Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2016/0404 (COD)**

**INFORMATION NOTE**

**Brussels, 15 June 2018**
**(OR. en)**

**9925/18**

**CODEC 1010**
**COMPET 433**
**MI 443**
**ETS 19**
**DIGIT 125**
**SOC 385**
**EMPL 311**
**CONSOM 170**
**PE 75**

From: General Secretariat of the Council

To: Permanent Representatives Committee/Council

Subject: Proposal for a Directive of the European Parliament and of the Council on
a proportionality test before adoption of new regulation of professions

          - Outcome of the European Parliament's first reading,

(Strasbourg, 11 to 14 July 2018)

**I.** **INTRODUCTION**

In accordance with the provisions of Article 294 of the TFEU and the joint declaration on practical

arrangements for the codecision procedure **[1]**, a number of informal contacts have taken place

between the Council, the European Parliament and the Commission with a view to reaching an

agreement on this dossier at first reading, thereby avoiding the need for second reading and

conciliation.

**1** OJ C 145, 30.6.2007, p.5

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In this context, the rapporteur, Mr Andreas SCHWAB (EPP, DE) presented one compromise

amendment (amendments 44) to the proposal for a Directive, on behalf of the Committee on the

Internal Market and Consumer Protection. This amendment had been agreed during the informal

contacts referred to above.

**II.** **VOTE**

When it voted on 14 June 2018, the plenary adopted the compromise amendment (amendments 44)

to the proposal for a Directive.

The Commission proposal as thus amended and the legislative resolution constitute the Parliament's

first-reading position **[2]**, it reflects what had been previously agreed between the institutions. The

Council should therefore be in a position to approve the Parliament's position.

The act would then be adopted in the wording which corresponds to the Parliament's position.

**2** The text of the amendment adopted and the European Parliament's legislative resolution are
set out in the Annex. It has been marked up to indicate the changes made by the amendment
to the Commission's proposal. Additions to the Commission's text are highlighted _**in bold and**_
_**italics**_ . The symbol " ▌" indicates deleted text.

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**ANNEX**

## **Proportionality test before adoption of new regulation of professions ***I**

**European Parliament legislative resolution of 14 June 2018 on the 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)0822 – C8-0012/2017 – 2016/0404(COD))**

**(Ordinary legislative procedure: first reading)**

_The European Parliament_,

– having regard to the Commission proposal to Parliament and the Council (COM(2016)0822),

– having regard to Article 294(2) and Articles 46, 53(1) and 62 of the Treaty on the Functioning
of the European Union, pursuant to which the Commission submitted the proposal to Parliament
(C8-0012/2017),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the reasoned opinions submitted, within the framework of Protocol No 2 on the
application of the principles of subsidiarity and proportionality, by the German Bundestag, the
German Bundesrat, the French National Assembly, the French Senate and the Austrian Federal
Council, asserting that the draft legislative act does not comply with the principle of
subsidiarity,

– having regard to the opinion of the European Economic and Social Committee of 31 May
2017 **[3]**,

– having regard to the provisional agreement approved by the committee responsible under Rule
69f(4) of its Rules of Procedure and the undertaking given by the Council representative by
letter of 20 April 2018 to approve Parliament’s position, in accordance with Article 294(4) of
the Treaty on the Functioning of the European Union,

– having regard to Rule 59 of its Rules of Procedure,

– having regard to the report of the Committee on the Internal Market and Consumer Protection
and the opinion of the Committee on the Environment, Public Health and Food Safety (A80395/2017),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it replaces, substantially
amends or intends to substantially amend its proposal;

**3** OJ C 288, 31.8.2017, p. 43.

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3. Instructs its President to forward its position to the Council, the Commission and the national
parliaments.

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**P8_TC1-COD(2016)0404**

**Position of the European Parliament adopted at first reading on 14 June 2018 with a view to**

**the adoption of Directive (EU) 2018/…** **of the European Parliament and of the Council on a**

**proportionality test before adoption of new regulation of professions**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 46,

Article 53(1) and Article 62 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee [4],

_**After consulting**_ the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure [5],

**4** OJ C 288, 31.8.2017, p. 43.
**5** Position of the European Parliament of 14 June 2018.

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Whereas:

(1) The freedom to choose an occupation is a fundamental right. The Charter of Fundamental

Rights of the European Union _**(“the Charter”)**_ guarantees the freedom to choose an

occupation, as well as the freedom to conduct a business. The free movement of workers,

the freedom of establishment and the freedom to provide services are fundamental

principles of the internal market enshrined in the Treaty _**on the Functioning of the**_

_**European Union (TFEU).**_ National rules organising access to regulated professions

should therefore not constitute an unjustified or disproportionate obstacle to the exercise of

those fundamental rights.

(2) In the absence of specific provisions harmonising the requirements on access to a regulated

profession or the pursuit thereof laid down in Union law, it is a Member State _**competence**_

to decide whether and how to regulate a profession within the limits of the principles of

non-discrimination and proportionality.

