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The European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020

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Proportionality

7.—(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.

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