The European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020
| Jurisdiction | Wales |
| Citation | SI 2020/696 |
| Year | 2020 |
2020 No. 696 (W. 154)
Education, Wales
Professional Qualifications, Wales
Social Care, Wales
The European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020
Made 7th July 2020
Laid before Senedd Cymru 8th July 2020
Coming into force 30th July 2020
The Welsh Ministers, in exercise of the powers conferred by section 2(2) of the European Communities Act 19721and section 58B of the Government of Wales Act 20062, make the following Regulations.
Title, commencement, expiry and application
1.—(1) The title of these Regulations is the European Union (Regulated Professions Proportionality Assessment) (Wales) Regulations 2020.
(2) These Regulations come into force on 30 July 2020.
(3) These Regulations cease to have effect on IP completion day3.
(4) These Regulations apply in relation to Wales.
Interpretation
2. In these Regulations—
“the 2015 Regulations” (“Rheoliadau 2015”) means the European Union (Recognition of Professional Qualifications) Regulations 20154;
“IP completion day” (“diwrnod cwblhau’r cyfnod gweithredu”) has the meaning given in section 39(1) to (5) of the European Union (Withdrawal Agreement) Act 20205;
“professional qualifications” (“cymwysterau proffesiynol”) has the meaning given by regulation 9(1) of the 2015 Regulations;
“professional regulatory provision” (“darpariaeth reoleiddiol broffesiynol”) means a new, or an amendment to an existing, legislative, regulatory or administrative provision restricting access to a regulated profession or its pursuit, or one of its modes of pursuit, including the use of professional titles and the professional activities allowed under such title;
“proportionality assessment” (“asesiad cymesuredd”) means an assessment of the proportionality of a professional regulatory provision, carried out in accordance with regulation 4;
“regulated profession” (“proffesiwn rheoleiddiedig”) has the meaning given by regulation 8(1) of the 2015 Regulations.
Scope
3.—(1) These Regulations apply to the profession of—
(a)
(a) qualified teacher (within the meaning of section 132 of the Education Act 20026) in a school (as defined in section 14(6) of the Education (Wales) Act 20147) in Wales;
(b)
(b) head teacher (within the meaning of section 135 of the Education Act 2002) in a school (as defined in section 14(6) of the Education (Wales) Act 2014) in Wales.
(2) These Regulations apply to the profession of teacher at a further education institution (within the meaning of section 140 of the Education Act 2002) in Wales.
(3) These Regulations apply to any profession regulated under Part 4 of the Regulation and Inspection of Social Care (Wales) Act 20168.
(4) These Regulations do not apply to—
(a)
(a) any profession in relation to which specific arrangements directly related to the recognition of professional qualifications are made in any EU Regulation, EU Directive, EU decision or EU tertiary legislation and the effect of those arrangements exclude the application of Directive 2005/36/ECof the European Parliament and the Council of 7th September 2005 on the recognition of professional qualifications9;
(b)
(b) a professional regulatory provision to the extent that it implements EU legislation concerning the regulation of a profession, where there is no choice as to the exact way in which those requirements are to be transposed.
Requirement to carry out a proportionality assessment
4.—(1) The Welsh Ministers must carry out a proportionality assessment in respect of a professional regulatory provision before the provision takes effect.
(2) When carrying out a proportionality assessment, the Welsh Ministers must ensure that—
(a)
(a) the professional regulatory provision complies with each of the requirements set out in regulations 5 to 8,
(b)
(b) the extent of the assessment is proportionate to the nature, content and impact of the professional regulatory provision,
(c)
(c) the reasons for considering that the professional regulatory provision is justified and proportionate are substantiated by qualitative and, wherever possible and relevant, quantitative elements, and
(d)
(d) the assessment is carried out in an objective and independent manner.
Non-discrimination
5. A professional regulatory provision must not directly or indirectly discriminate against nationals of an EU member State10on the basis of nationality or residence.
Justification by public interest objectives
6.—(1) A professional regulatory provision must be justified by public interest objectives.
(2) A professional regulatory provision is justified by public interest objectives if it is objectively justified on the basis of public policy, public security or public health, or by overriding reasons in the public interest.
(3) Overriding reasons in the public interest include (but are not limited to)—
(a)
(a) preserving the financial equilibrium of the social security system;
(b)
(b) the protection of consumers, of recipients of services and of workers;
(c)
(c) the safeguarding of the proper administration of justice;
(d)
(d) ensuring the fairness of trade transactions;
(e)
(e) the combating of fraud and the prevention of tax evasion and avoidance, and the safeguarding of the effectiveness of fiscal supervision;
(f)
(f) transport safety;
(g)
(g) the protection of the environment and the urban environment;
(h)
(h) the health of animals;
(i)
(i) the protection of intellectual property;
(j)
(j) the safeguarding and conservation of the national historic and artistic heritage;
(k)
(k) social policy objectives;
(l)
(l) cultural policy objectives.
(4) Overriding reasons in the public interest do not include grounds of a purely economic nature or purely administrative reasons.
Proportionality
7.—(1) A professional regulatory provision must be suitable for achieving the objective pursued and must not go beyond what is necessary to achieve that objective.
(2) When carrying out a proportionality assessment, the Welsh Ministers must consider—
(a)
(a) the nature of the risks related to the public interest objectives pursued, in particular the risks to service recipients (including consumers), professionals or third parties;
(b)
(b) whether existing rules of a specific or more general nature, such as those contained in product safety law or consumer protection law, are insufficient to achieve the objective pursued;
(c)
(c) the suitability of the provision as regards its appropriateness to achieve the objective pursued and whether it genuinely reflects that objective in a consistent and systematic manner and addresses the risks identified in a similar way as in comparable activities;
(d)
(d) the impact of the provision on—
(i) the free movement of persons and services within the European Union,
(ii) consumer choice, and
(iii) the quality of the service provided;
(e)
(e) the possibility of using less restrictive means to achieve the public interest objective, including, in particular, whether the objective can be achieved by means that are less restrictive than reserving activities where—
(i) the provisions are justified by consumer protection only;
(ii) the risks identified are limited to the relationship between the professional and the consumer and therefore do not negatively affect third parties;
(f)
(f) the effect of the professional regulatory provision, when combined with other provisions restricting access to, or the pursuit of, the profession, and in particular how the professional regulatory provision, combined with other requirements contribute to and whether they are necessary for the achievement of the same public interest objective.
(3) When taking into account the consideration set out in paragraph (2)(f), the Welsh Ministers must assess the effect of the professional regulatory provision when combined with one or more requirements, including in particular—
(a)
(a) reserved activities, protected professional titles or any other form of regulation of a regulated profession;
(b)
(b) obligations to undergo continuous professional development;
(c)
(c) rules relating to the organisation of the profession, professional ethics and supervision;
(d)
(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)
(e)...
To continue reading
Request your trial