52 Amendments of Daniel BUDA related to 2016/0404(COD)
Amendment 33 #
Proposal for a directive
Recital 2
Recital 2
(2) In the absence of specific provisions harmonising the requirements on access to a regulated profession or its pursuit laid down in Union law, it is the Member States’ prerogative to decide whether action needs to be taken and how to regulate a profession (in terms of establishing conditions for access to and pursuit of a profession) within the limits of the principles of non- discrimination and proportionality.
Amendment 36 #
Proposal for a directive
Recital 5
Recital 5
(5) The results of the mutual evaluation process revealed a lack of clarity as regards the criteria to be used by national competent authorities when assessing the proportionality of requirements restricting access to or pursuit of regulated professions, as well as uneven scrutiny of such measures at all levels of regulation, which adversely affected the provision of services and the mobility of professionals within the EU. At the same time, the evaluation process showed that regulatory decisions are currently not always based on sound and objective analysis or carried out in an open and transparent manner. To avoid fragmentation of the internal market and eliminate barriers to taking-up and pursuit of certain employed or self- employed activities, it is therefore necessary to establish a common approach at Union level, preventing disproportionate measures from being adopted.
Amendment 37 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) In a context of frequent changes to professional regulation, without EU action, there is the risk that the gap between those who already apply good regulatory practices and properly assess proportionality before deciding whether to adopt regulation and those who do not will widen, thus increasing divergence in the quality of regulation, which ultimately has a negative effect on access to a profession, with ensuing negative consequences for mobility and economic performance.
Amendment 38 #
Proposal for a directive
Recital 7
Recital 7
(7) The activities covered by this Directive should concern the regulated professions falling within the scope of Directive 2005/36/EC. This Directive should apply in addition to Directive 2005/36/EC andregulate the manner of assessing the proportionality of the requirements restricting access to or pursuit of those professions, without prejudice to other provisions laid down in a separate Union act concerning access to, and the exercise of a given regulated profession.
Amendment 39 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) This Directive lays down rules that must be applied before introducing new legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, or amending existing ones.
Amendment 41 #
Proposal for a directive
Recital 9
Recital 9
(9) The burden of proof of justification and proportionality lies on the Member States. The reasons for regulation invoked by a Member State by way of justification should thus be accompanied by an objective and reliable analysis of the appropriateness and proportionality of the measure adopted by that State and by specific evidence substantiating its arguments, based on an objective, transparent and stringent assessment, and by specific evidence substantiating its arguments, taking into account the specific circumstances in that Member State.
Amendment 42 #
Proposal for a directive
Recital 10
Recital 10
(10) It is appropriate to monitor the proportionality of the provisions restricting access to or pursuit of regulated professions on a regular basis and with a frequency appropriate to the regulation concerned. A review of the proportionality of restrictive national legislation in the area of regulated professions should be based not only on the objective of that legislation at the time of its adoption, but also on the analysis of the whole regulatory framework for the profession concerned and on the effects of the legislation, assessed after its adoption. The assessment of the proportionality of the national legislation should be based on developments found to have occurred in the area since the legislation was adopted.
Amendment 43 #
Proposal for a directive
Recital 11
Recital 11
(11) 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 do so. In particular, whil, in an objective and independent manner, taking into consideration objective observations. Member States may obtain such views from any body they consider relevant and which is capable of providing such views, including existing bodies that are part of the national legislative process. This is particularly important in cases where the assessment of theis made by local authorities, regulatory bodies or professional organisations, whoseich are in greater proximity to local conditions and have specialised knowledge which could in certain cases make them better placed to identify the best way of meeting the public interest objectives, there is particular reason for concernand in cases where the policy choice made by those authorities or bodies provides benefits to established operators at the expense of new market entrants. Inappropriate regulatory arrangements are liable to distort competition by restricting market entry and thus may result in substantial lost employment opportunities, higher prices for consumers and hinder free-movement.
Amendment 46 #
Proposal for a directive
Recital 12
Recital 12
(12) Where the taking-up andor pursuit of certain employed or self-employed activities areis conditional on complying with certain provisions relating to specific professional qualifications, laid down directly or indirectly by the Member States, it is necessary to ensure that such provisions are justified by public interest objectives, such as those within the meaning of the Treaty, namely public policy, public security and public health or by overriding reasons of general interest, recognised as such in the case-law of the Court of Justice and which may continue to evolve. It is important to ensure that public interest objectives are adequately identified in order to determine the intensity of the regulation. For example, in order to ensure a high level of protection of public health, Member States should enjoy a margin of discretion to decide on the degree of protection which they wish to afford to public health and on the way in which that protection is to be achieved. It is also necessary to clarify that among the overriding reasons of general interest, recognised by the Court of Justice, are preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; the safeguarding of the proper administration of justice; fairness of trade transactions; combating fraud and prevention of tax evasion and avoidance; roadtransport 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, having essentially protectionist aims, as well as purely administrative reasons, such as carrying out controls or gathering statistics cannot constitute an overriding reason of general interest.