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(3) The principle of proportionality is one of the general principles of Union law. It follows

from case-law [6] that national measures liable to hinder, or to make less attractive, the

exercise of fundamental freedoms guaranteed by the TFEU should fulfil four conditions,

namely, they should: be applied in a non-discriminatory manner; be justified by public

interest objectives; be suitable for securing the attainment of the objective which they

pursue; and not go beyond what is necessary in order to attain that objective.

(4) Directive 2005/36/EC of the European Parliament and of the Council [7] includes an

obligation for Member States to assess the proportionality of their requirements restricting

access to, or the pursuit of, regulated professions, and to communicate the results of that

assessment to the Commission, launching the ‘mutual evaluation process'. That process

means that Member States had to carry out a screening of all their legislation on all of the

professions that were regulated in their territory.

**6** Judgement of the Court of Justice of 30 November 1995, _Gebhard,_ C-55/94,
ECLI:EU:C:1995:411, paragraph 37.
**7** Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005
on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

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(5) The results of the mutual evaluation process revealed a lack of clarity as regards the

criteria to be used by _**Member States**_ when assessing the proportionality of requirements

restricting access to, or the pursuit of, regulated professions, as well as an uneven scrutiny

of such requirements at all levels of regulation. To avoid fragmentation of the internal

market and to eliminate barriers to the taking-up and pursuit of certain employed or self

employed activities, _**there should be**_ a common approach at Union level, preventing

disproportionate measures from being adopted.

(6) In its Communication of 28 October 2015 entitled ‘Upgrading the Single market: more

opportunities for people and businesses’, the Commission identified the need to adopt an

analytical proportionality framework for Member States to use when reviewing existing

regulations of professions or when proposing new ones.

_**(7)**_ _**This Directive aims to establish rules for proportionality assessments to be conducted by**_

_**Member States before the introduction of new, or the amendment of existing,**_

_**professional regulations, in order to ensure the proper functioning of the internal**_

_**market, while guaranteeing transparency and a high level of consumer protection.**_

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(8) The activities covered by this Directive should concern the regulated professions falling

within the scope of Directive 2005/36/EC. _**This Directive should apply to requirements**_

_**restricting access to, or the pursuit of, existing regulated professions or new professions**_

_**that Member States are considering whether to regulate.**_ This Directive should apply in

addition to Directive 2005/36/EC and without prejudice to other provisions laid down in a

separate Union act concerning access to, or the pursuit of, a given regulated profession.

_**(9)**_ _**This Directive is without prejudice to the competence of Member States to define the**_

_**organisation and the content of their systems of education and professional training,**_

_**and in particular as regards the possibility for them to delegate to professional**_

_**organisations the power to organise or supervise professional education and training.**_

_**Provisions which do not restrict access to, or the pursuit of, regulated professions,**_

_**including editorial amendments, technical adaptations to the content of training courses**_

_**or the modernisation of training regulations, should not fall within the scope of this**_

_**Directive. Where professional education or training consists of activities which are**_

_**remunerated, the freedom of establishment and the freedom to provide services should**_

_**be guaranteed.**_

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_**(10)**_ _**Where Member States transpose specific requirements concerning the regulation of a**_

_**given profession established in a separate Union act which does not leave Member States**_

_**a choice as to the exact way in which they are to be transposed, the assessment of**_

_**proportionality, as required by specific provisions of this Directive, should not be**_

_**applied.**_

(11) Member States should be able to rely on a common regulatory framework based on clearly

defined legal concepts concerning the different ways to regulate a profession across the

Union. There are several ways to regulate a profession, for instance by reserving access to,

or the pursuit of, a particular activity to holders of a professional qualification. _**Member**_

_**States**_ may also regulate one of the modes of pursuit of a profession _**by**_ laying down

conditions for the use of professional titles _**or by imposing qualification requirements**_

_**only on self-employed, on salaried professionals, or on the managers or legal**_

_**representatives of undertakings, especially where the activity is pursued by a legal**_

_**person in the form of a professional company**_ .

_**(12)**_ _**Before introducing new, or amending existing, legislative, regulatory or administrative**_

_**provisions restricting access to, or the pursuit of, regulated professions, Member States**_

_**should assess the proportionality of such provisions. The extent of the assessment should**_

_**be proportionate to the nature, the content and the impact of the provision being**_

_**introduced.**_

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(13) The burden of proof of justification and proportionality lies with the Member States. The

reasons for regulating invoked by a Member State by way of justification should thus be

accompanied by an analysis of the appropriateness and proportionality of the measure

adopted by that _**Member**_ State and by specific evidence substantiating its arguments.

