REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions
Date: 2024-11-15
Institutions: Directorate-General for Internal Market, Industry, Entrepreneurship and SMEs, European Commission
Subjects: access to a profession, application of EU law, free movement of workers, freedom to provide services, job creation, principle of proportionality, professional qualifications, provision of services, right of establishment, single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 15.11.2024  COM(2024) 533 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions  
 
 
Contents 

1. 

INTRODUCTION ........................................................................................... 2 

2.  TRANSPOSITION BY MEMBER STATES ................................................. 3 

2.1.  Transposition delays and enforcement action ....................................... 3 

2.2. 

Implementation in Member States: state of play ................................... 4 

Ensuring the scope of the proportionality assessments ......................... 5 

Ensuring 
independence  of  proportionality 
assessments ........................................................................................... 6 

the  objectivity  and 

Transposition of the assessment criteria ................................................ 7 

Transposition of other procedural obligations ....................................... 8 

3.  APPLICATION AND IMPACT ................................................................... 10 

3.1.  A promising start ................................................................................. 11 

3.2.  Work still in progress .......................................................................... 12 

4.  POINTS TO CONSIDER .............................................................................. 15 

5.  CONCLUSION ............................................................................................. 17 

1 

 
 
 
 
 
1. 

INTRODUCTION 

The  key  objective  of  Directive  2018/958/EU (1)  on  a  proportionality  test  before  the 
adoption  of  new  regulation  of  professions  (‘the  Proportionality  Test  Directive’  or  ‘the 
Directive’) is to improve the functioning of the single market by preventing the adoption 
of unjustified and disproportionate restrictions on the access to and exercise of regulated 
professions.  It  obliges  Member  States  to  assess  the  proportionality  of  any  new,  or  the 
amendment  of  existing,  rules  on  regulated  professions  before  their  adoption.  To  help 
Member States, the Directive lays down a common framework with clear criteria for them 
to  use when  assessing  proportionality. At the time when the  Directive  was  proposed in 
2017,  national  proportionality  assessments  carried  out  in  the  context  of  the  mutual 
evaluation exercise under Directive 2005/36/EC (2) were found to be rather weak and did 
not fully apply the case law of the Court of Justice of the European Union (CJEU). As a 
result, they fell short of achieving their potential in terms of safeguarding and strengthening 
the single market. Thus, the Directive aimed to improve this situation. 

This report, based on Article 12 of the Directive, takes stock of the current situation against 
the  backdrop  of  ongoing  infringement  proceedings  concerning  transposition  of  the 
Directive in Member States, provides examples of national approaches to proportionality 
assessments, and outlines the key problems in transposition. It also presents preliminary 
findings  on  the  application  and  impact  of  the  Directive  based  on  the  proportionality 
assessments  reported  in  the  regulated  professions database  (3),  the  replies  by  Member 
States in a dedicated EU survey, the discussions in the Group of Coordinators’ meetings, 
and bilateral contacts with Member States. 

This  report  is  not  a  full  evaluation  of  a  directive,  within  the  meaning  of  the  Better 
Regulation guidelines (4). Given the ongoing transposition enforcement action (as outlined 
in Section 2.2 below) and the limited time during which the national transposition measures 
have been in force, a comprehensive evaluation assessing the effectiveness of the Directive 
and examining its impact is currently premature. A full ex post evaluation would only be 
possible once the Directive has been fully and correctly transposed and there is enough 
practical experience and sufficient data on the application of the proportionality test laid 
down in the Directive. 

(1)  Directive  (EU)  2018/958  of  the  European  Parliament  and  of  the  Council  of  28  June  2018  on  a 

proportionality test before adoption of new regulation of professions. 

(2)  Directive  2005/36/EC  of  the  European  Parliament  and  of  the  Council  of  7  September  2005  on  the 

recognition of professional qualifications. 

(3)  Member States are required to notify the reasons for proportionality of newly introduced or amended 

requirements via the database (Regulated Profession Database (europa.eu)). 

(4)  Commission Staff Working Document – Better Regulation Guidelines (SWD(2017) 350). 

2 

 
 
 
 
2.  TRANSPOSITION BY MEMBER STATES 

Despite many preparatory discussions and meetings, two thirds of Member States were 
late  in  transposing  the  Directive.  Full  transposition  in  all  Member  States  was  only 
achieved 2 and a half years after the set deadline. 

In addition, for 23 Member States further enforcement action was necessary to ensure 
full conformity of their national rules with the Directive. The main issues concerned: 

• 

• 
• 

failure to subject all relevant rules to the proportionality test obligations, in 
particular rules introduced by professional bodies and national parliaments;  
failure to ensure the independence and objectivity of the assessments; 
failure to accurately transpose the substantive criteria of the common 
assessment framework. 

While most Member States have aligned their national rules by now, eight infringement 
procedures are still ongoing 4 years after the transposition deadline. This includes the 
referral of two Member States to the CJEU. 

