sou · H2B319 · 2014-04-10 00:00:00 — Företag som är verksamma som utbildningsan- ordnare inom hälso- och sjukvårdsområdet, eller som erbjuder utbildningar för veterinärer eller arkitekter, kan komma att påver- kas av de förtydliganden utredningen föreslår om att sådana utbild- ningar som samordnats genom yrkeskvalifikationsdirektivet även måste uppfylla direktivets krav. När det gäller konsekvenser för det allmänna måste inledningsvis konstateras att behöriga myndigheter tillämpar regelverket i enlighet med gällande sektorsförfattningar. Det faktum att reglerna samlas i ett övergripande, horisontellt regelverk påverkar inte myndig- heternas hittillsvarande skyldigheter att erkänna utländska yrkes- Detta gäller dock inte för de myndigheter som utredningen anser bör utses som tillkommande behöriga myndigheter mot bakgrund av att viss yrkesverksamhet får anses vara reglerad. Utredningen har inte kunnat identifiera hur många av de yrkesverksamma inom dessa yrkesgrupper som har utländska yrkes- kvalifikationer, varför det är svårt att bedöma omfattningen av myndigheternas tillkommande bedömningsverksamhet. Det kan finnas anledning att följa utvecklingen inom detta område och om det visar sig att bedömningsverksamheten får en sådan omfattning att den inte ryms inom befintliga ramar bör det övervägas om en avgifts- finansiering även ska införas för något av de tillkommande yrkena. För majoriteten av de existerande behöriga myndigheterna, finns en möjlighet att avgiftsfinansiera ansökningar om erkännande av utländska yrkeskvalifikationer. En existerande behörig myndighet har i vissa fall varit förhindrad att ta ut avgifter för bedömningen av utländska yrkeskvalifikationer, nämligen . Utredningen kan inte se något skäl för detta och föreslår att även ska kunna kräva en avgift för utfärdande av legitimation eller annat behörighetsbevis för enskilda med såväl svenska som utländska yrkeskvalifikationer. Utredningen föreslår att behöriga myndigheter ska ersätta Uni- versitets- och högskolerådet för dess kostnader för att lämna ytt- randen över utländska utbildningsrelaterade yrkeskvalifikationer. I ett inledande skede behöver dock Universitets- och högskolerådet bygga upp verksamheten med hjälp av allmänna medel. Utredningen föreslår också en finansiering genom allmänna medel för den ökade administration som varningssystemet kan komma att innebära för samt för med anledning av de uppgifter som till- kommer kring den gemensamma kontaktpunkten för tjänster. Universitets- och högskolerådet bör även få en ökad anslagsfinan- siering mot bakgrund av sådana uppgifter som stadigvarande till- kommer genom rollen som samordnare samt sekretariat för Rådet för reglerade yrken. Det går inte att förutse vilka konsekvenser som kan komma att uppstå för det fall kommissionen beslutar att införa systemet med europeiska yrkeskort, och inte heller för det fall kommissionen beslutar om gemensamma utbildningsprinciper. Beroende på inom vilka yrkesverksamheter sådana beslut kan komma att fattas kan en förnyad analys behövas. The Inquiry's Remit In the final phase of EU-level negotiations concerning modernisa- tion of the Professional Qualifications Directive, the Government appointed a commission of inquiry to submit proposals on the implementation of the Directive into Swedish law and administra- tion. A review of current legislation would take place to ensure that the Directive is fully implemented and to propose changes that facilitate its application. The aim was to clarify the regulatory framework and obtain a horizontal overview of the legislation. This review would be based on practical experiences from the applica- tion. The Inquiry would also analyse how the Professional Qualifi- cations Directive relates to the associated regulations in the Ser- vices Directive (2006/123/EC) and propose measures to increase the knowledge of the authorities affected. The amending Directive (2013/55/EU) came into force on 17 January 2014 and must be implemented in the Member States no later than 18 January 2016. This report is divided into three parts I. Proposed statutes and background II. Impact assessment and comments on the statutes The Professional Qualifications Directive The original Professional Qualifications Directive, adopted in 2005, replaced three general directives and twelve sectoral direc- tives relating to individual professions. The legal basis of the Di- rective is derived from the Treaty's regulations concerning freedom of movement. 's rules on free movement for workers do not cover employment in the public service; the same limitation thus applies to the Professional Qualifications Directive. Accord- ing to the case law of the Court of of Union, this is to be understood as activities that are directly and specifi- cally connected with the exercise of official authority. The Professional Qualifications Directive has been identified as an important aspect of efforts to boost growth and employment in Europe. The Directive aims to ensure that self-employed and em- ployed persons in the EU are able to exercise the rights granted them by the Treaty to establish themselves, temporarily offer their services or to seek employment in another without needing to come up against national professional regulations that disregard experience and expertise acquired in another country. Member States should thus accept variations that exist in terms of education and professional regulations. Professionals who are legally established in a regulated profession in their country of origin and wish to move to another country temporarily, e.g. to undertake a professional traineeship or fill a temporary vacancy, are entitled to do so. If the profession is unregulated in the of origin and the individual has also not undergone a regulated education or training, the individual is required to have been professionally for at least one of the last ten years. In certain cases, the competent authorities in the host country may perform a