2020 No. 696 (W. 154)
The European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020
Made
Laid before Senedd Cymru
Coming into force
Title, commencement, expiry and application1
1
The title of these Regulations is the European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020.
2
These Regulations come into force on 30 July 2020.
3
These Regulations cease to have effect on IP completion day3.
4
These Regulations apply in relation to Wales.
Interpretation2
In these Regulations—
“the 2015 Regulations” (“Rheoliadau 2015”) means the European Union (Recognition of Professional Qualifications) Regulations 20154;
“IP completion day” (“diwrnod cwblhau’r cyfnod gweithredu”) has the meaning given in section 39(1) to (5) of the European Union (Withdrawal Agreement) Act 20205;
“professional qualifications” (“cymwysterau proffesiynol”) has the meaning given by regulation 9(1) of the 2015 Regulations;
“professional regulatory provision” (“darpariaeth reoleiddiol broffesiynol”) means a new, or an amendment to an existing, legislative, regulatory or administrative provision restricting access to a regulated profession or its pursuit, or one of its modes of pursuit, including the use of professional titles and the professional activities allowed under such title;
“proportionality assessment” (“asesiad cymesuredd”) means an assessment of the proportionality of a professional regulatory provision, carried out in accordance with regulation 4;
“regulated profession” (“proffesiwn rheoleiddiedig”) has the meaning given by regulation 8(1) of the 2015 Regulations.
Scope3
1
These Regulations apply to the profession of—
a
b
head teacher (within the meaning of section 135 of the Education Act 2002) in a school (as defined in section 14(6) of the Education (Wales) Act 2014) in Wales.
2
These Regulations apply to the profession of teacher at a further education institution (within the meaning of section 140 of the Education Act 2002) in Wales.
3
These Regulations apply to any profession regulated under Part 4 of the Regulation and Inspection of Social Care (Wales) Act 20168.
4
These Regulations do not apply to—
a
any profession in relation to which specific arrangements directly related to the recognition of professional qualifications are made in any EU Regulation, EU Directive, EU decision or EU tertiary legislation and the effect of those arrangements exclude the application of Directive 2005/36/EC of the European Parliament and the Council of 7th September 2005 on the recognition of professional qualifications9;
b
a professional regulatory provision to the extent that it implements EU legislation concerning the regulation of a profession, where there is no choice as to the exact way in which those requirements are to be transposed.
Requirement to carry out a proportionality assessment4
1
The Welsh Ministers must carry out a proportionality assessment in respect of a professional regulatory provision before the provision takes effect.
2
When carrying out a proportionality assessment, the Welsh Ministers must ensure that—
a
the professional regulatory provision complies with each of the requirements set out in regulations 5 to 8,
b
the extent of the assessment is proportionate to the nature, content and impact of the professional regulatory provision,
c
the reasons for considering that the professional regulatory provision is justified and proportionate are substantiated by qualitative and, wherever possible and relevant, quantitative elements, and
d
the assessment is carried out in an objective and independent manner.
Non-discrimination5
A professional regulatory provision must not directly or indirectly discriminate against nationals of an EU member State10 on the basis of nationality or residence.
Justification by public interest objectives6
1
A professional regulatory provision must be justified by public interest objectives.
2
A professional regulatory provision is justified by public interest objectives if it is objectively justified on the basis of public policy, public security or public health, or by overriding reasons in the public interest.
3
Overriding reasons in the public interest include (but are not limited to)—
a
preserving the financial equilibrium of the social security system;
b
the protection of consumers, of recipients of services and of workers;
c
the safeguarding of the proper administration of justice;
d
ensuring the fairness of trade transactions;
e
the combating of fraud and the prevention of tax evasion and avoidance, and the safeguarding of the effectiveness of fiscal supervision;
f
transport safety;
g
the protection of the environment and the urban environment;
h
the health of animals;
i
the protection of intellectual property;
j
the safeguarding and conservation of the national historic and artistic heritage;
k
social policy objectives;
l
cultural policy objectives.
4
Overriding reasons in the public interest do not include grounds of a purely economic nature or purely administrative reasons.
Proportionality7
1
A professional regulatory provision must be suitable for achieving the objective pursued and must not go beyond what is necessary to achieve that objective.
2
When carrying out a proportionality assessment, the Welsh Ministers must consider—
a
the nature of the risks related to the public interest objectives pursued, in particular the risks to service recipients (including consumers), professionals or third parties;
b
whether existing rules of a specific or more general nature, such as those contained in product safety law or consumer protection law, are insufficient to achieve the objective pursued;
c
the suitability of the provision as regards its appropriateness to achieve the objective pursued and whether it genuinely reflects that objective in a consistent and systematic manner and addresses the risks identified in a similar way as in comparable activities;
d
the impact of the provision on—
i
the free movement of persons and services within the European Union,
ii
consumer choice, and
iii
the quality of the service provided;
e
the possibility of using less restrictive means to achieve the public interest objective, including, in particular, whether the objective can be achieved by means that are less restrictive than reserving activities where—
i
the provisions are justified by consumer protection only;
ii
the risks identified are limited to the relationship between the professional and the consumer and therefore do not negatively affect third parties;
f
the effect of the professional regulatory provision, when combined with other provisions restricting access to, or the pursuit of, the profession, and in particular how the professional regulatory provision, combined with other requirements contribute to and whether they are necessary for the achievement of the same public interest objective.
