)  1558  final,  showing  that  the  organisation  of  in-depth  exchange  of 
information would represent an additional cost of 400 - 7.000 euros per Member State.  

Impact on the Commission 

Depending  on  how  this  option  is  implemented,  it  could  bring  additional  costs  to  the 
Commission. It has to be born in mind that so far the guidance approach tested during the 
Mutual  Evaluation  implied  important  costs  as  a  result  of  the  organisation  of  in-depth 
exchange  of  information,  meetings  and  reports  on  professions.  As  an  indication,  the  total 
cost  for  the  organisation  of  in-depth  discussion  meetings  on  12  professions  has  been 
estimated at 81932,22 euros. The costs of infringement proceedings would increase in view 
of the number of missing proportionality assessments, due to the difficulties to comply with 
the  pre-existing  obligation.  Problems  in  pursuing  ex-post  infringements  to  motivate 
correction owing to the asymmetry, or complete lack of information would persist. 

Social impact 

81  Equally,  whilst  in  NAPs,  some  small  progressive  improvement  in  not  only  the  assessment  of  these  twelve 
professions, but also in the few incidences where regulatory  improvements were suggested, no such remedial 
effect could be demonstrated for the remaining professions not subject to such focused and open attention. In 
most cases this learning experience has been isolated only to those participating in the meetings and has not 
therefore been beneficial to all authorities, dealing with regulation of professions. 

40 

 
 
                                                       
From a social perspective, it could be expected to have some positive impact on consumers 
and citizens in general, but again limited to the areas and sectors where authorities applied 
proportionality principles, subject to exchange of information.  

Stakeholders views  

The  results  of  the  public  consultation  show  all  categories  of  respondent  supporting  the 
issuing of 'common guidance' in a mandatory form. The only category that did not support 
steps  to  clarify  the  current  situation  in  either  a  voluntary  or  mandatory  form  came  from 
within the German and Austrian crafts sector. [Annex 2]. 

8.3. Policy option 2: EU proportionality test for regulated professions  

8.3.1. Policy option 2a EU proportionality test for regulated professions (legislative) 
Impact on Policy objectives 

Due to its binding form, the value-added of this option would be to more effectively drive 
the changes necessary to deliver meaningful improvements. As the instrument will have to 
be transposed into national law, it would oblige Member States to consider necessity and 
proportionality  when  introducing  (or  amending)  legislation  in  a  systematic  and  structured 
way.  Through  compelling  more  in-depth  reviews,  and  accustoming  authorities  to  such 
analytical conventions, this option is expected to have the cumulative impact of improving 
the  regulatory  landscape  overall.  The  EU-wide  legally  binding  proportionality  test  would 
guarantee that proportionality checks are carried out at an appropriate stage of the process, 
before legislation is adopted or even proposed and is endorsed by the authority that takes 
the political responsibility for tabling a proposal (i.e. responsible ministry or government or 
local/regional authorities in case the profession is regulated at regional level.  

Furthermore, the initiative will effectively:   

  clarify and systematise the minimum criteria to be used for proportionality analysis 
thus  creating  a  transparent  and  predictable  legal  framework  to  assess  barriers  to 
regulated  professions  and  utilising  aspects  drawn  not  only  from  case  law  but  also 
general better regulation practices.  

  make proportionality assessments more transparent, reliable and comparable across 

 

Member States; 
facilitate  compliance  with  the  existing  requirements:  notification  of  regulation  and 
reasons for which it is considered proportionate, as stipulated under the existing EU 
rules (Professional Qualifications Directive and the Treaty); 

  ensure that the rules are applied in an equal manner by all national authorities  
 

require  solid  evidence  to  help  shaping  the  involvement  of  stakeholders  in  policy 
making; 

  allow for the analysis to be publically available. 

41 

 
 
Failure  to  transpose  this  framework  into  national  law  could  be  challenged  by  way  of 
infringement proceedings. So as to ensure legal certainty, any failure by a Member State to 
conduct  a  proportionality  assessment  would  not  affect  automatically  the  validity  of  the 
national rules. On the other hand, depending on the national legal regime, the absence of a 
properly  conducted  proportionality  test,  resulting  in  the  adoption  of  disproportionate 
measures  could  be  challenged  more  effectively  before  national  courts  by  citizens  affected 
by those measures and lead to their invalidation or annulment82.  

Given that such an instrument would impact on Member States' decision-making processes, 
an appropriate level of margin for implementation by the Member States must be ensured 
and  must  fully  respect  their  responsibilities  to  organise  national  decision-making  and 
legislative  procedures,  in  line  with  the  principle  of  subsidiarity.  Therefore,  concrete 
modalities, institutional responsibilities and timelines for carrying out such an assessment in 
the course of the legislative process would be for Member States to decide. 

The  most  significant  benefits  of  this  approach  is  to  not  only  oblige  authorities  to  fully 
conduct a proper analysis but also to make openly available for scrutiny their analysis. This 
would deliver greater transparency to the regulatory process and enable a quality check on 
proportionality tests and thereby motivate an improvement in assessments and in turn the 
final regulatory outcomes. Additionally, it would serve as a transparent alert mechanism for 
those  Member  States  who  continuously  misapply  the  proper  principles  and  thereby  offer 
the opportunity to improve support for them83. 

Economic Impacts 

The impact felt by business will largely be positive in so far as the proportionality test may 
lead to better regulation or prevent inadequate legislation from being proposed or adopted. 
This  option  will  prevent  adoption  of  regulation  which  is  not  appropriately  designed  and 
implemented  and  thus  can  effectively  create  market  restrictions,  limit  innovation  and 
consumer  choice.  Impediments  to  competition  lead  to  a  reduced  market  performance, 
mirrored in ineffective resource allocation and excessive rents. Given the specific objectives 
of this initiative, notably to improve the quality of regulation of professions, the economic 
impacts of this initiative is expected to materialise in a mid to longer term perspective.  

82  In  this  regard,  see  also  the  national  case-law,  applying  the  principle  of  proportionality  to  professional 
regulations:    Belgium,  Cour  de  cassation,  25  September  2003,  C.03.0139.N,  concerning  the  profession  of 
lawyer;  See  also  Constitutional  Court  of  Austria  (Verfassungsgerichtshof),  decision  of  27  November  2013  G 
49/2013-7  where  the  Court  decided  that  the  regulation  of  the  profession  of  "Berufsfotograf"  ("professional 
photographer")  is  unlawful  due  to  non-compliance  with  the  principle  of  proportionality.  According  to  the 
judgement the impact of regulation on the freedom to choose an occupation is not justified by the dangers 
emanating from the activities of this profession towards goods of public interest (possible dangers for public 
health, public security and consumer protection). 
83  In  this  regard  it  should  be  noted  that  whilst  Article  59  (5)  already  compels  Member  States  to  report 
amendments to the Commission, it is silent upon how this should be enacted. Introducing a binding framework 
will support the all parties in ensuring workable and meaningful measures are in place. 

42 

 
 
                                                       
Ultimately, the fact that new regulation should be better designed will keep access to jobs 
open inasmuch as protection of public interests is ensured, hence without compromising on 
the quality of services provided. The analysis presented by some Member States points to 
an increase in GDP to be gained from reforming the regulation of professions – confirming 
that the modernisation of the regulated professions can  significantly contribute to growth 
and job creation. 

Impacts on SMEs and microenterprises 

The impacts of this proposal on SMEs and micro-enterprises will be largely positive as it will 
mitigate  the  possibilities  of  low  quality,  burdensome  regulation  from  being  enacted.  This 
should in the long term improve market access and mobility across the EU countries. As the 
empirical  studies  mentioned  above  show,  the  liberalisation  of  certain  requirements 
increases  market  dynamics  in  so  far  as  it  brings  new  players  into  the  market.  In  fact, 
increasing  the  access  to  a  wider  pool  of  professionals  will  make  it  easier  to  hire  people 
having  the  necessary  skills,  and  will  contribute  to  lowering  cost  to  access  professional 
services that in case of SMEs are often outsourced, thus improving their competitiveness.  

Impact on Member States Public Authorities and administrative costs 

Member  States  already  have  an  obligation  to  perform  proportionality  checks  under  the 
Professional  Qualifications  Directive  and  the  Treaty.  Whereas  the  proportionality  test  is 
expected  to  facilitate  the  fulfilment  of  the  existing  obligations  and  to  set  up  a 
comprehensive  methodology  for  the  assessment  of  the  proportionality  of  national 
regulations,  it  does  not  imply  new  additional  financial  or  administrative  burden  for  the 
national administrations. 

Administrative burden for national authorities of proper application of proportionality test 
was already imposed and assessed in the Professional Qualifications revision of 201384 and 
thus  constitutes  a  part  of  current  scenario.  Therefore,  all  Member  States  who  already 
prepare good quality proportionality test will face no additional burden as result of Option 
2. However, all those Member States who are not yet in full compliance with the Directive 
will have to face administrative burden equal to around 2 working days or around €700 per 
regulated  profession  (total  cost  between  3,700  and  115,000  euros,  depending  on  the 
Member State and number of  proportionality tests to carry). This cost is thus not a result 
of  Option 2 but of the existing regime. These costs will also apply to all future professional 
regulations  that  Member  State  may  want  to  introduce  –  and  again  this  cost  has  already 
been introduced in 2013.  

However,  since  the  proportionality  test  is  supposed  to  facilitate  the  work  of  national 
administrations, Option 2 is expected to reduce the overall cost on the long run. A positive 
effect in terms of administrative costs could also stem from the fact that Member States are 

84See Impact Assessment SEC (2011) 1558 final 

43 

 
 
                                                       
likely to be faced not only with less EU-Pilot procedures or infringements as a result of an 
improved  system  but  could  also  result  in  a  more  simplified  implementation  of  better 
designed  and  targeted  regulatory  decisions  going  forward.  Additionally,  we  are  aware  of 
some  form  of  proportionality  assessment  already  existing  in  some  Member  States85  this 
should  mean  a  lesser  implementation  burden  for  those  states  and  also  gives  the 
Commission some structures upon which to build our framework. 

Impact on the Commission 

The impact on the Commission would be related to the general costs, implied by monitoring 
the  transposition  and  the  correct  implementation  of  the  new  legislation,  resulting  from 
Option  2,  which  is  expected  to  be  largely  compensated  by  the  lower  number  of 
infringements. 

Social impacts 

Social impacts are intertwined with the economic impacts and include, on the one hand, the 
impacts this proposal will have on employment in the professions affected by a change in 
regulation,  on  the  similar  professions  and  on  the  employment  in  general  (in  terms  of 
numbers,  age  structure,  quality  of  contracts,  etc.),  which  includes  the  mobility  of 
professionals across the board and between professions. On the other hand social impacts 
cover social inclusion considerations and consumer related impacts. For example, there are 
indications of a changing age structure, reflecting easier access for younger people to some 
professions  further  to  a  regulatory  change.  Some  positive  effects  can  be  seen  on 
employment  and  the  number  of  start-ups  in  certain  professions,  access  to  which  have 
recently  been  facilitated.  It  has  also  been  shown  that  the  opening-up  of  regulated 
professions can increase professional mobility and help professionals to quickly respond to 
labour  market  opportunities.  In  terms  of  social  inclusion,  services  become  more  available 
and more affordable.  

Conversely, proper analysis will support the development of the data necessary to properly 
understand the nature of risk and to ensure that responses are effective in mitigating them. 
In this way it is not inconceivable that protections on currently poorly understood hazards 
could increase or at least be better designed to the task. In this way consumer protections 
could be strengthened or at least cost to benefit trade-offs better understood. 

Stakeholders views  

Analysis  of  the  replies  to  the  public  consultation  indicates  sound  support  for  a  legally 
binding instrument [See Annex 2] 

85 UK, NL, DE, AT 

44 

 
 
                                                       
8.3.2.  Policy  option  2b  EU  proportionality 
(Recommendation) 
Impact on policy objectives 

test 

for 

regulated  professions 

A  recommendation  may  encourage  Member  States  to  carry  out  proper  proportionality 
assessments,  based  on  the  criteria,  identified  in  the  new  initiative.  Thus,  it  would  provide 
the  necessary  clarity  as  regards  the  criteria  to  be  used  when  conducting  proportionality 
tests  and  it  would  significantly  facilitate  compliance  with  the  existing  requirements  to 
comply  with  the  principle  of  proportionality.  However,  it  is  likely  that  in  practice,  the 
application of such a recommendation would diverge from Member State to Member State 
and rules may not always be applied in an equal manner by all national authorities or in all 
specific 
instances.  Achieving  the  policy  option  objectives  of  promoting  objective, 
transparent  and  comprehensive  proportionality  assessments,  applicable  at  all  levels  of 
regulation  in  an  equal  manner  through  a  Recommendation  would  mean  reliance  on 
Member States' willingness to comply with already existing obligations.  

