Proportionality test for new regulation of professions

KEY POINTS

Regulated professions

• 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.

Public interest

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.

Assessment

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.

Proportionality

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.

Transparency

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.