9.7.2018 EN Official Journal of the European Union L 173/25 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 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 46, Article 53(1) and Article 62 thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) The freedom to choose an occupation is a fundamental right. The Charter of Fundamental Rights of the European Union (‘the Charter’) guarantees the freedom to choose an occupation, as well as the freedom to conduct a business. The free movement of workers, the freedom of establishment and the freedom to provide services are fundamental principles of the internal market enshrined in the Treaty on the Functioning of the European Union (TFEU). National rules organising access to regulated professions should therefore not constitute an unjustified or disproportionate obstacle to the exercise of those fundamental rights. (2) In the absence of specific provisions harmonising the requirements on access to a regulated profession or the pursuit thereof laid down in Union law, it is a Member State competence to decide whether and how to regulate a profession within the limits of the principles of non-discrimination and proportionality. (3) The principle of proportionality is one of the general principles of Union law. It follows from case-law (3) that national measures liable to hinder, or to make less attractive, the exercise of fundamental freedoms guaranteed by the TFEU 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. (4) Directive 2005/36/EC of the European Parliament and of the Council (4) includes an obligation for Member States to assess the proportionality of their requirements restricting access to, or the pursuit of, regulated professions, and to communicate the results of that assessment to the Commission, launching the ‘mutual evaluation process’. That process means that Member States had to carry out a screening of all their legislation on all of the professions that were regulated in their territory. (5) The results of the mutual evaluation process revealed a lack of clarity as regards the criteria to be used by Member States when assessing the proportionality of requirements restricting access to, or the pursuit of, regulated professions, as well as an uneven scrutiny of such requirements at all levels of regulation. To avoid fragmentation of the internal market and to eliminate barriers to the taking-up and pursuit of certain employed or self-employed activities, there should be a common approach at Union level, preventing disproportionate measures from being adopted. (6) In its Communication of 28 October 2015 entitled ‘Upgrading the Single market: more opportunities for people and businesses’, the Commission identified the need to adopt an analytical proportionality framework for Member States to use when reviewing existing regulations of professions or when proposing new ones. (7) This Directive aims to establish rules for proportionality assessments to be conducted by Member States before the introduction of new, or the amendment of existing, professional regulations, in order to ensure the proper functioning of the internal market, while guaranteeing transparency and a high level of consumer protection. (8) The activities covered by this Directive should concern the regulated professions falling within the scope of Directive 2005/36/EC. This Directive should apply to requirements restricting access to, or the pursuit of, existing regulated professions or new professions that Member States are considering whether to regulate. This Directive should apply in addition to Directive 2005/36/EC and without prejudice to other provisions laid down in a separate Union act concerning access to, or the pursuit of, a given regulated profession. (9) This Directive is without prejudice to the competence of Member States to define the organisation and the content of their systems of education and professional training, and in particular as regards the possibility for them to delegate to professional organisations the power to organise or supervise professional education and training. Provisions which do not restrict access to, or the pursuit of, regulated professions, including editorial amendments, technical adaptations to the content of training courses or the modernisation of training regulations, should not fall within the scope of this Directive. Where professional education or training consists of activities which are remunerated, the freedom of establishment and the freedom to provide services should be guaranteed. (10) Where Member States transpose specific requirements concerning the regulation of a given profession established in a separate Union act which does not leave Member States a choice as to the exact way in which they are to be transposed, the assessment of proportionality, as required by specific provisions of this Directive, should not be applied. (11) Member States should be able to rely on a common regulatory framework based on clearly defined legal concepts concerning the different ways to regulate a profession across the Union. There are several ways to regulate a profession, for instance by reserving access to, or the pursuit of, a particular activity to holders of a professional qualification. Member States may also regulate one of the modes of pursuit of a profession by laying down conditions for the use of professional titles or by imposing qualification requirements only on self-employed, on salaried professionals, or on the managers or legal representatives of undertakings, especially where the activity is pursued by a legal person in the form of a professional company. (12) Before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, Member States should assess the proportionality of such provisions. The extent of the assessment should be proportionate to the nature, the content and the impact of the provision being introduced. (13) The burden of proof of justification and proportionality lies with the Member States. The reasons for regulating invoked by a Member State by way of justification should thus be accompanied by an analysis of the appropriateness and proportionality of the measure adopted by that Member State and by specific evidence substantiating its arguments. Although a Member State does not necessarily have to produce a specific study or a specific form of evidence or materials establishing the proportionality of such a measure prior to its adoption, it should carry out an objective analysis, taking into account the specific circumstances of that Member State, that demonstrates that there are genuine risks for the achievement of public interest objectives. (14) Member States should carry out proportionality assessments in an objective and independent manner, including where a profession is regulated indirectly by giving a particular professional body the power to regulate. Those assessments could include an opinion obtained from an independent body, including existing bodies that are part of the national legislative process, entrusted by the Member States concerned with the task of providing such opinion. This is particularly important in cases where the assessment is made by local authorities, regulatory bodies or professional organisations, whose greater proximity to local conditions and specialised knowledge could in certain cases make them better placed to identify the best way of meeting the public interest objectives, but whose policy choices could provide benefits to established operators at the expense of new market entrants. (15) It is appropriate to monitor the proportionality of new or amended provisions restricting access to, or the pursuit of, regulated professions after their adoption. A review of the proportionality of a restrictive national measure in the area of regulated professions should be based not only on the objective of that national measure at the time of its adoption, but also on its effects, assessed after its adoption. The assessment of the proportionality of the national measure should be based on developments found to have occurred in the area of the regulated profession since the measure was adopted. (16) As confirmed by settled case-law, any unjustified restriction resulting from national law restricting the freedom of establishment or the freedom to provide services is prohibited, including any discrimination on grounds of nationality or residence. (17) Where the taking-up and the pursuit of employed or self-employed activities are conditional on complying with certain requirements relating to specific professional qualifications, laid down directly or indirectly by the Member States, it is necessary to ensure that such requirements are justified by public interest objectives, such as those within the meaning of the TFEU, namely public policy, public security and public health, or by overriding reasons in the public interest, recognised as such in the case-law of the Court of Justice. It is also necessary to clarify that the following are among the overriding reasons in the public interest, recognised by the Court of Justice: preserving the financial equilibrium of the social security system; the protection of consumers, of recipients of services, including by guaranteeing the quality of craft work, 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. According to settled case-law, purely economic reasons, namely promoting the national economy to the detriment of the fundamental freedoms, as well as purely administrative reasons, such as carrying out controls or gathering statistics, cannot constitute an overriding reason in the public interest. (18) It is for the Member States to determine the level of protection which they wish to afford to the public interest objectives and the appropriate level of regulation, within the limits of proportionality. The fact that one Member State imposes less strict rules than another Member State does not mean that the latter Member State’s rules are disproportionate and therefore incompatible with Union law. (19) With regard to the protection of public health, according to Article 168(1) TFEU, a high level of human health protection is to be ensured in the definition and implementation of all Union policies and activities. This Directive is fully in line with that objective. (20) In order to ensure that the provisions they introduce, and that amendments they make to existing provisions, are proportionate, Member States should consider the criteria for assessing the proportionality and the additional criteria which are relevant for the regulated profession being analysed. Where a Member State intends to regulate a profession or to amend existing rules, account should be taken of 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. It should also be borne in mind that, in the field of professional services, there is usually an asymmetry of information between consumers and professionals, given that professionals display a high level of technical knowledge which consumers may not have. (21) Requirements linked to professional qualifications should be considered to be necessary only where existing measures, such as product safety law or consumer protection law, cannot be regarded as being suitable or genuinely effective to achieve the aim pursued. (22) To meet the requirement of proportionality, a measure should be suitable for securing the attainment of the objective pursued. A measure should be considered to be suitable for securing the attainment