Amendment 47 #
Proposal for a directive
Recital 12 a (new)
Recital 12 a (new)
(12a) It is for the Member States to determine the level of protection which they wish to grant to the public or general interest objectives and the proportionate manner in which that level should be achieved.
Amendment 48 #
Proposal for a directive
Recital 13
Recital 13
(13) Where a Member State intends to regulate a profession or to amend existing rules, account should be taken, inter alia, of the nature of the risks related to the public interest objectives pursued, in particular the risks to consumers, to professionals or 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. Professionals displayhave a high level of technical knowledge which consumers may not have and consumers therefore find it difficult to judge the quality of the services provided to them, which may continue to happen despite the potential reduction in the asymmetry of information between professionals and service recipients as a result of scientific and technological developments.
Amendment 49 #
Proposal for a directive
Recital 18
Recital 18
(18) The economic impact of the measure, including a cost-benefit analysis with particular regard to the degree of competition in the market andwith particular regard to the quality of the service provided, as well ascompetition in the market, and the impact on the right to work and on the free movement of persons and services within the Union should be duly taken into account by the competent authoritiMember States. Based on this analysis, Member States should ascertain, in particular, whether the extent of the restriction of access to or pursuit of regulated professions within the Union is proportionate to the importance of the objectives pursued and the expected gains.
Amendment 50 #
Proposal for a directive
Recital 19
Recital 19
(19) Member States should carry out a comparison between the national measure at issue and the alternative and less restrictive solutions that would allow the same objective to be attained but would impose fewer restrictions. Where the measures are justified by consumer protection and where the risks identified are limited to the relationship between the professional and the consumer without negatively affecting third parties, the objective could be attained by less restrictive means than reserving activities to professionals, such as protection of the professional title or enrolment on a professional register. Regulation by way of reserved activities should be used only in cases where the measures aim at preventing a risk of serious harm to public interest objectives.
Amendment 51 #
Proposal for a directive
Recital 20
Recital 20
(20) The national authoritiMember States should carry out a globeneral assessment of the circumstances in which the restrictive measurequirement is adopted and implemented and examine in particular the cumulative effect of imposing several requirements in addition to the specific professional qualification. The taking-up and pursuit of certain activities may be conditional on complying with certain provisions such as rules relating to the organisation of the profession, compulsory membership of a professional body, professional ethics, supervision and liability. Therefore, when assessing the cumulative effect of the measures, the competent authorities should also take into accountnew or amended measures, the Member States should also take into account the combined effect of those measures with other existing requirements, such as continuous professional development, compulsory chamber membership, registration or authorisation schemes, quantitative restrictions, specific legal form requirements and shareholding requirements, territorial restrictions, multidisciplinary restrictions and incompatibility rules, requirements concerning insurance cover as well as language knowledge requirements, to the extent necessary to practise the profession. A measure introduced by a Member State cannot be regarded as necessary to achieve the objective pursued if it essentially duplicates requirements which have already been introduced in the context of other rules or procedures.
Amendment 52 #
Proposal for a directive
Recital 20 a (new)
Recital 20 a (new)
(20a) The proportionality criteria as established in this Directive may be applied to the relevant extent and intensity during an assessment of proportionality undertaken before introducing new provisions, or amending existing ones. The extent and degree of intensity applied during the assessment must be proportional to the content of the provisions introduced and their impact.
Amendment 53 #
Proposal for a directive
Recital 21
Recital 21
(21) It is essential for the proper functioning of the internal market to ensure that Member States provide information to citizens, recipients of services, representative associations or other relevant stakeholders before introducing new, or amending existing, measures restricting access to or pursuit of regulated professions and give them the opportunity to make known their views.
Amendment 54 #
Proposal for a directive
Recital 23
Recital 23
(23) In order to increase transparency and promote proportionality assessments based on comparable criteria, it is important that the information submitted by Member States be easily accessible in the database of regulated professions to allow all interested partiMember States to submit comments.
