ACT No. XXV of 2020 AN ACT to implement the provisions of Directive (EU) 2018/958 of the European Parliament and of the Council of 28 June 2018 on a proportionality test before adoption of new regulation of professions.

I assent.

(L.S.)

GEORGE VELLA

President

29th May, 2020

ACT No. XXV of 2020

AN ACT to implement the provisions of Directive (EU) 2018/958 of

the European Parliament and of the Council of 28 June 2018 on a

proportionality test before adoption of new regulation of professions.

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows:-

(1) The short title of this Act is the Proportionality Test Short title and

commencement.

Before Adoption of New Regulation of Professions Act, 2020.

(2) This Act implements the provisions of Directive (EU) 2018/

958 of the European Parliament and of the Council of 28 June 2018 on

a proportionality test before adoption of new regulation of professions.

(3) This Act shall come into force on such date as the Minister

responsible for education may by notice in the Gazette appoint, and

different dates may be so appointed for different provisions or

different purposes of this Act.

(1)

In this Act, unless the context otherwise requires

Interpretation.

"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;

"regulated profession" shall have the same meaning assigned to it in

article 2 of the Mutual Recognition of Qualifications Act;

"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.

(2) Where applicable and unless the context otherwise requires,

the definitions of the Mutual Recognition of Qualifications Act and the

Recognition of Professional Qualifications Regulations shall apply.

(1) No new legislative, regulatory or administrative

provisions restricting access to, or the pursuit of, a regulated

profession may be introduced, and no existing legislative, regulatory

or administrative provisions restricting access to, or the pursuit of, a

regulated profession may be amended, before the Ministry responsible

for the said regulated profession shall have undertaken an assessment

of proportionality in accordance with the rules laid down in this Act.

(2) The extent of the assessment referred to in sub-article (1) shall

be proportionate to the nature, the content and the impact of the

provision.

(3) Any provision referred to in sub-article (1) shall be

accompanied by an explanation which is sufficiently detailed to make

it possible to appraise compliance with the principle of proportionality.

(4) The reasons for considering that a provision referred to in

sub-article (1) is justified and proportionate shall be substantiated by

qualitative and, wherever possible and relevant, quantitative elements.

(5) The Ministry responsible for the regulated profession referred

to in sub-article (1) shall ensure that the assessment referred to in sub-

article (1) is carried out in an objective and independent manner.

(6) The Ministry responsible for the regulated profession referred

to in sub-article (1) shall monitor the compliance of new or amended

legislative, regulatory or administrative provisions restricting access

to, or the pursuit of, the said regulated profession, after adoption, with

t h e p r i n c i p l e o f p r o p o r t i o n a l i t y, h a v i n g d u e r e g a r d t o a n y

developments that have occurred since the provisions concerned were

adopted. For such purposes, the said Ministry shall also prepare a

report not later than every three (3) years from the date of entry into

force of the said provisions. Where appropriate, the said report shall

include relevant proposals for amendment. The said report shall be

submitted to Cabinet.

When new legislative, regulatory or administrative provisions Non-

restricting access to, or the pursuit of, a regulated profession are to be discrimination.

introduced, or existing legislative, regulatory or administrative

provisions restricting access to, or the pursuit of, a regulated

profession are to be amended, the Ministry responsible for the said

regulated profession shall ensure that those provisions are neither

directly nor indirectly discriminatory on the basis of nationality or

residence.

(1) The Ministry responsible for a regulated profession Justification on

shall ensure that the legislative, regulatory or administrative provisions grounds

public interest

restricting access to, or the pursuit of, the said regulated profession, objectives.

that are intended to be introduced and that the amendments that are

intended to be made to existing provisions are justified by public

interest objectives.

(2) The Ministry responsible for the regulated profession shall

consider in particular whether the provisions referred to in sub-article

(1) 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 consumers, of recipients of services

and of workers; the safeguarding of the proper administration of

justice; ensuring the fairness of trade transactions; the combating of

fraud and the prevention of tax evasion and avoidance, and the

safeguarding of the effectiveness of fiscal supervision; transport

safety; 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; and cultural policy objectives.

(3) Grounds of a purely economic nature or purely administrative

reasons shall not constitute overriding reasons in the public interest,

justifying a restriction on access to, or the pursuit of, a regulated

profession.

(1) The Ministry responsible for a regulated profession Proportionality.

shall ensure that the legislative, regulatory or administrative provisions

restricting access to, or the pursuit of, the said regulated profession,

that are introduced, and that the amendments that are made to existing

provisions, are suitable for securing the attainment of the objective

pursued and do not go beyond what is necessary to attain that

objective.