EU  directives  can  only  play  their  role  in  strengthening  the  single  market  if  Member 
States  ensure  a  timely  and  proper  transposition.  The  enforcement  action  required  in 
relation  to  the  Proportionality  Test  Directive  highlights  the  urgent  need  for  a  better 
culture of compliance. 

Acknowledging  that  a  proper  and  timely  transposition  of  the  Directive  is  crucial  to  the 
success of the new rules, the Commission took action to support the work of the Member 
States.  The  transposition  of  the  Directive  into  the  national  legal  systems  was  discussed 
regularly  in  the  expert  group  established  by  Directive  2005/36/EC  (i.e.  the  Group  of 
Coordinators  for  the  Recognition  of  Professional  Qualifications)  as  well  as  at  many 
bilateral  meetings  between  the  Commission  services  and  the  authorities  in  the  Member 
States. 

Despite this preparatory work, transposing the Directive correctly and in a timely manner 
still  proved  to  be  challenging  for  Member  States,  and  the  Commission  was  obliged  to 
follow up with enforcement action. 

The following section outlines the different stages of the enforcement action carried out 
by the Commission as well as the key findings of the in-depth conformity check of the 
national transposing measures. 

2.1.  Transposition delays and enforcement action 

The transposition deadline for the Proportionality Test Directive lapsed on 30 July 2020. 
Since most Member States did not complete the transposition by the deadline, infringement 
proceedings followed shortly with a launch of a series of non-communication cases (18 in 
total). The last non-communication infringement cases were closed in February 2023. 

3 

 
Graph 1. Timeline of non-conformity procedures (September 2024) 

Because of this delay in transposition, the compliance check of the transposing measures 
could only start at the end of 2021 and resulted in infringement action against 23 Member 
States in total (see Graph 1). Following exchanges with Member States, further potential 
problems in the transposition in many Member States were identified, and additional letters 
of formal notice were sent  in  February 2023. Currently,  non-conformity procedures are 
ongoing against eight Member States, including decisions to refer two Member States to 
the CJEU. 

2.2. 

Implementation in Member States: state of play 

As shown in Graph 2 below, in nearly two thirds of cases (15 out of 23), Member States 
have  by  now  addressed  all  concerns  raised  in  the  infringement  procedures,  and  the 
procedures have been closed. In many of the remaining cases, Member States are working 
on resolving the concerns raised, and the envisaged amendments are pending for adoption. 
Only very few issues remain under discussion and concern five Member States. 

Graph 2. Number of closed and ongoing non-conformity cases (September 2024) 

25

20

15

10

5

0

15

8

Ongoing cases

Closed cases

The Commission’s enforcement action has been effective in correcting transposition of the 
Directive in the majority of Member States. The sections below provide a more detailed 
overview  of  the  issues  tackled.  The  overview  is  based  on  the  main  findings  from  the 
conformity assessments and other available information. 

4 

 
 
 
Ensuring the scope of the proportionality assessments 

Under  Article 2  of  the  Proportionality  Test  Directive,  all  binding  measures  of  general 
application (i.e., legislative, regulatory, and administrative measures) fall within the scope 
of  the  Directive,  regardless  of  the  body  that  adopted  those  provisions  (government, 
parliaments, or non-governmental bodies, such as professional associations). 

Based  on  the  assessment  of  national  transposition,  the  Commission  identified 
shortcomings  in  the  transposition  of  the  provisions  regarding  the  scope  of  the 
proportionality  assessments  in  almost  all  Member  States  involved  in  the  enforcement 
action (20 out of 23). 

The shortcomings mainly concerned the failure to include in the national rules transposing 
the  Directive  the  measures  adopted  by  the  national  parliaments  (in  particular, 
parliamentary  initiatives  and/or  parliamentary  amendments)  and/or  by  professional 
associations  (see  Graph  3).  The  importance  of  effectively  transposing  the  Directive 
regarding these types of measures is illustrated by the fact that, in their replies to the EU 
survey,  Member  States  already  reported  several  instances  where  they  had  to  carry  out 
proportionality assessments for such measures (5). 

In  some  Member  States,  it  turned  out  to  be  particularly  challenging  to  ensure  that 
parliamentary initiatives and parliamentary amendments were covered by the scope of the 
obligation  to  conduct  a  proportionality  assessment.  This  was  due  to  concerns  about  a 
perceived impingement on the principle of the separation of powers. 

However,  the  Commission’s  transposition  checks  across  all  Member  States,  as  well  as 
discussions  with the  Member States concerned, revealed that there  were  possibilities  to 
ensure compliance with the Directive’s provisions as regards its scope, while maintaining 
national procedures and the autonomy of or separation between state bodies. For instance, 
many Member States opted for introducing an obligation on the government to issue an 
opinion during the legislative process that also incorporates a proportionality assessment 
of parliamentary measures or measures introduced by professional bodies. Other Member 
States opted for adopting national transposing measures that require national parliamentary 
bodies to carry out proportionality assessments. 