of the objective pursued only if it genuinely reflects a concern to attain that objective in a consistent and systematic manner, for instance where similar risks related to certain activities are addressed in a comparable way and where any exceptions to the restrictions involved are applied in line with the stated objective. Furthermore, the national measure should effectively contribute to achieving the objective pursued and therefore, where it has no effect on the ground for justification, it should not be considered to be suitable. (23) The overall impact of the measure on the free movement of persons and services within the Union, on consumer choice and on the quality of the service provided should be duly taken into account by the Member States. On that basis, Member States should ascertain, in particular, whether the extent of the restriction to access to, or the pursuit of, regulated professions is proportionate to the importance of the objectives pursued and the expected gains. (24) Member States should carry out a comparison between the national measure at issue and alternative, less restrictive means that would result in the same objective being attained but would impose fewer restrictions. Where the measures 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, Member States should assess whether their objective could be attained by means that are less restrictive than reserving activities to professionals. For instance, where consumers can reasonably make a choice between using the services of qualified professionals or not, less restrictive means, such as protection of the professional title or enrolment on a professional register, should be used. Regulation by way of reserved activities and protected professional title should be considered where the measures aim to prevent a risk of serious harm to public interest objectives, such as public health. (25) Where relevant in view of the nature and the content of the measure being analysed, Member States should also take the following elements into account: the connection between the scope of professional activities covered by a profession and the professional qualification required; the complexity of the tasks in particular as regards the level, the nature and the duration of the training or experience required; the existence of different routes to obtain the professional qualification; whether the activities reserved to certain professionals can be shared with other professionals; and the degree of autonomy in exercising a regulated profession in particular where the activities relating to a regulated profession are pursued under the control and responsibility of a duly qualified professional. (26) This Directive takes account of scientific and technological progress, and contributes to the proper functioning of the internal market, including in the digital environment. In view of the speed of technological change and scientific developments, updates in access requirements could be of particular importance for a number of professions, especially for professional services provided by electronic means. Where a Member State regulates a profession, account should be taken of the fact that scientific and technological developments could reduce or increase the asymmetry of information between professionals and consumers. Where the scientific and technological developments carry a high risk to the public interest objectives, it is for the Member States, where necessary, to encourage professionals to keep up with those developments. (27) Member States should carry out a comprehensive assessment of the circumstances in which the measure is adopted and implemented and examine in particular the effect of the new or amended provisions when combined with other requirements restricting access to, or the pursuit of, the profession. The taking-up and pursuit of certain activities may be conditional on complying with several requirements such as rules relating to the organisation of the profession, compulsory membership of a professional organisation or body, professional ethics, supervision and liability. Therefore, when assessing the effect of the new or amended provisions, Member States should take into account the existing requirements, including continuous professional development, compulsory membership of a professional organisation or body, registration or authorisation schemes, quantitative restrictions, specific legal form requirements and shareholding requirements, territorial restrictions, multidisciplinary restrictions and incompatibility rules, requirements concerning insurance cover, language knowledge requirements, to the extent necessary to practise the profession, fixed minimum and/or maximum tariff requirements, and requirements on advertising. (28) The introduction of additional requirements may be suitable to attain the public interest objectives. The mere fact that their individual or combined effect should be assessed does not mean that those requirements are prima facie disproportionate. For example, the obligation to undergo continuous professional development may be suitable to ensure that professionals keep abreast of developments in their respective areas, as long as it does not lay down discriminatory and disproportionate conditions to the detriment of new entrants. Likewise, compulsory membership of a professional organisation or body may be considered appropriate where those professional organisations or bodies are entrusted by the State with safeguarding the relevant public interest objectives, for example in supervising the legitimate practice of the profession, or organising or supervising continuous professional training. Where the independence of a profession cannot be adequately guaranteed by other means, Member States could consider the application of safeguards, such as limiting the shareholding of persons outside the profession or providing that the majority of the voting rights are to be held by persons practising the profession, as long as such safeguards do not go beyond what is necessary in order to protect the public interest objective. Member States could consider establishing fixed minimum and/or maximum tariff requirements with which the service providers must comply, especially for services where this is necessary for the effective application of the principle of reimbursing costs, as long as such restriction is proportionate and, where necessary, derogations from the minimum and/or maximum tariffs are provided for. Where the introduction of additional requirements duplicates requirements which have already been introduced by a Member State in the context of other rules or procedures, such requirements cannot be regarded as proportionate to achieve the objective pursued. (29) Under Title II of Directive 2005/36/EC, Member States cannot impose on service providers established in another Member State providing professional services on a temporary and occasional basis requirements or restrictions prohibited in that Directive, such as authorisation by, registration with, or membership of, a professional organisation or body or having representatives on the territory of the host Member State for the purposes of having access to, or the pursuit of, a regulated profession. Member States can, where necessary, require service providers wishing to provide services on a temporary basis, to provide information in the form of a written declaration to be made in advance of the first service provision and to renew this declaration on a yearly basis. Therefore, in order to facilitate the provision of professional services, it is necessary to reiterate, taking into account the temporary or occasional nature of the service, that requirements, such as automatic temporary registration or pro forma membership of a professional organisation or body, prior declarations and document requirements, as well as the payment of a fee or any charges, should be proportionate. These requirements should not lead to a disproportionate burden on service providers nor should they hinder or render less attractive the exercise of the freedom to provide services. Member States should, in particular, assess whether the requirement to provide certain information and documents in accordance with Directive 2005/36/EC and the possibility of obtaining further details by way of administrative cooperation between Member States through the Internal Market Information System are proportionate and are sufficient to prevent a serious risk of circumvention of the applicable rules by service providers. This Directive should however not apply to measures designed to ensure compliance with applicable employment terms and conditions. (30) As confirmed by settled case-law, the health and life of humans ranks foremost among the interests protected by the TFEU. Consequently, Member States should duly take account of the objective of ensuring a high level of human health protection when assessing requirements for healthcare professions, such as reserved activities, protected professional title, continuous professional development or rules relating to the organisation of the profession, professional ethics and supervision, while respecting the minimum training conditions, laid down in Directive 2005/36/EC. Member States should in particular ensure that the regulation of healthcare professions, having public health and patient safety implications, is proportionate and contributes to the guaranteeing of access to healthcare, recognised as a fundamental right in the Charter, as well as to safe, high quality and efficient healthcare for citizens on their territory. In establishing policies for healthcare services, account should be taken of the need to ensure accessibility, a high quality of service, and an adequate and safe supply of medicinal products, in accordance with the public health needs in the territory of the Member State concerned, as well as of the need to ensure the professional independence of healthcare professionals. With regard to the justification for the regulation of healthcare professions, Member States should take into account the objective of ensuring a high level of human health protection, including accessibility and high quality of healthcare for citizens, and adequate and safe supply of medicinal products, taking into consideration the margin of discretion referred to in Article 1 of this Directive. (31) It is essential for the proper functioning of the internal market to ensure that Member States provide information to citizens, representative associations and other relevant stakeholders, including social partners, before introducing new, or amending existing, requirements restricting access to, or the pursuit of, regulated professions. Member States should involve all parties concerned and give them the opportunity to make their views known. Where relevant and appropriate, Member States should carry out public consultations in accordance with their national procedures. (32) Member States should also give full consideration to citizens’ rights of access to justice, as guaranteed by Article 47 of the Charter and Article 19(1) of the Treaty on European Union (TEU). It follows that, in accordance with procedures laid down in national law and constitutional principles, national courts should be able to assess the proportionality of requirements falling within the scope of this Directive, in order to ensure, for each natural or legal person, the right to an effective