Proportionality test for new regulation of professions
Directive (EU) 2018/958 — proportionality test before adoption of new regulation of professions
It establishes rules for proportionality assessments to be conducted by EU countries before adopting new professional regulations or amending existing regulations.
It aims to:
prevent undue restrictions on access to or the pursuit of professional activities;
the proper functioning of the internal market.
The directive applies to new rules in EU countries which restrict access to or the pursuit of regulated professions.
A regulated profession means that the access to or the pursuit of a professional activity or group of professional activities is restricted, by regulation, to people having specific professional qualifications. This also covers the use of professional titles which are restricted to holders of specific qualifications.
EU countries must ensure that any new or amending rules are justified and proportionate with regard to public interest objectives recognised by the Court of Justice of the European Union, such as:
public policy, public security or public health;
protecting consumers, the recipients of services, and workers;
safeguarding the effectiveness of fiscal supervision;
combating fraud and preventing tax evasion and avoidance;
protection of the environment.
Assessment of new measures beforehand and monitoring afterwards
EU countries must:
assess the proportionality of a measure before introducing new, or amending existing, legislative, regulatory or administrative rules; and
monitor the compliance of such measures with the principle of proportionality after their adoption.
The assessment must be:
accompanied by a sufficiently detailed explanation which allows for an assessment of whether it complies with the principle of proportionality;
undertaken on the basis of qualitative, and where possible, quantitative evidence;
carried out in an open and objective manner.
In assessing the proportionality of new or amending rules, EU countries must consider a number of proportionality criteria established by the Court of Justice, including:
whether the measure can achieve the public interest objective, and whether that objective is being pursued in a consistent and systematic manner for comparable activities;
whether existing rules, such as product safety law or consumer protection law, are not able to achieve the objective;
the impact on the free movement of persons and services within the EU, on consumer choice and on the quality of the service provided;
whether less restrictive means could achieve the public interest objective;
the effect of new rules when combined with other requirements.
Before introducing new regulations, EU countries must:
make information available to the relevant people concerned; and
must give them the opportunity to make their views known.
The reasons for proportionality need to be recorded in the Regulated Professions Database and made publicly available.
Application & Background
It has applied since 29 July 2018 and has to become law in the EU countries from 30 July 2020.
This directive is a part of the ‘Services package’ which aims to make it easier for companies and professionals to provide services to EU consumers. The package, published on 10 January 2017, contains two additional legislative proposals:
Proposal for a services e-card (European Commission)
Proposal for a services notification procedure (European Commission).
Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions (OJ L 173, 9.7.2018, pp. 25-34)
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, pp. 22-142)
Successive amendments to Directive 2005/36/EC have been incorporated into the original document. This consolidated version is of documentary value only.
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