Amendment 55 #
Proposal for a directive
Recital 24
Recital 24
(24) Since tThe objectives of this Directive, namely the removal of disproportionate restrictions on access to or 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 of the Treaty on European Union. 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, . This Directive seeks to strike the right balance between securing public interest objectives and the quality of services on the one hand alongside improving the access to and exercise of regulated professions for the professionals themselves, whilst ensuring a wider choice for consumers on the other, but takes into account the fact that the regulation of professional services of general interest remains a prerogative of the Member States.
Amendment 56 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to requirements under the legal systemlegislative, regulatory and administrative provisions of the Member States restricting access to a regulated profession coming under the scope of Directive 2005/36/EC, 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.
Amendment 57 #
Proposal for a directive
Article 3 – paragraph 2 – point a
Article 3 – paragraph 2 – point a
(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 to a particular professional qualification in the relevant field by virtue of legislative, regulatory or administrative provisions, either directly, or indirectly, and where the improper use of this title is subject to sanctions or other measures.
Amendment 58 #
Proposal for a directive
Article 4 – title
Article 4 – title
Ex ante assessment of new measures and monitoring
Amendment 59 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that before introducing new legislative, regulatory or administrative provisions restricting access to or pursuit of regulatedthey undertake an assessment of proportionality in accordance with the rules laid down in this Directive before introducing new legislative profesvisions, or amending existing ones, the relevant competent authorities undertake an assessment of their proportionality in accordance with the rules laid down in this Directiveregulatory or administrative provisions, restricting access to or pursuit of regulated professions.
Amendment 60 #
Proposal for a directive
Article 4 – paragraph 2
Article 4 – paragraph 2
2. Any provision referred to in paragraph 1 shall be accompanied by a detailed statement making it possible to appraise compliance with the principle of proportionality, taking full account of the specific nature of each profession and the regulatory framework for professions.
Amendment 61 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The reasons for considering that a provision is justified, necessary and proportionate shall be substantiated by qualitative and, wherever possible and relevant, quantitative evidencmeans, taking account of the specific circumstances of that Member State.
Amendment 62 #
Proposal for a directive
Article 4 – paragraph 4
Article 4 – paragraph 4
4. Member States shall monitor the proportionality of new or amended legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions on a regular basis and with a frequency appropriate to the regulation concerned, having due regard, having due regard to the analysis of the whole regulatory framework for the profession concerned, as well as to any developments that have occurred since the measure concerned was adopted.
Amendment 63 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. Member States shall take the necessary measures, openly and transparently, to ensure that the assessment of proportionality referred to in paragraph 1 is carried out in an objective and independent manner, taking objective comments into consideration, including through involvement of independent scrutiny bodies.
Amendment 66 #
Proposal for a directive
Article 5 – paragraph 2
Article 5 – paragraph 2
2. The relevant competent authoritiMember States shall consider in particular whether those provisions 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, recipients of services and workers, the safeguarding of the proper administration of justice, fairness of trade transactions, combating fraud and prevention of tax evasion and avoidance, roadtransport 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.
Amendment 67 #
Proposal for a directive
Article 5 – paragraph 3
Article 5 – paragraph 3
3. Grounds of a purely economic nature having essentially protectionist aim or effects or purely administrative reasons shall not constitute overriding reasons in the public interest, justifying a restriction on access to or pursuit of regulated professions.