closer check on whether the individual is competent for the task, that is, when their professional activities might have implications for patient safety or security. The mod- ernised Professional Qualifications Directive provides clarification of the conditions under which a declaration may be required in advance, and when a prior check of the individual's professional qualifications could be undertaken, but also the extent to which competent authorities in the countries concerned should cooperate. If individuals instead want to establish themselves in another country, the qualifications will be assessed in accordance with one of the various procedures of the Directive. In three situations, ac- cess will be granted automatically, namely i) if the individual is covered by education or training the minimum requirements of which are coordinated through the Directive, ii) if the professional activities are regulated through requirements for professional expe- rience or, according to the revised Directive, iii) if the individual has completed training based on a common framework or has passed a common training test. If none of these systems are applicable, the qualifications will be assessed according to the general system. Simply put, the general system involves the competent authori- ties examining in more detail the extent to which foreign qualifica- tions correspond to the requirements to practise the regulated profession. If the qualifications cover substantially different mat- ters from what is required, the authority may decide that individu- als must complement their knowledge by imposing compensation measures, either through an aptitude test or an adaptation period. Such compensation measures may only relate to areas of knowledge and expertise that are fundamental to the practice of the profession. The modernised Professional Qualifications Directive contains a number of clarifications, e.g. concerning checks on language skills. Only in individual cases where there is substantial doubt may authorities decide to check the extent to which an individual's lan- guage skills are sufficient to allow them to practice their profes- sion. However, more regular checks may be undertaken in professions with patient safety implications. Nevertheless, checks on language skills may never take place prior to the recognition of professional qualifications. The modernised Professional Qualifications Directive intro- duces the opportunity for individuals to apply for a , which, despite its name, is an electronic docu- ment rather than a physical card. , which can be issued both for temporary services and for establish- ment, aims to make the recognition process smoother, in part by replacing existing advance declaration requirements. As the autho- rities in the country of origin have primary responsibility for checking that the application is complete and that certificates are authentic, the competent authority in the host country can trust that these checks have taken place and the recognition process can therefore be speeded up. Before it is possible to issue , the Commission must decide which professions the Profes- sional Card will apply to. The modernised Professional Qualifications Directive contains detailed procedural rules for the authorities' processing of cases within the scope of both the customary system of recognition and the system of . The modernised Professional Qualifications Directive complements hitherto existing opportunities to exchange information regarding disciplinary action with an obligation to inform all other Member States if an individual has been found to have used falsified documents. This obligation to inform also applies in cases where veterinary surgeons, healthcare professionals or those teaching children (including childcare and early childhood education) have in some respect been restricted in their right to practise their profession. Alerts of this kind, which are sent via the (), must be sent within three days of the restriction decision. Which professions are regulated varies between the different Member States, and there are also differences in regulatory tech- nique. For this reason, the Directive requires Member States to conduct an evaluation process that involves taking an inventory of their respective professional regulations to ensure that restrictions on the free movement of EU citizens are justified and not more far-reaching than is necessary. If Member States make changes to their professional regulations after the Directive's implementation period has expired, they are required to notify the Commission of this. The amending Directive requires greater transparency in sev- eral respects, both to facilitate application and to enable individuals to better inform themselves about applicable rules. The Directive on services in the internal market (2006/123/EC, the Services Directive) was adopted the year after the original Profes- sional Qualifications Directive. Directive aims to fa- cilitate the free movement of service providers in a broad sense, i.e. in addition to those requirements dealing with professional qualifi- cations. Some initial uncertainties arose concerning how the two frameworks were to be applied and how the Services Directive's derogations in favour of the Professional Qualifications Directive would be interpreted. Among other things, it was unclear to what extent the Member States were compelled to evaluate their profes- sional regulations within the scope of the evaluation process pre- scribed by the Services Directive. In several respects, the requirements of the two directives have been coordinated, e.g. by enabling all procedures as may be re- quired with reference to the Professional Qualifications Directive to be completed electronically via the point of single contact for services, in the same way as for the Services Directive. The authorities regulating service activities in need to take both the Services Directive and