_**Although a Member State does not necessarily have to produce a specific study or a**_

_**specific form of evidence or materials establishing the proportionality of such a measure**_

_**prior to its adoption, it should carry out an objective analysis, taking into account the**_

_**specific circumstances of that Member State, that demonstrates that there are genuine**_

_**risks for the achievement of public interest objectives.**_

_**(14**_ ) Member States should carry out proportionality assessments in an objective and

independent manner **,** _**including where a profession is regulated indirectly by giving a**_

_**particular professional body the power to regulate▌. Those assessments could include an**_

_**opinion obtained from an independent body, including existing bodies that are part of**_

_**the national legislative process, entrusted by the Member States concerned with the task**_

_**of providing such opinion. This is particularly important in cases where**_ the assessment _**is**_

_**made by**_ local authorities, regulatory bodies or professional organisations, whose greater

proximity to local conditions and specialised knowledge could in certain cases make them

better placed to identify the best way of meeting the public interest objectives, but whose

policy choices could provide benefits to established operators at the expense of new market

entrants _**.**_

(15) It is appropriate to monitor the proportionality of _**new or amended**_ provisions restricting

access to, or the pursuit of, regulated professions _**after their adoption**_ . A review of the

proportionality of a restrictive national measure in the area of regulated professions should

be based not only on the objective of that national measure at the time of its adoption, but

also on its effects, assessed after its adoption. The assessment of the proportionality of the

national measure should be based on developments found to have occurred in the area _**of**_

_**the regulated profession**_ since the measure was adopted.

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_**(16)**_ _**As confirmed by settled case-law, any unjustified restriction resulting from national law**_

_**restricting the freedom of establishment or the freedom to provide services is prohibited,**_

_**including any discrimination on grounds of nationality or residence.**_

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(17) Where the taking-up and the pursuit of ▌ employed or self-employed activities are

conditional on complying with certain _**requirements**_ relating to specific professional

qualifications, laid down directly or indirectly by the Member States, it is necessary to

ensure that such _**requirements**_ are justified by public interest objectives, such as those

within the meaning of the TFEU, namely public policy, public security and public health,

or by overriding reasons in the public interest, recognised as such in the case-law of the

Court of Justice. ▌ It is also necessary to clarify that _**the following**_ _**are**_ among the

overriding reasons in the public interest, recognised by the Court of Justice: preserving the

financial equilibrium of the social security system; the protection of consumers, _**of**_

recipients of services _**, including by guaranteeing the quality of craft work,**_ and _**of**_

workers; ▌ the safeguarding of the proper administration of justice; _**ensuring the**_ fairness

of trade transactions; _**the**_ combating _**of**_ fraud and _**the**_ prevention of tax evasion and

avoidance _**, and the safeguarding of the effectiveness of fiscal supervision; transport**_

safety _**;**_ the protection of the environment and the urban environment; the health of animals;

intellectual property; the safeguarding and conservation of the national historic and artistic

heritage; social policy objectives; and cultural policy objectives. According to settled case

law, purely economic reasons, _**namely promoting the national economy to the detriment**_

_**of the fundamental freedoms**_, as well as purely administrative reasons, such as carrying

out controls or gathering statistics _**,**_ cannot constitute an overriding reason in the public

interest.

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_**(18)**_ _**It is for the Member States to determine the level of protection which they wish to afford**_

_**to the public interest objectives and the appropriate level of regulation, within the limits**_

_**of proportionality. The fact that one Member State imposes less strict rules than another**_

_**Member State does not mean that the latter Member State’s rules are disproportionate**_

_**and therefore incompatible with Union law.**_

_**(19)**_ _**With regard to the protection of public health, according to Article 168(1) TFEU, a high**_

_**level of human health protection is to be ensured in the definition and implementation of**_

_**all Union policies and activities.**_ _**This Directive is fully in line with that objective.**_

(20) _**In order to ensure that the provisions they introduce, and that amendments they make to**_

_**existing provisions, are proportionate, Member States should consider the criteria for**_

_**assessing the proportionality and the additional criteria which are relevant for the**_

_**regulated profession being analysed.**_ Where a Member State intends to regulate a

profession or to amend existing rules, account should be taken of the nature of the risks

related to the public interest objectives pursued, in particular the risks to _**service recipients,**_

_**including**_ consumers, to professionals or to third parties. It should also be borne in mind

that, in the field of professional services, there is usually an asymmetry of information

between consumers and professionals _**,**_ _**given that**_ _**professionals**_ display a high level of

technical knowledge which consumers may not have ▌.

