Mon, Apr 12, 2021

Proportionality test for new national regulations for professions

Formal adoption of the proportionality test Directive - update Nov 2018

In June 2018, the EU formally adopted the Directive on a proportionality test for new regulation of professions. The Directive creates a legal framework for conducting proportionality assessments before introducing new, or modifying existing, legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions. The Directive must be implemented into national law by summer 2020.

Dimitrios Papadimoulis MEP has questioned the EC on the newly adopted proportionality test Directive which, he states, will complicate the regulation process by creating excessive bureaucratic load, as well as potential legal impediments when adopting new regulation at national level. He has particular concerns about the impact on health professions whose regulation should be left exclusively to member states, based on each country’s needs. He asked the EC what measures it is willing to take to ensure that public health and health professions are protected.

In response, the EC stated that the Directive confirms member states’ margin of discretion on whether and how to regulate professions and what level of protection they would want to afford in relation to the public interest objectives that regulation seeks to protect. The Directive contains specific references to health professions and their regulation which confirm beyond any doubt that member states may seek the attainment of a high level of public health and patient safety protection through their regulation. The full response can be found here. 

Proportionality Test Directive - update July 10 2018

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.

Source: Healthcare Professionals Crossing Borders  

IMCO vote on Proportionality Directive - update February 2018

On 4 December 2017 the European Parliament’s internal market committee (IMCO) adopted its report on the Proportionality Directive. On the issue of the exemption of health professions from the Directive, the amendment was defeated by 20 votes to 15.

However, the report does contain a number of declarations on the special status of health professions, such as “member states shall be granted a margin of discretion that is sufficient to ensure a high level of human health protection”.

Leading up to the vote, a number of events had taken place bringing together European healthcare policy makers, workforce planners, practitioners and regulators to discuss the inclusion of health professions.

One of these events was organised by the Standing Committee of European Doctors (CPME) together with the Council of European Dentists (CED) and the Pharmaceutical Group of the European Union (PGEU). Entitled ‘Economics vs Health? EU Proportionality Test for Health Professions’, the event brought together stakeholders, representatives of the European Commission and members of the European Parliament and focused on the impact of the proposed Directive. The full discussion can be streamed via this link.

In order to ensure that citizens will fully benefit from adequate and proportionate rules, IMCO members adopted an amendment requiring member states to ensure that judicial review is available in national law in respect of the legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions falling within the scope of this Directive. The European Parliament will now enter into negotiations with the Council.

Source: Healthcare Professionals Crossing Borders  

What is the Proportionality Test Directive? 

In the EU, professions are regulated at either Union or Member State level. In the latter case, qualification requirements can differ widely between Member States, due to their respective historical development and experience.

This can lead to a lack of clarity on the criteria used, and result in fragmentation of the single market. The proposed directive on a proportionality test before adoption of new regulation of professions, tabled by the European Commission, intends to harmonise the way in which proportionality tests are carried out before Member States introduce new regulation on professions. The directive will supplement provisions of Directive 2005/36/EC on the recognition of professional qualifications, last amended by Directive 2013/55/EU.

2017: The European Parliament proposed a specific status for healthcare services, and explicitly addresses gold-plating practices (unnecessary national requirements). With a text agreed between Parliament and Council in trilogue in March, Parliament is due to vote on whether to confirm this text in June 2018. Second edition. The ‘EU Legislation in Progress’ briefings are updated at key stages throughout the legislative procedure.

History: see Briefing here