the Professional Qualifica- tions Directive into consideration as the two directives are in- tended to complement each other. In some respects, there are rules in both directives, e.g. concerning the information to which service recipients will have access. If a conflict arises between the two di- rectives, e.g. with regard to the supervision of temporary activities, the Professional Qualifications Directive takes precedence. The Swedish education system The Swedish education system is decentralised in order to provide the best possible conditions to enable education and training to adapt to changes in society and knowledge. Higher education is provided at 31 state universities and university colleges (including Sciences and ) and by 12 private education providers. Legislation stipulates which institutions may be authorised to award degrees, and at which level. It is the responsibility of the universities and university colleges to decide on the detailed con- tent of their study programmes. There are 35 different professional qualifications in the to the Higher Education Ordinance's System of Qualifications, an additional 12 in the to the Or- dinance for Sciences and one in the to the Ordinance for . These include study programmes for doctors, nurses, dentists, architects, midwives and veterinary surgeons for which the Professional Qualifications Directive has harmonised the minimum educational requirements. For each professional qualification, the Annexes to the Higher Education Ordinance, the Ordinance for Sciences and the Ordinance for state how many credits the study programme is worth, as well as the qualitative targets and other requirements that each student must achieve to be awarded the qualification. The targets relate to knowledge and understanding, skills and abilities, and judgement and approach. The Professional Qualifications Directive also harmonises the minimum educational requirements with respect to study programmes for specialist doctors and specialist dentists. These study programmes are regulated in 's regulations. The Swedish Higher Education Authority is responsible for assuring the quality of the higher education. If a country that does not regulate a specific profession, regu- lates its education and training, this makes it easier for profession- als to pursue this profession in another country where that profes- sion is regulated. The Directive requires Member States to set out which study programmes are regulated, regardless of whether the programmes are conducted at upper secondary school, at university or university college, or at vocational college. The Swedish voca- tional college system has nearly 200 education providers and over 600 study programmes. Part II Considerations and Proposals The Inquiry has performed a more detailed analysis of the Di- rective's scope on the basis of the definition of regulated professions. The definition entails that this scope encompass all professions for which a statute, directly or indirectly, requires the professional to possess certain professional qualifications. The term professional qualifications refers both to evidence of theoreti- cal or factual knowledge and to professional experience. If there is a protected professional title that may only be used by those who hold a particular professional qualification, the profession is always considered to be regulated. In , professional regulations have been adapted to the original Professional Qualifications Directive in the following cases: The Inquiry considers that the profession fire-prevention officer should no longer be covered by the obligations stemming from the Directive because of the activities which are directly and specifically connected with the exercise of official authority. In addition to the above, and based on the Directive's definition of regulated professions, the Inquiry also believes the following professional activities are to be considered to fall within the scope of the Professional Qualifications Directive: It is worth pointing out that these professional activities should be regarded as regulated because of the requirements the professionals have to meet in terms of professional qualifications. Consequently, this does not relate to new regulations that have been introduced recently. The Inquiry has also made an assessment regarding the professional activities of nature wardens, predator biologists, mast and pole work and work with thermosetting plastics, but has found that these activities are not to be considered regulated, as specific professional qualifications are not required for their pursuit. Recognition of professional qualifications The Inquiry is of the opinion that the current authority structure should be maintained. Authorities that control access to a given regulated profession should continue to process matters as the competent authority under the Directive. This will enable the au- thorities to gain a complete picture of professionals in , regardless of where their qualifications have been obtained. For the professions hitherto considered to be regulated, competent authorities have already been designated under the Professional Qualifications Directive. In addition, the authorities prescribing the requirements with regard to the additional professions should constitute competent authorities. In practice, this means that the following authorities will be competent authorities under the Directive: the ; the Agents Inspectorate; the ; ; the County Ad- ministrative ; , and Planning; the Swedish Financial Supervisory Authority; the Swedish Legal, Financial and Administrative Ser- vices Agency; the for Education; ; riculture; the ; the Swe- dish Radiation Safety Authority; the ; ; the Electri- cal and the Swedish Work Environment Authority. The Inquiry proposes that , which is also an ENIC/NARIC office, should assist the competent authorities in assessing the foreign education of profes- sionals. The competent authorities will