remedy against restrictions on the freedom to choose an occupation, on the freedom of establishment and on the freedom to provide services. (33) For the purposes of exchanging information on best practices, Member States should take the necessary measures to encourage the sharing of adequate and regularly updated information with other Member States on the regulation of professions, as well as on the effects of such regulation. The Commission should facilitate that exchange. (34) In order to increase transparency and to promote proportionality assessments based on comparable criteria, the information submitted by Member States, without prejudice to Article 346 TFEU, should be easily accessible in the database of regulated professions, in order to allow other Member States and interested parties to submit comments to the Commission and the Member State concerned. Those comments should be duly taken into account by the Commission in its summary report, produced in accordance with Directive 2005/36/EC. (35) Since the objectives of this Directive, namely to ensure the proper functioning of the internal market and to avoid disproportionate restrictions on access to, or the pursuit of, regulated professions, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives, HAVE ADOPTED THIS DIRECTIVE: Article 1 Subject matter This Directive lays down rules on a common framework for conducting proportionality assessments before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, with a view to ensuring the proper functioning of the internal market, while guaranteeing a high level of consumer protection. It does not affect the Member States’ competence, in the absence of harmonisation, and margin of discretion to decide whether and how to regulate a profession within the limits of the principles of non-discrimination and proportionality. Article 2 Scope 1. This Directive shall apply to the legislative, regulatory or administrative provisions of the Member States 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, falling within the scope of Directive 2005/36/EC. 2. Where specific requirements concerning the regulation of a given profession are established in a separate Union act which does not leave Member States a choice as to the exact way in which they are to be transposed, the corresponding provisions of this Directive shall not apply. Article 3 Definitions For the purpose of this Directive, the definitions of Directive 2005/36/EC apply. In addition, the following definitions apply: (a) ‘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; (b) ‘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. Article 4 Ex ante assessment of new measures and monitoring 1. Member States shall undertake an assessment of proportionality in accordance with the rules laid down in this Directive before introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions. 2. The extent of the assessment referred to in paragraph 1 shall be proportionate to the nature, the content and the impact of the provision. 3. Any provision referred to in paragraph 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 paragraph 1 is justified and proportionate shall be substantiated by qualitative and, wherever possible and relevant, quantitative elements. 5. Member States shall ensure that the assessment referred to in paragraph 1 is carried out in an objective and independent manner. 6. Member States shall monitor the compliance of new or amended legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, after adoption, with the principle of proportionality, having due regard to any developments that have occurred since the provisions concerned were adopted. Article 5 Non-discrimination When introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions, Member States shall ensure that those provisions are neither directly nor indirectly discriminatory on the basis of nationality or residence. Article 6 Justification on grounds of public interest objectives 1. Member States shall ensure that the legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions that they intend to introduce and that the amendments that they intend to make to existing provisions are justified by public interest objectives. 2. Member States shall consider in particular whether the provisions referred to in paragraph 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, regulated professions. Article 7 Proportionality 1. Member States shall ensure that the legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions that they introduce, and that the amendments that they make 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. To that end, before adopting the provisions referred to in paragraph 1, Member States shall consider: (a) 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; (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 for the attainment of the objective pursued; (c) 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; (d) the impact on the free movement of persons and services within the Union, on consumer choice and on the quality of the service provided; (e) 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, Member States shall assess in particular whether the objective can be attained by means that are less restrictive than reserving activities; (f) 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. Member States shall also consider the following elements where relevant to the nature and the content of the provision being introduced or amended: (a) the connection between the scope of activities covered by a profession or reserved to it and the professional qualification required; (b) 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; (c) the possibility of obtaining the professional qualification by alternative routes; (d) whether, and why, the activities reserved to certain professions can or cannot be shared with other professions; (e) 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; (f) the scientific and technological developments which may effectively reduce or increase the asymmetry of information between professionals and consumers. 3. For the purposes of point (f) of the first subparagraph of paragraph 2, Member States 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 within the meaning of point (a) of Article 3(1) of Directive 2005/36/EC; (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) territorial restrictions, including where the profession is regulated in parts of a Member State’s territory in a manner that is different to the way in which it is regulated in other parts; (h) requirements restricting the exercise of a regulated profession jointly or in partnership, as well as incompatibility rules; (i) requirements concerning insurance cover or other means of personal or collective protection with regard to professional liability; (j) language knowledge requirements, to the extent necessary to practise the profession; (k) fixed minimum and/or maximum tariff requirements; (l) requirements on advertising. 4. Before introducing new, or amending existing, provisions, Member States 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 Title II of Directive 2005/36/EC, including: (a) automatic temporary registration with or pro forma membership of a professional organisation or body, referred to in point (a) of the first paragraph of Article 6 of Directive 2005/36/EC; (b) a declaration to be made in advance pursuant to Article 7(1) of Directive 2005/36/EC, documents required pursuant to paragraph 2 of that Article 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, regulated professions which the service provider incurs. This paragraph shall not apply to measures designed to ensure compliance with applicable employment terms and conditions that Member States apply in accordance with Union law. 5. Where provisions referred to in this Article concern the regulation of healthcare professions and have patient safety implications, Member States shall take account of the objective of ensuring a high level of human health protection. Article 8 Information and involvement of stakeholders 1. Member States 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 introducing new, or amending existing, legislative, regulatory or administrative provisions restricting access to, or the pursuit of, regulated professions. 2. Member States shall appropriately involve all parties concerned and shall give them the opportunity to make their views known. Where relevant and appropriate, Member States shall carry out public consultations in accordance with their national procedures. Article 9 Effective remedy Member States shall ensure that an effective remedy is available with regard to the matters covered by this Directive, in accordance with procedures laid down in national law. Article 10 Exchange of information between Member States 1. For the purposes of the efficient application of this Directive, Member States shall take the necessary measures to encourage the exchange of information among Member States on matters covered by this Directive and on the particular way that they regulate a profession, or on the effects of such regulation. The Commission shall facilitate such exchange of information. 2. Member States shall inform the Commission of the public authorities responsible for transmitting and receiving information for the purposes of applying paragraph 1. Article 11 Transparency 1. The reasons for considering that provisions, assessed in accordance with this Directive, are justified and proportionate, which, together with the provisions, are to be communicated to the Commission pursuant to Article 59(5) of Directive 2005/36/EC, shall be recorded by the Member States in the database of regulated professions, referred to in Article 59(1) of Directive 2005/36/EC and shall be made publicly available by the Commission. 2. Member States and other interested parties may submit comments to the Commission or to the Member State which has communicated the provisions and the reasons for considering that they are justified and proportionate. These comments shall be duly taken into account by the Commission in its summary report produced pursuant to Article 59(8) of Directive 2005/36/EC. Article 12 Review 1. By 18 January 2024 and every five years thereafter, the Commission shall submit a report to the European Parliament and to the Council on the implementation and performance of this Directive, including, among other aspects, its scope and its effectiveness. 2. Where appropriate, the report referred to in paragraph 1 shall be accompanied by relevant proposals. Article 13 Transposition 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 30 July 2020. They shall immediately inform the Commission thereof. When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States. 2. Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive. Article 14 Entry into force This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. Article 15 Addressees This Directive is addressed to the Member States. Done at Brussels, 28 June 2018. For the European Parliament The President A. TAJANI For the Council The President L. PAVLOVA (1) OJ C 288, 31.8.2017, p. 43. (2) Position of the European Parliament of 14 June 2018 (not yet published in the Official Journal) and decision of the Council of 21 June 2018. (3) Judgement of the Court of Justice of 30 November 1995, Gebhard, C-55/94, ECLI:EU:C:1995:411, paragraph 37. (4) Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22).

