40 Amendments of Maria ARENA related to 2016/0404(COD)
Amendment 8 #
Proposal for a directive
Recital 4 a (new)
Recital 4 a (new)
(4 a) The proportionality test should not apply to rules laid down in collective agreements negotiated by social partners, which should not be considered as legislative, regulatory or administrative provisions within the meaning of this Directive.
Amendment 11 #
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 an. In line with the purposes of this Directive, the term "regulated profession" should refer to all existing regulated professions as defined in Directive 2005/36/EC and professions that Member States will regulate in the future so that they will fall under the definition of "regulated professions" of Directive 2005/36/EC. This Directive should be applied without prejudice to other provisions laid down in a separate Union act concerning access to, and the exercise of a given regulated profession.
Amendment 14 #
Proposal for a directive
Recital 7 a (new)
Recital 7 a (new)
(7 a) 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 TFEU.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 19 #
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 22 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8 a) 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 24 #
Proposal for a directive
Recital 8 b (new)
Recital 8 b (new)
(8 b) It is for the Members 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 the EU law.
Amendment 25 #
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 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 of content of training courses or modernisation of training regulations, should not fall within the scope of this Directive.
Amendment 38 #
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 40 #
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 the overriding reasons of general interest, recognised by the Court of Justice, areIt is also useful to provide certain examples of overriding reasons of general interest which have been recognized by the Court of Justice, whose case-law may continue to evolve. Those are, 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. 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 50 #
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 53 #
Proposal for a directive
Recital 14
Recital 14
(14) To meet the requirement of proportionality, the measure should be suitable for securing the attainment of the objective pursued. A measure should only be considered suitable for securing the attainment of the objective pursued, if it genuinely reflects a concern to attain that objective in a consistent and systematic manner, for instance where similar risks related to certain activities are addressed in a comparable way and where any exceptions to the restrictions involved are applied in line with the stated objective. Furthermore, the national measure should contribute to achieving the objective pursued and therefore, where it has no effect on the ground for justification, it should not be considered as suitable.
Amendment 61 #
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 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 gain on the quality of the service provided and on the free movement of persons and services within the Union and on the freedom to choose an occupation should be duly taken into account, where relevant, by the Member States.
Amendment 68 #
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 74 #
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 78 #
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 90 #
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 95 #
Proposal for a directive
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
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 States does not mean that the latter Member State's rules are disproportionate and therefore incompatible with EU Law.
Amendment 100 #
Proposal for a directive
Article 2 – paragraph 1 a (new)
Article 2 – paragraph 1 a (new)
1 a. Member States shall 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 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 provision being introduced.Provisions which would not restrict access or pursuit of regulated professions, such as editorial amendments, or adaptations of content of training courses or modernisation of training regulations, shall not fall within the scope of this Directive.
Amendment 108 #
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 117 #
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 143 #
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 149 #
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 consumusers, recipients of services and workerensuring healthy and safety and decent working conditions, the safeguarding of the proper administration of justice, fairness of trade transactions, combating fraud and prevention of tax evasion and avoidance, road safetyand effectiveness of fiscal supervision, transport safety, guaranteeing the quality of products and services, promotion of research and development, ensuring high standards of education and training, 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 sustainability of employment, and cultural policy objectives.
Amendment 159 #
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 171 #
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 176 #
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 third parties, also where the risks may be uncertain or not fully apparent, taking into account the precautionary principle;
Amendment 185 #
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 activities;
Amendment 190 #
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 205 #
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 220 #
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 224 #
Proposal for a directive
Article 6 – paragraph 2 – point j
Article 6 – paragraph 2 – point j
(j) the possibility to use less restrictive means to achieve the same or higher level protection of the public interest objective;
Amendment 231 #
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 235 #
Proposal for a directive
Article 6 – paragraph 3
Article 6 – paragraph 3
Amendment 243 #
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 276 #
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 290 #
Proposal for a directive
Article 7 – paragraph 1
Article 7 – paragraph 1
Member States shall, by appropriate means, inform citizens, service recipients, representative associations and relevant stakeholders other than the members of the profession before introducing new 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 viewefore introducing new, or amending existing legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, by appropriate means, inform citizens, users, social partners, representative associations and all relevant stakeholders other than the members of the profession, and give them the opportunity to make known their views through a public and transparent consultation. To this purpose, Member States may use national procedures.
Amendment 296 #
Proposal for a directive
Article 8 – title
Article 8 – title
Exchange of information between competent authoritiMember States
Amendment 298 #
Proposal for a directive
Article 8 – paragraph 1
Article 8 – paragraph 1
1. For the purposes of the efficient application of this Directive, before introducing new legislative, regulatory or administrative provisions restricting access to or pursuit of regulated professions, or amending existing ones, Member States shall encourage the exchange of information with competent authorities of other and of Directive 2005/36/EC, the Commission shall encourage and facilitate the exchange of information between Member States on matters covered by this Directive and by Directive 2005/36/EC, such as the particular way they regulate a profession or the effects of regulation identified in similar sectors of activities, on a regular basis, or, where appropriate, on an ad hoc basis.
Amendment 302 #
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 304 #
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.
Amendment 306 #
Proposal for a directive
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Member States and other interested parties may submit comments concerning the provisions and the reasons referred to in paragraph 1 to the Commission, or to the Member State which has notificommunicated the provisions.