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Augenoptikermeister (Germany)

  • Proportionality information

    1. Have you examined whether the requirements under your national legal system are
    directly or indirectly discriminatory on the basis of nationality or residence?
       The existing regulations of national crafts sector law satisfy both the requirements of German constitutional law as well as European Community law. They are neither directly nor indirectly discriminatory according to the criteria developed by the European Court of Justice for the free movement of persons in the Community law. The rules are subject to continuous review with regard to these requirements.

    2. Which of the following overriding reasons relating to the general interest justifies the measure(s)?
    • Public health
    • Protection of consumers and recipients of services
    • Other, please specify
       Securing skilled labour, training, innovation and performance capacity; • Performance and training capacity of the craft sector.

    3. What specific risks or benefits have you identified that your measure(s) is designed to, respectively, minimise or maximise?

       Please try to be specific in describing the nature of the risks/benefits you have identified
       Where you have selected more than one overriding reason relating to the general interest in question 2 please be sure to address each of these in your response. Wherever possible please include evidence.

       Lawmakers have been guided by various points of view when drafting the licensing requirement for crafts professions, which also includes the electrical engineering and optician trades. To name a few here in particular are avoiding potential hazards for consumers, ensuring training capacity in the interest of crafts and in the interest of the economy as a whole (roughly 60 percent of the trained skilled workers move into industry) as well as the securing the innovation and performance of an economic sector, which is largely composed of businesses that fall into the category of micro-enterprises as defined by the Commission Recommendation of May 6, 2003 (2003/361/EC). The regulatory approach in the craft sector, which is tied in with a licensing requirement and thus with skill requirements, serves to ward off risks to third parties. A manager with masterly expertise is able to pre-emptively avoid hazards when performing a trade. He can instruct and supervise the employees working for the business and when needed intervene. Lower skill requirements are not sufficient for hazard prevention. Such is the case for alternative concepts of hazard prevention be it in the form of certifications, accident prevention and occupational safety regulations, hygiene rules, provisions for consumer protection or civil liability regimes. The national legislature is pursuing preventive consumer protection through precautionary hazard prevention by regulating certain craft professions with dangerous activities. This system of certified qualification with a preventive control of business activity is preferable, since a creation of concrete hazards is minimized for important legal assets. Proven ability by means of regulating certain activities can effectively counter both the risk to third parties and also the risk to employees. Preventive consumer protection is more efficient, less bureaucratic and more cost effective than any repressive control. The preservation of the performance level and performance capabilities of the craft sector with its mainly micro-business structures is another important Community asset. The focus here is on maintaining the quality of service of crafts, the economic stability of the structures and securing a well-educated younger generation. Ensuring quality training in the interest of the overall economy leads to manifold positive effects. With a training capacity that is more than twice as high as in other sectors (industry, trade; administration), the regulated craft sector makes an important contribution to the low 7% youth unemployment in Germany. Through vocational training, the ability to integrate young people into the labour market is ensured. This particularly applies to young people with less qualifying secondary school diplomas. Training improves professional development opportunities, allows for higher incomes and gives a high degree of protection against unemployment as well as better opportunities for reintegration into the labour market in the event of unemployment. The hazard-prone activities in the electrical engineer craft and the optician craft are set out in detail in the attachment to the “Overview of the regulatory framework and national system to protect the general interest objective in the skilled trades of optician and electrical-engineering technician”.

    4. How specifically do your measures operate to minimise the risk(s) or maximise the benefit(s) identified in question 3?

       When addressing this question please try to explain how the measures prevent the risks or guarantee the benefits.
       Where you have selected more than one overriding reason relating to the general interest in question 2 please be sure to address each of these in your response. Wherever possible please include evidence.

       As already indicated in answer to question three, the national legislature has opted for the system of licensing requirement for certain craft professions within the framework of a decision-making prerogative. Proving ability before taking up entrepreneurial activities by means of regulating of certain professional activities can be effectively counter hazards caused by human actions, particularly to consumers’ bodies and lives. The concept of personal hazard aversion is tied to personal qualifications and the characteristics of the individual in regard to certain activities. Preventive hazard aversion in the sense of a preventive control of business activity by the state with the aim of avoiding an emergence of concrete threats to important legal assets, is a preferable instrument compared to repressive approaches. The advantage of vocational regulation relating to the licensed craft sector is that it not only results in highly effective preventive hazard aversion, but contributes to the realisation of other Community values at the same time. The performance, innovation and training capacities are also guaranteed with personal qualifications. With a burden - in the form of access to the vocational qualification requirements - several of the objectives deemed particularly important by lawmakers can be thus realized at the same time. This leads to a lower burden, than if for instance consumer protection issues would be accounted for by certification schemes, for the training capability of enterprises whilst separate trainee qualification certificates would be required. The qualification requirements are ultimately similar to the certification schemes, but less costly, and consequently they are more transparent and reduce information asymmetries. To this extent, the regulation of certain craft vocations is a less burdensome and efficient approach to reaching the objectives of the training and performance capacities.

    5. In so far as you are able, please provide information that you have gathered regarding the concrete effects of the measure(s).

       For example, through impact assessments or information gathered during implementation or review of a measure. Member States who have recently undergone reforms may in particular be able to contribute helpfully to this field. Where you are able to provide cost-benefit analyses this would be particularly valuable.
       Information on whether the measures indeed successfully prevented risks from being realised (e.g. the number of sanctions imposed, a drop in transgressions since the measure was introduced or consequences from previous modifications of the regulation) would equally be helpful.
       Where you have selected more than one overriding reason relating to the general interest in question 2 please be sure to address each of these in your response. You may also wish to include evidence on consumer satisfaction or other measurements of the impact.

