38 Amendments of Kerstin WESTPHAL related to 2016/0404(COD)
Amendment 60 #
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 and how to regulate a profession within the limits of the principles of non- discrimination, justification and proportionality.
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 83 #
Proposal for a directive
Recital 8 b (new)
Recital 8 b (new)
(8 b) It is for the Member States to determine the level of protection which they wish to afford to the public interest objectives and the proportionate way in which that level is to be achieved. 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 EU law;
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 94 #
Proposal for a directive
Recital 11
Recital 11
(11) Member States should carry out the non-discrimination, justification and 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, while the assessment of the 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, there is particular reason for concern in cases where the policy choice made by those authorities or bodies provides benefits to established operators at the expense of new market entrants.
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 113 #
Proposal for a directive
Recital 13 a (new)
Recital 13 a (new)
(13a) Additionally, when making their assessments of non-discrimination, justification and proportionality Member States should also, where relevant, give full consideration to citizens' rights of access to justice, as guaranteed pursuant to Article 47 of the Charter of Fundamental Rights of the European Union.
Amendment 118 #
Proposal for a directive
Recital 16
Recital 16
(16) Among the elements to be taken into account by national authoriti, where relevant, by Member States, the following are of most relevance: the link 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; the scope of the professional activities, reserved to holders of a particular professional qualification, and in particular whether the activities reserved to certain professionals can be shared with other professionals; 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.
Amendment 124 #
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 and the quality of the service provided, as well as the impact on the right to work on the quality of the service provided and on the free movement of persons and services within the Union should be duly taken into account by the competent authorities. 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.and on the freedom to choose an occupation should be duly taken into account, where relevant, by the Member States;
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 145 #
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 citizen, before introducing new, or amending existing, measures restricting access to or pursuit of regulated professions, publicly disclose the relevant information on the provisions, adequately consult citizens, service recipients, including consumers, representative associations or, social partners and other relevant stakeholders before introducing new measures restricting access to or pursuit of regulated, including those who are not members of the professions, and give them the opportunity to make known their views.
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 175 #
Proposal for a directive
Article 4 – title
Article 4 – title
Ex ante assessment of new measures and monitoring
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 187 #
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 statementn explanation making it possible to appraise compliance with the principles of non- discrimination, justification and proportionality.
Amendment 191 #
Proposal for a directive
Article 4 – paragraph 3
Article 4 – paragraph 3
3. The reasons for considering that a provision is justified, necessarynon-discriminatory, justified and proportionate shall be substantiated by qualitative and, wherever possible, and relevant, quantitative evidenclements, taking into account the specific circumstances of that Member State.
Amendment 201 #
Proposal for a directive
Article 4 – paragraph 5
Article 4 – paragraph 5
5. Member States shall take the necessary measures to ensure that the assessment of proportionality referred to in paragraph 1 is carried out in an objective and independent manner including through involvement of independent scrutiny bodies.
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 243 #
Proposal for a directive
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) the necessity of the provision and in particular whether existing rules of a specific or more general nature, such as product safety legislation or consumer protection law, are insufficient to protect the objective pursued;
Amendment 264 #
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 271 #
Proposal for a directive
Article 6 – paragraph 2 – point h
Article 6 – paragraph 2 – point h
(h) the scientific and technological developments which may reduce or increase the asymmetry of information between professionals and consumers;
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 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:
Amendment 297 #
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 298 #
Proposal for a directive
Article 6 – paragraph 4 – point b
Article 6 – paragraph 4 – point b
Amendment 300 #
Proposal for a directive
Article 6 – paragraph 4 – point c
Article 6 – paragraph 4 – point c
(c) rules relating to the organisation of the profession, professional ethics and superviand supervision of the profession;
Amendment 303 #
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 protection with regard to professional liability;
Amendment 313 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 318 #
Proposal for a directive
Article 8 – title
Article 8 – title
Exchange of information between competent authoritiMember States
Amendment 326 #
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, necessaryDirective 2005/36/EC and with this Directive, are non-discriminatory, justified 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.