Graph  3.  Number  of  Member  States  concerned  by  grievances  on  the  scope  of 
proportionality assessments (lack of coverage of certain measures)  

11

4

3

5

12
10
8
6
4
2
0

Measures of professional bodies Parliamentary initiatives and/or

amendments

Cases where discussions with
Member States are ongoing

Cases where Member States
showed progress and/or
addressed the grievance

(5)  On  6 April  2023,  the  Commission  services  launched  a  survey  asking  Member  States  about  their 
experiences with the application of the Proportionality Test Directive. For the period between 30 July 2020 
and 15 May 2023, five Member States reported having carried out proportionality assessments for measures 
adopted  by  professional  associations.  Likewise,  five  Member  States  reported  having  done  so  for 
parliamentary initiatives and six for parliamentary amendments. 

5 

 
 
Ensuring the objectivity and independence of proportionality assessments 

Under Article 4(5) of the Proportionality Test Directive, Member States shall carry out 
proportionality assessments in an objective and independent manner. Such objectivity 
and independence need to be ensured, in particular where regulatory powers are delegated 
to a professional body. The purpose of this provision is to avoid assessments that would 
be influenced by an inherent bias and would therefore favour established operators at the 
expense of new market entrants. 

Graph  4.  Number  of  Member  States  concerned  by  issues  of  non-compliance  with  the 
requirement for objectivity and independence 

14

12

10

8

6

4

2

0

12

2

Cases where discussions with
Member States are ongoing

Cases where Member States
showed progress and/or addressed
the grievance

The  Commission’s  assessment  of  national  transposition  has  shown  that  most  Member 
States failed to put in place specific measures to ensure that proportionality assessments 
were carried out in an objective and independent manner as required under the Directive, 
in  particular  where  such  proportionality  assessments  were  conducted  by  professional 
associations (see Graph 4). 

The Commission’s transposition checks also revealed some good examples of procedures 
at  national  level  that  can  properly  ensure  the  independence  and  objectivity  of 
proportionality  assessments.  These  good  examples  include:  (i)  the  review  of  the 
proportionality  assessment  of  certain  types  of  draft  bills  by  a  supervisory  national 
administrative authority (6); (ii) an obligation on the government responsible for carrying 
out  the proportionality  assessment to  submit the assessment to  the  national  competition 
authority for an opinion; and (iii) an obligation on professional associations with regulatory 
powers to submit the proportionality assessment to the government for its views. 

Transposition of the assessment criteria 

The substance of the analysis required under the Proportionality Test Directive is set out 
in considerable detail in Articles 5 to 7 of the Directive and reflects the case law of the 
CJEU on the principle of proportionality. The purpose of this detailed description of the 
criteria  to  be  assessed  in  the  proportionality  test  is  to  ensure  completeness  and  a 
comparable level of thoroughness of the assessments across Member States. 

More precisely, any proportionality assessment must demonstrate that the new or amended 
provisions  restricting  access  to,  or  the  pursuit  of,  a  regulated  profession  are  non-
discriminatory, justified on the grounds of public interest objectives, suitable for securing 

(6) For instance, a governmental body that acts as legal adviser to the executive branch and/or as the supreme 

court for administrative justice.  

6 

 
 
 
 
the attainment of the objective pursued, and do not go beyond what is necessary to attain 
that  objective.  The  Directive  indicates  in  detail,  for  each  of  the  above-mentioned 
assessment criteria, what should be examined in the proportionality assessment in terms of 
the restriction at hand. 

The Commission’s assessment of the national transposition has not revealed major issues 
with  the  implementation  of  the  assessment  criteria  laid  down  in  Articles  5  to  7  of  the 
Directive  (see  Graph  5).  On  the  contrary,  Member  States  generally  ensured  proper 
implementation  of  the  above-mentioned  provisions.  Moreover,  in  some  cases  Member 
States  went  even  further  and  made  significant  efforts,  complementing  the  main 
transposition measure, to ensure a proper functioning of the Directive in practice at national 
level.  These efforts  include developing questionnaires, decision trees, assessment  grids, 
guidance documents and training aiming to make the obligations laid down in the Directive 
‘user-friendly’  for  the  national  authorities  in  charge  of  conducting  the  proportionality 
assessment. 

Nevertheless,  in  the  context  of  its  compliance  checks,  the  Commission  also  identified 
certain  issues  in  relation  to  how  a  limited  number  of  Member  States  transposed  the 
Directive. 

Graph 5. Number of Member States concerned by issues of non-compliance with one or 
more assessment criteria 

9

8

7

6

5

4

3

2

1

0

8

2

Cases where discussions with
Member States are ongoing on one
or more grievances

Cases where Member States
showed progress and/or addressed
the grievance

These  issues  include  the  failure  to  properly  transpose:  (i)  the  obligation  to  justify  a 
restriction on the grounds of public interest objectives (Article 6); (ii) the list of criteria to 
be assessed when carrying out the proportionality assessment (Article 7(2)); and (iii) the 
obligation to assess the effect of the new or amended provisions when combined with other 
new or existing requirements to avoid duplicating requirements with the same objectives 
(Article 7(3)). 