        In particular since 2003, the following reforms of the Crafts Code (HwO) were carried out and derogations were created for the master craftsmen’s license: • Elimination of the master craftsmen’s requirement in 53 of 94 trades and derogations by the 2003 HwO amendment. • Legal regulation of licensing freedom so-called "simple" activities pertaining to licensed crafts as distinct from its main areas of activity (§ 1 para 2 HwO). • The owner principle was abandoned. Only a technical operations manager has to be qualified, not necessarily the business owner or the employees. • Furthermore, carrying out the functions of operations manager is also possible for persons who have passed the master craftsmen’s exam in a related subject to the craft that requires licensing. • Derogation for engineers, graduates of technical universities and state or state-recognised vocational schools for engineering or design. • Derogation for the recognition of so-called “Altgesellen” (senior journeymen) according to § 7b HwO, if they can prove that they have six years of professional experience, including four years in a managerial position. • Law on the new chimney sweeper regulation from November 26, 2008 - guaranteeing the right of establishment and the freedom to provide services in the chimney sweep trade, and the introduction of competition. • Exception through recognition of equivalent foreign certifications on the journeyman and master craftsmen’s testing according to the recognition law of April 1, 2012. • Derogation for craftsmen from another craft that requires a license according to § 7a HwO (simplified "master craftsmen’s test"). • Broad interpretation of the general derogation pursuant to § 8 HwO on the unreasonableness of the master craftsmen’s test (but also of the other derogations) by the courts and by the so-called "Leipzig Decisions” of federal and state committee on craft law. • Multi-craft activities were facilitated by defining their relatedness and summarising the crafts. After the reforms in the 1990’s and in 2003, comprehensive deregulation measures have been carried out, which, with a view on the last ten years, did not bring about the desired effects on growth and employment: • After the amendment, the operating numbers rose while, however, there were many other reasons besides the licensing freedom. • There was a de-qualification of the business founders. • The persistence of business (more frequent insolvency in license-free crafts) has decreased significantly. • There were significant structural changes (increase in one-person enterprises and decline in average employment). • Positive supply and price effects cannot be determined. • With a view on revenue and employment, there were no observable effects. • A relative decline in the training capacity in the license-free area and a significant decline in advanced training. • A sustainable decline of the companies offering training. • This in light of the importance of training in crafts for other sectors of the economy (60 percent), for persons without higher secondary school diplomas and for the greater integration effect of dual training in the crafts sector.

    6. Is the general interest objective you indicated in question 2 pursued in a consistent and systematic manner?.

       In approaching your response to this question please consider examples where you have addressed similar risks for comparable professions, not necessarily within the same sector. Is the approach you have adopted in this particular profession comparable or distinct from such similar cases and why?

       In Germany, the regulation of vocations is subject to strict control consistent with national constitutional law with a comprehensive review of proportionality. A decisive question is whether the goal pursued by vocational regulation can in fact be systematically pursued. If this were not the case, there would be doubts as to the proportionality (suitability, necessity and appropriateness in the narrower sense). Thus, for example in a landmark decision in 2011, the Federal Administrative Court comprehensively grappled with the proportionality of existing vocational regulation in the craft sector according to HwO amendment of 2003 and judged it to be proportionate. As shown above, the proportionality test is congruent to European law and national constitutional law.

    7. Please explain in how far the degree of complexity or the nature of the activities
    which are reserved justify that these activities can be exclusively performed by professionals possessing a specific professional qualification?

       For example: when the tasks are essentially of a straightforward nature (such as preparing and printing pay slips etc.), or involve essentially the execution of instructions, specific professional aptitudes should not be required.

       As already described in question 5, the legislature has made it clear through the amendment of the Crafts Code that activities which indeed belong to a licensed craft, but that are not essential for this, may fundamentally be performed by anyone. Significant activities exist only if it concerns activities that not only technically belong to the concerned craft, but comprise the core area of this craft. Work that appears subordinate to or accounts for only a marginal area of that craft, therefore cannot be justifiably assumed to be a craft sector business. Under the current law, the substantial activities cannot consist of those that 1. Can be learned within a period of up to three months. 2. Indeed demand a longer training period, but are secondary to the overall picture of the relevant licensed craft and therefore do not require the skills and knowledge towards which the training in this craft is mainly oriented, or 3. Have not originated from a craft which is subject to licensing. These activities are not subject to any license restrictions and may be performed by anyone without qualifications. Incidentally, in the 2003 amendment, craft law was changed so that only one "technical manager" with appropriate qualifications must be present. Thus, the other employees do not have to be appropriately qualified, nor the owner of the business.

    8. Where you have indicated several measures in place in the screening tab,
    have you reviewed the cumulative effect of all these measures on professional activities?

       If not, why not?
       If yes, please outline for us how you approached assessing this issue as well as the results and conclusions or any learning you drew from this. Where possible please include evidence.

       Due to the qualification requirement within the framework of the licensing requirement, there is only a single measure.

    9. Have you considered the use of alternative mechanisms to achieve your objective(s)?
    • Other, please specify

       Please briefly explain. Where you have selected more than one option, please be sure to address each of these in your response.

       In all amendments to the Crafts Code, in particular in 2003, alternatives were examined and an appropriate package of measures was agreed to while maintaining the principle of vocational access with appropriate qualifications. See also the detailed answer to question 5.

    10. Conclusion

       Following your internal examination of this regulated profession, which of the following have you concluded?

    •    Maintain current system

       Explain where relevant:

       See answers to previous questions.

    11. Any other comments?
       From the experience of just the last ten years, the existing system should not be changed, especially in regard to consumer protection and maintaining the performance and training capacities in the craft sector.
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