Summary: Proportionality test for new regulation of professions Proportionality test for new regulation of professions SUMMARY OF: Directive (EU) 2018/958 — proportionality test before adoption of new regulation of professions WHAT IS THE AIM OF THE DIRECTIVE? It establishes rules for proportionality assessments to be conducted by EU countries before adopting new professional regulations or amending existing regulations. It aims to: prevent undue restrictions on access to or the pursuit of professional activities; ensure: transparency;the proper functioning of the internal market. KEY POINTS Regulated professions The directive applies to new rules in EU countries which restrict access to or the pursuit of regulated professions. A regulated profession means that the access to or the pursuit of a professional activity or group of professional activities is restricted, by regulation, to people having specific professional qualifications. This also covers the use of professional titles which are restricted to holders of specific qualifications. Public interest EU countries must ensure that any new or amending rules are justified and proportionate with regard to public interest objectives recognised by the Court of Justice of the European Union, such as: public policy, public security or public health; protecting consumers, the recipients of services, and workers; safeguarding the effectiveness of fiscal supervision; combating fraud and preventing tax evasion and avoidance; protection of the environment. Assessment of new measures beforehand and monitoring afterwards EU countries must: assess the proportionality of a measure before introducing new, or amending existing, legislative, regulatory or administrative rules; and monitor the compliance of such measures with the principle of proportionality after their adoption. Assessment The assessment must be: accompanied by a sufficiently detailed explanation which allows for an assessment of whether it complies with the principle of proportionality; undertaken on the basis of qualitative, and where possible, quantitative evidence; carried out in an open and objective manner. Proportionality In assessing the proportionality of new or amending rules, EU countries must consider a number of proportionality criteria established by the Court of Justice, including: whether the measure can achieve the public interest objective, and whether that objective is being pursued in a consistent and systematic manner for comparable activities; whether existing rules, such as product safety law or consumer protection law, are not able to achieve the objective; the impact on the free movement of persons and services within the EU, on consumer choice and on the quality of the service provided; whether less restrictive means could achieve the public interest objective; the effect of new rules when combined with other requirements. Transparency Before introducing new regulations, EU countries must: make information available to the relevant people concerned; and must give them the opportunity to make their views known. The reasons for proportionality need to be recorded in the Regulated Professions Database and made publicly available. FROM WHEN DOES THE DIRECTIVE APPLY? It has applied since 29 July 2018 and has to become law in the EU countries from 30 July 2020. BACKGROUND This directive is a part of the ‘Services package’ which aims to make it easier for companies and professionals to provide services to EU consumers. The package, published on 10 January 2017, contains two additional legislative proposals: Proposal for a services e-card (European Commission) Proposal for a services notification procedure (European Commission). MAIN DOCUMENT 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 (OJ L 173, 9.7.2018, pp. 25-34) RELATED DOCUMENT Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, pp. 22-142) Successive amendments to Directive 2005/36/EC have been incorporated into the original document. This consolidated version is of documentary value only. last update 10.10.2018


16.7.2018 EN Official Journal of the European Union L 179/1 REGULATION (EU) 2018/973 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 4 July 2018 establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea and repealing Council Regulations (EC) No 676/2007 and (EC) No 1342/2008 THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2) thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national parliaments, Having regard to the opinion of the European Economic and Social Committee (1), Acting in accordance with the ordinary legislative procedure (2), Whereas: (1) The United Nations Convention of 10 December 1982 on the Law of the Sea, to which the Union is a contracting party, provides for conservation obligations, including maintaining or restoring populations of harvested species at levels which can produce the maximum sustainable yield (‘MSY’). (2) At the United Nations Summit on Sustainable Development held in New York in 2015, the Union and its Member States committed themselves, by 2020, to effectively regulate harvesting, to end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices, and to implement science-based management plans, in order to restore fish stocks, in the shortest time feasible, at least to levels that can produce MSY as determined by their biological characteristics. (3) Regulation (EU) No 1380/2013 of the European Parliament and of the Council (3) establishes the rules of the Common Fisheries Policy (‘CFP’) in line with the international obligations of the Union. The CFP is to contribute to the protection of the marine environment, the sustainable management of all commercially exploited species and in particular the achievement of good environmental status by 2020, as set out in Article 1(1) of Directive 2008/56/EC of the European Parliament and of the Council (4). (4) The objectives of the CFP are, inter alia, to ensure that fishing and aquaculture are environmentally sustainable in the long term, to apply the precautionary approach to fisheries management and to implement the ecosystem-based approach to fisheries management. (5) To achieve the objectives of the CFP, a number of conservation measures are to be adopted, as appropriate, in any combination thereof, such as multiannual plans, technical measures, fixing and allocation of fishing opportunities. (6) Pursuant to Articles 9 and 10 of Regulation (EU) No 1380/2013, multiannual plans are to be based on scientific, technical and economic advice. In accordance with those provisions, the multiannual plan established by this Regulation (‘the plan’) should contain objectives, quantifiable targets with clear timeframes, conservation reference points, safeguards and technical measures designed to avoid and reduce unwanted catches. (7) The ‘best available scientific advice’ should be understood to refer to publicly available scientific advice that is supported by the most up-to-date scientific data and methods and that has either been issued or reviewed by an independent scientific body that is recognised at Union or international level. (8) The Commission should obtain the best available scientific advice for the stocks falling within the scope of the plan. In order to do so, it concludes Memoranda of Understanding with the International Council for the Exploration of the Sea (ICES). The scientific advice issued by ICES should be based on the plan and should indicate, in particular, ranges of FMSY and biomass reference points, i.e. MSY Btrigger and Blim. Those values should be indicated in the relevant stock advice and, where appropriate, in any other publicly-available scientific advice, including, for example, in mixed fisheries advice issued by ICES. (9) Council Regulations (EC) No 676/2007 (5) and (EC) No 1342/2008 (6) set out the rules for the sustainable exploitation of the stocks of cod, plaice and sole in the North Sea and its adjacent waters. Those and other demersal stocks are taken in mixed fisheries. Therefore, it is appropriate to establish a single multiannual plan taking into account such technical interactions. (10) In addition, such a multiannual plan should apply to demersal stocks and their fisheries in the North Sea. Those are roundfish, flatfish and cartilaginous fish species, Norway lobster (Nephrops norvegicus) and Northern prawn (Pandalus borealis) that live at or near the bottom of the water column. (11) Some demersal stocks are exploited both in the North Sea and in its adjacent waters. Therefore the scope of the provisions of the plan relating to targets and safeguards for stocks that are mainly exploited in the