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_**(21)**_ _**Requirements linked to professional qualifications should be considered to be necessary**_

_**only where existing measures, such as product safety law or consumer protection law,**_

_**cannot be regarded as being suitable or genuinely effective to achieve the aim pursued.**_

_**(22)**_ _**To meet the requirement of proportionality, a measure should be suitable for securing**_

_**the attainment of the objective pursued. A measure should be considered to be suitable**_

_**for securing the attainment of the objective pursued only if it genuinely reflects a**_

_**concern to attain that objective in a consistent and systematic manner, for instance**_

_**where similar risks related to certain activities are addressed in a comparable way and**_

_**where any exceptions to the restrictions involved are applied in line with the stated**_

_**objective. Furthermore, the national measure should effectively contribute to achieving**_

_**the objective pursued and therefore, where it has no effect on the ground for**_

_**justification, it should not be considered to be suitable.**_

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_**(23)**_ _**The overall impact of the measure on the free movement of persons and services within**_

_**the Union, on consumer choice and on the quality of the service provided should be duly**_

_**taken into account by the Member States. On that basis, Member States should**_

_**ascertain, in particular, whether the extent of the restriction to access to, or the pursuit**_

_**of, regulated professions is proportionate to the importance of the objectives pursued**_

_**and the expected gains.**_

_**(24)**_ _**Member States should carry out a comparison between the national measure at issue**_

_**and alternative, less restrictive means that would result in the same objective being**_

_**attained but would impose fewer restrictions. Where the measures are justified by**_

_**consumer protection only and where the risks identified are limited to the relationship**_

_**between the professional and the consumer and therefore do not negatively affect third**_

_**parties, Member States should assess whether their objective could be attained by means**_

_**that are less restrictive than reserving activities to professionals. For instance, where**_

_**consumers can reasonably make a choice between using the services of qualified**_

_**professionals or not, less restrictive means, such as protection of the professional title or**_

_**enrolment on a professional register, should be used. Regulation by way of reserved**_

_**activities and protected professional title should be considered where the measures aim**_

_**to prevent a risk of serious harm to public interest objectives, such as public health.**_

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_**(25)**_ _**Where relevant in view of the nature and the content of the measure being analysed,**_

_**Member States should also take the following elements into account: the connection**_

_**between the scope of professional activities covered by a profession and the professional**_

_**qualification required; the complexity of the tasks in particular as regards the level, the**_

_**nature and the duration of the training or experience required; the existence of different**_

_**routes to obtain the professional qualification; whether the activities reserved to certain**_

_**professionals can be shared with other professionals; and the degree of autonomy in**_

_**exercising a regulated profession in particular where the activities relating to a regulated**_

_**profession are pursued under the control and responsibility of a duly qualified**_

_**professional.**_

_**(26)**_ _**This Directive takes account of scientific and technological progress, and contributes to**_

_**the proper functioning of the internal market, including in the digital environment. In**_

_**view of the speed of technological change and scientific developments, updates in access**_

_**requirements could be of particular importance for a number of professions, especially**_

_**for professional services provided by electronic means. Where a Member State regulates**_

_**a profession, account should be taken of the fact that scientific and technological**_

_**developments could reduce or increase the asymmetry of information between**_

_**professionals and consumers. Where the scientific and technological developments carry**_

_**a high risk to the public interest objectives, it is for the Member States, where necessary,**_

_**to encourage professionals to keep up with those developments.**_

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(27) _**Member States**_ should carry out a _**comprehensive**_ assessment of the circumstances in

which the ▌measure is adopted and implemented and examine in particular the ▌effect of

_**the new or amended provisions when combined with other**_ requirements _**restricting**_

_**access to, or the pursuit of, the profession**_ . The taking-up and pursuit of certain activities

may be conditional on complying with _**several requirements**_ such as rules relating to the

organisation of the profession, compulsory membership of a professional organisation or

body, professional ethics, supervision and liability. Therefore, when assessing the ▌effect

of the _**new or amended**_ provisions, _**Member States**_ should ▌take into account _**the**_ existing

requirements, _**including**_ continuous professional development, compulsory membership of

a professional organisation or body, registration or authorisation schemes, quantitative

restrictions, specific legal form requirements and shareholding requirements, territorial

restrictions, multidisciplinary restrictions and incompatibility rules, requirements

concerning insurance cover ▌, language knowledge requirements, to the extent necessary

to practise the profession, _**fixed minimum and/or maximum tariff requirements, and**_

_**requirements on advertising**_ .

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# ANNEX DRI EN

_**(28)**_ _**The introduction of additional requirements may be suitable to attain the public interest**_

_**objectives. The mere fact that their individual or combined effect should be assessed does**_

_**not mean that those requirements are prima facie disproportionate. For example, the**_

_**obligation to undergo continuous professional development may be suitable to ensure**_

_**that professionals keep abreast of developments in their respective areas, as long as it**_

_**does not lay down discriminatory and disproportionate conditions to the detriment of**_

_**new entrants. Likewise, compulsory membership of a professional organisation or body**_

_**may be considered appropriate where those professional organisations or bodies are**_

_**entrusted by the State with safeguarding the relevant public interest objectives, for**_

_**example in supervising the legitimate practice of the profession, or organising or**_

_**supervising continuous professional training. Where the independence of a profession**_

_**cannot be adequately guaranteed by other means, Member States could consider the**_

_**application of safeguards, such as limiting the shareholding of persons outside the**_

_**profession or providing that the majority of the voting rights are to be held by persons**_

_**practising the profession, as long as such safeguards do not go beyond what is necessary**_

_**in order to protect the public interest objective. Member States could consider**_

