22 Amendments of Evelyne GEBHARDT related to 2016/0404(COD)
Amendment 69 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7a) The right to determine the level of protection that Member States wish to provide to public health as well as the means and methods to reach that level lies solely with the Member States and health and life of humans rank foremost among the interests protected by the TFUE. The measures regarding the assessment of non-discrimination, justification and proportionality, as set out in specific provisions of this Directive, should therefore not apply to requirements concerning the regulation of professions providing healthcare services whether or not these are provided via healthcare facilities, and regardless of the way in which they are organised and financed at national level or whether they are public or private. Notwithstanding, provisions pertaining to consultation, exchange of information and transparency as set out in this Directive should remain applicable for such requirements. Requirements concerning the regulation of professions providing healthcare services remain as well subject to Directive 2005/36/EC, including the principles of non- discrimination, justification and proportionality and the procedures defined in Article 59 of that Directive.
Amendment 74 #
Proposal for a directive
Recital 7 b (new)
Recital 7 b (new)
(7 b) This Directive is without prejudice to national education and training structures and to the competence of Member States to define the organisation and the content of their systems of education and professional training;
Amendment 82 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) Regulation of professions plays a key role in protecting public interest objectives and should, inter alia, contribute to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health and to environmental and consumer protection; effective professional regulation is furthermore of paramount importance in order to ensure high quality products and services;
Amendment 84 #
Proposal for a directive
Recital 8 c (new)
Recital 8 c (new)
(8 c) Member States should undertake an assessment of non-discrimination, justification and proportionality in accordance with the rules laid down in this Directive before introducing new, or amending existing, essential legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, taking into account the reasonable margin of appreciation allowed to Member States. The extent and degree of intensity of the assessment shall be proportionate to the nature, the content and the impact of the provisions being introduced. Provisions which would not restrict access to or pursuit of regulated professions, such as editorial amendments, or adaptations to content of training courses or modernisation of training regulations, should not fall within the scope of this Directive.
Amendment 89 #
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 justifMember States should ensure that any measure introducing new, or amending existing, essential legislative, regulatory or administrative provisions restrication should thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that State and byng access to or pursuit of regulated professions is accompanied by an explanation making it possible to appraise compliance with the principles of non-discrimination, justification and proportionality, which should include specific evidencelements substantiating its arguments.
Amendment 93 #
Proposal for a directive
Recital 10
Recital 10
(10) It is appropriate to monitor the non- discrimination, justification and proportionality of the essential 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 theafter adoption. A review of the non-discrimination, justification and 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 effects of the legislation, assessed after its adoption. TheSuch assessment of the proportionality of the national legislation should be based on significant developments found to have occurred in the area since the legislation was adopted.
Amendment 102 #
Proposal for a directive
Recital 12
Recital 12
(12) Where the taking-up and pursuit of certain employed or self-employed activities are 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. 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 theIt is also useful to provide certain examples of overriding reasons of general interest, which have been recognised by the European Court of Justice, arewhose case-law may continue to evolve. Such examples include: preserving the financial equilibrium of the social security system; the protection of consumers, recipients of services and workers; ensuring safe, healthy and secure working conditions; the safeguarding of the proper administration of justice; fairness of trade transactions; combating fraud and, prevention of tax evasion and avoidance; road safety and effectiveness of fiscal supervision; transport safety; guaranteeing the quality of products and services; promotion of research and development; ensuring high standards of education; 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 , including the encouragement of employment and recruitment and the maintenance of employment, 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. Control measures should be considered justified if they are needed in order to ensure compliance with provisions justified by public interest objectives.
Amendment 111 #
Proposal for a directive
Recital 13
Recital 13
(13) When assessing the proportionality of the provisions, Member States should consider the criteria which are relevant for the provisions being analysed. Where a Member State intends to regulate a profession or to amend existing rules, account should be taken, where relevant, 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 third parties, also where those risks are not certain or not fully apparent, taking into account the precautionary principle. 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 display 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.
Amendment 121 #
Proposal for a directive
Recital 17
Recital 17
(17) Where a Member State regulates a profession, account should be taken, where relevant, of the fact that technological developments may reduce or increase the asymmetry of information between consumers and professionals. In view of the speed of technological change and scientific progress, up-dates in access requirements may be of particular importance for a number of professions. Where developments, including technological changes, carry a risk for the public interest objectives, it is for the Member States to provide for stricter regulation ensuring that professionals keep up with those developments.
Amendment 129 #
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 toonsider, where relevant, the possibility to use less restrictive solutions to achieve the same public interest objectives.