Amendment 68 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. When Member States assessing the necessity and the proportionality of the provisions, the relevant competent authorities shall consider in particularextent of the assessment must be proportionate to the content and the impact of the provision. Member States should take into consideration:
Amendment 69 #
Proposal for a directive
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(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;
Amendment 70 #
Proposal for a directive
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) the suitability of the provision namely 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 activitiesto attain the objective pursued;
Amendment 71 #
Proposal for a directive
Article 6 – paragraph 2 – point b a (new)
Article 6 – paragraph 2 – point b a (new)
(ba) whether the provision genuinely reflects that objective in a consistent and systematic manner;
Amendment 72 #
Proposal for a directive
Article 6 – paragraph 2 – point c a (new)
Article 6 – paragraph 2 – point c a (new)
(ca) the effect of the new or amended provisions when combined with other requirements restricting access to, or pursuit of, the profession, and in particular how the new or amended provisions, combined with other requirements, contribute to and are necessary to achieve the same public interest objective;
Amendment 73 #
Proposal for a directive
Article 6 – paragraph 2 – point d
Article 6 – paragraph 2 – point d
(d) the linkconnection between the scope of activities covered by a profession or reserved to it and the professional qualification required;
Amendment 74 #
Proposal for a directive
Article 6 – paragraph 2 – point e
Article 6 – paragraph 2 – point e
(e) the linkconnection between the complexity of the tasks and the necessary possession of specific professional qualifications, in particular as regards the level, the nature and the duration of the training or experience required, as well as the existence of different routes to obtain the professional qualification;
Amendment 75 #
Proposal for a directive
Article 6 – paragraph 2 – point f
Article 6 – paragraph 2 – point f
(f) the scope of the professional activities reserved to holders of a particular professional qualification, namely whether and why the activities reserved to certain professions can or cannot be shared with other professions;
Amendment 76 #
Proposal for a directive
Article 6 – paragraph 2 – point h
Article 6 – paragraph 2 – point h
(h) the scientific and technological developments which may effectively reduce the asymmetry of information between professionals and consumers;
Amendment 77 #
Proposal for a directive
Article 6 – paragraph 2 – point j
Article 6 – paragraph 2 – point j
Amendment 78 #
Proposal for a directive
Article 6 – paragraph 2 – point k
Article 6 – paragraph 2 – point k
Amendment 79 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 80 #
Proposal for a directive
Article 6 – paragraph 4 – introductory part
Article 6 – paragraph 4 – introductory part
4. For the purposes of paragraph 2(kcc), the relevant competent authorities shall assess in particular the cumulative effect of imposing any of the following requirementsMember States shall assess the effect of the new or amended provisions when combined with one or more requirements, in particular the following:
Amendment 81 #
Proposal for a directive
Article 6 – paragraph 4 – point a
Article 6 – paragraph 4 – point a
(a) reserved activities, existing alongside protected professional title;
Amendment 82 #
Proposal for a directive
Article 6 – paragraph 4 – point a a (new)
Article 6 – paragraph 4 – point a a (new)
(aa) protected professional title;
Amendment 83 #
Proposal for a directive
Article 6 – paragraph 4 – point b
Article 6 – paragraph 4 – point b
(b) obligations to comply with continuous professional development requirements, pursuant to recital 9 of the Preamble and Articles 22 and 53 of the revised Directive 2005/36;
Amendment 84 #
Proposal for a directive
Article 6 – paragraph 4 – point i
Article 6 – paragraph 4 – point i
(i) requirements concerning insurance cover or other means of personal or collective with regard to professional liability, pursuant to recital 9 of the Preamble and Articles 22 and 53 of the revised Directive 2005/36;
Amendment 85 #
Proposal for a directive
Article 6 – paragraph 4 – point j
Article 6 – paragraph 4 – point j
(j) language knowledge requirements, to the extent necessary to practise the profession., pursuant to recital 9 of the Preamble and Articles 22 and 53 of the revised Directive 2005/36;
Amendment 86 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Member States shall, by appropriate means, make inform citizens,ation available to service recipients, representative associations and relevant stakeholders other than the and other relevant stakeholders, including those who are not members of the profession before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, or amending existing ones, and give them the opportunity to make known their views. Member States may use national procedures to this end.
Amendment 87 #
Proposal for a directive
Article 8 – title
Article 8 – title
Exchange of information between competent authoritiMember States
Amendment 89 #
Proposal for a directive
Article 8 – paragraph 2
Article 8 – paragraph 2
2. Member States shall inform the Commission of the competentpublic authorities responsible for transmitting and receiving information for the purposes of applying paragraph 1.
Amendment 90 #
Proposal for a directive
Article 9 – paragraph 1
Article 9 – paragraph 1
1. The reasons for considering that provisions, assessed in accordance with this Directive, are justified, necessary and proportionate, and which are communicated to the Commission pursuant to paragraphs 5 and 6 of Article 59 of Directive 2005/36/EC, shall be recorded by the relevant competent authoritiMember States in the database of regulated professions, referred to in Article 59 paragraph 1 of Directive 2005/36/EC, and thereafter made publicly available by the Commission, except at the express request of the Member State concerned not to make those reasons publicly available. Any such request must be duly substantiated.
Amendment 91 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States and other interested parties may submit commentsmay submit comments on the provisions and the reasons for considering that those provisions are justified and proportionate to the Commission or to the Member State which has notificommunicated the provisions.
Amendment 92 #
Proposal for a directive
Article 11 – paragraph 1 – subparagraph 1
Article 11 – paragraph 1 – subparagraph 1
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive bywithin 24 months at the latest. They shall forthwith communicate to the Commission the text of those provisions.