Author: Dr Claire Marie Calleja Zammit CAMS, Adv. Trib. Ecc. Melit, Pg. Dip. EC., LL.D.
Published on 4th June 2021

 The Proportionality Test under Chapter 612 of the Laws of Malta

The EU freedoms

The European Union considers the freedom to choose an occupation as a fundamental right.  The free movement of workers, the freedom of establishment and freedom to provide services are fundamental principles of European law. It follows that national rules concerning access to regulated professions should not constitute unjustified or disproportionate obstacles to the exercise of such rights.

Restricting access to a profession requires proportionality

Where the EU has not harmonized the requirements for access to a regulated profession, it is up to the Member states to decide on this subject to the limitations imposed by the principles of non-discrimination and proportionality.

Indeed, the principle of proportionality is one of the general principles of Union law. Established case law from the European Court of Justice (ECJ) says that for measures which are liable to hinder, or to make less attractive, the exercise of fundamental freedoms, to be permissible, these should fulfil four conditions, namely, they should:

• be applied in a non-discriminatory manner;
• be justified by public interest objectives;
• be suitable for securing the attainment of the objective which they pursue; and
• not go beyond what is necessary in order to attain that objective.

Member States should compare any restrictive national measure to alternative, less restrictive means that would secure the same objective with fewer restrictions.  For instance, where consumers can choose between utilizing the services of qualified professionals or not, less restrictive measures such as protection of the professional title or enrolment on a professional register, should be used. Protected professional titles should be used where the measures aim to prevent a risk of serious harm to public interest objectives, such as public health.

The Maltese context

In a Maltese context the MUTUAL RECOGNITION OF QUALIFICATIONS  ACT, (CAP 451) prescribes rules for the recognition of qualifications in Malta.   This Act applies to the professions and professional activities listed in the Schedule which include qualifications necessary for entry to professions such as that of a teacher, an accountant or auditor, engineer and advocate.

Furthermore, under the PROPORTIONALITY TEST BEFORE ADOPTION OF NEW REGULATION OF PROFESSIONS ACT, (CAP 612) which implements the relevant EU directive, 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 competent Ministry undertakes a proportionality assessment which is substantiated by qualitative and quantitative elements. Such an assessment shall be carried out in an objective and independent manner.

Article 4. provides that new or existing legal, regulatory or administrative provisions which restrict access to or the pursuit of a regulated profession, shall not directly or indirectly discriminate on the basis of nationality or residence.  An exception to this under EU law is that provisions are allowed to cater for genuine occupational requirements e.g. a requirement to speak Maltese in view of interaction with Maltese speaking persons.  

Article 5 provides that any restrictions have to be justifiable by grounds of:

• public interest,
• on the basis of public policy,
• public security or
• public health, or
• by overriding reasons in the public interest, e.g. to preserve 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.

Grounds  of  a  purely  economic  nature  or  purely administrative reasons are not acceptable as overriding reasons in the public interest, to justify a restrictive measure.

Furthermore any measures introduced or regulation amended should not go beyond what is necessary to attain its objective.

Before new provisions are introduced or existing ones are amended, the following shall be taken into consideration:

• the nature of the risks to service recipients, including consumers, professionals or to third parties;
• whether  existing  rules  g. laws on product safety or consumer protection  are insufficient to attain the objective in question;
• the impact  on  the  free  movement  of persons  and  services  in the EU on consumer  choice  and  on  the  quality  of  the  service ;
• the possibility  of  using  less  restrictive means to achieve the public interest objective;
• the effect of new or amended provisions, when combined with other provisions restricting access to, or the pursuit of, the profession;
• the connection  between  the  scope  of activities covered by a profession or reserved to it and the professional qualification required;
• 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;
• the possibility   of   obtaining   the professional qualification by alternative routes;
• whether, and why, the activities reserved to certain professions can or cannot be shared with other professions;
• the degree  of  autonomy  in  exercising  a regulated  profession  and  the  impact  of  organisational and supervision arrangements on the attainment of the objective  pursued, 
• the scientific   and   technological developments which may effectively reduce or increase the asymmetry of information between professionals

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Author: Dr Claire Marie Calleja Zammit CAMS, Adv. Trib. Ecc. Melit, Pg. Dip. EC., LL.D.
Get in touch: info@pkfmalta.com