North Sea should be extended so that they also cover those areas outside the North Sea. In addition, for stocks which are present in the North Sea, but which are mainly exploited outside the North Sea, it is necessary to establish the targets and safeguards in multiannual plans for areas outside the North Sea where those stocks are mainly exploited, extending the scope of those multiannual plans so that they also cover the North Sea. (12) The geographical scope of the plan should be based on the geographical distribution of stocks indicated in the latest scientific stock advice provided by ICES. Future changes to the geographical distribution of stocks as set out in the plan may be needed either due to improved scientific information or due to migration of stocks. Therefore, the Commission should be empowered to adopt delegated acts adjusting the geographical distribution of stocks set out in the plan if the scientific advice provided by ICES indicates a change in the geographical distribution of the relevant stocks. (13) Where stocks of common interest are also exploited by third countries, the Union should engage with those third countries with a view to ensuring that those stocks are managed in a sustainable manner that is consistent with the objectives of Regulation (EU) No 1380/2013, in particular Article 2(2) thereof, and of this Regulation. Where no formal agreement is reached, the Union should make every effort to reach common arrangements for fishing of such stocks with a view to making sustainable management possible, thereby promoting a level-playing field for Union operators. (14) The objective of the plan should be to contribute to the achievement of the objectives of the CFP, and in particular to reaching and maintaining MSY for the target stocks implementing the landing obligation for demersal stocks subject to catch limits, to promoting a fair standard of living for those who depend on fishing activities, bearing in mind coastal fisheries and socioeconomic aspects, and to implementing the ecosystem-based approach to fisheries management. The plan should also specify details for the implementation of the landing obligation in Union waters of the North Sea for all stocks of species to which the landing obligation applies under Article 15 of Regulation (EU) No 1380/2013. (15) Article 16(4) of Regulation (EU) No 1380/2013 requires that fishing opportunities be fixed in accordance with the objectives set out in Article 2(2) thereof and comply with the targets, time frames and margins established in the multiannual plans. (16) It is appropriate to establish the target fishing mortality (‘F’) that corresponds to the objective of reaching and maintaining MSY as ranges of values which are consistent with achieving MSY (FMSY). Those ranges, based on the best available scientific advice, are necessary in order to provide the flexibility to take account of developments in scientific advice, to contribute to the implementation of the landing obligation and to take into account the characteristics of mixed fisheries. The ranges of FMSY should be calculated and provided by ICES, in particular in its periodic catch advice. Based on the plan, they are derived to deliver no more than a 5 % reduction in long-term yield compared to MSY, as set out in ICES' response to the ‘EU request to ICES to provide ranges of FMSY for selected North Sea and Baltic Sea Stocks’. The upper limit of the range is capped, so that the probability of the stock falling below Blim is no more than 5 %. That upper limit also conforms to the ICES advice rule, which indicates that when the spawning biomass or abundance is in a poor state, F is to be reduced to a value that does not exceed an upper limit equal to the FMSY point value multiplied by the spawning biomass or abundance in the total allowable catch (TAC) year divided by MSY Btrigger. ICES uses those considerations and the advice rule in its provision of scientific advice on fishing mortality and catch options. (17) For the purposes of fixing fishing opportunities, there should be an upper threshold for ranges of FMSY in normal use and, provided that the stock concerned is considered to be in a good state, an upper limit for certain cases. It should be possible to fix fishing opportunities at the upper limit only if, on the basis of scientific advice or evidence, it is necessary to achieve the objectives of this Regulation in mixed fisheries or necessary to avoid harm to a stock caused by intra- or inter-species stock dynamics, or in order to limit the year-to-year variations in fishing opportunities. (18) For stocks for which targets relating to MSY are available, and for the purpose of the application of safeguard measures, it is necessary to establish conservation reference points expressed as trigger spawning biomass levels for fish stocks, and trigger abundance levels for Norway lobster. (19) Appropriate safeguard measures should be provided for in case the stock size falls below those levels. Safeguard measures should include the reduction of fishing opportunities and specific conservation measures when scientific advice states that remedial measures are needed. Those measures should be supplemented by all other appropriate measures such as Commission measures in accordance with Article 12 of Regulation (EU) No 1380/2013 or Member State measures in accordance with Article 13 of that Regulation. (20) It should be possible to set the TAC for Norway lobster in ICES division 2a and subarea 4 as the sum of the catch limits established for each functional unit and of the statistical rectangles outside the functional units within that TAC area. However, this should not preclude the adoption of measures to protect specific functional units. (21) Where the Council takes into account a significant impact of recreational fisheries in the framework of the fishing opportunities for a certain stock, it should be able to set a TAC for commercial catches which takes into account the volume of recreational catches and/or to adopt other measures restricting recreational fisheries such as bag limits and closure periods. (22) In order to comply with the landing obligation established by Article 15(1) of Regulation (EU) No 1380/2013, the plan should provide for additional management measures to be further specified in accordance with Article 18 of that Regulation. (23) In order to avoid the disruptive dislocation of fishing activity which could have a negative impact on the state of the cod stocks, it is appropriate to maintain the system of fishing authorisations linked to a limitation of the total capacity of fishing vessels' engine power in ICES division 7d, as previously applicable under Regulation (EC) No 1342/2008. (24) The deadline for submitting joint recommendations from Member States having a direct management interest should be established, as required by Regulation (EU) No 1380/2013. (25) In accordance with Article 10(3) of Regulation (EU) No 1380/2013, provisions should be established for the assessment by the Commission, by 6 August 2023 and every five years thereafter, of the adequacy and effectiveness of the application of this Regulation based on scientific advice. That period allows for the full implementation of the landing obligation, and for regionalised measures to be adopted, implemented and to show effects on the stocks and fisheries. It is also the minimum period required by scientific bodies. (26) In order to adapt to technical and scientific progress in a timely and proportionate manner, to ensure flexibility and to allow for the evolution of certain measures, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of supplementing this Regulation as regards adjustments concerning the stocks covered by this Regulation following changes in the geographical distribution of the stocks, remedial measures and implementation of the landing obligation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (7). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. (27) In order to provide legal certainty, it is appropriate to clarify that temporary cessation measures that have been adopted in order to attain the objectives of the plan can be deemed eligible for support under Regulation (EU) No 508/2014 of the European Parliament and of the Council (8). (28) Regulations (EC) No 676/2007 and (EC) No 1342/2008 should be repealed, HAVE ADOPTED THIS REGULATION: CHAPTER I SUBJECT MATTER, SCOPE AND DEFINITIONS Article 1 Subject-matter and scope 1. This Regulation establishes a multiannual plan (‘the plan’) for the following demersal stocks in Union waters of the North Sea (ICES divisions 2a, 3a and subarea 4), including the fisheries exploiting those stocks, and, where those stocks extend beyond the North Sea, in its adjacent waters: (a) Cod (Gadus morhua) in subarea 4 (North Sea) and divisions 7d (Eastern Channel) and 3a.20 (Skagerrak); (b) Haddock (Melanogrammus aeglefinus) in subarea 4 (North Sea) and divisions 6a (West of Scotland) and 3a.20 (Skagerrak); (c) Plaice (Pleuronectes platessa) in subarea 4 (North Sea) and division 3a.20 (Skagerrak); (d) Saithe (Pollachius virens) in subareas 4 (North Sea) and 6 (Rockall and West of Scotland) and division 3a (Skagerrak and Kattegat); (e) Sole (Solea solea) in subarea 4 (North Sea); (f) Sole (Solea solea) in division 3a (Skagerrak and Kattegat) and subdivisions 22–24 (Western Baltic Sea); (g) Whiting (Merlangius merlangus) in subarea 4 (North Sea) and division 7d (Eastern English Channel); (h) Anglerfish (Lophius piscatorius) in division 3a (Skagerrak and Kattegat) and subareas 4 (North Sea) and 6 (Rockall and West of Scotland); (i) Northern Prawn (Pandalus borealis) in divisions 4a East (Northern North Sea, Norwegian Deep) and 3a.20 (Skagerrak); (j) Norway lobster (Nephrops norvegicus) in division 3a (Functional Units 3-4); (k) Norway lobster in subarea 4 (North Sea) by Functional Unit: — Norway lobster in Botney Gut-Silver Pit (Functional Unit 5); — Norway lobster in Farn Deeps (Functional Unit 6); — Norway lobster in Fladen Ground (Functional Unit 7); — Norway lobster in Firth of Forth (Functional Unit 8); — Norway lobster in Moray Firth (Functional Unit 9); — Norway lobster in Noup (Functional Unit 10); — Norway lobster in Norwegian Deeps (Functional Unit 32); — Norway lobster in Horn's Reef (Functional Unit 33); — Norway lobster in Devil's Hole (Functional Unit 34). Where scientific advice indicates a change in the geographical distribution of the stocks listed in the first subparagraph of this paragraph, the Commission may adopt delegated acts in accordance with Article 16 amending this Regulation by adjusting the areas listed in the first subparagraph of this paragraph in order to reflect that change. Such adjustments shall not extend the stock areas beyond Union waters of subareas 2 to 7. 2. Where, on the basis of scientific advice, the Commission considers that the list of stocks set out in the first subparagraph of paragraph 1 needs to be amended, the Commission may submit a proposal for the amendment of that list. 3. With respect to adjacent waters referred to in paragraph 1 of this Article, only Articles 4 and 6 and the measures related to fishing opportunities under Article 7 shall apply. 4. This Regulation also applies to by-catches caught in the North Sea when fishing for the stocks listed in the first subparagraph of paragraph 1. However, where ranges of FMSY and safeguards linked to biomass are established for those stocks under other Union legal acts establishing multiannual plans, those ranges and safeguards shall apply. 5. This Regulation also specifies details for the implementation of the landing obligation in Union waters of the North Sea for all stocks of species to which the landing obligation applies under Article 15 of Regulation (EU) No 1380/2013. Article 2 Definitions For the purposes of this Regulation, the following definitions apply in addition to those laid down in Article 3 of Council Regulation (EC) No 850/98 (9), Article 4 of Council Regulation (EC) No 1224/2009 (10) and Article 4 of Regulation (EU) No 1380/2013: (1) ‘Range of FMSY’ means a range of values provided for in the best available scientific advice, in particular by the International Council on the Exploration of the Sea (ICES), where all levels of fishing mortality within that range result in maximum sustainable yield (MSY) in the long term with a given fishing pattern and under current average environmental conditions without significantly affecting the reproduction process for the stock in question. It is derived to deliver no more than a 5 % reduction in long-term yield compared to the MSY. It is capped so that the probability of the stock falling below the limit spawning stock biomass reference point (Blim) is no more than 5 %; (2) ‘MSY Flower’ means the lowest value within the range of FMSY; (3) ‘MSY Fupper’ means the highest value within the range of FMSY; (4) ‘FMSY point value’ is the value of the estimated fishing mortality that with a given fishing pattern and under current average environmental conditions gives the long-term MSY; (5) ‘Lower range of FMSY’ means a range that contains values from MSY Flower up to FMSY point value; (6) ‘Upper range of FMSY’ means a range that contains values from FMSY point value up to MSY Fupper; (7) ‘Blim’ means the spawning stock biomass reference point provided for in the best available scientific advice, in particular by ICES, below which there may be reduced reproductive capacity; (8) ‘MSY Btrigger’ means the spawning stock biomass and, in the case of Norway lobster stocks, the abundance reference point provided for in the best available scientific advice, in particular by ICES, below which specific and appropriate management action is to be taken to ensure that exploitation rates in combination with natural variations rebuild stocks above levels capable of producing MSY in the long term. CHAPTER II OBJECTIVES Article 3 Objectives 1. The plan shall contribute to the achievement of the objectives of the common fisheries policy listed in Article 2 of Regulation (EU) No 1380/2013, in particular by applying the precautionary approach to fisheries management, and shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce MSY. 2. The plan shall contribute to the elimination of discards, by avoiding and reducing, as far as possible, unwanted catches, and to the implementation of the landing obligation established in Article 15 of Regulation (EU) No 1380/2013 for the species which are subject to catch limits and to which this Regulation applies. 3. The plan shall implement the ecosystem-based approach to fisheries management in order to ensure that negative impacts of fishing activities on the marine ecosystem are minimised. It shall be coherent with Union environmental legislation, in particular with the objective of achieving good environmental status by 2020 as set out in Article 1(1) of Directive 2008/56/EC. 4. In particular, the plan shall aim to: (a) ensure that the conditions described in descriptor 3 contained in Annex I to Directive 2008/56/EC are fulfilled; and (b) contribute to the fulfilment of other relevant descriptors contained in Annex I to Directive 2008/56/EC in proportion to the role played by fisheries in their fulfilment. 5. Measures under the plan shall be taken in accordance with the best available scientific advice. Where there is insufficient data, a comparable degree of conservation of the relevant stocks shall be pursued. CHAPTER III TARGETS Article 4 Targets 1. The target fishing mortality, in line with the ranges of FMSY defined in Article 2, shall be achieved as soon as possible, and on a progressive, incremental basis by 2020 for the stocks listed in Article 1(1), and shall be maintained thereafter within the ranges of FMSY, in accordance with this Article. 2. The ranges of FMSY based on the plan shall be requested from ICES. 3. In accordance with Article 16(4) of Regulation (EU) No 1380/2013, when the Council fixes fishing opportunities for a stock, it shall establish those opportunities within the lower range of FMSY available at that time for that stock. 4. Notwithstanding paragraphs 1 and 3, fishing opportunities for a stock may be fixed at levels that are lower than the ranges of FMSY. 5. Notwithstanding paragraphs 3 and 4, fishing opportunities for a stock may be fixed in accordance with the upper range of FMSY available at that time for that stock, provided that the stock referred to in Article 1(1) is above MSY Btrigger: (a) if, on the basis of scientific advice or evidence, it is necessary for the achievement of the objectives laid down in Article 3 in the case of mixed fisheries; (b) if, on the basis of scientific advice or evidence, it is necessary to avoid serious harm to a stock caused by intra- or inter-species stock dynamics; or (c) in order to limit variations in fishing opportunities between consecutive years to not more than 20 %. 6. Fishing opportunities shall in any event be fixed in such a way as to ensure that there is less than a 5 % probability of the spawning stock biomass falling below Blim. Article 5 Management of by-catch stocks 1. For the stocks referred to in Article 1(4), management measures including, where appropriate, fishing opportunities, shall be set taking into account the best available scientific advice and shall be consistent with the objectives laid down in Article 3. 