Transposition of other procedural obligations 

Article 4(6) of the Proportionality Test Directive requires Member States to monitor the 
proportionality of new or amended  provisions restricting access to, or the pursuit of, 
regulated  professions.  This  monitoring  must  take  due  account  of  the  effects  of  the 
legislation observed after its adoption and any developments that have occurred since its 
adoption. This provision aims to ensure that restrictions are maintained in the legislation 
after their  adoption only  if they remain necessary and proportionate  to  achieve  specific 
objectives. 

7 

 
 
The compliance checks conducted by the Commission have shown that more than half of 
the  Member  States  have  properly  transposed  Article 4(6)  of  the  Directive  by  putting  in 
place a clear procedure ensuring a continuous monitoring of new or amended provisions 
restricting access to, or the pursuit of, a regulated profession (see Graph 6). An example of 
such  a  procedure  is  the  obligation  for  the  national  coordinator  to  generally  supervise 
compliance  with  the  principle  of  proportionality  by  the  relevant  authorities  and 
professional associations and draft a report to this effect every two years. 

Nonetheless, the Commission has identified shortcomings in transposing the monitoring 
obligation in 11 Member States, i.e., approximately two fifths (see Graph 6). 

In  addition,  Article 9  of  the  Proportionality  Test  Directive  requires  Member  States  to 
ensure that an effective remedy is available for the matters covered by this Directive, in 
line with procedures laid down in national law. 

The Commission’s assessment of national transposition has shown that, with only a few 
exceptions, Member States have successfully implemented this provision (see Graph 6) 

Lastly, Article 4(1) to (4) and Article 8 of the Proportionality Test Directive provide for 
other  procedural  obligations  that  Member  States  must  comply  with  when  conducting 
proportionality  assessments  of  new  or  amended  regulations  restricting  access  to,  or  the 
pursuit  of,  a  regulated  profession.  This  includes  the  obligation  to:  (i)  conduct  the 
proportionality test ex ante (i.e., before the legislation is adopted); (ii) provide a sufficiently 
detailed  and  evidence-based  explanation  alongside  the  assessment;  and  (iii)  ensure 
transparency and sufficient consultation (to inform the public and involve stakeholders in 
the process). 

Around one fourth of Member States (7) failed to properly implement Article 4(1) to (4). 
Similarly, the Commission identified shortcomings in transposing Article 8 in more than a 
third  of  the  Member  States  (10)  (see  Graph  6).  However,  to  date  all  Member  States 
concerned  have  taken  the  necessary  measures  to  comply  or  committed  to  do  so  by 
providing the Commission with a clear timetable for adopting the necessary amendments 
(see Graph 6).  

Graph  6.  Number  of  Member  States  concerned  by  issues  of  non-compliance  with 
procedural obligations 

12

10

8

6

4

2

0

10

10

7

4

1

0

0

0

Monitoring obligation

Consultation obligations

Effective remedy

Other procedural
bligations

Cases where discussions with Member States are ongoing

Cases where Member States showed progress and/or addressed the grievance

8 

 
 
3.  APPLICATION AND IMPACT 

It  is  too  early  to  draw  robust  conclusions,  but  some  preliminary  findings  on  the 
application and impact of the Directive emerge. 

Member  States  seem  to  recognise  the  potential  of  the  proportionality  test  to  prevent 
unnecessary rules and have taken some important first steps in applying it. The Directive 
has raised awareness about proportionality and pushed authorities to genuinely reflect 
on the effects of their proposals. 

Most  Member  States  reported  specific  instances  where  the  prior  proportionality 
assessment  already  contributed  to  preventing  disproportionate  rules.  The  active  role 
played  by  Member  States  to  ensure  the  proper  application  of  the  proportionality  test 
obligation is laudable. 

Two thirds of Member States consider that the common framework has  improved the 
quality of the proportionality assessments. A preliminary evaluation of the assessments 
reported  in  the  regulated  professions  database  show  that  Member  States  have  indeed 
produced more elaborate and ‘richer’ assessments. 

The  Commission  supported  Member  States’  efforts  by  publishing  guidelines  on 
proportionality assessments and by offering tailor-made training on implementing the 
Directive in several Member States. However, the assessments also show that Member 
States still have some difficulties in applying the common framework and would benefit 
from further support and guidance. 

Moreover, in a few Member States there is a need to clarify that the Directive is a tool to 
than  an  additional 
help  policymakers  design 
administrative task or process. 