_**establishing fixed minimum and/or maximum tariff requirements with which the service**_

_**providers must comply, especially for services where this is necessary for the effective**_

_**application of the principle of reimbursing costs, as long as such restriction is**_

_**proportionate and, where necessary, derogations from the minimum and/or maximum**_

_**tariffs are provided for. Where the introduction of additional requirements duplicates**_

_**requirements which have already been introduced by a Member State in the context of**_

_**other rules or procedures, such requirements cannot be regarded as proportionate to**_

_**achieve the objective pursued.**_

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_**(29)**_ _**Under Title II of Directive 2005/36/EC, Member States cannot impose on service**_

_**providers established in another Member State providing professional services on a**_

_**temporary and occasional basis requirements or restrictions prohibited in that Directive,**_

_**such as authorisation by, registration with, or membership of, a professional**_

_**organisation or body or having representatives on the territory of the host Member State**_

_**for the purposes of having access to, or the pursuit of, a regulated profession. Member**_

_**States can, where necessary, require service providers wishing to provide services on a**_

_**temporary basis, to provide information in the form of a written declaration to be made**_

_**in advance of the first service provision and to renew this declaration on a yearly basis.**_

_**Therefore, in order to facilitate the provision of professional services, it is necessary to**_

_**reiterate, taking into account the temporary or occasional nature of the service, that**_

_**requirements, such as automatic temporary registration or pro forma membership of a**_

_**professional organisation or body, prior declarations and document requirements, as**_

_**well as the payment of a fee or any charges, should be proportionate. These**_

_**requirements should not lead to a disproportionate burden on service providers nor**_

_**should they hinder or render less attractive the exercise of the freedom to provide**_

_**services. Member States should, in particular, assess whether the requirement to provide**_

_**certain information and documents in accordance with Directive 2005/36/EC and the**_

_**possibility of obtaining further details by way of administrative cooperation between**_

_**Member States through the Internal Market Information System are proportionate and**_

_**are sufficient to prevent a serious risk of circumvention of the applicable rules by service**_

_**providers. This Directive should however not apply to measures designed to ensure**_

_**compliance with applicable employment terms and conditions.**_

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_**(30)**_ _**As confirmed by settled case-law, the health and life of humans ranks foremost among**_

_**the interests protected by the TFEU. Consequently, Member States should duly take**_

_**account of the objective of ensuring a high level of human health protection when**_

_**assessing requirements for healthcare professions, such as reserved activities, protected**_

_**professional title, continuous professional development or rules relating to the**_

_**organisation of the profession, professional ethics and supervision, while respecting the**_

_**minimum training conditions, laid down in Directive 2005/36/EC. Member States should**_

_**in particular ensure that the regulation of healthcare professions, having public health**_

_**and patient safety implications, is proportionate and contributes to the guaranteeing of**_

_**access to healthcare, recognised as a fundamental right in the Charter, as well as to safe,**_

_**high quality and efficient healthcare for citizens on their territory. In establishing**_

_**policies for healthcare services, account should be taken of the need to ensure**_

_**accessibility, a high quality of service, and an adequate and safe supply of medicinal**_

_**products, in accordance with the public health needs in the territory of the Member State**_

_**concerned, as well as of the need to ensure the professional independence of healthcare**_

_**professionals. With regard to the justification for the regulation of healthcare**_

_**professions, Member States should take into account the objective of ensuring a high**_

_**level of human health protection, including accessibility and high quality of healthcare**_

_**for citizens, and adequate and safe supply of medicinal products, taking into**_

_**consideration the margin of discretion referred to in Article 1 of this Directive.**_

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(31) It is essential for the proper functioning of the internal market to ensure that Member

States provide information to citizens, representative associations _**and**_ other relevant

stakeholders, _**including social partners,**_ before introducing new, _**or amending existing,**_

_**requirements**_ restricting access to _**,**_ or _**the**_ pursuit of, regulated professions _**. Member States**_

_**should involve all parties concerned and give**_ them the opportunity to make their views

known. _**Where relevant and appropriate, Member States should carry out public**_

_**consultations in accordance with their national procedures.**_

_**(32)**_ _**Member States should also give full consideration to citizens' rights of access to justice,**_

_**as guaranteed by Article 47 of the Charter and Article 19(1)**_ _**of the Treaty on European**_

_**Union (TEU). It follows that, in accordance with procedures laid down in national law**_

_**and constitutional principles, national courts should be able to assess the proportionality**_

_**of requirements falling within the scope of this Directive, in order to ensure, for each**_

_**natural or legal person, the right to an effective remedy against restrictions on the**_

_**freedom to choose an occupation, on the freedom of establishment and on the freedom**_

_**to provide services.**_

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(33) _**For the purposes of exchanging information on**_ best practices, _**Member States**_ should

_**take the necessary measures to**_ encourage _**the**_ _**sharing of**_ adequate and regularly updated

information with other Member States on the regulation of professions _**, as well as on the**_

_**effects of such regulation. The Commission should facilitate that exchange**_ .

