FEDCAR welcomes the European Commission’s initiative for boosting the services economy and in particular its proposal of directive for a proportionality test before adoption of new regulation of professions (COM(2016) 822 final). Healthcare professions are indeed the most mobile professions in the single market.
This proposal of directive comes in addition to an acquis communautaire where the relevance of professional regulations in the healthcare sector has already been legitimised by the EU legislator, and also by the European Court of Justice when they are proportionated to the pursued objective of public health. FEDCAR however regrets two flaws in the proposal of directive that purports to systematise a prior assessment of national rules for any professional service: First, FEDCAR regrets the imbalance of the text between the 21 criteria to use to proceed to the test (Article 6) and the absence of any criterion to use when applying the justifications that can be brought to a national regulation (Article 5). Yet the test of proportionality developed by the case-law is rich with the detail of these justifications; the codification of the proportionality test proposed by this new directive is unfortunately incomplete. FEDCAR indeed recalls that national regulations for the access or for the exercise of health professions have been many times subject to the proportionality test carried out by the European Court of Justice; legal precedents have been settled. The presentation of this case-law would certainly be of help for Member States that would become in charge of conducting a proportionality test at the national level under the proposed directive. Its omission from the text is hard to understand. Second, one of the legal basis on which the proposal of directive relies on, has a lack of robustness when it adresses health professionals. The Treaty allows indeed the EU legislator to take initiatives to «make it easier for persons to take up and pursue activities as self-employed persons»(Article 53(1) TFEU); but «In the case of the medical and allied and pharmaceutical professions» the Treaty provides that «the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States»(Article 53(2) TFEU) : conditions for access to this kind of professions have indeed been coordinated at the EU level with Directive 2005/36 on the recognition of professional qualifications, but conditions for exercise these professions have not been coordinated at all at the EU level. The Treaty’s condition allowing the legislator to rely on Article 53 is therefore missing in the case of medical and allied and pharmaceutical professions. FEDCAR’s concern is to maintain the current and good functioning of the freedom of circulation of healthcare professionals in the single market. Because of the imbalance of the text and because of the incomplete legal basis, FEDCAR can only advocate for an exclusion of healthcare professionals from the proposed Directive’s scope of application or, alternatively, for a much more balanced approach of this codified proportionality test that must be brought in compliance with the acquis communautaire. Adopted in General Assembly on 12 May 2017 in Sarajevo.