Nevertheless,  even  though  Member  States  would  be  free  on  whether  to  adopt  detailed 
national  rules  on  conducting  proportionality  tests  and  not  just  to  implement  the  general 
obligation  to  comply  with  this  principle  as  set  out  in  article  59(3)  of  the  Professional 
Qualifications  Directive,  in  line  with  the  Recommendation,  they  could  be  under  some 
political pressure to do so. Compliance by some Member States may compel others to take 
into account the suggested approach. A recommendation would be more easily accepted by 
Member  States  and  could  represent  an  immediate  solution  to  the  problem,  compared  to 
the  heavy  legislative  procedure.  However,  the  impact  would  very  much  depend  on  any 
follow-up to the recommendation.  

Economic impact 

In order for all the economic benefits of this option to be fully realised, similarly to option 
2a, the recommendation would have be followed by all Member States.  

Impact on Member States' authorities and administrative cost 

No significant costs on Member State's administrations can be expected, since the method 
of implementation of the Recommendation will be left for Member States. However, those 
Member States who are not yet in full compliance with their existing obligations and choose 
to implement the Recommendation will have to face administrative burden equal to around 
2 working days or around €700 per regulated profession as previously mentioned. 

Impact on the Commission 

As regards the impact on the Commission, a very insignificant additional administrative cost 
can be expected as a result of the Recommendation follow-up, linked to the control of the 
implementation of the Recommendation. However, it can reasonably be assumed that this 

45 

 
 
cost  would  be  significantly  less  important  than  the  cost  of  litigation  procedures  in  the 
absence of a recommendation, setting out the main aspects of a proportionality test. Similar 
to the guidance option, problems in pursuing ex-post infringements to motivate correction 
owing to the asymmetry, or complete lack of information would persist and place burdens 
on the Commission. 

Social impacts 

Similarly  to  option  2a,  under  this  option  the  proposed  measure  would  lead  to  a  more 
efficient  functioning  of  the  market  and  thus  positively  affect  the  level  of  employment. 
Depending on whether Member States follow the recommendation, the new initiative may 
increase  confidence,  as  well  as  foster 
innovation  and  technological 
developments.  

investment, 

Stakeholders views  

The  results  of  the  public  consultation  show  all  categories  of  respondent  supporting  the 
issuing of 'common guidance' in a mandatory form. The only category that did not support 
steps  to  clarify  the  current  situation  in  either  a  voluntary  or  mandatory  form  came  from 
within the German and Austrian crafts sector. [see Annex 2].  

8.4. Policy option 3: Comprehensive modification of the existing system  

8.4.1. Policy option 3a Comprehensive modification of the existing system (legislative) 
This  option  covers  all  the  elements,  listed  in  option  2a.  However,  it  includes  additional 
procedural  aspects,  as  well  as  additional  professions,  not  covered  by  the  Professional 
Qualifications Directive. 

Impact on policy objectives 

This  option  is  building  upon  option  2a,  and  would  therefore  address  all  specific  policy 
objectives mentioned above. In addition, procedural elements, such as the organisation of a 
wider  public  consultations  would  promote  objective  proportionality  tests  in  allowing 
national  authorities  to  obtain  views  and  evidence  from  all  interested  parties  (e.g. 
professional organisations, individual professionals, consumers), on the potential impact of 
regulation. This element of transparency at the level of citizens and other Member States as 
well as the Commission is expected to Option 3a would further facilitate the performance of 
proportionality  checks  by  introducing  regular  reviews  to  track  the  impacts  over  time. 
Periodic reviews of regulation in professions  would enable national competent authorities 
to reflect any changes in the business environment, such as for example new technological 
developments,  in  order  to  continually  modernise  existing  regulatory  frameworks  over  the 
long  term.  The  impartiality  of  the  bodies  charged  with  conducting  proportionality 
assessments is also essential to the proper functioning of the process.  

46 

 
 
Extending the scope of the instrument to all regulated professions, including to those which 
are explicitly excluded from the Professional Qualifications Directive would ensure that the 
proportionality principle is applied in a  comprehensive way to all sectors of activity, while 
duly taking into account the specificity of the professions under scrutiny.   

Economic impact 

The  economic  impact  of  this  option  would  be  largely  positive,  similarly  to  the  economic 
advantages,  mentioned  under  option  2a.  It  will  impact  positively  the  Single  Market  for 
professional  services  and  it  will  help  reducing  disproportionate  regulatory  barriers  in  all 
sectors of activities in a consistent way. 

Impact on SMEs and microenterprises 

Opening access to the professions will be beneficial to SMEs and microenterprises, since in 
general they represent the majority of the professional service providers. It neither entails 
any new obligation for businesses nor additional costs for them.  

Impact on Member States Public Authorities and administrative costs 

As  previously  mentioned,  the  national  requirements  and  the  proportionality  assessments 
would  continue  to  be  notified  according  to  Article  59  of  the  Professional  Qualifications 
Directive, whereas the proportionality assessment of those requirements would be carried 
out  according  to  the  proportionality  test.  The  possible  costs  to  assess  and  notify  all 
regulated  professions  was  estimated86  at  around  2  working  days  per  regulated  profession 
with total ranging between 3,700 and 115,000 euros, depending on the Member State and 
number of assessments to carry out. 

However, conducting a proportionality test would be higher than that previously estimated 
due  to  the  additional  consultation  obligation.  Using  cost  of  Eurobarometer  representative 
surveys outsourced by Commission to external polling organisation as a proxy for cost public 
administration  would  incur,  the  additional  cost  can  be  estimated  at  around  €600  per 
investigated  regulated  profession  (under  assumption  of  a  10-question-long  questionnaire 
and 100 responses). This would be the only genuine additional cost not already imposed. 

Since  the  scope  of  this  option  is  wider  than  the  Professional  Qualifications  Directive  and 
covers  professions  which  are  currently  excluded  from  the  Mutual  Evaluation  exercise,  the 
proportionality  assessment  might  entail  some  additional  administrative  costs  for  Member 
States  (as  estimated  above,  on  average  around  700  euros  per  profession).  However,  the 
regulation of those professions is in any event subject to proportionality assessment under 
the Treaty, which implies that there will be no new administrative burden. On the long run, 
the  proportionality  test  is  supposed  to  facilitate  the  work  of  national  administrations  and 
reduce the overall cost. 

86 See SEC (2011) 1558 final 

47 

 
 
                                                       
As  with  option  2a,  we  are  aware  of  some  form  of  proportionality  assessment  already 
existing  in  some  Member  States87  this  should  mean  a  lesser  implementation  burden  for 
those  states  and  also  gives  the  Commission  some  structures  upon  which  to  build  our 
framework. 

Impact on the Commission 

The impact on the Commission would be related to the general costs, implied by monitoring 
the transposition of the new legislation, which is expected to be largely compensated by the 
lower number of infringements. 

Social impact 

The social impact of this option is expected to be more significant than Option 2a, not only 
for consumers who will be associated to the design of regulatory measures for professional 
services, but also as regards the levels of employment. It is expected to promote social and 
economic integration especially for young skilled workers. Furthermore, the effect of lawyer 
costs in some areas, such as legal services may have positive effects on improving access to 
justice and thus reduce the cost for legal aid. Again as with option 2a, we could envision a 
more robust evaluation of the operation of a regulation(s) against its risks leading to better 
designed protections for consumers. 

Stakeholders views  

Analysis  of  the  replies  to  the  public  consultation  indicates  robust  support  for  a  legally 
binding instrument [See Annex 2] 

8.4.2.  Policy  option  3b  Comprehensive  modification  of 
(Recommendation) 
Impact on policy objectives 

the  existing  system 

While  on  substance,  this  option  is  similar  to  option  3a,  it  would  take  the  form  of  a  non-
binding  instrument  (a Commission  Recommendation)  and  is  therefore  expected  to  be  less 
effective in achieving the specific policy objectives. However, this approach would be more 
acceptable for Member States. It could provide an additional incentive for Member States to 
address  these  concerns  and  to  implement  the  initiative  on  a  voluntary  basis.  Although  it 
would  leave  a  lot  of  flexibility  to  Member  States,  it  could  contribute  to  more  harmonised 
approach as regards conducting proportionality checks. If implemented at national level, the 
recommendation  would  clarify  and  systematise  the  minimum  criteria  to  be  used  for 
proportionality  analysis  and  would  effectively  facilitate  compliance  with  the  existing 
requirements  to  conduct  proportionality  tests.    Depending  on  the  nature  of  the  national 
instrument (law, decree or just an administrative act), implementing the Recommendation, 

87 UK, NL, DE, AT 

48 

 
 
                                                       
it  may  even  ensure  that  the  rules  are  transparent  and  applied  in  an  equal  manner  by  all 
national authorities (local, regional, governmental). 

Economic impact 

In order for all the economic benefits of this option to be fully realised, similarly to option 
2a, the recommendation would have be followed by all Member States. In that scenario, the 
instrument  will  effectively  support  growth  and  job  creation,  allowing  to  ensure  the 
competitiveness of professional services in the global economy. 

Impacts on SMEs and microenterprises 

Under this option there will be no financial cost for businesses.  

Impact on Member States' authorities and administrative cost 

This  option  does  not  imply  significant  costs  Member  State's  administrations,  since  the 
method  of  implementation  of  the  Recommendation  will  be  left  for  Member  States. 
However, costs can  be expected, depending on whether Member States follow or not the 
recommendation and in case of full compliance be similar to the costs in option 3a. 

Impact on the Commission 

An additional, but rather insignificant administrative cost can be expected as a result of the 
Recommendation  follow-up.  However,  in  the  absence  of  a  recommendation,  the  costs  for 
the  Commission  will  increase  due  to  increased  number  of  infringement  procedures.  Once 
again,  pursuing  infringements  would  suffer  from  the  lack  of  the  substantive  information 
necessary upon which to develop a case. 

Social impacts 

Similarly  to  option  2a,  under  this  option  the  proposed  measure  would  lead  to  a  more 
efficient  functioning  of  the  market  and  thus  positively  affect  the  level  of  employment. 
Depending on whether Member States follow the recommendation, the new initiative may 
innovation  and  technological 
increase  confidence,  as  well  as  foster 
developments.  

investment, 

Stakeholders views  

The  results  of  the  public  consultation  show  all  categories  of  respondent  supporting  the 
issuing of 'common guidance' in a mandatory form. The only category that did not support 
steps  to  clarify  the  current  situation  in  either  a  voluntary  or  mandatory  form  came  from 
within the German and Austrian crafts sector. (See Annex 2) 

9.  Comparison of options 
Stakeholders views  

49 

 
 
The  consultation  showed  that  respondents  agree  the  situation  should  be  improved  and 
showed a high level  of confusion as to what obligations were to proportionate regulation; 
the  existence  of  any  criteria  to  respond  to  this  and  a  variety  of  approaches  adopted  even 
within the same Member State. All categories of respondents indicated support for action to 
address  this,  with  the  majority  preferring  the  mandatory  (legislative)  route.  The  only 
category that did not support any steps to clarify the current situation, in either a voluntary 
or mandatory form, came from within the German and Austrian crafts sector. (See Annex 2) 

9.1. Comparison in terms of effectiveness, efficiency and coherence 

Table X: Summary table of options and their impact (--, -, 0, +, ++) 

50 

 
 
 
 
 
Options/ Objectives 

Baseline (0) 
Guidance (1) 

EU proportionality 
test for regulated 
professions – 
Directive (2a) 

EU proportionality 
test for regulated 
professions –
Recommendation 
(2b) 

Comprehensive 
modifications –
Directive (3a) 

Clarify and 
systematise  
the minimum 
criteria to be used 
for 
proportionality 
analysis 

0 
(+) provide 
comprehensive 
and detailed 
guidance 

(++) 
biding form 
provides clear 
parameters and 
helps challenging 
excessive rules, 
but limits 
descriptiveness of 
the test 
(+++) 
no-binding test 
can be more 
detailed and 
descriptive 

(++) 
binding form 
provides clear 
criteria, but may 
limit detailed 
description of 
analysis 

Comprehensive 
modifications – 
Recommendation 
(3b) 

(+++) 
non-binding 
proportionality 
test can be more 
detailed and 
descriptive 

Effectiveness 

Make 
proportionality 
assessments 
more 
transparent, 
objective, 
comprehensive 
and comparable 
across the MS 

0 
(0) subject only to 
the willingness of 
participants to 
engage, 
comparability 
unsure 
(++) 
comparability 
ensured due to 
uniform 
application and 
improved 
transparency 

(+) 
as above but 
limited due to 
voluntary nature 

(+++) 
comparability 
ensured due to 
uniform 
application and 
improved 
objectiveness and 
up to date rules 
due to public 
consultations and 
periodic reviews 
(++) as above but 
limited due to 
voluntary nature 

Costs 

0 
0 

(-) for those MS not 
already in compliance: 
around €700 per 
regulated profession 

(0/-)as above but could 
be  lower due to 
potential unwillingness 
of administration to 
comply with non-
binding measure 

(--) as for option 2 but 
with obligation to 
perform steps for 
additional professions 
and€600 per regulated 
profession for 
consultation obligation 

Ensure that the 
rules are applied 
in an equal 
manner by all 
national 
authorities to 
avoid distortions 
of the Single 
Market 

0 
(0) essentially 
voluntary nature 
means 
divergences 
highly likely to 
endure 
(++) 
prevents 
disproportionate 
rules and ensures 
Member States 
implement in an 
equivalent 
manner 

(+) 
voluntary nature 
means 
divergences may 
remain 

(+++) prevents 
disproportionate 
rules and ensures 
Member States 
implement in an 
equivalent 
manner and in a 
comprehensive 
way  

(++) as above 
voluntary nature 
means 
divergences may 
remain 

(0/--)as above but 
could be  lower due to 
potential unwillingness 
of administration to 
comply with non-
binding measure 

All the options are coherent with pre-existing legislation. 