3
When taking into account the consideration set out in paragraph (2)(f), the Welsh Ministers must assess the effect of the professional regulatory provision when combined with one or more requirements, including in particular—
a
reserved activities, protected professional titles or any other form of regulation of a regulated profession;
b
obligations to undergo continuous professional development;
c
rules relating to the organisation of the profession, professional ethics and supervision;
d
compulsory membership of a professional organisation or body, registration or authorisation schemes, in particular where those requirements imply the possession of a specific professional qualification;
e
quantitative restrictions, in particular requirements limiting the number of authorisations to practise, or fixing a minimum or a maximum number of employees, managers or representatives holding specific professional qualifications;
f
specific legal form requirements or requirements which relate to the shareholding or management of a company, to the extent those requirements are directly linked to the exercise of the regulated profession;
g
territorial restrictions, including where the profession is regulated in parts of the United Kingdom in a manner that is different to the way in which it is regulated in other parts;
h
requirements restricting the exercise of a regulated profession jointly or in partnership, as well as incompatibility rules;
i
requirements concerning insurance cover or other means of personal or collective protection with regard to professional liability;
j
language knowledge requirements, to the extent necessary to practise the profession;
k
fixed minimum and/or maximum tariff requirements;
l
requirements on advertising.
4
Where relevant to the nature and content of the professional regulatory provision, the Welsh Ministers must also consider—
a
the connection between the scope of activities covered by a profession or reserved to it and the professional qualification required,
b
the connection between the complexity of the tasks concerned and the need for those carrying them out to possess specific professional qualifications, in particular as regards the level, nature and duration of the training or experience required,
c
the possibility of obtaining the professional qualification by alternative routes,
d
whether, and why, the activities reserved to certain professions can or cannot be shared with other professions,
e
the degree of autonomy in exercising a regulated profession and the impact of organisational and supervision arrangements on the achievement of the objective pursued, in particular where the activities relating to a regulated profession are pursued under the control and responsibility of a duly qualified professional, and
f
the scientific and technological developments which may effectively reduce or increase the asymmetry of information between professionals and consumers.
5
Where a professional regulatory provision concerns the regulation of healthcare professions and has patient safety implications, the Welsh Ministers must take account of the objective of ensuring a high level of human health protection when carrying out a proportionality assessment of the provision.
6
In this regulation—
a
“protected professional title” means a form of regulating a profession where the use of the title in a professional activity or group of professional activities is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of a specific professional qualification, and where the improper use of that title is subject to sanctions;
b
“reserved activities” means a form of regulating a profession where the access to a professional activity or group of professional activities is reserved, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to members of a regulated profession holding a specific professional qualification, including where the activity is shared with other regulated professions.
Temporary and occasional provision of services8
1
Before a professional regulatory provision takes effect, the Welsh Ministers must ensure compliance with the principle of proportionality of any specific requirement in that provision related to temporary and occasional provision of services, provided under Part 2 of the 2015 Regulations, including—
a
automatic temporary registration with or pro-forma membership of a professional organisation or body, in accordance with regulation 14(2) of the 2015 Regulations;
b
a declaration to be made in advance in accordance with regulation 15 of the 2015 Regulations, documents to be required in accordance with regulation 16 of the 2015 Regulations, or any other equivalent requirement;
c
the payment of a fee, or any charges, required for the administrative procedures, related to the access to, or pursuit of, regulated professions which the service provider incurs.
2
This regulation does not apply to measures designed to ensure compliance with applicable employment terms and conditions applied in accordance with EU law.
Public information and consultation9
1
Before a proposed professional regulatory provision takes effect, the Welsh Ministers must—
a
by appropriate means, make information about a proposed professional regulatory provision available to the public, service recipients and other relevant stakeholders, including those who are not members of the profession concerned;
b
consult relevant stakeholders and such persons as they consider appropriate.
2
A professional regulatory provision must be accompanied by an explanation which is sufficiently detailed to make it possible to assess the proportionality of the provision.
Report10
1
After completing a proportionality assessment, the Welsh Ministers must send the information listed in paragraph (2) to the European Commission and record it in the database of regulated professions referred to in Article 59(1) of Directive 2005/36/EC of the European Parliament and of the Council of 7th September 2005 on the recognition of professional qualifications11.
2
The information required under paragraph (1) is—
a
a copy of the professional regulatory provision, and
b
the reasons for considering that the provision is justified and proportionate.
Monitoring of professional regulatory provisions11
After a professional regulatory provision takes effect, the Welsh Ministers must monitor the compliance of the provision with the principle of proportionality, having due regard to any developments that have occurred since it took effect.
(This note is not part of the Regulations)