Source: EURLEX
Language: en
Format: md

**EUROPEAN UNION**

**THE EUROPEAN PARLIAMENT** **THE COUNCIL**

**Brussels, 28 June 2018**
**(OR. en)**

**2016/0404 (COD)**
**LEX 1818**

**PE-CONS 19/1/18**

**REV 1**

**COMPET 215**

**MI 249**

**ETS 9**

**DIGIT 65**

**SOC 193**

**EMPL 143**

**CONSOM 103**

**CODEC 525**

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**ON A PROPORTIONALITY TEST BEFORE ADOPTION**

**OF NEW REGULATION OF PROFESSIONS**

PE-CONS 19/1/18 REV 1

# **EN**

**DIRECTIVE (EU) 2018/…**

**OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**of 28 June 2018**

**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 **[1]**,

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure **[2]**,

**1** OJ C 288, 31.8.2017, p. 43.
**2** Position of the European Parliament of 14 June 2018 (not yet published in the Official
Journal) and decision of the Council of 21 June 2018.

PE-CONS 19/1/18 REV 1 1

# **EN**

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.

PE-CONS 19/1/18 REV 1 2

# **EN**

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

from case-law **[1]** 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 **[2]** 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.

**1** Judgement of the Court of Justice of 30 November 1995,
Gebhard, C-55/94, ECLI:EU:C:1995:411, paragraph 37.
**2** 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).

PE-CONS 19/1/18 REV 1 3

# **EN**

(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.

PE-CONS 19/1/18 REV 1 4

# **EN**

(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.

PE-CONS 19/1/18 REV 1 5

# **EN**

(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.

PE-CONS 19/1/18 REV 1 6

# **EN**

(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.

PE-CONS 19/1/18 REV 1 7

# **EN**

(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.

(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.

PE-CONS 19/1/18 REV 1 8

# **EN**

(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.

PE-CONS 19/1/18 REV 1 9

# **EN**

(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.

PE-CONS 19/1/18 REV 1 10

# **EN**

(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.

PE-CONS 19/1/18 REV 1 11

# **EN**

(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.

PE-CONS 19/1/18 REV 1 12

# **EN**

(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.

PE-CONS 19/1/18 REV 1 13

# **EN**

(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.

PE-CONS 19/1/18 REV 1 14

# **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.

PE-CONS 19/1/18 REV 1 15

# **EN**

(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.

PE-CONS 19/1/18 REV 1 16

# **EN**

(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.

PE-CONS 19/1/18 REV 1 17

# **EN**

(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.

(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.

PE-CONS 19/1/18 REV 1 18

# **EN**

(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,

HAVE ADOPTED THIS DIRECTIVE:

PE-CONS 19/1/18 REV 1 19

# **EN**

_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.

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.

PE-CONS 19/1/18 REV 1 20

# **EN**

_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;

(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.

PE-CONS 19/1/18 REV 1 21

# **EN**

_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.

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.

PE-CONS 19/1/18 REV 1 22

# **EN**

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.

_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.

PE-CONS 19/1/18 REV 1 23

# **EN**

_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.

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.

PE-CONS 19/1/18 REV 1 24

# **EN**

_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;

(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;

PE-CONS 19/1/18 REV 1 25

# **EN**

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

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

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

comparable activities;

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

consumer choice and on the quality of the service provided;

(e) the possibility of using less restrictive means to achieve the public interest objective;

for the purposes of this point, where the provisions are justified by consumer

protection only and where the risks identified are limited to the relationship between

the professional and the consumer, and therefore do not negatively affect third

parties, Member States shall assess in particular whether the objective can be attained

by means that are less restrictive than reserving activities;

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

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

or amended provisions, combined with other requirements contribute to and whether

they are necessary for the achievement of the same public interest objective.

PE-CONS 19/1/18 REV 1 26

# **EN**

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

the content of the provision being introduced or amended:

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

it and the professional qualification required;

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

carrying them out to possess specific professional qualifications, in particular as

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

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

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

shared with other professions;

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

organisational and supervision arrangements on the attainment of the objective

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

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

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

increase the asymmetry of information between professionals and consumers.

PE-CONS 19/1/18 REV 1 27

# **EN**

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

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

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

negative, and in particular the following:

(a) reserved activities, protected professional title or any other form of regulation within

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

(b) obligations to undergo continuous professional development;

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

supervision;

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

authorisation schemes, in particular where those requirements imply the possession

of a specific professional qualification;

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

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

managers or representatives holding specific professional qualifications;

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

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

exercise of the regulated profession;

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

Member State's territory in a manner that is different to the way in which it is

regulated in other parts;

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

partnership, as well as incompatibility rules;

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

protection with regard to professional liability;

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

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

(l) requirements on advertising.

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

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

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

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

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

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

Directive 2005/36/EC;

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

Directive 2005/36/EC, documents required pursuant to paragraph 2 of that Article or

any other equivalent requirement;

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

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

provider incurs.

This paragraph shall not apply to measures designed to ensure compliance with applicable

employment terms and conditions that Member States apply in accordance with Union law.

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

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

objective of ensuring a high level of human health protection.

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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.

_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.

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_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.

_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.

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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.

_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.

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_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.

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.

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_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 Brussels,

_For the European Parliament_ _For the Council_

_The President_ _The President_

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