Table X: Summary table of options and their impact on key stakeholders (--.-. 0, +, ++) 

51 

 
 
 
 
 
 
 
 
 
 
 
 
Options 

National 
authorities 
already doing 
proper analysis 
according to 
PQD 

Baseline (0) 
Guidance (1) 

0 

(0) 

(0) no 
additional cost  

EU 
proportionality 
test for regulated 
professions – 
legislative (2) 

Comprehensive 
modifications – 
legislative (3) 

(3A:-- ;  
3B: 0/--) 
additional cost 
due to public 
consultations 
and extended 
scope 

National 
authorities not 
complying with 
PQD analysis 
requirements 

0 
(0/-) cost may 
occur if MS 
decide to 
follow 

(2A: - ; 2B: 0/-) 
expected cost  
in short run of 
setting up 
system 
according to 
PQD;  
long run: better 
regulations, 
adapted to 
business 
environment 
(3A:-- ;  
3B: 0/--)  
As above plus 
additional cost 
for 
consultations 
and extended 
scope 

Stakeholders 

Incumbent 
professionals 
covered by 
excessive 
protection 

0 
(0/-) depending 
on MS uptake 
profession may 
be open to new 
entrants 

(2A: - ; 2B: 0/-) 
medium to 
long run:  more 
competition 
from new 
entrants, 
potentially 
lower profits 

(3A:- ;  
3B: 0/--)  
Long run:  
more 
competition 
from new 
entrants also in 
new 
professions, 
potentially 
lower profits 

entry 

New 
Professionals 
(young 
professionals, 
EU qualified)  

of 

Users 
professional 
services 
(consumer  and 
business) 

0 

0 

(0/+) 
depending on 
MS uptake 
profession may 
be open to new 
entrants 
(2A: ++ ;  
2B: 0/++) 
Potential easier 
access to 
professions 

(0/+) 
depending on 
MS uptake 
wide choice 
and lower 
prices 
(2A: ++ ; 
2B: 0/++)  
medium or 
long run: wider 
choice of 
services and 
lower prices 

(3A:++ ;  
3B: 0/+++) 
Potential easier 
access to the 
professions 
concerned 

(3A:++;  
3B:0/+++)  
long or 
medium run: 
wider choice of 
services and 
lower process  

9.2. Preferred option / Justification for no preferred option 

Although the options are not mutually exclusive, based on the analysis above, Option 3a is 
expected  to  address  most  adequately  the  problems  and  generate  the  most  suitable 
benefits. 

9.3.  Subsidiarity and proportionality of the preferred option 

The  proposal  complies  with  the  principle  of  subsidiarity,  since  the  objectives  of  the 
proposed  action  cannot  be  achieved  sufficiently  by  Member  States  acting  in  isolation  and 
therefore can be better achieved by the EU. The current uneven scrutiny of the regulation of 
professions  across  the  EU  has  a  substantial  impact  on  the  provision  of  services  and  the 
mobility  of  professionals.  The  objectives  of  the  action,  namely  the  reliability  and 
comparability  of  proportionality  assessments  could  be  achieved  more  successfully  at  the 

52 

 
 
 
 
 
 
Union  level  through  the  introduction  of  a  common  EU-wide  assessment  mechanism, 
enacted by all Member States in a similar way by virtue of its scale and effects.  

The  proposal  is  in  line  with  the  principle  of  proportionality,  as  set  out  in  Article  5(4)  TEU, 
being adequate to reach the objectives and not going beyond what is necessary in doing so. 
The selected policy options seek to strike the right balance between securing public interest 
objectives and quality of services on the one hand and improving access to and exercise of 
regulated professions for professionals, as well as ensuring wider choice for consumers on 
the other. 

10.  Monitoring and evaluation 
The Commission would regularly report to the Council and the European Parliament on the 
implementation of the proportionality test at national level. The Commission will continue 
to monitor the professional regulations in the EU as reported in the database of Regulated 
Professions;  the  percentage  of  economy  covered  by  regulated  professions  (in  terms  of 
persons employed and value added) and the cross border mobility of professions. As well as 
this  the  Commission  will  monitor  the  robustness  of  proportionality  tests  for  existing  and 
new professional regulations submitted by Member States. 

11.  Annexes 

11.1. 

Annex 1: Procedural information 

Lead DG 

The lead DG is the Directorate General for the Internal Market, Industry, Entrepeneurships 
and SNEs (DG GROW) 

Agenda Planning and Work programme 

The Agenda Planning Reference is 2016/GROW/048 

The  proportionality  test  initiative  forms  part  of  the  Single  Market  Strategy  adopted  in 
October  2014  as  part  of  one  of  the  10  priorities  for  the  Junker  Commission,  part  of  the 
Commission's 2015 and 2016 Work Programmes. 

Organization and Timing of the Impact Assessment and Inter-service Steering Group 

The  Directorates  General  participating  in  the  Inter-service  Steering  Group  chaired  by  the 
Secretariat General included: 

53 

 
 
 
 
  The Secretariat General 
  The Legal Service 
  DG Economic and Financial Affairs 
  DG Trade 

Meetings of the Inter-service Steering Group were held on: 

  3rd February 2016. The background to the initiative and the roadmap was discussed. 
  25th February 2016. The draft consultation and roadmap were discussed. 
  27th May 2016. The draft impact assessment was discussed. 
  12th July 2016. The draft impact assessment was discussed. 
  7th September 2015. The draft impact assessment was discussed. 
  26th October 2015. The draft Directive was discussed. 

Consultation of the Regulatory Scrutiny Board (RSB). 

The RSB of the European Commission assessed a draft version of this Impact Assessment on 
12th  October  2016  and  issued  a  positive  opinion  on  4th  October.  The  changes  made  in 
response to their recommendation are set out below. 

RSB recommendation 
Place the proposal in a broader context and 
clarify how it relates to other initiatives (e.g. 
the notification procedure under the 
Services Directive).  
Elaborate on the scale of the problem, and 
clarify why the scope of the initiative targets 
only forthcoming restrictions on professions. 
Explain why existing legislation, planned 
reviews, case law and recourse to 
infringement proceedings cannot address 
the problem.  
Explain how the proportionality test was 
designed and to what extent provisions are 
likely to make a difference (e.g. improve 
transparency). Describe how the options 
would work in practice and what the main 
differences between them are.  
Expand the analysis of likely impacts, 
including on consumers and SMEs and 
national authorities. There is room to make 
better use of the views of different 
categories of stakeholders.  

Changes 
This  has  been  elaborated  further  under 
section 5 and footnote 74. 

This  has  been  addressed  under  sections  1 
and 6.1 

This has been supplemented to section 8. 

This  has  been  further  developed  under 
section 8. 

54 

 
 
 
11.2. 

Annex 2: Stakeholder consultation 

As the consultation served the dual purpose of responding to National Actions Plans (NAPs), 
as per Article 59.7, as well as publically consulting on the proposals set forth in this Impact 
assessment,  the  following  will  focus  only  on  those  aspects  relevant  to  the  matter  now  in 
hand, namely: those aspects of the NAPs consultation related to quality and proportionality 
in professional regulation; the section of the consultation related specifically to the use of 
proportionality and open to all respondents; the section of the consultation related to the 
use of proportionality given only to those identifying as a 'Public Authority'. 

11.2.1. 

Methodology 

The  public  consultation  is  based  on  voluntary  answers  sent  by  respondents  to  the 
Commission  via  an  on-line  questionnaire.  Thus  the  results  should  be  seen  as  the  views  of 
those who replied and by no means can be considered as representative to the EU (unless 
otherwise stated). The consultation which ran from 27th may to 22nd August 2016 received 
420  responses  and  21  separate  submissions.  As  only  one  submission  per  email  address  / 
organisation  address  is  admissible  (except  in  cases  where  the  respondent  was  replying  to 
different  Member  States'  NAPs)  80  multiple  submission  were  removed.  Of  the  remaining 
340,  at  least  100  were  identical  and  clearly  represented  a  coordinated  response  from 
respondents.  In  such  circumstances  it  is  permissible  for  the  Commission  to  count  such 
responses  as  only  1.  However,  in  the  interests  of  transparency  we  have  allowed  these 
submissions to remain and where helpful will clearly present the results both of the full 340 
and  the  corrected  241  responses88.    As  this  introduces  a  potential  bias  we  will  be  sure  to 
present it with full transparency. 

11.2.2. 

Demographics 

Table 1 Responses according to Member State 

88 The responses came from the German and Austrian crafts sector. 

55 

 
 
                                                       
Table 2 Responses according to sector 

Business Service 
Construction 
Manufacturing 
Real Estate 
Transport 
Wholesale & Retail 
Education 
Entertainment 
Heath & Social Services 
Network Services other than Transport 
Public Administration 
Tourism 
Other Services / activities 
Responding  as  a  consumer  with  no  one 
particular profession of interest 

37 
28 
4 
9 
1 
1 
12 
1 
78 
0 
20 
17 
129 
3 

Table 3 category of respondent 

In which capacity were respondents answering: 
Provider of professional services 
User of professional services 
Public authority 
Other 

112 
6 
49 
173 

56 

 
 
 
 
 
 
The category of 'other' includes at least 81 of the organised responses noted above. From 
the total 173 contributions made under this category were also 4 research institutions and 
17 trade unions. The remaining 152 came from professional associations with the majority 
of  the  respondents  accounted  for  by  Austria  (48)  and  Germany  (46),  the  remaining  are 
Belgium (2), the Czech Republic (2), Denmark (1), Finland (1), France (20), Ireland (2), Italy 
(12), Lithuania  (2),  Poland (1), Romania (1), Spain (4), Sweden (1), UK  (6), EEA Country  (1) 
and, International Organisation (2) 

From the provider of services category we have 19 of the organised responses mentioned 
previously. Additionally, 19 identified as a private company (of which 4 were 'large', 4 'SME', 
9  as  'micro'  and  1  as  a business  organisation),  55  as  self-employed  and  39  as  professional 
chambers. 

Of  those  responding  as  public  authorities,  at  least  4  were  part  of  the  organised  response 
and around 28 could be considered as professional bodies. 

11.2.3. 

Quality and Proportionality in National Action Plans (NAPs) 

As respondents were given the opportunity to respond to multiple NAPs a total of 471 were 
commented upon. Most respondents, 288, chose to respond to only one NAP but 36 chose 
the respond to 4. 31 of those responding to 4 NAPs issued from Germany and related to the 
NAPs  from  Germany,  Austria,  Luxembourg  and  France.  In  almost  all  these  instances  the 
responses  were  identical,  finding  the  quality  of  the  NAPs  high  and  seeing  no  need  for 
neither regulatory change nor the introduction of further proportionality controls. As these 
accounted  for  144  NAP  responses  in  total,  31%,  of  all  responses,  they  have  an  important 
impact on collated responses. In reviewing the below it is helpful to refer also to the finding 
presented under the Commission's proportionality assessment in this paper under sections 
3.2 and 3.3. 

Regarding  general  satisfaction  with  the  approach  taken  by  Member  States  to  analysing 
regulation in their NAPs two questions below are particularly pertinent: 

Question  1:  Do  you  think  this  NAP  is  based  upon  the  most  relevant  information  on  the 
impact  of  regulation  on  the  market  and/or  professionals  (e.g  empirical  studies,  reports  by 
professional associations and consumer protection bodies, reports and/or opinions of other 
national authorities such as competition authorities)? 

Response 

Yes 
To some extent 
Not really 
No 
Don't know 

total 

% 
- 
responses 
62% 
16% 
12% 
9% 
1% 

% - organised responses removed  

37% 
26% 
20% 
15% 
2% 

57 

 
 
 
Looking  at  the  overall  response  therefore  we  find  37%  of  respondents  saw  room  for 
improvement  to  a  greater  of  lesser  extent  in  the  relevance  of  information  used  to  assess 
regulatory  impacts  whereas  once  we  account  for  organised  interests  we  find  overall  61% 
finding  some  room  for  improvement  in  the  information  gathered  to  inform  regulatory 
decisions. 

