Services Package: Developments in the European Parliament

July 20th, 2017 § 0 comments

(1) IMCO draft report: proportionality test proposal

At the end of June, MEP Andreas Schwab published his draft report on the proportionality test proposal of the European Commission. [The Commission proposal aims at setting up a common framework for conducting proportionality tests when introducing new regulation of professions.] The rapporteur considers that the proposal should not be an instrument of mere ‘de-regulation’ but that the added value of professional regulation should be recognised by putting an emphasis on smart regulation which can further economic growth in the EU.

As far as education and training is concerned, the draft report clarifies / highlights that:

– “the rules concerning professional education and training remain within the competence of Member States, especially concerning the possibility to delegate this task to professional organisations. However, according to established case-law, if those activities are remunerated, free movement should be guaranteed in particular as regards the conditions required for accessing professional training (Case C-313/01 Morgenbesser).” (recital 7b (new))

– “Member States should enjoy a margin of appreciation within which they are able to determine the degree of protection which they wish to afford, and if necessary to strengthen the regulation in place. 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 Union law.” (recital 12)

– “The introduction of additional requirements might be suitable to attain the public interest objectives. (…) For example, the obligation to undergo continuous professional development might be suitable to ensure that professionals keep abreast of developments in their respective areas, as long as it does not lay down discriminatory and disproportionate conditions to the detriment of new entrants. Likewise, compulsory chamber membership should be considered appropriate where professional organisations are entrusted by the State with safeguarding the relevant public interest objectives, for example in supervising the legitimate practice of the profession, or organising or supervising continuous professional training; (…) (recital 20a (new))

(2) Workshop on ‘Reforming professional services’, 11 July 2017

Under the chairmanship of MEP Nicola Danti, two expert panels considered ‘economic effects of regulating professional services’ and ‘recommendations for policy -makers’.

The CCBE was represented by the chair of the EU Lawyers committee, Hugh Mercer, who pointed out that professional rules (such as independence, competence, confidentiality) are necessary to ensure standards and attitudes of professionals to uphold the rule of law. He deplored that ‘free movement of service providers’ is not taken into account in the restrictiveness indicator of the Services Package, noting that the lawyer’s profession has been at the forefront of the free movement of lawyers in Europe. The CCBE also adopted a memorandum of mutual recognition of continuous training activities and furthermore it shares information on disciplinary proceedings in the Member States. The CCBE also discusses innovation and the future of the legal profession and will soon publish its e-book of last year’s conference. Hugh Mercer emphasised that it is not (always) possible for clients to evaluate the quality of services and, therefore, regulation is needed.

The Commission was represented by Martin Frohn who presented the Commission’s work within the framework of the Services Package. In his presentation, he referred to several examples of restrictions identified by the Commission, including reserved activities, noting inter alia: ‘Legal advice of any kind is reserved to lawyers in many Member States hindering other legal consultancy services, in particular online services’. The OECD’s presentation on “No jobs for old lawyers? Disruptive innovations in legal services” specifically focused on lawyers: disruptive innovation – what’s happening in the legal services; the scope of regulatory restrictions and recent reforms in Member States (France and UK/upcoming reforms in Portugal); rationale of regulation – does it still apply?.

For more information, please see presentations-here and recordings-here.

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