‘fit-for-purpose’  rules  rather 

To reap the full benefits of the Directive, it is essential to ensure that it is properly applied 
in  the  Member  States.  Therefore,  in  addition  to  the  regular  exchanges  in  the  Group  of 
Coordinators,  the  Commission  published  in  November  2022,  its  Guidance  on  the 
assessment  of  proportionality  pursuant  to  Directive  2018/958  on  a  proportionality  test 
before adoption of new regulation of professions. The guidance, available in 24 official 
languages (7), aims to support Member States in their efforts to correctly apply the core 
provisions of the Directive. 

In addition, in 2024 the Commission services launched a series of bilateral training courses 
in Member States, providing tailor-made workshops on applying the Directive (8). 

As already mentioned, it is too early to draw robust conclusions about the application and 
impact of the Directive due to the late transposition of the Directive by Member States and 
the gaps and/or inaccuracies subsequently identified in most national legal frameworks. 
However, some preliminary findings can already be made. The initial insights presented in 
this report were drawn from: 

(7) Guidance on the assessment of proportionality pursuant to Directive 2018/958 on a proportionality test 
before adoption of new regulation of professions - Publications Office of the EU (europa.eu). 

(8) Workshops have already taken place in Italy, Lithuania, Malta, Romania, Germany, and Finland. 

9 

 
 
(1) 

(2) 

(3) 

a dedicated survey asking Member States about their experiences so far (9); 

a qualitative evaluation of the proportionality assessments reported in the regulated 
professions database following the Directive’s entry into force (10); 

other input and available information, such as Member States’ feedback shared in 
the Group of Coordinators’ meetings and bilateral contacts. 

This very preliminary assessment of the impact and effectiveness of the Directive focuses 
on both the procedural aspects of the quality of the assessments and the output aspects of 
the quality of the adopted regulation. 

The Commission is not in a position to check the accuracy of the evidence gathered via the 
survey. Furthermore, only a limited qualitative evaluation of these assessments could be 
made given: (i) the small number of proportionality assessments reported in the database 
since the Directive’s transposition deadline; and (ii) the ongoing infringement proceedings 
for non-conformity of the national transposition measures. 

3.1.  A promising start 

Despite the difficult transposition of the Directive, the replies to the survey indicate that 
Member States recognise the potential of the proportionality test to prevent unnecessary 
rules  and  that  they  have  taken  some  important  first  steps  in  applying  it.  In  the  survey, 
Member States expressed an overall positive view of the Directive’s impact so far on their 
regulatory processes and their outcome. Several Member States reported that the Directive 
has raised awareness among authorities with powers to regulate about the need to take 
into account the principle of proportionality and  its role in preserving the single market 
fundamentals.  This  effect  is  sometimes  said  to  extend  beyond  the  domain  of  regulated 
professions. More generally, the Directive is credited by many for contributing to better 
regulation by pushing authorities to genuinely reflect on the impact of their proposals 
instead  of  relying  on  intuition  or  producing  some  formalistic  ‘tick-the-box’  impact 
assessments. The explicit obligation to conduct ex ante proportionality assessments seems 
to have also led to more exchanges on the substance of drafts between authorities with 
powers  to  regulate  and  expert  bodies,  such  as  national  coordinators,  ministries  and 
supervisory national administrative authorities. The active role played by several Member 
States to ensure the proper application of the proportionality test obligation is laudable. In 
addition, stakeholder consultation seems to have increased. This broader reflection is likely 
to have had a positive impact on the regulation adopted. 

The Commission also welcomes the first concrete results in terms of ‘output’ or impact on 
the quality of the adopted regulation that were revealed in the survey. For example, half 
the  Member  States  that  replied  to  the  survey  (12  out  of  24)  reported  specific  instances 
where  the  obligation  to  perform  the  prior  proportionality  assessment  has contributed  to 
preventing the adoption of disproportionate rules. These include proposals that were: 
(i) blocked due to the absence of a (proper) proportionality assessment; (ii) modified based 
on the outcome of the test or while preparing the test; or (iii) not introduced due to the 
obligation to conduct a prior assessment. Three of these Member States reported that the 

(9) 24 Member States replied to the survey launched on 6 April 2023. 

(10) This concerns proportionality assessments for 112 new or amended requirements between 31 July 2020 
and 31 December 2023. 

10 

 
 
opinion of a body other than the authority with powers to regulate was at the origin of this 
blockage or modification. 

When asked whether they considered that the obligation to conduct prior proportionality 
assessments  in  line  with  the  Directive’s  framework  had  increased  the  quality  of 
assessments, more than two thirds of the Member States that replied to the survey (17 out 
of 24)  replied  positively (11).  In  addition,  three  of the Member States  that  replied to  the 
survey  indicated  that  there  were  discussions  to  extend  the  proportionality  test 
framework beyond the regulated professions in their countries.  