2. Those stocks shall be managed under the precautionary approach to fisheries management as defined in point 8 of Article 4(1) of Regulation (EU) No 1380/2013 when no adequate scientific information is available. 3. In accordance with Article 9(5) of Regulation (EU) No 1380/2013, the management of mixed fisheries with regard to stocks referred to in Article 1(4) of this Regulation shall take into account the difficulty of fishing all stocks at MSY at the same time, especially in situations where that leads to a premature closure of the fishery. CHAPTER IV SAFEGUARDS Article 6 Conservation reference points The following conservation reference points to safeguard the full reproductive capacity of the stocks referred to in Article 1(1) shall be requested from ICES based on the plan: (a) MSY Btrigger for stocks referred to in Article 1(1); (b) Blim for stocks referred to in Article 1(1). Article 7 Safeguards 1. When scientific advice indicates that, for a given year, the spawning stock biomass and, in the case of Norway lobster stocks, the abundance of any of the stocks referred to in Article 1(1) are below MSY Btrigger, all appropriate remedial measures shall be adopted to ensure rapid return of the stock or functional unit concerned to levels above those capable of producing MSY. In particular, by way of derogation from Article 4(3) and (5), fishing opportunities shall be fixed at levels consistent with a fishing mortality that is reduced below the upper range of FMSY, taking into account the decrease in biomass. 2. When scientific advice indicates that the spawning stock biomass and, in the case of Norway lobster stocks, the abundance of any of the stocks referred to in Article 1(1) are below the Blim, further remedial measures shall be taken to ensure rapid return of the stock or functional unit concerned to levels above those capable of producing MSY. In particular, those remedial measures may include, by way of derogation from Article 4(3) and (5), suspending the targeted fishery for the stock or functional unit concerned and the adequate reduction of fishing opportunities. 3. Remedial measures referred to in this Article may include: (a) emergency measures in accordance with Articles 12 and 13 of Regulation (EU) No 1380/2013; (b) measures pursuant to Articles 8 and 9 of this Regulation. 4. The choice of measures referred to in this Article shall be made taking into account the nature, seriousness, duration and repetition of the situation where the spawning stock biomass and, in the case of Norway lobster stocks, the abundance are below the levels referred to in Article 6. Article 8 Specific conservation measures When scientific advice indicates that remedial action is required for the conservation of any of the demersal stocks referred to in Article 1(4) of this Regulation, or when the spawning stock biomass and, in the case of Norway lobster stocks, the abundance of any of the stocks covered by Article 1(1) for a given year are below MSY Btrigger, the Commission is empowered to adopt delegated acts in accordance with Article 16 of this Regulation and Article 18 of Regulation (EU) No 1380/2013. Such delegated acts may supplement this Regulation by laying down rules regarding: (a) characteristics of fishing gear, in particular mesh size, hook size, construction of the gear, twine thickness, size of the gear or use of selectivity devices to ensure or improve selectivity; (b) use of the fishing gear, in particular immersion time, depth of gear deployment, to ensure or improve selectivity; (c) prohibition or limitation to fish in specific areas to protect spawning and juvenile fish, fish below the minimum conservation reference size or non-target fish species; (d) prohibition or limitation on fishing or the use of certain types of fishing gear during specific time periods, to protect spawning fish, fish below the minimum conservation reference size or non-target fish species; (e) minimum conservation reference sizes, to ensure the protection of juveniles of marine organisms; (f) other characteristics linked to selectivity. CHAPTER V TECHNICAL MEASURES Article 9 Technical measures 1. The Commission is empowered to adopt delegated acts in accordance with Article 16 of this Regulation and Article 18 of Regulation (EU) No 1380/2013 in order to supplement this Regulation regarding the following technical measures: (a) specifications of characteristics of fishing gears and rules governing their use, to ensure or to improve selectivity, to reduce unwanted catches or to minimise the negative impact on the ecosystem; (b) specifications of modifications or additional devices to the fishing gears, to ensure or to improve selectivity, to reduce unwanted catches or to minimise the negative impact on the ecosystem; (c) limitations or prohibitions on the use of certain fishing gears and on fishing activities, in certain areas or periods to protect spawning fish, fish below the minimum conservation reference size or non-target fish species, or to minimise the negative impact on the ecosystem; and (d) the fixing of minimum conservation reference sizes for any of the stocks to which this Regulation applies, to ensure the protection of juveniles of marine organisms. 2. The measures referred to in paragraph 1 of this Article shall contribute to the achievement of the objectives set out in Article 3. CHAPTER VI FISHING OPPORTUNITIES Article 10 Fishing opportunities 1. When allocating fishing opportunities available to them in accordance with Article 17 of Regulation (EU) No 1380/2013, Member States shall take account of the likely catch composition of vessels participating in mixed fisheries. 2. Member States may, after notifying the Commission, exchange all or part of the fishing opportunities allocated to them pursuant to Article 16(8) of Regulation (EU) No 1380/2013. 3. Without prejudice to Article 7 of this Regulation, the TAC for the stock of Norway lobster in ICES zones 2a and 4 may be the sum of the catch limits of the functional units and of the statistical rectangles outside the functional units. 4. When scientific advice indicates that recreational fisheries have a significant impact on the fishing mortality of a particular stock, the Council shall take them into account and may limit recreational fisheries when fixing fishing opportunities in order to avoid exceeding the total target of fishing mortality. CHAPTER VII PROVISIONS LINKED TO THE LANDING OBLIGATION Article 11 Provisions linked to the landing obligation in Union waters of the North Sea For all stocks of species in the North Sea to which the landing obligation applies under Article 15(1) of Regulation (EU) No 1380/2013, the Commission is empowered to adopt delegated acts in accordance with Article 16 of this Regulation and Article 18 of Regulation (EU) No 1380/2013 in order to supplement this Regulation by specifying details of that obligation as provided for in points (a) to (e) of Article 15(5) of Regulation (EU) No 1380/2013. CHAPTER VIII ACCESS TO WATERS AND RESOURCES Article 12 Fishing authorisations and capacity ceilings 1. For each of the ICES zones referred to in Article 1(1) of this Regulation, each Member State shall issue fishing authorisations in accordance with Article 7 of Regulation (EC) No 1224/2009 for vessels flying its flag and which engage in fishing activities in that area. In such fishing authorisations, Member States may also limit the total capacity expressed in kW of such vessels using a specific gear. 2. For cod in the Eastern Channel (ICES division 7d), without prejudice to the capacity ceilings set out in Annex II to Regulation (EU) No 1380/2013, the total capacity expressed in kW of the vessels having fishing authorisations issued in accordance with paragraph 1 of this Article shall not be greater than the maximum capacity of the vessels that have been active in 2006 or 2007 using one of the following gears in the ICES zone concerned: (a) bottom trawls and seines (OTB, OTT, PTB, SDN, SSC, SPR) of mesh: (i) equal to or larger than 100 mm; (ii) equal to or larger than 70 mm and less than 100 mm; (iii) equal to or larger than 16 mm and less than 32 mm; (b) beam trawls (TBB) of mesh: (i) equal to or larger than 120 mm; (ii) equal to or larger than 80 mm and less than 120 mm; (c) gill nets, entangling nets (GN); (d) trammel nets (GT); (e) longlines (LL). 