(2) (a) To that end, before the provisions referred to in sub-

article (1) are adopted, the Ministry responsible for the regulated

profession shall consider

(i) the nature of the risks related to the public

interest objectives pursued, in particular the risks to service

recipients, including consumers, to professionals or to third

parties;

(ii) whether existing rules of a specific or more

general nature, such as those contained in product safety

law or consumer protection law, are insufficient for the

attainment of the objective pursued;

(iii) the suitability of the provision 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;

(iv) the impact on the free movement of persons

and services within the European Union, on consumer

choice and on the quality of the service provided;

(v) the possibility of using less restrictive means to

achieve the public interest objective; for the purposes of

this point, where the provisions are justified by consumer

protection only and where the risks identified are limited to

the relationship between the professional and the

consumer, and therefore do not negatively affect third

parties, the Ministry responsible for the said regulated

profession shall assess in particular whether the objective

can be attained by means that are less restrictive than

reserving activities;

(vi) the effect of new or amended provisions, when

combined with other provisions restricting access to, or the

pursuit of, the profession, and in particular how the new or

amended provisions, combined with other requirements

contribute to and whether they are necessary for the

achievement of the same public interest objective.

(b) The Ministry responsible for the said regulated

profession shall also consider the following elements, when

relevant to the nature and the content of the provision being

introduced or amended

(i) the connection between the scope of activities

covered by a profession or reserved to it and the

professional qualification required;

(ii) 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, the nature and the duration of the training

or experience required;

(iii) the possibility of obtaining the professional

qualification by alternative routes;

(iv) whether, and why, the activities reserved to

certain professions can or cannot be shared with other

professions;

(v) the degree of autonomy in exercising a

regulated profession and the impact of organisational and

supervision arrangements on the attainment 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;

(vi) the scientific and technological developments

which may effectively reduce or increase the asymmetry of

information between professionals and consumers.

(3) For the purposes of sub-article (2)(a)(vi), the Ministry

responsible for the said regulated profession shall assess the effect of

the new or amended provision when combined with one or more

requirements, bearing in mind the fact that such effects might be

positive as well as negative, and in particular the following

(a) reserved activities, protected professional title or any

other form of regulation relating to a regulated profession within

the meaning of article 2 of the Mutual Recognition of Cap. 451.

Qualifications Act;

(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) requirements restricting the exercise of a regulated

profession jointly or in partnership, as well as incompatibility

rules;

(h) requirements concerning insurance cover or other

means of personal or collective protection with regard to

professional liability;

(i) language knowledge requirements, to the extent

necessary to practise the profession;

(j)

fixed minimum and/or maximum tariff requirements;

(k)

requirements on advertising.

(4) Before the introduction of new, or the amendment of existing,

provisions, the Ministry responsible for the relative regulated

profession shall, in addition, ensure the compliance with the principle

of the proportionality of specific requirements related to temporary or

occasional provision of services, provided under Part II of the

Recognition of Professional Qualifications Regulations, including

(a) automatic temporary registration with or pro forma

membership of a professional organisation or body, referred to in

paragraph (a) of regulation 8 of the Recognition of Professional

Qualifications Regulations;

(b) a declaration to be made in advance pursuant to

regulation 9(1) of the Recognition of Professional Qualifications

Regulations, documents required pursuant to regulation 9(2) of

the said 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 the pursuit

of, the regulated profession which the service provider incurs

Provided that this sub-article shall not apply to measures

designed to ensure compliance with applicable employment terms and

conditions that Malta applies in accordance with European Union law.

(5) Where provisions referred to in this article concern the

regulation of healthcare professions and have patient safety

implications, the Ministry responsible for the relative regulated

profession shall take account of the objective of ensuring a high level

of human health protection.

(1) The Ministry responsible for a regulated profession Information and

shall, by appropriate means, make information available to citizens, involvement

stakeholders.

service recipients and other relevant stakeholders, including those who

are not members of the profession concerned, before the introduction

of new, or the amendment of existing, legislative, regulatory or

administrative provisions restricting access to, or the pursuit of, the

said regulated profession.

(2) The Ministry responsible for a regulated profession shall

appropriately involve all parties concerned and shall give them the

opportunity to make their views known before the introduction of new,

or the amendment of existing, legislative, regulatory or administrative

provisions restricting access to, or the pursuit of, the said regulated

profession. Where relevant and appropriate, the said Ministry shall

carry out public consultations and shall allow the public a minimum of

three (3) weeks from the commencement of the public consultation to

make representations.

Any person aggrieved by a breach of any provision of this Act Remedies.

may seek redress by instituting proceedings in accordance with and

subject to the existing remedies in the Laws of Malta.

The Ministry responsible for a regulated profession or its Exchange of

delegate shall take the necessary measures to exchange information information

between

with other Member States on matters covered by this Act, on the Member States.

particular way that Malta regulates a profession, and on the effects of

such regulation.

The reasons for considering that provisions, assessed in Transparency.

accordance with this Act, are justified and proportionate, together with

the provisions, shall be communicated to the European Commission by

the Ministry responsible for the relative profession within six (6)

months from the adoption of the provisions, and shall be recorded by

the Ministry responsible for the relative profession or its delegate in

the publicly available database of regulated professions set up and

maintained by the European Commission. Member States and other

interested parties shall be allowed to submit comments on the said

provisions and on the said reasons for considering that they are

justified and proportionate.

The Minister responsible for education may make regulations

to give better effect to the provisions of this Act, and without prejudice

to the generality of the foregoing may, by such regulations, provide for

any matter consequential, incidental to or connected with the

provisions of this Act.

Passed by the House of Representatives at Sitting No. 334 of the

25th May, 2020.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.90