Graph 7. Reported instances of prevention of disproportionate rules and the number of 
Member States reporting an increase in the quality of assessments 

12

12

7

17

Member States reported specific cases where the
Directive prevented adoption of disproportionate
rules

Member States considered that the Directive
increased the quality of proportionality
assessments

Member States did not report on specific  cases
of prevention

Member States did not consider that the
Directive increased the quality of proportionality
assessments

Based  on  a  preliminary  evaluation  of  the  proportionality  assessments  reported  in  the 
database, it can also be concluded that the common framework set out in the Directive has 
led Member States to produce more elaborate and ‘richer’ assessments. When comparing 
the  assessments  in  the  database  before  the  Directive’s  entry  into  force  with  new 
assessments of the same requirements but amended, it was found that in about 63% of the 
cases,  the  new  assessments  made  in  line  with  the  Directive’s  framework  showed 
improvement in terms of focus, detail and structure. 

(11) When several authorities in the same Member State replied, the most common response was considered. 
Of the seven Member States that replied  ‘no’, two  had  reported no proportionality assessments since the 
transposition deadline, one explained its ‘no’ as reflecting its impression that authorities had not yet properly 
applied the framework, and another replied ‘no’ although the explanation given shows a ‘yes’ was intended. 

11 

 
 
 
3.2.  Work still in progress 

While  the  groundwork  seems  to  have  been  laid  for  stronger  national  proportionality 
evaluations, further action of Member States and Commission is essential to reap the full 
benefits of the Directive. 

On challenges faced when applying the Directive, in their reply to the EU survey only two 
Member  States  out  of  the  24  Member  States  who  participated  in  the  survey  expressed 
concerns  about  the  administrative  burden  created  by  the  Directive.  In  particular,  one 
Member State considered the criteria of the common proportionality test to be too detailed 
and difficult to understand. Two Member States reported that some authorities expressed 
concerns  that  the  Directive  might  have  a  ‘chilling  effect’  on  the  modernisation  of 
professions, since it would discourage any amendments to existing rules, even for simple 
changes,  such  as  updating  training  curricula.  In  a  similar  way,  some  Member  States 
regretted the lack of a ‘de minimis rule’, i.e. a rule limiting the proportionality assessment 
obligation to provisions that surpass a certain threshold in terms of restrictiveness. 

To respond to these concerns, the Commission has clarified on several occasions, including 
in the guidance on the assessment of proportionality and  at the Group of Coordinators’ 
meetings,  that  Article 4(2)  of  the  Directive  sets  out  that  assessments  should  be 
proportionate to the nature, content and impact of the provision, thus allowing for variation 
in  the  comprehensiveness  of  the  assessment  based  on  the  degree  or  significance  of  the 
modification  in  question.  Moreover,  recital  9  of  the  Directive  explicitly  states  that 
provisions  that do not  restrict access  to  or  the pursuit  of regulated professions  (such as 
editorial  amendments,  technical  changes  to  the  content  of  training  courses,  or  the 
modernisation  of  training)  do  not  fall  within  the  scope.  This  means  that,  for  example, 
changes to curricula that have no effect or only a small effect on the level of restrictiveness 
of the training requirement will require no assessment or only a very limited one. On the 
lack  of  a  ‘de  minimis  rule’,  the  Treaty  provisions  on  the  fundamental  freedoms  do  not 
allow for such a threshold and any restriction must be proportionate, even if it is of limited 
scope or minor importance (12). 

On the perceived additional administrative burden on authorities, it should also be kept in 
mind that the ultimate aim of this ‘additional effort’ is to reduce the burden on companies 
and professionals  operating in  the  single  market  by preventing  unnecessarily restrictive 
regulation. 

Furthermore, a couple of Member States expressed concerns about the lack of clarity of 
the scope of the Directive, both in terms of the types of measures covered and activities 
falling  within  the  definition  of  a  regulated  profession.  While  the  guidance  on  the 
assessment  of  proportionality  explains  in  detail  the  scope  of  the  measures  covered  and 
should  assist  Member  States  in  this  regard,  the  guidance  could  be  further  enriched,  for 
example by further clarifying what constitutes a regulated profession. 

On the Directive’s application, the assessments reported in the database so far indicate an 
improvement  in  quality.  Yet  they  also  show  that  Member  States  would  benefit  from 
further  support  and  guidance  on  how  to  better  apply  the  common  framework  and 
procedural requirements set out in the Directive. 

(12) Judgment of 3 December 2014, De Clercq and Others, C-315/13, ECLI:EU:C:2014:2408, paragraph 61; 
Judgment  of  11  November  2021,  BJ  and  OV  v  Mrs  M  and  Others,  C-168/20,  ECLI:EU:C:2021:907, 
paragraph 105. 

12 

 
 
In this respect, first, although clearly identifying the objective of a regulatory action is an 
essential condition for any successful policy, Member States often struggle with indicating 
the exact public interest objective(s) being pursued. This could be due in part to their lack 
of knowledge of the interpretation given by the CJEU to a particular objective. However, 
pinpointing the precise public interest objective(s) is more than just a formalistic exercise: 
it is a precondition for being able to assess whether a measure pursues its objective(s) in a 
proportionate manner. 