3. Each Member State shall establish and maintain a list of vessels holding the fishing authorisation referred to in paragraph 1 and make it available on its official website to the Commission and the other Member States. CHAPTER IX MANAGEMENT OF STOCKS OF COMMON INTEREST Article 13 Principles and objectives of management of stocks of common interest to the Union and third countries 1. Where stocks of common interest are also exploited by third countries, the Union shall engage with those third countries with a view to ensuring that those stocks are managed in a sustainable manner that is consistent with the objectives of Regulation (EU) No 1380/2013, in particular Article 2(2) thereof, and of this Regulation. Where no formal agreement is reached, the Union shall make every effort to reach common arrangements for fishing of such stocks with a view to making sustainable management possible, thereby promoting a level-playing field for Union operators. 2. In the context of the joint management of stocks with third countries, the Union may exchange fishing opportunities with third countries pursuant to Article 33(2) of Regulation (EU) No 1380/2013. CHAPTER X REGIONALISATION Article 14 Regional cooperation 1. Article 18(1) to (6) of Regulation (EU) No 1380/2013 shall apply to measures referred to in Articles 8, 9 and 11 of this Regulation. 2. For the purpose of paragraph 1 of this Article, Member States having a direct management interest may submit joint recommendations in accordance with Article 18(1) of Regulation (EU) No 1380/2013 for the first time not later than 6 August 2019 and thereafter 12 months after each submission of the evaluation of the plan in accordance with Article 15 of this Regulation. They may also submit such recommendations when deemed necessary by them, in particular in the event of an abrupt change in the situation for any of the stocks to which this Regulation applies. Joint recommendations in respect of measures concerning a given calendar year shall be submitted no later than 1 July of the previous year. 3. The empowerments granted under Articles 8, 9 and 11 of this Regulation shall be without prejudice to powers conferred to the Commission under other provisions of Union law, including under Regulation (EU) No 1380/2013. CHAPTER XI FOLLOW UP Article 15 Evaluation of the plan By 6 August 2023 and every five years thereafter, the Commission shall report to the European Parliament and to the Council on the results and impact of the plan on the stocks to which this Regulation applies and on the fisheries exploiting those stocks, in particular as regards the achievement of the objectives set out in Article 3. CHAPTER XII PROCEDURAL PROVISIONS Article 16 Exercise of the delegation 1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article. 2. The delegation of power referred to in Article 1(1) and Articles 8, 9 and 11 shall be conferred on the Commission for a period of five years from 5 August 2018. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period. 3. The delegation of power referred to in Article 1(1) and Articles 8, 9 and 11 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force. 4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. 5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council. 6. A delegated act adopted pursuant to Article 1(1) and Articles 8, 9 and 11 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council. CHAPTER XIII SUPPORT FROM THE EUROPEAN MARITIME AND FISHERIES FUND Article 17 Support from the European Maritime and Fisheries Fund Temporary cessation measures adopted in order to achieve the objectives of the plan shall be deemed as a temporary cessation of fishing activities for the purposes of points (a) and (c) of Article 33(1) of Regulation (EU) No 508/2014. CHAPTER XIV FINAL PROVISIONS Article 18 Repeals 1. Regulations (EC) No 676/2007 and (EC) No 1342/2008 are repealed. 2. References made to the repealed Regulations shall be construed as references to this Regulation. Article 19 Entry into force This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Strasbourg, 4 July 2018. For the European Parliament The President A. TAJANI For the Council The President K. EDTSTADLER (1) OJ C 75, 10.3.2017, p. 109. (2) Position of the European Parliament of 29 May 2018 (not yet published in the Official Journal) and decision of the Council of 18 June 2018. (3) Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22). (4) Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19). (5) Council Regulation (EC) No 676/2007 of 11 June 2007 establishing a multiannual plan for fisheries exploiting stocks of plaice and sole in the North Sea (OJ L 157, 19.6.2007, p. 1). (6) Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks and repealing Regulation (EC) No 423/2004 (OJ L 348, 24.12.2008, p. 20). (7) OJ L 123, 12.5.2016, p. 1. (8) Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council (OJ L 149, 20.5.2014, p. 1). (9) Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ L 125, 27.4.1998, p. 1). (10) Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1). Joint Statement by the European Parliament and the Council on prohibited species The Regulation to be adopted on the basis of the Commission proposal on the conservation of fishery resources and the protection of marine ecosystems through technical measures (2016/0074(COD)) should contain provisions, inter alia, on the species for which fishing is prohibited. For that reason the two institutions have agreed not to include a list concerning the North Sea in this Regulation (2016/0238(COD)). Joint Statement by the European Parliament and the Council on control The European Parliament and the Council will include the following control provisions in the upcoming review of the Control Regulation (Regulation (EC) No 1224/2009) where relevant to the North Sea: prior notifications, logbook requirements, designated ports, and other control provisions.

Summary: Demersal stocks in the North Sea — Multiannual plan Demersal stocks in the North Sea — Multiannual plan SUMMARY OF: Regulation (EU) 2018/973 — establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea WHAT IS THE AIM OF THE REGULATION? It establishes a multiannual plan for demersal* fish populations in the North Sea and the fisheries catching them. KEY POINTS Scope Demersal fish species covered by this regulation include: cod; haddock; plaice; saithe; sole; whiting; anglerfish; northern prawn; Norway lobster. It also covers by-catches* caught when fishing for one of the listed species. Objectives The plan aims to: help the EU and EU countries meet the objectives of the common fisheries policy (CFP), and in particular to ensure that fish species are caught sustainably; contribute to eliminating fish discards* at sea by avoiding and reducing unwanted catches and by implementing the landing obligation for the fish species covered; implement the ecosystem approach to fisheries management to minimise any negative impacts of fishing on the marine environment. It includes: quantifiable targets with clear timeframes; conservation reference points to ensure fish populations can reproduce fully; safeguard measures; technical measures to avoid and reduce unwanted catches; rules on access to waters and resources; principles for managing stocks of common interest to the EU and non-EU countries; strengthened regional cooperation providing a voice to local fisheries; authorisation for the European Commission, on the basis of scientific advice, to adopt delegated acts, to adapt the geographical distribution of the stocks provided for in the plan and to submit a proposal to amend the list of stocks. FROM WHEN DOES THE REGULATION APPLY? It has applied since 5 August 2018. BACKGROUND The EU is a party to the UN Convention on the Law of the Sea. The EU fisheries control system ensures that rules of the CFP are respected. KEY TERMS Demersal: fish species which live on or close to the sea bed. By-catch: unwanted fish and marine species caught unintentionally. Discarding: practice of returning unwanted catches to the sea, either dead or alive, because they are undersized, due to market demand, the fisherman has no quota or because catch composition rules impose this MAIN DOCUMENT Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea and repealing Council Regulations (EC) No 676/2007 and (EC) No 1342/2008 (OJ L 179, 16.7.2018, pp. 1-13) Successive amendments to Regulation (EU) 2018/973 have been incorporated into the original document. This consolidated version is of documentary value only. RELATED DOCUMENTS Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, pp. 22-61) See consolidated version. Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, pp. 1-50) See consolidated version. Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, pp. 19-40) See consolidated version. last update 20.08.2019