Question  2:  From  reading  this  NAP  do  you  think  it  thoroughly  analysed  all  impacts  of 
regulation? 

Response 

Yes 
To some extent 
Not really 
No 
Don't know 

% 

53% 
12% 
15% 
14% 
6% 

%  with  organised 
responses removed 
35% 
17% 
21% 
19% 
8% 

Following  from  the  previous  question  this  also  indicates  that  41%  thought  the  impacts  of 
regulatory decisions were not fully analysed, 57% when controlled.  

Responses to the use of proportionality – public questions 

All respondents were given the opportunity to respond to this section regarding the more 
general  use  of  proportionality  in  professional  regulation.  First  we  shall  look  at  general 
awareness  to  issues  of  proportionality  including,  where  relevant,  areas  where  it  is 
considered proportionality analysis may be improved; then to attitudes in general to the use 
of proportionality when designing or reviewing regulations and finally at responses to what 
impacts could be expected by  the introduction of a more methodological approach to the 
assessment of proportionality: 

11.2.4. 

General Awareness of Proportionality 

Regarding  proportionality  requirements  already  in  place,  from  those  who  were  aware  of 
such requirements 38 % said there was a systematic methodology, 38% that is was done on 
a case by case basis and from 24% that no methodology exists.  Regarding existing criteria 
according  to  EU  law  39%  were  unaware  of  any  and  of  these  –  21  of  these  were  public 
authorities and 5 of those same authorities did not see the need for any further clarification 
in guidance.  

However,  looking  more  deeply  at  these  responses  and  alongside  the  later  question  of  'In 
your view are the existing criteria for assessing proportionality clear enough?' and response 
of 'Yes, and there is no or little need to clarify the criteria', we find that: 

  39% had responded that analysis was done on a case by case basis; 
  5% that they did not know if any methodology existed; 

58 

 
 
 
  8% came from those who said that no methodology was in place and; 
  Overall, 65% came from organised responses. 

Although  the  above  does  not  tell  us  what  the  reality  in  any  Member  State  regarding 
obligations when designing regulations, the responses do suggest an overall confusion; that 
in many instances there seems to be no set criteria (case by case basis) or; at least a lack of 
awareness  of  any.  It  should  also  be  noted  how  many  responses  coming  from  professional 
representative  bodies,  who  had  in  some  cases  indicated  a  lack  of  existing  criteria,  who 
either  seem  to  not  wish,  or  perhaps  not  accept  the  benefits  of  introducing  a  more 
transparent and coherent approach to regulation.  

11.2.5. 

Responses  regarding  the  current  state  of  proportionality 

assessments in the EU 

61%  of  respondents  were  aware  of  current  proportionality  based  requirements,  these 
respondents were asked: 

Q. In your view what, if any, are the shortcomings of the current situation regarding the 
assessment of proportionality? 

is  no  common  methodology  to  carry  out 

It is not clear which criteria should be used to comply 
with the requirement to assess proportionality  
There 
proportionality assessments 
Proportionality assessments are not comparable across 
Member States 
The  quality  of  proportionality  assessments  that  I  am 
aware of is inadequate 
Member  States  do  not  respect  their  obligations  to 
assess  proportionality  and  there  is  no  mechanism  to 
correct this behaviour 
There is no proper consultation. 

Overall 
7% 

12% 

27.5% 

27% 

21% 

4.5% 

Given  the  motivation  behind  this  initiative  we  see  that  'quality',  'comparability'  and  the 
accountability  of  Member  States  to  the  principles  of  proportionality  feature  as  the  most 
predominant concerns.  

Respondents were then asked which criteria they would wish to see improved: 

Q. What elements of the proportionality assessment should be clarified?  

1. Reasons: Identification of 
the overriding reasons 
relating to the general 

Agree 
90% 

Disagree 

No opinion 
10% 

59 

 
 
 
 
 
 
 
interest which justify the 
measure (public policy, 
security and/or health, 
consumer protection, 
fairness of trade 
transactions, combating 
fraud, protection of the 
environment) 
2. Risk analysis: 
Identification and 
assessment of the nature of 
the risks to consumers, to 
professionals or third 
parties, including in 
particular whether and why 
existing rules (such as 
consumer protection law, 
liability law, health and 
safety regulations, ex post 
regulation/standards) are 
inadequate to protect the 
public interest 
3. Assessment of the 
necessity of requiring 
possession of specialised 
skills and training and 
assess specifically the level, 
the nature and the duration 
of the training required 
4. Assessment of the 
existence of different 
routes to obtain the 
qualification 
5. Analysis of the scope of 
practice and the reserves of 
activities 
6. Estimating the economic 
impact of the proposed 
regulation including a 
consideration of market 
impacts on such variables 
as employment, 
competition, prices, etc. 
7. Analysis of the 
alternatives to regulation 
or less restrictive regulation 
8. Assessment of the 

84% 

4.5% 

11% 

90% 

10% 

77% 

11% 

11% 

86% 

2% 

79.5% 

10% 

11% 

11% 

73% 

13.5% 

13.5% 

79.5% 

2% 

18% 

60 

 
 
 
cumulative effect of 
restrictions to both access 
to and exercise of the 
professional activities 
9. Assessment of non-
discrimination of 
professionals from other 
EU countries 
10. Improve procedures: 
Steps necessary to carry 
out proportionality 
assessment 
11. Improve procedures: 
Obligatory consultation 
with all stakeholders before 
decision 
12. Improve procedures: 
Publication of assessments 
online 

88% 

2% 

10% 

88% 

4.5% 

91% 

2% 

7% 

7% 

86% 

4.5% 

10% 

The responses in particular to questions 2, 6, 7, 8, 11, 12 are interesting as they relate to the 
motivations behind the bringing forward of this impact assessment: namely to improve the 
way in which regulation is analysed so as to ensure both its wider economic and cumulative 
effects are taken into consideration; to ensure this is done in a transparent fashion and to 
prevent unnecessary burdens being placed upon the economy and consumers. 

a.  Attitudes to the use of proportionality 

To note that in the following that: 

  Q2 was given only to those who was given only to those who previously indicated 
an awareness of pre-existing proportionality criteria in their Member States and; 
  Q4 was given only as a follow up to those who had answered 'YES' to Q3 (38% of 
total  responses)  Therefore,  as  an  example  in  table  5  below,  the  figure  of  74.2% 
requesting  a  mandatory  proportionality  test  equates  to  38%  of  those  surveyed 
overall.  

61 

 
 
 
Table 4 - Overall responses across the whole consultation: 

% 

Should 

1. 
authorities 
analyse 
the 
of 
impact 
regulations? 

Yes 
No 
Don't know 

93% 
3% 
4% 

2. In your view 
is  the  existing 
criteria 
for 
assessing 
proportionality 
clear enough? 
Yes 
No 
Don't know 

% 

% 

3.  Should 
there  be 
common 
guidance? 

% 

Should 

4. 
this 
guidance be 
mandatory? 

Yes 
74% 
21%89  No 
5% 

Don't 
Know 

Yes 
51% 
41%  No 
8% 

Don't know 

74.2% 
15.4% 
10.2% 

However,  it  is  useful  to  look  at  these  responses  in  more  depth  and  breaking  them  down 
according  to  the  status  of  respondent  so  as  to  understand  how  different  stakeholder 
constituencies reacted: 

Table 5 - Providers of services 

% 

Should 

1. 
authorities 
analyse 
impact 
regulations? 

the 
of 

Yes 
No 

94% 
4% 

Don't know 

2% 

2. In your view 
is  the  existing 
criteria 
for 
assessing 
proportionality 
clear enough? 
Yes 
No – should be 
clarified 
No-  should  be 
and 
clarified 

% 

% 

3.  Should 
there  be 
common 
guidance? 

% 

Should 

4. 
this 
guidance be 
mandatory? 

56% 
5% 

39% 

Yes 
No 

Don't 
Know 

67% 
Yes 
26%  No 

85% 
6% 

7% 

Don't know 

9% 

89  Three  quarters  of  these  people  thought  it not  only  should  be  clarified  further  but  that  it should  be made 
comparable between Member States. 

62 

 
 
 
                                                       
made 
comparable 
across Member 
States 

Table 6 Users of services 

% 

Should 

1. 
authorities 
the 
analyse 
impact 
of 
regulations? 

Yes 
No 

50% 
17% 

Don't know 

33% 

2. In your view 
is  the  existing 
criteria 
for 
assessing 
proportionality 
clear enough? 
Yes 
No – should be 
clarified 
No-  should  be 
clarified 
and 
made 
comparable 
across Member 
States 
Don't know 

Table 7 Public Authorities 

% 

Should 

1. 
authorities 
the 
analyse 
of 
impact 
regulations? 

Yes 
No 

96% 

Don't know 

4% 

2. In your view 
is  the  existing 
criteria 
for 
assessing 
proportionality 
clear enough? 
Yes 
No – should be 
clarified 
No-  should  be 
and 
clarified 
made 
comparable 
across Member 
States 
Don't know 

% 

% 

3.  Should 
there  be 
common 
guidance? 

% 

Should 

4. 
this 
guidance be 
mandatory? 

25% 
25% 

25% 

Yes 
No 

Don't 
Know 

83% 
Yes 
17%  No 

100% 

Don't know 

25% 

% 

% 

3.  Should 
there  be 
common 
guidance? 

% 

Should 

4. 
this 
guidance be 
mandatory? 

64% 
4% 

25% 

Yes 
No 

Don't 
Know 

61% 
Yes 
31%  No 

80% 
10% 

8% 

Don't know 

10% 

7% 

To note that 21 public authorities responding to the previous question on criteria were not 
aware of any existing in their Member States. It is further worth noting the later responses 
from  this  group  who  generally  strongly  saw  the  benefits  of  introducing  proportionality 
testing and 9 of whom later endorsed a common mandatory framework. 5 did not support 
the idea of common guidance and saw no benefits from analysing different criteria (tables 9 
and 10) and 2 from this group answered 'don't know' to what methodology was in place in 

63 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
their  Member  State,  in  fact  only  60%  indicated  that  there  was  no  methodology  in  their 
Member State. 

Table 8 Other90 

% 

Should 

1. 
authorities 
the 
analyse 
impact 
of 
regulations? 

Yes 

No 

94% 

2% 

Don't know 

4% 

2. In your view 
is  the  existing 
for 
criteria 
assessing 
proportionality 
clear 
enough?91 
Yes 

No – should be 
clarified 
No-  should  be 
and 
clarified 
made 
comparable 
across Member 
States 
Don't know 

% 

% 

3.  Should 
there  be 
common 
guidance? 

% 

Should 

4. 
this 
guidance be 
mandatory? 

87% 

Yes 

4% 

No 

3% 

Don't 
Know 

Yes 

No 

72% 

23% 

Don't know 

5% 

37% 
(66%) 
54% 
(19%) 
9% 
(15%) 

5% 

The  final  segment  of  responses  is  that  of  'other'  and  as  with  other  sections  of  the 
consultation results could be considered the outlier. As this group is composed of multiple 
organised  responses  the  results  given  in  brackets  represent  the  percentage as  they  would 
be had we counted these responses as only 1. Of  the Trade Unions responding under this 
category 65% responded yes to Q3, 6% No and 29% don't know. Of those saying yes, 73% 
wished for the binding option under Q4.  

Therefore  support  for  the  use  of  common  guidance  (question  3)  across  categories  is  as 
follows:  services providers (67%), users (83%) and public authorities (61%), dropping to 37% 
within the category of 'other' but rising again to 66% when controlled for bias. Following on 
from  this,  and  remembering  that  Q4  was  given  only  as  a  follow  up  to  those  who  had 
answered 'YES' to Q3 (38% of total responses), those who thought it should be mandatory 
for  public  authorities  to  use  those  who  answered  yes  to  this  represent  39%  of  all  those 
surveyed before controlling. 