Second, it appears that assessments still fail to address certain criteria or Member States 
lack a good understanding of what certain criteria entail. This is, in particular, the case for 
the  criteria  of:  (i)  pursuing  a  public  interest  objective  in  a  consistent  and  systematic 
manner; (ii) the assessment of cumulative effects with other requirements (and what would 
be the added value of the new or amended requirement given the public interest objective); 
(iii)  the  consideration  of  less  restrictive  means  to  achieve  the  same  public  interest 
objectives; (iv) the evaluation of whether existing rules of a specific or a general nature 
are insufficient to guarantee the public interest objective; and (v) the overall impact of the 
proposed regulation, e.g. on the degree of competition in the market, the quality of services, 
consumer choice and the free movement of persons and services within the EU. 

Third,  the  assessments  frequently  lack  supporting  evidence  or  data  underpinning  the 
regulatory  choices.  While  the  Directive  and  case  law  do  not  oblige  Member  States  to 
produce a specific type of evidence, Member States are under an obligation to substantiate 
the  analysis  by  means  of  qualitative,  and  wherever  possible  and  relevant,  quantitative 
elements. 

Graph 8. Assessment of certain criteria by Member States (as reported in the database on 
regulated professions between 31 July 2020 and 31 December 2023) (13) 

Supporting evidence or data

Criterion: cumulative effects

Criterion: less restrictive means

Criterion: other existing rules of a specific or a general
nature aimed at same objectives

Criterion: assessment of the overall impact

Criterion: consistent and systematic  manner

Criterion: appropriateness of measure to
minimise/maximise the risk/benefit

Criterion: beneficiary of measure

0

20

40

60

80

100

120

No reply

Partial reply

(13)  In  exceptional  cases,  some  of  these  criteria  might not be  relevant  for  the  assessment,  and  this  could 
explain the lack of a reply from a Member State. For instance, this is the case for the cumulative effect 
when there are no additional requirements beyond qualifications and reserved activities/protected titles. 
However,  it  would  be  good  practice  to  briefly  explain  why  a  given  criterion  was  not  evaluated  or 
discussed. 

13 

 
 
 
Lastly, when several requirements are introduced or amended at the same time, Member 
States  often  do  not  provide  a  specific  assessment  per  requirement.  The  templates  or 
questionnaires  drawn  up  at  national  level  should  clearly  reflect  the  need  for  this  ‘per 
requirement assessment’. 

14 

 
 
 
 
4.  POINTS TO CONSIDER 

As the last transposition efforts are close to being solved in most Member States, in light 
of the first experiences in applying the proportionality test as described in sections 2 and 3 
above, the following additional points could be considered. 

It is clear that for this preventative instrument to have a real impact, continued commitment 
from Member States and the Commission is essential. 

To this end, the Commission services will keep up their regular targeted exchanges with 
Member States in the Group of Coordinators and will continue to invite Member States to 
share  any  difficulties,  questions  or  best  practices  they  may  have.  Furthermore,  the 
Commission services will continue to provide training for Member States and authorities 
by means of tailor-made bilateral  training sessions as  well as  if feasible,  other formats, 
such  as  an  online  training  (14).  Member  States  could  contact  all  relevant  authorities  to 
identify  whether  and  how  they  could  benefit  from  such  training.  Member  States  could 
increase  internal/national  efforts  to  highlight  that  the  Directive  is  intended  to  help 
policymakers  when  deciding  on  which  action  to  take  by  ensuring  that  any  rules  they 
propose are effectively fit for purpose. Thorough proportionality assessments, as intended 
under the Directive, significantly reduce the likelihood of any enforcement action due to 
disproportionate rules. 

Moreover,  considering  the  very  positive  reception  of  the  guidance  on  assessment  of 
proportionality the Commission services stand ready to update and improve this document. 
Providing  further  examples  of  good  practices  will  be  possible  as  the  Commission  and 
Member States gain experience from applying the Directive. The Commission services are 
also working to facilitate and improve the transparency tools to be used by Member States. 
Indeed, the regulated professions database was migrated to the Internal Market Information 
system  (IMI),  a  tool  which  has  proven  very  successful.  Following  this  migration,  the 
Commission  services  expect  the  more  structured  and  complete  forms  to  better  guide 
Member  States  through  their  reporting  obligations.  Improvements  to  this  platform  will 
continue to be made based on user feedback. 

Member States could facilitate the work of their authorities by developing questionnaires, 
decision trees, flow charts etc., with further explanations of the different criteria. These 
could  even  be  tailor-made  to  the  specific  policy  domain/level.  In  this  context,  Member 
States should make clear that authorities are expected to perform a distinct assessment for 
each  amended  or  newly  introduced  requirement  related  to  access  to  or  exercise  of  a 
regulated profession, which assumes that individual requirements are clearly identified. 