(34) In order to increase transparency and to promote proportionality assessments based on

comparable criteria, ▌the information submitted by Member States _**, without prejudice to**_

_**Article 346 TFEU, should**_ be easily accessible in the database of regulated professions, in

order to allow _**other Member States and**_ interested parties to submit comments _**to the**_

_**Commission and the Member State concerned. Those comments should be duly taken**_

_**into account by the Commission in its summary report, produced in accordance with**_

_**Directive 2005/36/EC**_ .

(35) Since the objectives of this Directive, namely _**to ensure the proper functioning of the**_

_**internal market and to avoid**_ disproportionate restrictions on access to, or the pursuit of,

regulated professions, cannot be sufficiently achieved by the Member States but can rather,

by reason of the scale of the action, be better achieved at Union level, the Union may adopt

measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In

accordance with the principle of proportionality, as set out in that Article, this Directive

does not go beyond what is necessary in order to achieve those objectives,

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HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

This Directive lays down rules on a common framework for conducting proportionality assessments

before introducing new, _**or amending existing,**_ legislative, regulatory or administrative provisions

restricting access to, or the pursuit of, regulated professions ▌, with a view to ensuring the proper

functioning of the internal market, _**while guaranteeing a high level of consumer protection. It does**_

_**not affect the Member States’ competence, in the absence of harmonisation, and margin of**_

_**discretion to decide whether and how to regulate a profession within the limits of the principles**_

_**of non-discrimination and proportionality**_ .

Article 2

Scope

1. This Directive shall apply to _**the legislative, regulatory or administrative provisions**_ of the

Member States restricting access to a regulated profession or its pursuit, or one of its

modes of pursuit, including the use of professional titles and the professional activities

allowed under such title, falling within the scope of Directive 2005/36/EC.

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2. Where specific _**requirements**_ concerning the regulation of a given profession are

established in a separate Union act _**which does not leave Member States a choice as to the**_

_**exact way in which they are to be transposed,**_ the corresponding provisions of this

Directive shall not apply.

Article 3

Definitions

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

In addition, the following definitions apply:

(a) "protected professional title" means a form of regulating a profession where the use of the

title in a professional activity or group of professional activities is subject, directly or

indirectly, by virtue of legislative, regulatory or administrative provisions to the possession

of a specific professional qualification, and where the improper use of that title is subject to

sanctions ▌;

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(b) "reserved activities" means a form of regulating a profession where the access to a

professional activity or group of professional activities is reserved, directly or indirectly,

by virtue of legislative, regulatory or administrative provisions to members of a regulated

profession _**holding a specific professional qualification,**_ including where the activity is

shared with other regulated professions.

Article 4

Ex ante assessment of new measures _**and monitoring**_

1. Member States shall _**undertake an assessment of proportionality in accordance with the**_

_**rules laid down in this Directive**_ before introducing new, _**or amending existing,**_

legislative, regulatory or administrative provisions restricting access to, or the pursuit of,

regulated professions ▌.

_**2.**_ _**The extent of the assessment referred to in paragraph 1 shall be proportionate to the**_

_**nature, the content and the impact of the provision.**_

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3. Any provision referred to in paragraph 1 shall be accompanied by _**an**_ _**explanation which is**_

_**sufficiently detailed to**_ _**make**_ it possible to appraise compliance with the principle of

proportionality.

4. The reasons for considering that a provision referred to in paragraph 1 is justified ▌and

proportionate shall be substantiated by qualitative and, wherever possible _**and relevant**_,

quantitative _**elements**_ .

_**5.**_ _**Member States shall ensure that the assessment referred to in paragraph 1 is carried out**_

_**in an objective and independent manner.**_

6. Member States shall monitor the _**compliance**_ of _**new or amended**_ legislative, regulatory or

administrative provisions restricting access to, or the pursuit of, regulated professions _**,**_

_**after adoption, with the principle of proportionality**_, having due regard to any

developments that have occurred since the _**provisions**_ concerned _**were**_ adopted.

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_**Article 5**_

_**Non-discrimination**_

_**When introducing new, or amending existing, legislative, regulatory or administrative provisions**_

_**restricting access to, or the pursuit of, regulated professions, Member States shall ensure that**_

_**those provisions are neither directly nor indirectly discriminatory on the basis of nationality or**_

_**residence.**_

Article 6

Justification on grounds of public interest objectives

1. Member States shall ensure that _**the legislative, regulatory or administrative provisions**_

_**restricting access to, or the pursuit of, regulated professions**_ _**that**_ they intend to introduce

and _**that the**_ amendments _**that**_ they intend to make to existing provisions are justified by

public interest objectives.