remunerate for the costs associated with this. The final and overall examination of an individual's total profes- sional qualifications will always be the responsibility of the com- petent authority. The Inquiry proposes to introduce an oppor- tunity for professionals to have their knowledge and expertise assessed by the competent authority even in cases where there is no mandatory prior check of qualifications. This will make it easier for professionals with foreign qualifications to seek employment or allow them to avoid problems that might otherwise arise in the supervision of the professions. is the contact point for the Professional Qualifications Directive, a function that the revised Directive renames assistance centre. The aim of this, among other things, is to further emphasise the authority's role of assisting individuals wishing to make use of the regulatory frame- work and also to distinguish the assistance centre's role from that of the points of single contact established according to the Services Directive. The Inquiry's assessment is that the Swedish should continue to perform the role of assistance centre. In addition, the Inquiry proposes that should also take on the role of coordinator of the Directive, currently held by the . The Inquiry's assessment is that the Council is best placed to carry out the duties of the coordinating role because the tasks particularly concern the practical application of the Directive. Of course, the Government Offices should retain responsibility for work related to policy and, as is customary, act to the extent that may be required in relation to the Commission and other Member States. The Inquiry also proposes abandoning the hitherto existing method used to implement the original Professional Qualifications Directive, whereby the provisions were introduced in each sectoral statute. To the extent that the Directive contains provisions to be applied in the same way regardless of sector, these will be imple- mented in a new horizontal Act and Ordinance. The provisions previously introduced in sectoral statutes, which are being replaced by the provisions of the new statutes, will be repealed. However, the sectoral regulation will remain and be adapted to the new Act and Ordinance in those areas where the Directive has paid particu- lar regard to the professional activities concerned. The proposed Act states that professionals with foreign profes- sional qualifications must be treated the same as those who have Swedish professional qualifications. Recognition of foreign profes- sional qualifications thus grants the right to practice the profession under the same conditions that apply to those who have acquired qualifications in . The Act will apply both to the self- employed and employed, but will be applied subordinately in rela- tion to provisions based on European legal instruments other than the Professional Qualifications Directive. The Act will also not cover professions associated with official authority. It is made clear that existing demands for language skills must not be applied in a that restricts the right of recognition of professional qualifications or . Language checks may only be made in individual cases where there is a suspected lack of necessary language skills and, if so, following recognition of the qualifications in the customary or by means of a . may issue regulations concerning more regular checks of language skills for the healthcare professions. also introduces a fundamental obligation to recognise professional traineeships undertaken in another EES-country or . The Act makes clear that professionals who are legally estab- in another country have the right to provide services on a temporary basis in . If the profession in question is not regulated in the of , there is a require- ment for one year's professional experience or for the professional to have undergone regulated education or training. The Inquiry proposes that the obligation to make an advance declaration to the competent authority should be retained only with respect to security guards and healthcare personnel, where there is also an opportunity to check the qualifications prior to the provision of the service. The basic prerequisites for having foreign professional qualifi- cations recognised in accordance with the general system will be specified in the new Act. Professionals with such attestation of competence or evidence of formal qualifications as are required in another be given access to a regulated profes- sion under the same conditions as if the qualifications had been acquired in . If the profession is not regulated in the Mem- ber State of , a requirement of one year's professional experience or that the professional to have undergone regulated education or training may be imposed. The term formal qualifica- tions also encompasses such qualifications as have been obtained in a third country, but are recognised by a that is also able to certify three years' professional experience. The prerequi- sites for deciding on compensation measures – in the case of a competent authority being able to identify substantial differences in such training as may be considered essential for practising the profession – or for deciding on partial access are detailed in the new Ordinance on the Recognition of Professional Qualifications. The Ordinance will also state that applicants are to be given the opportunity to choose compensation measure, i.e. adaptation period or aptitude test, unless otherwise prescribed. The Act also reflects the three systems for automatic recogni- tion contained in the Professional Qualifications Directive, even though the Inquiry does not at present assess there to be any pro- fessional regulation that is covered by automatic recognition of professional experience. The Act states that once the Commission has decided on common training principles that cover , an applicant that has undergone training covered by a common train-