Amendment 138 #
Proposal for a directive
Recital 20
Recital 20
(20) TWhe national authoritire relevant, Member States should carry out a globaln assessment of the circumstances in which the restrictive measure is adopted and implemented and examine in particular the cumulative effect of imposing severaleffect of the new or amended provisions when combined with other requirements restricting addition to the specific professional qualificatccess to or pursuit of the profession. 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 account other existing requirements, such as continuous professional development,new or amended measures, Member States should also take into account, where relevant, the effects of those measures combined with other existing requirements, such as 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 In carrying out this assessmentially duplicates, existing requirements which have already been introduced in the context of other rules or procedures not being amended should not be subject to the proportionality assessment.
Amendment 142 #
Proposal for a directive
Recital 20 a (new)
Recital 20 a (new)
(20a) The need to assess the effects of additional requirements combined with existing measures does not mean that the new requirements are disproportionate, since those can have a positive effect for the public interest objectives.
Amendment 150 #
Proposal for a directive
Recital 22
Recital 22
(22) To facilitapromote the exchange of best practices, each Member Statethe Commission should encourage the relevant competent authoritiMember States to share adequate and regularly updated information with other Member States on the regulation of professions and facilitate such exchange.
Amendment 156 #
Proposal for a directive
Article 1 – paragraph 1
Article 1 – paragraph 1
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 pursuit of regulated professions, or amending existing ones, with a view to ensuring the proper functioning of the internal market. It does not affect Member States’ prerogative and margin of discretion to decide, in the absence of harmonisation at EU level, whether and how to regulate a profession while respecting the principles of non- discrimination, justification and proportionality.
Amendment 171 #
Proposal for a directive
Article 2 – paragraph 2 a (new)
Article 2 – paragraph 2 a (new)
2 a. Articles 4, 4(a), 5 and 6 of this Directive shall not apply to requirements concerning the regulation of professions providing healthcare services whether or not these are provided via healthcare facilities, and regardless of the way in which they are organised and financed at national level or whether they are public or private.
Amendment 177 #
Proposal for a directive
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Member States shall ensure that before introducing newundertake an assessment of non-discrimination, justification and proportionality in accordance with the rules laid down in this Directive before introducing new, or amending existing, essential legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, or amending existing ones, the relevant competent authorities undertake antaking into account the reasonable margin of appreciation allowed to Member States. The extent of the assessment of theirshall be proportionality in accordance with the rules laid down in this Directivete to the nature, the content and the impact of the provisions being introduced.
Amendment 209 #
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, for example, preserving the financial equilibrium of the social security system, the protection of consumers, recipients of services and workers, ensuring safe, healthy and secure working conditions, the safeguarding of the proper administration of justice, fairness of trade transactions, combating fraud and, prevention of tax evasion and avoidance, road safety and effectiveness of fiscal supervision, transport safety, guaranteeing the quality of products and services, promotion of research and development, ensuring high standards of education, 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, including the encouragement of employment and recruitment and the maintenance of employment, and cultural policy objectives.
Amendment 216 #
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. Control measures shall be considered justified if they are needed in order to ensure compliance with provisions justified by public interest objectives.
Amendment 228 #
Proposal for a directive
Article 6 – paragraph 2 – introductory part
Article 6 – paragraph 2 – introductory part
2. When assessing the necessity and the proportionality of the provisions, the relevant competent authoritiMember States shall consider in particular, where relevant:
Amendment 275 #
Proposal for a directive
Article 6 – paragraph 2 – point i
Article 6 – paragraph 2 – point i
(i) the economic impact of the measure, with particular regard to the degree of competition in the market and on the quality of the service provided, as well as the impactnd on the free movement of persons and services within the Union and on the freedom to choose an occupation;
Amendment 281 #
Proposal for a directive
Article 6 – paragraph 2 – point k
Article 6 – paragraph 2 – point k
(k) the cumulative effect of restrictions to both access to and pursuit of the profession, and in particular how each of those requirements contributes to and whether it is neeffect of the new or amended provisions when combined with other requirements restricting accessary to achieve the same public interest objectiveor pursuit of the profession.
Amendment 289 #
Proposal for a directive
Article 6 – paragraph 4 – introductory part
Article 6 – paragraph 4 – introductory part
4. For the purposes of paragraph 2(k), the relevant competent authoritiMember States shall assess in particular the cumulative effect of imposing any of the following requiremeneffect of the new or amended provisions when combined with the following requirements, where relevant, it being understood that there might be positive as well as negative effects: