On 16 June 2016, the European Commission published an inception impact assessment paper on the ‘Regulation of professions: proportionality test’, noting that:
◊ excessive regulatory barriers to professional entry have negative consequences for job creation, productivity, mobility and the consumer;
◊ the ‘mutual evaluation exercise of regulated professions’ – introduced by the Professional Qualifications Directive – evidences broad variations in appreciation of what is proportionate and necessary in the proper pursuit of public interests;
◊ a legally binding instrument represents a comprehensive legislative solution at EU level setting up an EU-wide methodology for assessing the necessity and proportionality of national regulations in the professions. The methodology to be used by Member States when assessing national regulations could cover the following aspects:
- Identification of the overriding reasons relating to the general interest which justify the measure;
- Identification and assessment of the nature of the risks to consumers, to professionals or third parties, including in particular whether and why the existing rules (such as consumer protection law) are inadequate to protect the public interest;
- Assessment of the necessity of requiring possession of specialised skills and training and assess specifically the level, the nature and the duration of the training required as well as the existence of different routes to obtain the qualification;
- Analysis of the scope of practice and the reserves of activities and assessment of the effects on the public interest objectives pursued;
- Estimating the economic impact of the proposed regulation including a consideration of market impacts on such variables as e.g. wages, employment, competition and demand;
- Analysis of the alternatives to regulation or less restrictive regulation (such as protected title, voluntary certification schemes,etc.);
- Assessment of the cumulative effect of restrictions to both access to and exercise of the professional activities.
The European Commission also issued a Roadmap on the ‘Guidance on reforms needs for Member States in regulation of professions’.
Today, on 18 January 2016, the deadline for Member States to implement the Professional Qualifications Directive 2013/55/EU – which was adopted on 20 November 2013 – expires. Member States will have had to bring into line their laws, regulations and administrative provisions in order to comply with this Directive, which revises Directive 2005/36.
Article 55a of the Professional Qualifications Directive has been of particular concern and interest to the CCBE as it regulates the recognition of professional traineeships carried out in another Member State or in a third country. It provides that professional traineeships required for access to a regulated profession carried out in one Member State must be recognised by a relevant Competent Authority in another Member State. Member States may however “set a reasonable limit on the duration of the part of the professional traineeship which can be carried out abroad”. Furthermore, Article 55a asks competent authorities to “publish guidelines on the organisation and recognition of professional traineeships carried out in another Member State or in a third country, in particular on the role of the supervisor of the professional traineeship”.
The CCBE has started gathering some first information on the implementation of this Article; accordingly:
- the duration of the traineeship, which may be carried out abroad, varies from 3 months (in the case of Germany) to 19 months (in the case of Austria); on average, the duration of foreign traineeships is between 6 and 12 months; in Finland, Latvia, Romania and England & Wales (solicitors), there is no explicit time restriction;
- some countries already have guidelines on the organisation and recognition of professional traineeships in place (as they recognized foreign traineeships already before the Directive was adopted), others will be working on the guidelines. For example, the Bar Standards Board in England and Wales barristers published Guidelines in September 2013, which, contain detailed information on the role of the supervisor of the professional traineeship:
– To provide/organise induction for trainees;
– To establish and maintain regular contact with the trainee, ensuring his/her accessibility when advice is needed;
– To provide learning opportunities for the trainee;
– To provide timely, effective and constructive guidance, advice and feedback on the trainee’s work;
– To instil professional ethics and conduct, ensuring that the trainee is aware of the need to exercise probity and conduct him/herself according to ethical principles (and of the implications of misconduct);
– To ensure that compulsory courses are undertaken and passed;
– To act as mentor/advisor/counsellor to trainees (as well as supervisor);
– To perform appraisal of trainees (in addition to feedback) as appropriate in order to monitor the trainee’s overall progress;
The CCBE will continue gathering information about the implementation of Article 55a and provide an update in the coming months.
More information on the Professional Qualifications Directive 2013/55/EU is available on DG Growth’s website.
The revised professional qualifications Directive 2013/55/EU comes into force.
This Directive, which amends the Professional Qualifications Directive 2005/36/EC, should be implemented in all the Member States by January 2016. It contains multiple amendments to the professional qualifications Directive including provisions to facilitate the recognition of cross-border professional traineeships in all Member States, and a European-wide review on restriction on access to practice law.
Text of Directive 2103/55/EU (on Eur-lex)
Commentary on the implications: “professional traineeships”