2. _**Member States**_ shall consider in particular whether the provisions referred to in paragraph

1 are objectively justified on the basis of public policy, public security or public health, or

by overriding reasons in the public interest, such as preserving the financial equilibrium of

the social security system _**;**_ the protection of consumers, _**of**_ recipients of services and _**of**_

workers _**;**_ the safeguarding of the proper administration of justice _**;**_ _**ensuring the**_ fairness of

trade transactions _**;**_ _**the**_ combating _**of**_ fraud and _**the**_ prevention of tax evasion and

avoidance, _**and the safeguarding of the effectiveness of fiscal supervision; transport**_

safety _**;**_ the protection of the environment and the urban environment _**;**_ the health of

animals _**;**_ intellectual property _**;**_ the safeguarding and conservation of the national historic

and artistic heritage; social policy objectives; and cultural policy objectives.

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3. Grounds of a purely economic nature ▌or purely administrative reasons shall not constitute

overriding reasons in the public interest, justifying a restriction on access to, or the pursuit

of, regulated professions.

Article 7

Proportionality

1. _**Member States shall ensure that the**_ legislative, regulatory or administrative provisions

restricting access to _**,**_ or the pursuit of _**,**_ regulated professions _**that they introduce, and that**_

_**the amendments that they make to**_ existing ▌provisions _**,**_ are ▌suitable for securing the

attainment of the objective pursued and do not go beyond what is necessary to attain that

objective.

2. _**To that end, before adopting**_ the provisions _**referred to in paragraph 1, Member States**_

_**shall**_ consider _**:**_

(a) the nature of the risks related to the public interest objectives pursued, in particular

the risks to _**service recipients, including consumers**_, to professionals or to third

parties;

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_**(b)**_ _**whether existing rules of a specific or more general nature, such as those**_

_**contained in product safety law or consumer protection law, are insufficient for the**_

_**attainment of the objective pursued;**_

(c) the suitability of the provision ▌as regards its appropriateness to attain the objective

pursued and whether it genuinely reflects that objective in a consistent and

systematic manner and thus addresses the risks identified in a similar way as in

comparable activities;

_**(d)**_ _**the impact on the free movement of persons and services within the Union, on**_

_**consumer choice and on the quality of the service provided;**_

_**(e)**_ _**the possibility of using less restrictive means to achieve the public interest**_

_**objective; for the purposes of this point, where the provisions are justified by**_

_**consumer protection only and where the risks identified are limited to the**_

_**relationship between the professional and the consumer, and therefore do not**_

_**negatively affect third parties, Member States shall assess in particular whether the**_

_**objective can be attained by means that are less restrictive than reserving activities;**_

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_**(f)**_ _**the effect of new or amended provisions, when combined with other provisions**_

_**restricting access to, or the pursuit of, the profession, and in particular how the**_

_**new or amended provisions, combined with other requirements contribute to and**_

_**whether they are necessary for the achievement of the same public interest**_

_**objective.**_

_**Member States shall also consider the following elements where relevant to the nature**_

_**and**_ _**the content of the provision being introduced or amended:**_

_**(a)**_ the _**connection**_ between the scope of activities covered by a profession or reserved to

it and the professional qualification required;

_**(b)**_ the _**connection**_ between the complexity of the tasks _**concerned**_ and the _**need for**_

_**those carrying them out to possess**_ specific professional qualifications, in particular

as regards the level, the nature and the duration of the training or experience required

▌;

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_**(c) the possibility of obtaining the professional qualification by alternative routes;**_

_**(d)**_ ▌whether, and why, the activities reserved to certain professions can or cannot be

shared with other professions;

_**(e)**_ the degree of autonomy in exercising a regulated profession and the impact of

organisational and supervision arrangements on the attainment of the objective

pursued, in particular where the activities relating to a regulated profession are

pursued under the control and responsibility of a duly qualified professional;

_**(f)**_ the scientific and technological developments which may _**effectively**_ reduce _**or**_

_**increase**_ the asymmetry of information between professionals and consumers;

▌

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3. For the purposes of _**point (f) of**_ the first subparagraph of paragraph 2, _**Member States**_ _**shall**_

_**assess the effect of the new or amended provision when combined with one or more**_

_**requirements, bearing in mind the fact that such effects might be positive as well as**_

_**negative, and in particular the following:**_

(a) reserved activities, ▌protected professional title _**or any other form of regulation**_

_**within the meaning of point (a) of Article 3(1) of Directive 2005/36/EC**_ ;

(b) _**obligations to undergo**_ continuous professional development;

(c) rules relating to the organisation of the profession, professional ethics and

supervision;

(d) compulsory membership of a professional organisation or body, registration or

authorisation schemes, in particular where those requirements imply the possession

of a specific professional qualification;

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(e) quantitative restrictions, in particular requirements limiting the number of

authorisations to practise, or fixing a minimum or a maximum number of employees,

managers or representatives holding specific professional qualifications;

(f) specific legal form requirements or requirements which relate to the shareholding or

management of a company, to the extent those requirements are directly linked to the

exercise of the regulated profession;

(g) territorial restrictions, _**including**_ where the profession is regulated in parts of a

Member State’s territory in a _**manner that is**_ different _**to the way in which it is**_

_**regulated in other parts**_ ;

(h) requirements restricting the exercise of a regulated profession jointly or in

partnership, as well as incompatibility rules;

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(i) requirements concerning insurance cover or other means of personal or collective

_**protection**_ with regard to professional liability;

(j) language knowledge requirements, to the extent necessary to practise the profession _**;**_

_**(k) fixed minimum and/or maximum tariff requirements;**_

_**(l)**_ _**requirements on advertising**_ .