90173 contributions come under the self-nominated category of 'other' : 4 are research institutions, 17 trade 
unions  and  the  remaining  152  are  predominantly  from  professional  associations  with  the  majority  of  the 
respondents  accounted  for  by  Austria  (48)  and  Germany  (46).  The  remaining  are  Belgium  (2),  the  Czech 
republic (2), Denmark(1), Finland (1), France (20), Ireland (2), Italy (12), Lithuania (2), Poland (1), Romania (1), 
Spain (4), Sweden (1), UK (6), EEA Country (1), International Organisation (2) 

64 

 
 
 
 
 
 
 
 
 
                                                       
 
Of  all  demographics  those  under  the  category  of  'other'  run  contrary  to  this  trend  in  that 
they not only do not support the idea of a mandatory test but they also do not support the 
sharing of common guidance on any level (54%).  

b.  Expectations of impacts from the introduction of proportionality 

Finally, all respondents were asked what they thought the impacts of introducing a common 
methodology would be. Taking firstly those aspects where there was overall acceptance of 
the possible benefits of introducing a common proportionality test, highest rated responses 
are in blue: 

Overall 
% 

Providers 
% 

Users 
% 

Table 9 

a. Would help to clarify the 
minimum criteria necessary to 
comply with the requirement to 
assess proportionality 
b. Would support Member 
States with a common template 
and guidance on the method 
needed to carry out such 
assessments 
c. Would improve the overall 
quality of proportionality 
assessments 

d. Would make proportionality 
assessments more transparent 
and comparable across 
Member States 

e. Would support compliance 
with existing legal 
requirements on 
the  notification of new 
regulation and the reasons for 
which it is considered 
proportionate* * As stipulated 
under existing EU rules in the 
Professional Qualifications 
Directive 2005/36/EC as well as 
the Treaty 
f. Would make it easier to 
compare regulatory 

Public 
Authorities 
% 
57% 
35% 
8% 

61% 
27% 
12% 

45% 

37% 

18% 

100% 
- 
- 

100% 
- 
- 

50% 

33% 

17% 

83% 

59% 

17% 

30% 

- 

10% 

67% 

41% 

- 

35% 

33% 

24% 

'Other' 
% 

36% 
54% 
10% 

66% 
9% 
25% 

33% 

55% 

12% 

36% 

53% 

11% 

30% 

52% 

18% 

Agree 
54% 
Disagree  36% 
10% 
Don’t 
Know 
Agree 
  71% 
Disagree  12% 
18% 
Don’t 
Know 

Agree 

45% 

Disagree  41% 

Don’t 
Know 
Agree 

14% 

52% 

Disagree  37% 

Don’t 
Know 
Agree 

11% 

47% 

Disagree  36% 

Don’t 
Know 

17% 

75% 
12% 
12% 

81% 
10% 
9% 

64% 

21% 

14% 

71% 

17% 

11% 

76% 

14% 

10% 

Agree 
51% 
Disagree  39% 

75% 
17% 

67% 
33% 

55% 
35% 

34% 
55% 

65 

 
 
 
 
 
 
 
 
requirements across the EU 

g. Would improve legal 
certainty on compliance with 
existing requirements under EU 
law 

h. Would make Member States 
seriously consider, in a 
structured way, necessity and 
proportionality factors when 
adopting new or revising 
existing regulations 
i. Would ease the mobility of 
professionals between Member 
States 

Don’t 
Know 
Agree 

10% 

8% 

- 

10% 

44% 

65% 

67% 

45% 

Disagree  40% 

23% 

17% 

35% 

53/ 16 

12% 

17% 

20% 

Don’t 
Know 
Agree 

49% 

Disagree  37% 

Don't 
know 

14% 

79% 

10% 

11% 

83% 

17% 

- 

43% 

41% 

16% 

10% 

29% 

54% 

17% 

31% 

54% 

14% 

Agree 

43% 

61% 

67% 

49% 

28% 

Disagree  34% 

30% 

17% 

43% 

35% 

Don’t 
Know 

23% 

9% 

17% 

8% 

37% 

In reviewing the above we see a broad consensus of opinion between providers, users and 
public authorities but which, in all instances, is not shared by the 'other' category. In fact, 
between  the  above  and  below  table  this  category  is  the  consensus  outlier  from the  other 
three  categories  in  8  of  the  9  categories.  The  above  align  closely  with  the  fundamental 
reasoning  for  action  as  set  out  in  this  IA  namely:  quality,  compliance,  comparability  and 
transparency according to the best principles of proportionality in regulation.  

Next we consider responses to the impacts of the introduction of a common proportionality 
test where the suggested benefits were not accepted: 

Table 10 

Overall 
% 

Providers 
% 

Users 
% 

a. Would improve 
the quality of regulation 

b.  Would 
simplify professional 
regulation 
 c. Would lead to the 
modernisation of national 
regulation regarding access 
and conduct requirements 

45% 
47% 

Agree 
Disagree 
Don’t Know  8% 
42% 
Agree 
Disagree 
46% 
Don’t Know  12% 
37% 
Agree 

Disagree 

45% 

Don’t Know  18% 

59% 
29% 
12% 
62% 
25% 
13% 
57% 

29% 

14% 

83% 
17% 
- 
50% 
50% 
- 
83% 

17% 

- 

Public 
Authorities 
%   
49% 
41% 
10% 
49% 
37% 
14% 
45% 

39% 

16% 

'Other' 
% 

33% 
61% 
6% 
27% 
62% 
12% 
20% 

59% 

21% 

66 

 
 
 
 
 
 
24% 

57% 

19% 

20% 

57% 

23% 

10% 
43% 
47% 
18% 
69% 
12% 
11% 
66% 
23% 
13% 
71% 
16% 
15% 
65% 
20% 
10% 
71% 
19% 
16% 
39% 
45% 

d.  Would help investigating 
alternatives to regulation 
and propose appropriate 
actions to improve 
legislation 
e. Would improve 
the involvement of various 
affected groups, such as 
businesses and consumers, 
in the development of 
legislation 
f.  Would reduce 
administrative burdens for 
professionals 
g.  Would ease access to the 
professions 

h. Would increase 
competition in the market 

i. Would raise the level of 
consumer protection 

j.  Would improve the 
functioning of labour 
market 
k.  Would deliver a better 
price-to-quality ratio of 
services 
l. Would raise the quality of 
professional services 

Agree 

34% 

47% 

17% 

43% 

Disagree 

45% 

29% 

50% 

37% 

Don’t Know  21% 

Agree 

Disagree 

31% 

46% 

Don’t Know  23% 

18% 
Agree 
Disagree 
43% 
Don’t Know  39% 
31% 
Agree 
Disagree 
56% 
Don’t Know  13% 
25% 
Agree 
Disagree 
51% 
Don’t Know  24% 
29% 
Agree 
Disagree 
55% 
Don’t Know  16% 
26% 
Agree 
Disagree 
53% 
Don’t Know  21% 
19% 
Agree 
Disagree 
59% 
Don’t Know  22% 
Agree 
30% 
38% 
Disagree 
Don’t Know  32% 

23% 

45% 

32% 

23% 

31% 
37% 
32% 
48% 
39% 
12% 
44% 
39% 
21% 
52% 
38% 
10% 
43% 
39% 
18% 
29% 
50% 
21% 
49% 
38% 
13% 

33% 

83% 

17% 

- 

17% 
33% 
50% 
33% 
50% 
17% 
17% 
50% 
33% 
50% 
33% 
17% 
33% 
33% 
33% 
33% 
33% 
33% 
50% 
33% 
17% 

20% 

35% 

41% 

24% 

20% 
57% 
22% 
35% 
47% 
18% 
30% 
39% 
30% 
33% 
41% 
27% 
27% 
39% 
35% 
22% 
41% 
37% 
30% 
41% 
29% 

Consensus  is  generally  more  divided  and  narrow  in  these  categories  than  the  previous. 
Regarding  (a),  quality,  the  overall  figure  between  agreement  and  disagreement  is  quite 
narrow with public authorities, users and providers all thinking a common test would have 
positive benefits, the same may be said of (c), modernisation, though the overall margin is 
not  so  narrow.    There  is  general  doubt  that  (f),  reducing  administration  burdens  will  be 
helped,  access  eased  (g),  or  competition  improved  (h).  However  it  is  worth  noting  that 
service providers do foresee this benefit. Both public authorities and 'other' categories do 
not foresee a positive impact on consumer protection, though this is not shared by users or 
providers.  Negative  opinion  on  its  effects  on  the  functioning  of  the  labour  market  (j)  is 
strong overall but when broken down to groups the margins are narrower, with only 'other' 
in strong disagreement. Most users did not think effects on price- to quality ratio (k) would 
be improved though it is not clear how this contrast with those who think quality will not be 

67 

 
 
 
improved  (l)  –  perhaps  they  suggest  no  impact  on  prices  but  this  must  be  interpreted 
against  effects  on  competition  (h).  Finally,  regarding  (l)  it  is  interesting  to  note  the  45% 
response rate from the 'other' category given that many of those respondents come from 
the crafts sector where service quality is often a primary motivation in their justification for 
regulating. 

It  should  be  noted  that  both  of  the  above  tables  9  and  10  have  not  controlled  for 
organised responses which were predominantly negative towards all aspects. 

11.2.6. 

Public Authorities 

The proportionality section of the consultation designed exclusively for public authorities is 
helpful not only to understand what their views are on the proposals set forth in this IA but 
to  also  appreciate  what  regulatory  and  proportionality  based  processes  are  currently  in 
operation.  

14

12

10

8

6

4

2

0

Table 11 Public Authorities: respondents per 
country 

12 

y
l
a
t
I

8 

y
n
a
m
r
e
G

5 

i

a
n
a
u
h
t
i
L

3 

a
i
r
t
s
u
A

1 

a
i
r
a
g
u
B

l

1 

h
c
e
z
C

c
i
l

b
u
p
e
R

2 

e
c
n
a
r
F

3 

a
t
l
a
M

2 

l

a
g
u
t
r
o
P

3 

i

a
n
a
m
o
R

1 

i

a
n
e
v
o
l
S

5 

i

n
a
p
S

2 

1 

3 

d
e
t
i
n
U

m
o
d
g
n
K

i

U
E
-
n
o
N

y
r
t
n
u
o
c

e
h
T

s
d
n
a
l
r
e
h
t
e
N

49 responses came from public authorities, 21 of which regulate a profession[s], 10 which 
review or supervise the implementation of professional regulation. From previous questions 
under general proportionality [see section 2.2] we know that 30 of these agree there should 
be  a  common  set  of  criteria,  17  disagree,  2  have  no  strong  opinion.  In  addition  the 
consultation section on general proportionality for all respondents, showed that: 

  21 public authorities were unaware of national and/ or EU level proportionality 

criteria;  

  11 implement a systematic methodology when reviewing/implementing regulation; 
16 review according to a case by case basis; 8 operate without any methodology 
and; 14 do not know if one is in place.  

68 

 
 
 
  Despite this, 18 think that there is no need to further clarify criteria; 8 think criteria 
should be further clarified and 7 of these that it should be comparable across 
Member States [see sections 2.2 and 2.3]  

Overall 30 think there should be some form of common guidance introduced, of which 20 
think  it  should  be  mandatory  and  5  that  it  should  not.  15  disagree  with  the  idea  of  a 
common methodology and 4 have no fixed view.  

Of those 15 who disagree with the use of a mandatory test, 6 indicated there was a national 
level methodology in place; 2 previously indicated that a systematic system was in place, 4 
that there was no methodology and 3 that analysis was on a case by case bases;  8 said they 
were not aware of any European proportionality requirements.  

Further  to  this,  of  these  same  15  8  had  previously  responded  'YES'  to  the  public  question 
'Should this guidance be mandatory', only 3 refuted the mandatory route for each of the 
two times the question was posed.  

The  situation  and  respondents'  views  on  it  may  be  somewhat  unclear therefore. However 
what does come through is a concerning lack of clarity and/or awareness of criteria when 
analysing regulatory choices.  

a.  Current state of analysis 

Below  we  will  look  first  at  how  Public  Authorities  currently  deal  with  regulatory  change, 
then we shall look at issues around stakeholder engagement and transparency and finally, 
how  subject  to  change  professional  regulation  has  been  in  the  previous  10  years  and  is 
projected to be in the coming 3.  

1. Do the 
regulations you 
deal with have a 
review clause 

Yes 
8 
28 
No 
Don't  13 

2. When 
reviewing or 
amending 
regulation are 
you aware of 
proportionality 
based criteria to 
support your 
decisions? 
22 
15 
12 

3. Do you think 
proportionality 
check-ups 
help/would help to 
ensure regulation 
is best designed to 
serve public 
interest 
objectives? 
39 
10 
- 

4. As far as you 
are aware, in the 
past 10 years has 
there been 
changes to the 
regulation of this 
/ these 
professions? 

28 
14 
7 

69 

 
 
 
 
 
 
know 

Although column D is more relevant to section 3.3 it is helpful to consider it also alongside 
the above.  

Column  1:  Of  those  who  indicated  a  review  clause  we  found  annual  review  periods 
stipulated as 1; 5; 2; 15; 3; 4; 1; 15 years respectively. One of the  respondents to a yearly 
review 
indicated  previously  that  they  were  not  aware  of  any  existing  national 
proportionality requirements but saw no need to further clarify criteria. Their view was that 
guidance should be voluntary and professional reputation should be included as justification 
for  regulation.  One  respondent  with  a  15  year  review  clause  indicated  a  systematic 
methodology  was  in  place,  that  no  further  clarification  was  necessary  but  replied  'don't 
know' to column 2 regarding the use of proportionality based criteria. Conversely however, 
this  same  respondent  indicated  a  wish  for  further  EU-level  guidance  to  be  mandatory  on 
public authorities. So the picture is confused.  