Moreover,  Member  States  should  pay  particular  attention  to  the  measures  and 
proportionality assessments drawn up by non-governmental bodies, such as professional 
associations,  and  should  ensure  that  such  bodies  comply  fully  with  the  Directive.  In 
addition, Member States should also monitor how the Directive is applied to parliamentary 
initiatives or amendments concerning regulation of professions. 

Furthermore,  given the  frequent  lack of reporting of  supporting evidence  or data  in  the 
regulated professions database, Member States could consider taking action to facilitate 
evidence-based assessments. They could, for instance, provide the relevant authorities with 
an  overview  of  the  specific  national  sources  and  resources  available  to  perform  such 

(14) This could, for example, take place in the context of the EU Academy, which provides authoritative e-
learning content from the EU institutions on various policy areas. 

15 

 
 
quantitative and qualitative assessments. A good practice would also be to require that any 
reform  is  accompanied  by  empirical  data,  gathered  both  before  and  after  such  reforms. 
Such data could then also be used to guide and substantiate future policymaking. 

In addition, consideration could be given to the views shared by some Member States in 
the survey as well as via other channels, to extend the proportionality test framework, for 
instance,  also  for  regulation  of  services  not  falling  within  the  scope  of  Directive 
2005/36/EC,  and  their  requests  to  prevent  barriers  in  the  single  market  in  particular  in 
relation to the freedom to provide services (15). 

Lastly, where necessary and appropriate, the Commission will continue safeguarding the 
proper  application  of  the  Directive  by  taking  further  enforcement  action  against  those 
Member States that fail to comply with their obligations. 

(15)  For instance, Swedish non-paper ‘An Action Plan for the Services Sector’ (2021); Finnish non-paper 
‘The views of Finland on the development of the single market - resilience and twin transition’ (2022); 
Non-paper  of  Croatia,  Czechia,  Denmark,  Estonia,  Finland,  Ireland,  Latvia,  Lithuania,  Malta,  The 
Netherlands,  Poland,  Portugal,  Slovakia,  Slovenia  and  Sweden  on  a  new  horizontal  Single  Market 
Strategy (2024). 

16 

 
 
 
 
5.  CONCLUSION 

Given  the  late  transposition  by  many  Member  States  and  the  ongoing  infringement 
proceedings  for  non-conformity  of  the  national  transposition  laws,  it  is  too  early  for  a 
comprehensive evaluation of the Directive’s effectiveness and impact.  

Following the transposition deadline on 30 July 2020, the Commission took legal action 
for late transposition of the Directive against two thirds of Member States, with the last 
case only being closed in February 2023. This late transposition delayed the compliance 
check  of  the  national  transposing  measures,  and  therefore  enforcement  action  for  non-
conformity could only start at the end of 2021. More than two thirds of Member States 
were involved in proceedings relating to non-compliant national transposition measures. 
While  most  Member  States  have  by  now  aligned  their  national  rules,  infringement 
procedures against a third of Member States are still ongoing. 

Nevertheless, based on Member States’ feedback and the first proportionality assessments 
reported in the regulated professions database, some preliminary conclusions can be drawn 
on the Directive’s impact so far. The main takeaway is that the Directive has placed the 
principle of proportionality firmly on the radar of authorities with powers to regulate. The 
mandatory  common  assessment  framework  is  credited  for  having  pushed  authorities  to 
start genuinely reflecting on the impact of their proposals, notably on the functioning of 
the single market. And while it is often difficult to measure the effectiveness of prevention 
measures, such as the ex ante proportionality test, it is worth noting that Member States 
already reported several instances where applying the Directive led authorities with powers 
to regulate to modify or abandon disproportionate proposals. 

Although  a  few  Member  States  complained  about  additional  administrative  tasks,  there 
should  be  greater  awareness  in  Member  States  that  the  Directive  is  intended  to  help 
policymakers design  rules  that  are truly fit for purpose, ultimately  benefiting the single 
market and reducing the need for remedial enforcement action. 

Member States’ largely positive reception of the Directive does not mean that the goal has 
been  reached.  The  proportionality  assessments  reported  in  the  database  so  far  seem  to 
indicate  that  Member  States  still  have  some  difficulties  when  applying  the  common 
framework  and  would  benefit  from  further  support  and  guidance.  While  the  proper 
application of the Directive remains a work in progress and will require continued efforts 
by  both  Member  States  and  the  Commission,  it  is  a  learning  experience  that  can  have 
positive spill-over effects on other policy areas. The Directive’s ‘assessment toolkit’ is one 
that could be adapted by both the Commission and the Member States to domains beyond 
regulation of professions, as already suggested by some Member States. 

To sum up, while it is too soon to present a comprehensive evaluation of the Directive’s 
effectiveness, the preliminary findings suggest that the Directive has increased authorities’ 
focus on the impact of their rules and, in some cases, concretely avoided disproportionate 
proposals.  However,  further  support  and  guidance  may  be  needed  to  improve  its 
application and maximise its effectiveness.  

17