From a legal point of view, the following points need to be addressed:
1. Definition of "Liberal Professions"
- How do the member states define the term "liberal professions" and how do these definitions differ from each other?
- Which professions and which groups of professions are considered liberal professions?
- Are liberal professions classed with regulated professions?
- If a professions is considered to be a liberal profession, what are the consequences in the different member states?
2. Ways to Regulate the Liberal Professions
There are two ways to regulate liberal professions: the proscricptive and prescriptive method that is mostly used in Germany and the "principle-based regulation" which can be found in the Anglo-American legal systems. The latter is also implemented by the European Union. The "principle-based regulation" approach refrains from passing detailed regulation; rather, there exist only very general principles the professions are asked to adhere to ("outcome based regulation"), e.g. impartiality or discretion. The consumer is protected by an information obligation imposed on the professionals. This way, the consumer is supposed to be aware of any risks commissioning that service provides might entail. The customer can then make the decisions which provider to commission accordingly.
The information based approach is often preferred because it is just as effective but also intitiates competetition among service providers. This, in turn, is leading to a higher quality of services and to better prices.
3. Functionality of Regulatory Measures
- Are there any overarching principles the professions adhere to, such as impartiality, discretion, no collusion? Are there measures to enforce adherence to these principles?
- Are there any specific professional duties?
- What kind of ways are there for members of liberal professions to form an organisational body? Are there limitations?
- Is there are restriction interprofessional cooperation?
- Are equity investments in a professional-practice firm by professionals allowed? What about non-professionals?
- Do official scales of fees exist? How is renumeration regulated?
- Are there any special rules regarding liability?
4. Reasonability of Regulatory Measure
For a regulatory measure to be reasonable in constitutional and European law, it is not sufficient for it to simply be in the interest of the public. Rather, any intervention on professional freedom needs to be proportionate. This is the case if the regulatory measure is the most effective way to serve an objective of common good. This is measured by keeping in mind the need for quality control - to solely consider the usefulness of a measure is not sufficing.
5. Professional Supervision/Legal Protection
- Are there self-regulatory professional bodies in the member states?
- What professions are included?
- What are the competences and tasks of those bodies?
- Are there any other ways for professionals to organise themselves?