Column 2: Within those 15 who responded 'no' to this question, 5 were not aware  of any 
proportionality requirements at a national level; 11 unaware at the EU level; 5 indicated no 
methodology  was  in  place  (one  of  which  had  a  3  year  review  clause);  3  that  assessments 
were  done  on  a  case  by  case  basis;  2  that  a  systematic  methodology  existed  (but  one  of 
these was not aware of any EU level criteria). However since both of these last two indicate 
earlier  that  no  proportionality  based  criteria  was  in  place  we  can  assume  that  the 
methodology they refer to makes no reference to proportionality. 

Column 3: Of the 10 responding 'no' to this question; 4 later indicated that further EU-level 
guidance  (such  as  an  analytical  framework)  would  be  useful;  4  were  unaware  of 
proportionality  based  criteria  used  when  reviewing/amending  regulation;  7  indicated  no 
systematic methodology was in place at a national level; 4 of these 7 were unaware of any 
EU level proportionality expectations and yet 5 felt the current system was satisfactory and 
in  no  need  of  further  clarification  whereas  4  supported  the  idea  of  further  EU-level 
proportionality guidance, 2 of whom thought this should not be voluntary in nature.  

b.  Engagement and Transparency 

3.2.1 Regarding stakeholder consultation, the following responses were given: 

We primarily consult the profession concerned 
We consult a broad range of stakeholders 
including consumer and competition 
stakeholders 
We do not routinely consult 
Not applicable 

70 

Do you consult a broad range of 
stakeholders? 
30 
9 

3 
7 

 
 
 
 
61%  of  consultations  therefore  focus  primarily  on  the  professionals  themselves  and  in  a 
minority of cases no consultation of any sort takes place. However, two of these three are 
supportive of further EU proportionality guidance (though one thinks it should be voluntary 
and the other holds no strong view92). One of those responding that they did not consult 
also replied that their regulation had been altered to introduce new requirements 3 times 
in the past 10 years. 

c.  Regarding transparency of the  analysis conducted before taking regulatory 

decisions: 

It is published with the professional regulations 
It is published separately online 
It is not published 
Not applicable 
Other 

How do you disseminate the 
results of your proportionality 
analysis?93 
15 
1 
7 
17 
2 

Of the 17 who claimed it was 'not applicable', 3 were regulators and 6 were responsible 
for reviewing or supervising the regulation of a profession/professions; 14 indicated that 
they  primarily  consult the  professionals and 2 that they do not routinely consulate. This 
final two may explain why they chose the response 'not applicable' but it does not explain 
the remaining 15. If we were to take this as an indication that results are not published we 
could say that overall 49% of assessments are not made public. However, from this group, 
12 indicate further EU level guidance (such as a proportionality test), would be welcome, 3 
have  no  clear  preference  and  2  do  not  support  the  proposal.  Additionally,  from  those 
supporting  the  proposal  5  think  it  should  be  voluntary  in  nature,  2  that  it  should  be 
mandatory  and  5  show  no  clear  preference.  Those  15  who  publish  results  alongside  the 
regulation were not clear on whether this was the draft regulation or final, as such it is not 
clear if the the for concerns to be raised prior to adoption are open.  

d.  Changes to the regulatory landscape: 

As far as you are aware, in the past 10 years have there been changes to the regulation of 
this/these profession(s)? 
Yes 
No 
Don't Know 

28 
14 
7 

Those  responding  'yes'  to  the  above  were  then  asked  to  indicate  the  number  of  changes 
over  this  period,  in  total  this  came  to  147  known  regulatory  changes  in  the  past  decade 

92  The  respondent  who  said  the  guidance  should  be  voluntary,  when  asked  why  they  responded:  "It  could 
promote  more  confidence  between  EU  members,  helping  to  overcome  for  instance  the  exigency  of 
compensatory measures" so there may be a conflict in their response. 
93 This question was not given to those who answered 'not applicable' to the question "Do you consult a broad 
range of stakeholders?" 

71 

 
 
 
                                                       
across 28 authorities representing 13 Member States . These same respondents were then 
asked: 

Overall, did these changes: 
Introduce more requirements 
Remove requirements 
Replace  requirements  with  alternative  / 
lighter touch measures 
Relate 
improvements 
Other 

administrative 

primarily 

to 

10 
7 
5 

2 

4 

Of those who 'introduced more requirements', 5 had checked the 'not applicable' response 
to  the  publication  of  their  proportionality  analysis,  8  primarily  consulted  the 
professionals,  and  1  did  not  routinely  consult.  From  this  same  group  all  agreed  that 
proportionality  help  design  'good'  regulation  and  8  wished  for  further  EU  level  guidance: 
two thought the guidance should be voluntary, two that it should be mandatory and 6 had 
no set opinion. Regarding the use of alternatives, when further prompted 2 indicated that 
they included 'less restrictive' measures and 3 had 'no opinion'.  

Going forward we then asked if any regulatory changes were foreseen in the next 3 years: 

Are you aware of any intention to change the regulation of this/ these profession(s) in the 
next three years? 
Yes 
No 
Won't  know  until  conclusions  are  drawn 
from an upcoming review 
Don't know 

18 
12 
8 

11 

From  the  18  respondents  who  answered  yes  to  the  above;  17  agreed  proportionality 
analysis  helped  in  designing  regulation,  4  did  not  want  further  EU  level-guidance  (1  of 
whom  had  introduced  8  new  requirements  in  the  past  10  years  and  all  4  foresaw 
regulatory  change  in  the  coming  3  years),  11  indicated  support  for  further  EU  level 
guidance  and  of  these  4  thought  the  guidance  should  be  mandatory,  4  that  it  should  be 
voluntary and 3 had no firm opinion). This 18 were then asked: 

Overall, are these changes likely to: 
Introduce new requirements 
Remove some requirements 
Replace 
alternative measures 
Relate 
improvements 
other 

primarily 

existing 

to 

requirements  with 

administrative 

5 
4 
3 

5 

1 

72 

 
 
 
Setting  aside  'administrative  improvements'  we  see  that  the  majority of  changes  foreseen 
relate  to  the  underlying  professional  regulations  in  themselves.  It  is  useful  also  in  this 
context to keep in mind the NAP section of consultation where respondents were given the 
opportunity to refer to a particular profession of interest to them and, and from those who 
mentioned  one,  there  was  pretty  even  50:50  split  between  those  wishing  for  future 
regulatory  change  and  those  who  did  not.  Professional  associations  in  particular  did  not 
want to see any future regulatory changes. 

11.3. 

Annex 3 

Guidance Initiative 

The “Guidance for reforms” action on is designed to address issues in existing professional 
regulation  and  for  specifically  targeted  professions94.  For  this  existing  national  regulatory 
frameworks are being compared across countries and analysed on the basis of information 
provided in the Member States' proportionality assessments as well as information notified 
to  the  EU  Regulated  Professions  Database.  On  this  basis  profession-specific  guidance  with 
regards to proportionality within the wider European regulatory landscape and according to 
Member  State  shall  be  developed  and  shall  focus  upon  those  areas  which  appear  to  be 
disproportionality  restrictive.  Acting  upon  such  findings  Member  States  will  then  be 
expected, to develop the desired regulatory improvements.   

This is complimentary to the proposed action on guidance, in the context of the European 
Semester  the  Commission  adopts  annual  country  specific  recommendations  addressed  to 
each Member State, these target major structural issues in all sectors of the economy and in 
line with the policy priorities defined in the Annual Growth Survey and are endorsed by the 
Council.  Amongst  the  three  priorities  identified  for  2016  is  the  call  to  pursue  structural 
reforms  that  modernise  national  economies.  In  particular  Member  States  are  asked  to 
improve the functioning of their services markets by making them more competitive and 
open through, inter alia, the removal of disproportionate requirements.  

11.4. 

Annex 4: Analytical models used in preparing the IA 

Methodology of the quality check of proportionality assessments (PAs) in the Database 

In  the  context  of  the  Mutual  Evaluation  exercise  carried  out  between  2014  and  2016, 
Member States were asked to address, for each profession they regulate in their territory, 
the  following  10  questions95  prepared  by  the  Commission  on  the  basis  of  the  existing 
jurisprudence96, which were designed to help assess whether the national requirements are 
proportionate. Supporting guidance was provided and the Commission assisted respondents 

94 Link to the roadmap when published 
95 See Annex X 
96 Reference to the relevant case law 

73 

 
 
                                                       
as  further  questions  arose.  In  addition,  during  the  six  Mutual  Evaluation  meetings  which 
gathered representatives from Member States and the Commission, proportionality analysis 
was  discussed  in  detail  for  12  professions  and  reports  summarising  the  findings  were 
subsequently  published.97  During  these  meetings  the  way  in  which  proportionality  was 
expected  to  be  carried  out  for  it  to  be  considered  of  a  satisfactory  quality  was  clarified  a 
number of times. The 12 reports, endorsed by Member States before their publication, are 
in  line  with  the  outcomes  of  the  analysis  the  Commission  subsequently  run  on  all 
professions. The responses were used by the Commission to assess the appropriateness of 
the relevant analysis by the Member States. The assessment process is described below. 

The Commission has now reviewed all submitted replies and assessed the level of analysis 
conducted in each. The process through which this assessment was conducted is described 
below.  

There  are  c.a.  600  generic  professions  across  the  EU,  which  translates  into  c.a.  5700 
different  regulated  professions  at  national  level98.  In  order  to  verify  all  proportionality 
assessments submitted for each profession in every Member State (or 3533 questionnaires 
of  10  questions  each),  the  Commission  followed  the  following  method.  Five  of  the  ten 
questions  of  the  questionnaire  were  selected  so  as  to  find  out  whether  the  conclusion 
reached  was  based  on  analysis  of  the  critical  points  related  to  the  identification  of  risks, 
assessments  of  the  effect  regulation  on  the  ground  and  the  cumulative  effects  of  the 
existing  multiple  restrictions  imposed  on  each  profession.  This  consisted  in  verifying 
whether satisfactory responses were provided by Member States to a set of questions (Q3, 
4, 5, 8) and linking the answers to the answer to Q10 for each profession to see whether the 
conclusion  given  in  Q10  is  founded  on  analysis  or  not.  In  assessing  what  constituted 
"satisfactory"  in  this  exercise,  it  is  important  to  note  that  no  value  judgements  as  to  the 
merit of the information were made at this stage – only the (completeness) relevance of the 
reply was assessed.  

Given the answers were provided by Member States as free text, a rating was applied for 
questions  3  (in  conjunction  with  Q4,  given  that  more  telling  answers  are  sometimes 
provided  under  Q4),  5  and  8  to  be  able  to  score  the  quality  of  the  answers  in  the  most 
objective  possible  way.  For  example,  for  the  question  on  whether  Member  States  have 
identified  specific  risks  or  benefits  that  the  regulation  in  question  was  supposed  to  tackle 
(Q3-4), the following scores were attributed:  

  0 if no/ unrelated or inadequate response;  
  1 if a general reference to consumer protection/ safety or ensuring quality of 

services was made; and  

97 See “Organisation of the Mutual Evaluation” and “Sector reports” 
98 The Database shows that some 600 different “generic professions” are affected by occupational regulation. 
For  each  generic  profession  there  are  usually  many  more  professions  corresponding  to  the  national 
terminology, which brings the number of regulated professions in the EU up to c.a. 5700. 

74 

 
 
                                                       
  2 if specific risks or benefits were indeed identified.  

For the other questions (Q5 effects of regulation / Q8 cumulative effect analysed or not) a 
binary rating was applied:  

  0 if no/ unrelated or inadequate response;  
  1 if a fairly satisfactory response was provided.  

It is to be noted that the scores were given in a rather generous way (i.e. even a relatively 
limited  effort  to  analyse  the  effects  of  regulation  was  attributed  1  which  is  the  maximum 
score  for  this  question,  any  risk  more  specific  than  reference  to  consumer  protection  or 
quality  of  services  in  general  was  scored  2  which  is  the  maximum  amount  of  points 
attributable to this question) which makes the estimates overoptimistic.  This was done to 
allow for the development of data but in as an objective rather than value-driven manner 
as  possible.  Anonymised  examples  of  the  real  replies  and  the  scores  assigned  are  given 
below to better illustrate the way in which replies where scored. 

Then,  the  answers  to  questions  on  effects  were  linked  profession  by  profession  with  the 
question on the conclusion reached by a Member State (maintain, improve or remove the 
measure) so as to see whether the conclusions were founded on analysis or not. The same 
approach  was  taken  for  the  question  on  cumulative  effect,  linking  it  to  the  existence  of 
multiple  regulatory  restrictions  on  top  of  qualification  requirements.  For  each  Member 
State, GROW thereby obtained a quantitative estimate of Member States' response rate to 
the  more  detailed  questions.  The  objective  of  this  analysis  was  to  show  that  [some] 
regulatory decisions are being taken by relevant authorities without first ensuring that the 
appropriate  questions  are  even  being  asked  or  answered.  The  quality  (merit)  of  the 
ensuing decisions will obviously be affected by this fact.  

