PROPORTIONALITY TEST BEFORE ADOPTION OF NEW REGULATION OF PROFESSIONS ACT

REGULATION OF PROFESSIONS

CHAPTER 612

PROPORTIONALITY TEST BEFORE ADOPTION OF

NEW REGULATION OF PROFESSIONS ACT

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.

30th July, 2020

ACT XXV of 2020.

(1)

The short title of this Act is the Proportionality Test

Before Adoption of New Regulation of Professions Act.

(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.

(1)

In this Act, unless the context otherwise requires

"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)

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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 the principle of proportionality, having due regard to

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

profession are to be 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

shall ensure that the legislative, regulatory or administrative

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

profession, 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

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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

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

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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

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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

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.

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(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

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

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.

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Any person aggrieved by a breach of any provision of this

Act 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

delegate shall take the necessary measures to exchange information

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

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

such regulation.

The reasons for considering that provisions, assessed in

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.