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European Parliament voted on Proportionality Test Directive - what about health professions?

11 Jul 2018

Under the final agreement, health professions will be covered by the new Directive although the text recognises the special nature of health professions and gives authorities discretion to ensure that a high level of health protection is respected when regulating such professions.

News - European Parliament voted on Proportionality Test Directive - what about health professions?

MEPs and member states have reached agreement on the final wording of the new Proportionality Test Directive which commits member states to undertaking proportionality assessments before the introduction of new regulatory rules. 

Under the final agreement, health professions will be covered by the new Directive although the text recognises the special nature of health professions and gives authorities discretion to ensure that a high level of health protection is respected when regulating such professions. The Directive will be formally adopted over the summer and is likely to be implemented by 2020.

With courtesy of HPCB - https://www.hpcb.eu/Issue_42___HPCB_Update_Briefing.pdf_75256254.pdf 

Below we hear from Cédric Grolleau from the Federation of European Dental Competent Authorities (FEDCAR), regarding their views on the Proportionality Test Directive. 

The Proportionality Test directive and the unexpected effective remedy

According to Cédric Grolleau, FEDCAR (Federation of European Dental Competent Authorities and Regulator) : 'The dialogue between health professions and EU institutions on mandating a proportionality test before the regulation of new professions has resulted in the final version of the Directive introducing limits to the proportionality test in healthcare.  These changes now reflect European case law. FEDCAR welcomes the changes, which will apply from the end of 2020 for new regulated professions - time will tell whether these changes will be sufficient. '

During the Directive’s negotiations, the legislator accepted an amendment tabled by MEPs obliging member states to ensure that ‘an effective remedy is available with regards to the matters covered by this Directive in accordance with procedures, laid down in national law’ (Article 9). This changes the original nature of the Directive and the scope of the proportionality test. 

Changes to the original nature of the Directive 

The first version of the Directive only obliged member states to notify the European Commission of the outcome of its proportionality tests – as a formality. However, under the revised Directive, future proportionality tests on future professional regulation may be subject to court challenge at a national level. According to the very general wording of Article 9, it will be possible to challenge the outcome of a proportionality test in the national courts on two grounds: an infringement on procedure (for example, on the independence of the evaluation or on the scope of consultation exercise) and an infringement of principle (for example, on the ‘proportionality’ of the new regulation). 

Changes to the scope of the proportionality test 

Until now, decisions concerning the proportionality of regulation have been the responsibility of the European Court of Justice. The Directive will decentralise this. 

From 2020, the decisions on proportionality tests will be subject to national judicial oversight. Currently, one can contest a national provision limiting access to, or the exercise of, a profession (for example, limits on professional advertising or on access to capital) and claim it does not comply with the Treaty’s rights concerning the provision of services or on free establishment. Most of the time, a preliminary ruling at national level is referred to the EU Court and in the best situation the case is decided within one year. The Directive simplifies this. 

From 2020, private parties do not have to claim that a regulation breaches the terms of the Treaty, and instead can ask domestic judges to assess whether the new professional regulation properly deals with ‘the matters covered by this Directive’, including the criteria (about 20 criteria) that should be used for the proportionality assessment. 

The ability to challenge new regulations will be made easier under the new Directive. In the original version of the text, the Commission agreed that the Directive would control and monitor the proportionality of the almost 6,000 existing national regulations in Europe and in the Directive’s final version, the Commission now has an ally - the litigant.

More information here

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