In  doing  so,  the  quality  of  the  responses  provided  by  Member  States  was  assessed  to  be 
able  to  reach  conclusions  with  regard  to  the  quality  of  the  proportionality  assessment, 
without  however  judging  at  this  stage  whether  the  response  is  convincing  to  justify 
regulation (and therefore to justify whether the regulation is proportionate) [given this is by 
no means the purpose of the exercise]. In this way the scoring could be considered liberal. 

Questions analysed 
Q3-4 Risks/ benefits  
What  specific  risks  or  benefits  have  you 
identified 
is 
designed  to,  respectively,  minimise  or 
maximise?  How  specifically  does  the 
measure operate to ensure it?   

that  your  measure(s) 

Q5 Effects of the measures 
Please  provide 
information  that  you 
have  gathered  regarding  the  concrete 

Scoring   
Answers to Q3 were read in conjunction with Q4 
and an appropriate score was given accordingly: 

- 0 if no, unrelated or inadequate response 
-  1  if  general  reference  to  ensuring  quality  of 
services, safety, consumer protection 
- 2 if specific risks/ benefits identified 
Read answers to Q5 and give the appropriate, in 
your opinion, score: 

75 

 
 
 
 
effects of the measure(s). 

Q8 Cumulative effect 
Where  you  have 
indicated  several 
measures  in  place  in  the  screening  tab, 
have you reviewed the cumulative effect 
of  all  these  measures  on  professional 
activities? 

- 0 if effects not analysed 
-  1  if  effects  analysed  (the  response  was  even 
fairly satisfactory) 

[End result:  Answer to Q5 will be linked with the 
answer  to  Q10  for  each  profession  to  see 
whether  the  conclusion  given  in  Q10  is  founded 
on analysis (Q5=1) or not.] 
Read answers to Q8 and give the appropriate, in 
your opinion, score: 

- 0 if cumulative effect not analysed 
- 1 if cumulative effect analysed 

The scores relative to the answers to these questions were, profession by profession, linked 
with the answer to Q10 (maintain the current system/ improve/ remove) to see whether the 
conclusion was founded on analysis or not (Q5), whether risk/ benefits have been identified 
(Q3-4)  and  cumulative  effects  analysed  (Q8).  These  values  were  then  summarised  and 
divided  by  the  total  number  of  assessments  done  for  a  given  country  to  have  the  %  of 
assessments which were, accordingly, based or not based on analysis. 

Step 1: In making this assessment it is important to note that to be as objective as possible 
DG GROW made no value judgements as to the merit (quality) of the information given; it 
only assessed the completeness of the reply or it's appropriateness to the question under 
consideration. This scoring can be seen through the following examples to the questions:  

Q3: What specific risks or benefits have you identified that your measure(s) is designed to, 
respectively, minimise or maximise? 

And 

Q4:  How  specifically  do  your  measures  operate  to  minimise  the  risk(s)  or  maximise  the 
benefits) identified in Q3? 

response 
Q3 
None 
Q4 
Via long-standing and stated criteria. 

score 
0 

explanation 

Q3 
It  is  significant  to  have  skilled  [professionals],  because  it 
helps owners to manage more effectively. 
Q4 

0 

Q3  does  not  identify  a 
relevant risk nor benefit. 
Q4  provides  only  a 
circuitous logic. 

76 

 
 
 
 
 
 
 
 
 
The measures ensure the competence of persons working in 
[the]  field.  Only  trained  and  certified  persons  can  provide 
services in mentioned field. 

Q3 
The main risk is to appoint inappropriate persons. 
Q4 
Appointment only of eligible and trusty persons. 

Q3 
Risks:  limited  access  to  the  profession.  Benefits:  trainee  is 
well educated. 
Q4 
To  minimise  the  risk  –  the  legal  system  provides  the 
mandatory  course  and  mandatory  state  exam.  In  addition, 
can  have  no  physical  and  psychical  contraindications.  To 
maximise the benefit – there is a wide accessibility to attend 
the course. 

Q3 
The  measures  help  to  minimize  all  the  above  risks  because 
they  help  guaranty  that  specialized  acts  be  practiced  by 
qualified  people  and  identifies  the  responsible  for  each 
service  and  work.  Only  legally  qualified  people  can  be 
responsible because the title is legally protected. 
Q4 
The  measures  filter  academic  qualification  and  experience 
and creates a fair market and a controlled, but just access to 
those  that  work  to  obtain  them.  In  case  of  an  accident  or 
fraud  the  legal  service  of  OE  can  act  with  disciplinary 
proceedings. 
Q3 
Since  1998  the  requirements  were  introduced  with  the  aim 
to  protect,  promote  and  maintain  the  health  and  safety  of 
the public. 
Q4 
The  profession  has  to  meet  the  standards  that  were  set  in 
1998. 
Q3 
Based on the monitoring of the compliance requirements on 
the use of plant protection products, undertaken to set up a 
responsible  state  authority,  was  found  progress  in  reducing 
risks to human health and the environment. Persons meeting 
the required qualifications respectively. professional practice 

77 

0 

1 

1 

1 

2 

itself  a 

No  identification  of  risks 
and 
self-evidently 
shallow understanding of 
the relationship between 
risks and impact. 
Limiting  access 
to  a 
profession  is  not  in  and 
of 
legitimate 
concern  but  only  where 
to 
limiting  access 
mitigate  against 
risks 
which  are  not  identified 
in this response. The risk 
here is mistaken as being 
one  of  poor  training  as 
oppose 
risky 
outcomes as the result of 
poor training 
Undefined 
acknowledgement 
risks 

to 

of 

is 

This refers to an ancillary 
health related profession 
which  is  only  regulated 
by a few member States. 
General  health  concerns 
need 
better 
defined. 
A forestry profession 

be 

to 

 
 
 
 
 
2 

Pastry maker 

have  much  greater  awareness  not  only  about  the  extent  of 
the risks to human health, consumers, and the environment, 
but especially on the methods of plant protection, which can 
significantly reduce these risks to be eliminated. Reduce risks 
for consumers (consumers of food of plant origin) resulted in 
an overall decline in samples taken from these foods, where 
the  content  of  the  residues  of  active  substances  of  plant 
protection products exceeded the maximum limit set for the 
substance in the EU. 
Q4 
… Part of the qualification is access to knowledge about the 
biology of organisms harmful to plants, methods to be used 
to  protect  against  them,  including  toxicology,  biological 
efficacy and risks of plant protection products. Another part 
of the training in order to achieve professional qualifications 
of information on methods or elimination, reduction of risks 
in the use of products such as. correct use of mechanization 
for plant protection and integrated pest management.  
Q3 
Obligation of professional qualification The risks covered are 
damage  to  human  health  when  the  activities  of  retail, 
storage  and  transport  of  products  of  animal  origin  (or  food 
containing)  impose  unknown  health  rules  people  do  not 
speak  the  necessary  for  the  performance  of  their  business 
techniques.  The  obligation  of  professional  qualification 
ensures  that  the  services  or  works  are  carried  out  by 
qualified  professionals,  knowing  the  safety  rules  and 
standards apply. Registration requirement in the trades: The 
risks  covered  are  preparing  or  selling  breads,  specialty 
breads,  pastries,  cakes  by  unskilled  persons  the  ensuring 
control of pre-qualification for registration, and endangering 
the  client  and  the  creditor  would  have  no  way  of  knowing 
the identity and characteristics of the company. 
Q4 
Obligation  of  professional  qualification  The  risk  is  that  the 
manufacture  and  sale  of  bread,  specialty  breads,  pastries, 
cakes do not meet health standards. The most effective way 
to  minimize  risk  and  ensure  that  those  preparing  or  selling 
these  products  personally  or  have  a  qualification  justifying 
their  knowledge  of  standards  and  rules  to  follow,  whether 
they work under the  effective control of a qualified person. 
Registration requirement in the trades: The registry is a less 
stringent 
systematic 
monitoring  of  compliance  of  professional  qualification.  Only 
one  registration  also  allows  the  provision  of  a  third  legal 
directory listing all companies in the sector. 

standard  measure 

that  allows 

78 

 
 
 
2 

Tourist Guide 

Q3 
Our regulatory measures are designed to protect consumers 
and recipients interest in services sector, to provide special, 
high-quality,  reasonably  accurate  and  correct  information 
about  attended  museums,  art  galleries,  natural,  cultural, 
academic, exhibition, or other sites or locales. 
Q4 
Professional  qualification  of  a  guide  is  awarded  to  persons 
who  have  completed  higher  education  having  attended  a 
special  guide  training  course  totalling  no  less  than  250 
academic  hours  and  covering  methods  of  preparing  and 
conducting 
ethics, 
rhetoric, 
communication, psychology, culture, history, and geography 
disciplines and having passed a practical tour guidance exam. 
Having  assessed  their  professional  qualification,  guides  are 
awarded  second,  first,  or  highest  category  considering  their 
professional  experience,  ability 
in  different 
languages,  and  the  number  of  tour  routes  they  are  able  to 
guide. All guide training programs are approved by the State 
Department  for  Tourism  under  the  Ministry  of  Economy. 
Minimum scope of a guide training program is 250 academic 
hours. 

professional 

to  work 

tour, 

a 

In  this  way,  and  regardless  of  professional  context,  responses  were  judged  to  be  either 
inadequate (0), general (1) or specifically related to the risks / benefits identified (2) as the 
motivation behind the regulation.  

Step 2:  To assess the use of parameters to measure the impacts and success of a regulatory 
framework DG GROW then analysed responses to the question (0= no evidence presented / 
1= evidence given)99: 

Q5: In so far as you are able, please provide information that you have gathered regarding 
the concrete effects of the measure(s). 

score 
0 

prevents 

regulation 

Response 
Professional 
that 
entrepreneurs  start  an  enterprise  without 
sufficient  professional  qualifications  and 
swiftly  end  up  in  bankruptcy,  with  all  the 
disadvantages  as  well  on  personal  as  on 
social 
regulation 
contributes  also  to  the  promotion  of  the 
craft,  and  presents  a 
large  offer  of 
education.  
No  information  can  be  provided  regarding  0 

Professional 

level. 

explanation 
Dental technician 

The interesting thing with this response 

79 

 
 
                                                       
 
the  concrete  effects  of  the  measures  as 
there was not recently a review of any of the 
relative  measures,  neither  a  change  in  the 
philosophy  of  the  measures  allowing  access 
in the profession. 

long 

activities 

traditions. 
have 
The 
Legislation  in  its  current  form  has  been  in 
place  since  1971,  and  before  this  time, 
official regulations were followed. 
We aren't able to provide more information 
because  there  isn't  an  Order  but  only  trade 
associations and they aren't able to provide 
uniform information. 
Professional 
reserve  of 
regulation  and 
activity  based  model  of  organization  and 
related  public  policies  were 
recently 
reviewed.  The  existence  of  measures  was 
generally maintained. 
Demand for the protected title is market led, 
in  that  many  employers  value  and  support 
the  qualification  process  and  holding  the 
title can give a competitive advantage in the 
job market. 
A  variety  of  methods  is  used  to  supervise 
activities and to monitor their impact. These 
include various repeat inspections, statistical 
reviews and Mystery shopper type methods. 
In addition, four separate studies have been 
this  data  clearly 
commissioned 
and 
indicates 
continuing  training  requirements  …have 
links  with  public  safety,  protection  of 
consumers 
recipients, 
environmental 
fraud, 
prevention 
protection,  ensuring  reliable  administration 
of justice and road safety. 
During  2009-2010  we  were  supervising  our 
provisions 
mandatory 
professional qualifications. As a result of this 

the  qualification 

and 
of 

relating 

service 

[…and] 

that 

to 

recent 

reviews  on 

was that it was given  in so many cases 
by 
the  same  member  State.  Yet 
responding  to  the  following  question 
the 
regarding 
cumulative  effect  the  responded  "Yes 
we have reviewed the cumulative effect 
and 
restrictive  or 
disproportionate" 
It  should  be  noted  that  in  step  3,  this 
response  was  awarded  1  as  we  took 
each  response  solely  as  presented  by 
the  Member  States  and  without  our 
own judgement. 

they  are  not 

Again this Member State used this reply 
for multiple professions. 

is  concerning 

This 
review 
recently  occurred  but  no  information 
on effects is available, 

that  a 

0 

0 

0 

0 

1 

1 

Sales manager 

80 

 
 