_**4.**_ _**Before introducing new, or amending existing, provisions, Member States shall, in**_

_**addition, ensure the compliance with the principle of the proportionality of specific**_

_**requirements related to temporary or occasional provision of services, provided under**_

_**Title II of Directive 2005/36/EC, including:**_

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_**(a)**_ _**automatic temporary registration with or pro forma membership of a professional**_

_**organisation or body, referred to in point (a) of the first paragraph of Article 6 of**_

_**Directive 2005/36/EC;**_

_**(b)**_ _**a declaration to be made in advance pursuant to Article 7(1) of Directive**_

_**2005/36/EC, documents required pursuant to paragraph 2 of that Article or any**_

_**other equivalent requirement;**_

**(** _**c)**_ _**the payment of a fee, or any charges, required for the administrative procedures,**_

_**related to the access to, or the pursuit of, regulated professions which the service**_

_**provider incurs.**_

_**This paragraph shall not apply to measures designed to ensure compliance with**_

_**applicable employment terms and conditions that Member States apply in accordance**_

_**with Union law.**_

_**5.**_ _**Where provisions referred to in this Article concern the regulation of healthcare**_

_**professions and have patient safety implications, Member States shall take account of**_

_**the objective of ensuring a high level of human health protection.**_

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Article 8

Information and involvement of stakeholders

_**1.**_ Member States shall, by appropriate means, _**make information available to**_ citizens,

service recipients ▌and _**other**_ relevant stakeholders, _**including**_ _**those**_ _**who**_ _**are**_ _**not**_ members

of the profession concerned, before introducing new, _**or amending existing,**_ legislative,

regulatory or administrative provisions restricting access to, or the pursuit of, regulated

professions ▌.

_**2.**_ _**Member States shall appropriately involve all parties concerned**_ and shall give them the

opportunity to make their views known _**. Where relevant and appropriate, Member States**_

_**shall carry out public consultations in accordance with their national procedures.**_

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_**Article 9**_

_**Effective remedy**_

_**Member States shall ensure that an effective remedy is available with regard to the matters**_

_**covered by this Directive, in accordance with procedures laid down in national law.**_

Article 10

Exchange of information between _**Member States**_

1. For the purposes of the efficient application of this Directive, ▌Member States shall _**take**_

_**the necessary measures to**_ encourage the exchange of information _**among**_ Member States

on matters covered by this Directive and _**on**_ the particular way that they regulate a

profession, or on the effects of _**such**_ regulation _**. The Commission shall facilitate such**_

_**exchange of information.**_

2. Member States shall inform the Commission of the _**public**_ authorities responsible for

transmitting and receiving information for the purposes of applying paragraph 1.

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Article 11

Transparency

1. The reasons for considering that provisions, assessed in accordance with this Directive, are

justified ▌and proportionate, which, together with the provisions, are _**to be**_ communicated

to the Commission pursuant to ▌Article 59 _**(5)**_ of Directive 2005/36/EC, shall be recorded

by the _**Member States**_ in the database of regulated professions, referred to in Article 59 _**(1)**_

of Directive 2005/36/EC and ▌shall be made publicly available by the Commission.

2. Member States and other interested parties may submit comments to the Commission or to

the Member State which has _**communicated the provisions and the reasons for**_

_**considering that they are justified and proportionate. These comments shall be duly**_

_**taken into account by the Commission in its summary report produced pursuant to**_

_**Article 59(8) of Directive 2005/36/EC**_ .

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Article 12

Review

1. By 18 January 2024 and every five years thereafter, the Commission shall submit a report

to the European Parliament and to the Council on the implementation and performance of

this Directive, including, among other aspects, its scope and its effectiveness.

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

proposals.

Article 13

Transposition

1. Member States shall bring into force the laws, regulations and administrative provisions

necessary to comply with this Directive by ... _**[two years after the date of entry into force**_

_**of this Directive]**_ . _**They shall immediately inform the Commission thereof.**_

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When Member States adopt those measures, they shall contain a reference to this Directive

or shall be accompanied by such reference on the occasion of their official publication. The

methods of making such reference shall be laid down by Member States.

2. Member States shall communicate to the Commission the text of the main measures of

national law which they adopt in the field covered by this Directive.

Article 14

Entry into force

This Directive shall enter into force on the ▌ twentieth ▌ day following that of its publication in the

_Official Journal of the European Union._

Article 15

Addressees

This Directive is addressed to the Member States.

Done at ...,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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