 
 
 
the 

screening,  a  significant  simplification  has 
been adopted, as we reduced the number of 
products  where  certain  qualification  had 
been  required.  In  our  opinion  diminishing 
any  mandatory  qualification  that  remained 
after the supervision would cause larger risk 
to  the  safety  of  buyers,  public  security, 
public  health,  food  safety  or  product  safety 
than  the  administrative  burden  may  be  in 
relation  with  obtaining 
required 
qualification.  We  believe  that  the  current 
provisions pertain to such products of which 
selling without a qualified seller could harm 
interests. 
the  above-mentioned  public 
Besides,  these  provisions  do  not  cause 
disproportionate  burden  or  costs, 
the 
required  qualifications  can  be  obtained 
within  a  relatively  short  time,  and  the 
obtained qualification effects benefits in the 
labour market as it qualifies for selling many 
types of products. 
According  to  our  data  in  the  period  up  to 
2014 year only 2 suspensions of qualification 
and  2  warnings  were  applied.  Low  number 
of  these  cases  proves  that  attestation 
ensures 
of 
professionals. 
that  previous 
It 
requirements  were  higher  and  more 
stringent. Current ones are the result of the 
2013  deregulation  process…  Introduction  of 
new  requirements  resulted  in  a  substantial 
increase 
the  number  of  granted 
authorizations  in  the  field.  On  average,  212 
individuals  a  year  received  professional 
qualifications during 2009-2013. Upon entry 
into force of the new requirements, in 2014, 
420  individuals  received  a  new  professional 
authorizations,  while 
381 
individuals.  The  same  time  the  number  of 
professional  liability  enquiries  before  and 
after the changes in granting authorizations 
does not indicate that there is the decrease 
in  the  quality  of  services  provided.  It  was 
concluded  that  measures  put  in  place  have 
achieved  desired  result  and  that  current 
level of qualification requirements is not too 

should  be  noted 

qualification 

required 

2015, 

in 

in 

1 

1 

81 

 
 
 
 
1 

fitness 

receive 

In  2011-12,  we 

high. 
We are continuing to see an increase in the 
to  practise 
total  number  of 
for  our 
allegations  which  we 
professions  as  a  whole.  In  2010-11,  we 
received  759  allegations.  This  amounted  to 
0.35%  of  all  registrants  at  that  time.  315 
cases were concluded at a final hearing and 
panels  imposed  a  striking-off  order  in  62 
cases. 
received  925 
allegations.  This  amounted  to  0.42%  of  all 
registrants  at  that  time.  287  cases  were 
concluded  at 
final  hearing  and  panels 
imposed  a  striking-off  order  in  46  cases.  In 
2012-13,  we  received  1,653  fitness  to 
practise allegations. This amounted to 0.53% 
of  all  registrants  at  that  time.  228  cases 
were concluded at a final hearing and panels 
imposed a striking-off order in 44 cases. The 
increase  in  the  total  number  of  fitness  to 
practise  allegations  across  all  of  our 
professions  over  this  period  illustrates  the 
continued 
in 
importance  of  our 
safeguarding  the  public.  Fitness  to  practise 
action  acts  to  prevent  continuing  harm  to 
service  users  and  carers.  We  also  conduct 
and  commission  research  with  the  aim  of 
improving  our  standards  and  regulatory 
processes.  

role 

Step  3:  A  further  analysis  was  then  made  in  relation  to  the  assessment  of  regulation  in  a 
cumulative  light,  linking  the  existence  of  multiple  regulatory  restrictions  on  top  of 
qualification requirements. In this case a binary rating was applied by DG GROW :unrelated, 
inadequate  or  missing  response  (0)  /  direct  response  despite  robustness  of  argument 
provided (1) Examples:  

screening 

indicated 
tab 

Response 
No,  because  we  think  that 
the  measures 
in 
the 
are 
necessary  to  guarantee  the 
quality  of  the  professional 
activities. 
No 
Yes 
Yes  (with  any  form  further 
explanatory) 

explanation 
Multiple  measures 
instance 
requirements. 

in  this 
indicated 
including  51%  shareholding 

score 
0 

0 
1 
1 

82 

 
 
 
 
 
 
Step four: Finally, these answers were linked to the profession under consideration with the 
conclusion  reached  by  a  Member  State  as  a  result  of  their  analysis  (maintain,  improve  or 
remove the measure) so as to see how founded these conclusions were on analysis or not. 
This analysis suggests that regulatory decisions are being taken without first ensuring the 
appropriate  questions  are  being  attended  to.  The  merit  of  the  ensuing  decisions  will 
obviously be affected by this fact.  

Overall, in conducting this four step analysis, without judging the  quality of the responses 
provided,  DG  GROW  was  able  to  reach  conclusions  with  regard  to  the  usefulness  of  the 
proportionality  assessment  and  from  this  the  likelihood  of  capturing  unintended, 
negative, unjustified consequences upon the market.  

83 

 
 
11.5. 

Annex 5 

Intensity in regulation 

intensity  of  particular  measures  and  considering  only  the  basic 
Regarding  the 
qualification/education/training  related  form  of  regulation  aside  from  addiddtional 
requirements  [such  as…],    table  X  below  outlines  the  various  forms  utilised  and  describes 
their  level  of  restrictiveness,  with  'licensing'  understood  to  be  the  most  intensive  form. 
Whilst licensing may only award the professional title to a professional, in another form it 
may also permit the execution of activities reserved only to those titled professionals. The 
diversity of these reserves between the Member States is especially problematic for those 
wishing  to  provide  their  services  cross  border  and  the  Mutual  Evaluation  therefore 
requested that Member States interrogate the necessity of each reserve they implement. 

Table X EU typology of occupational regulation [check the examples] 

legal 

Any 
regulation 
by 
the 
government 
(directly  or 
through  an 
appointed 
agency)? 

Requirement to demonstrate a minimum degree of competence? 

No 

Yes 

Unregulated 

Non-governmental accreditation schemes 

to 

The  occupation  may  be 
subject 
conventions, 
employers  will 
whereby 
typically cite minimum entry 
criteria,  but  these  are  not 
co-ordinated,  nor  do  they 
have any legal basis.  

Practitioners may apply to be accredited as 
competent by an accrediting body, which is 
usually  a  professional  body  or  industry 
association.  May  permit  the  accredited 
person to use a specific title or acronym but 
confers no legal protection of title, nor any 
legal protection of function.   

No 

Example: 
retail  assistant, 
bank  clerks,  priests  (in  some 
member states) 

Example:  Accountants,  hairdressers 
some member states) 

(in 

Empty cell 

Certification schemes  

Yes, but 
confers 
no 
rights 
to 
practice 

the 

tasks  covered  by 

There is no legal restriction as to who may 
carry  out 
the 
occupation,  but  practitioners  may  apply  to 
be  certified  as  competent  by  the  state  (or 
an  appointed  agent).  This  certification  may 
sometimes  (but  not  always)  confer  legal 
protection of title. 

Example:  taxi  drivers  (in  some  member 

84 

 
 
 
 
 
states), fitness instructors (in some member 
states),  electrical  engineers 
some 
member states) 

(in 

Registration schemes 

Licensing  

Yes, 
and 
confers 
rights 
to 
practice 

registration 

of 
Requires 
personal  details.  May  also 
make  stipulations  in  areas 
other than competence (e.g. 
finance) 

UK  example:  registration  of 
estate agents 

Only  those  who  can  demonstrate  the 
specified level of competence may obtain a 
licence  permitting  them  to  undertake  the 
tasks covered by the regulation, also called 
“reserves  of  activities”  or 
“reserved 
activities”. 

Example: veterinary surgeons, pharmacists, 
dentists 

Source: Koumenta, Pagliero 2016  

85 

 
 
 
 
 
 
 
 
11.6. 
Article 59 

Annex 6 

‘Article 59 

Transparency 

1.   Member  States  shall  notify  to  the  Commission  a  list  of  existing  regulated  professions, 
specifying  the  activities  covered  by  each  profession,  and  a  list  of  regulated  education  and 
training, and training with a special structure, referred to in point (c)(ii) of Article 11, in their 
territory  by  18  January  2016.  Any  change  to  those  lists  shall  also  be  notified  to  the 
Commission  without  undue  delay.  The  Commission  shall  set  up  and  maintain  a  publicly 
available  database  of  regulated  professions,  including  a  general  description  of  activities 
covered by each profession. 

2.   By 18 January 2016, Member States shall notify to the Commission the list of professions 
for which a prior check of qualifications is necessary under Article 7(4). Member States shall 
provide  the  Commission  with  a  specific  justification  for  the  inclusion  of  each  of  those 
professions on that list. 

3.   Member  States  shall  examine  whether  requirements  under  their  legal  system  restricting 
the access to a profession or its pursuit to the holders of a specific professional qualification, 
including the use of professional titles and the professional activities allowed under such title, 
referred to in this Article as ‘requirements’ are compatible with the following principles: 

(a) requirements  must  be  neither  directly  nor  indirectly  discriminatory  on  the  basis  of 

nationality or residence; 

(b) requirements must be justified by overriding reasons of general interest; 

(c) requirements  must  be  suitable  for  securing  the  attainment  of  the  objective  pursued  and 

must not go beyond what is necessary to attain that objective. 

4.   Paragraph 1 shall also apply to professions regulated in a Member State by an association 
or organisation within the meaning of Article 3(2) and any requirements for membership of 
those associations or organisations. 

5.   By 18 January 2016, Member States shall provide the Commission with information on 
the  requirements  they  intend  to  maintain  and  the  reasons  for  considering  that  those 
requirements  comply  with  paragraph  3.  Member  States  shall  provide  information  on  the 
requirements  they  subsequently  introduced,  and  the  reasons  for  considering  that  those 
requirements comply with paragraph 3, within six months of the adoption of the measure. 

6.   By 18 January 2016, and every two years thereafter, Member States shall also submit a 
report  to  the  Commission  about  the  requirements  which  have  been  removed  or  made  less 
stringent. 

7.   The Commission shall forward the reports referred to in paragraph 6 to the other Member 
States which shall submit their observations within six months. Within the same period of six 
months, the Commission shall consult interested parties, including the professions concerned. 

8.   The Commission  shall  provide a summary report based on the information  provided by 
Member  States  to  the  Group  of  Coordinators  established  under  Commission  Decision 
2007/172/EC  of  19  March  2007  setting  up  the  group  of  coordinators  for  the  recognition  of 
professional qualifications (23), which may make observations. 

86 

 
 
9.   In light of the observations provided for in paragraphs 7 and 8, the Commission shall, by 
18  January  2017,  submit  its  final  findings  to  the  European  Parliament  and  the  Council, 
accompanied where appropriate by proposals for further initiatives. 

87 

 
 
 
 
 
References 

Athanassiou E., Kanellopoulos N., Karagiannis R., Kotsi A., “The effects of liberalisation of 
professional requirements in Greece”, Centre for Planning and Economic Research (KEPE), 
Athens, study commissioned by the European Commission, 2015 

Canton E., Ciriaci D., and Solera I., “The Economic Impact of Professional Services 
Liberalisation”, European Economy, Economic Papers 533, 2014 

Chini L., Grafl H., Minichberger A., Reiner R., "Effects of Liberalisation in Austria using the 
Example of Liberal Professions", Vienna University of Economics and Business, Research 
Institute for Liberal Professions, study commissioned by the European Commission, 2016 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF 
THE REGIONS Upgrading the Single Market: more opportunities for people and business, 
COM/2015/0550 final 

COMMISSION STAFF WORKING DOCUMENT A Single Market Strategy for Europe - Analysis 
and Evidence Accompanying the document Upgrading the Single Market: more 
opportunities for people and business, SWD/2015/0202 final 

European Parliament resolution of 26 May 2016 on the Single Market Strategy 

“Frontrunners project on professional qualifications”, unpublished (a reference in a 
Competitiveness Council note of 26.02.2015 on “Results of Frontrunners Projects to 
improve the Single Market” from CZ, DK, DE, EE, LT, LV, MT, NL, NO, SE and UK Delegations), 
2015  

Kleiner (White House report, Hamilton project, both books, newest studies) 

Gittleman M., Kleiner M., “Wage Effects of Unionization and Occupational Licensing 
Coverage in the United States”, ILR Review January 2016 

Koumenta M., Humphris A., “The Effects of Occupational Licensing on Employment, Skills 
and Quality: A Case Study of Two Occupations in the UK”, Queen Mary University of London, 
a study commissioned by the European Commission, 2015 

Koumenta M., Pagliero M., "Measuring Prevalence and Labour Market Impacts of 
Occupational Regulation in the EU", Queen Mary University of London, University of Turin, 
study commissioned by the European Commission, 2016 

Molinuevo M., Sáez S., Regulatory Assessment Toolkit: A Practical Methodology For 
Assessing Regulation on Trade and Investment in Services, World Bank, 2014 

88 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
Pagliero M., “The effects of recent reforms liberalising regulated professions in Italy”, study 
commissioned by the European Commission, University of Turin & Carlo Alberto College, 
2015 

Masior M., Rojek M., “The effects of the reforms liberalising professional requirements in 
Poland”, Warsaw School of Economics, study commissioned by the European Commission, 
2016 

Rostam-Afschar D., ‘Regulatory Effects of the Amendment to the HwO in 2004 in German 
Craftsmanship’, Free University Berlin and German Institute for Economic Research (DIW 
Berlin), study commissioned by the European Commission, 2015 

89