2005L0036 — EN — 17.01.2014 — 010.004

This document is meant purely as a documentation tool and the institutions do not assume any liability for its contents

►B DIRECTIVE 2005/36/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 7 September 2005 on the recognition of professional qualifications (Text with EEA relevance) (OJ L 255 30.9.2005, p. 22)

Amended by:





Amended by:





Corrected by:









▼B

DIRECTIVE 2005/36/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 7 September 2005

on the recognition of professional qualifications

(Text with EEA relevance)







THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Article 40, Article 47(1), the first and third sentences of Article 47(2), and Article 55 thereof, Having regard to the proposal from the Commission ( 1 ), Having regard to the opinion of the European Economic and Social Committee ( 2 ), Acting in accordance with the procedure laid down in Article 251 of the Treaty ( 3 ), Whereas: (1) Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member States, of obstacles to the free movement of persons and services is one of the objectives of the Community. For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications. In addition, Article 47(1) of the Treaty lays down that directives shall be issued for the mutual recognition of diplomas, certificates and other evidence of formal qualifications. (2) Following the European Council of Lisbon on 23 and 24 March 2000, the Commission adopted a Communication on ‘An Internal Market Strategy for Services’, aimed in particular at making the free provision of services within the Community as simple as within an individual Member State. Further to the Communication from the Commission entitled ‘New European Labour Markets, Open to All, with Access to All’, the European Council of Stockholm on 23 and 24 March 2001 entrusted the Commission with presenting for the 2002 Spring European Council specific proposals for a more uniform, transparent and flexible regime of recognition of qualifications. (3) The guarantee conferred by this Directive on persons having acquired their professional qualifications in a Member State to have access to the same profession and pursue it in another Member State with the same rights as nationals is without prejudice to compliance by the migrant professional with any non-discriminatory conditions of pursuit which might be laid down by the latter Member State, provided that these are objectively justified and proportionate. (4) In order to facilitate the free provision of services, there should be specific rules aimed at extending the possibility of pursuing professional activities under the original professional title. In the case of information society services provided at a distance, the provisions of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( 4 ), should also apply. (5) In view of the different systems established for the cross-border provision of services on a temporary and occasional basis on the one hand, and for establishment on the other, the criteria for distinguishing between these two concepts in the event of the movement of the service provider to the territory of the host Member State should be clarified. (6) The facilitation of service provision has to be ensured in the context of strict respect for public health and safety and consumer protection. Therefore, specific provisions should be envisaged for regulated professions having public health or safety implications, which provide cross-frontier services on a temporary or occasional basis. (7) Host Member States may, where necessary and in accordance with Community law, provide for declaration requirements. These requirements should not lead to a disproportionate burden on service providers nor hinder or render less attractive the exercise of the freedom to provide services. The need for such requirements should be reviewed periodically in the light of the progress made in establishing a Community framework for administrative cooperation between Member States. (8) The service provider should be subject to the application of disciplinary rules of the host Member State having a direct and specific link with the professional qualifications, such as the definition of the profession, the scope of activities covered by a profession or reserved to it, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety. (9) While maintaining, for the freedom of establishment, the principles and safeguards underlying the different systems for recognition in force, the rules of such systems should be improved in the light of experience. Moreover, the relevant directives have been amended on several occasions, and their provisions should be reorganised and rationalised by standardising the principles applicable. It is therefore necessary to replace Council Directives 89/48/EEC ( 5 ) and 92/51/EEC ( 6 ), as well as Directive 1999/42/EC of the European Parliament and of the Council ( 7 ) on the general system for the recognition of professional qualifications, and Council Directives 77/452/EEC ( 8 ), 77/453/EEC ( 9 ), 78/686/EEC ( 10 ), 78/687/EEC ( 11 ), 78/1026/EEC ( 12 ), 78/1027/EEC ( 13 ), 80/154/EEC ( 14 ), 80/155/EEC ( 15 ), 85/384/EEC ( 16 ), 85/432/EEC ( 17 ), 85/433/EEC ( 18 ) and 93/16/EEC ( 19 ) concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, by combining them in a single text. (10) This Directive does not create an obstacle to the possibility of Member States recognising, in accordance with their rules, the professional qualifications acquired outside the territory of the European Union by third country nationals. All recognition should respect in any case minimum training conditions for certain professions. (11) In the case of the professions covered by the general system for the recognition of qualifications, hereinafter referred to as ‘the general system’, Member States should retain the right to lay down the minimum level of qualification required to ensure the quality of the services provided on their territory. However, pursuant to Articles 10, 39 and 43 of the Treaty, they should not require a national of a Member State to obtain qualifications, which they generally lay down only in terms of the diplomas awarded under their national educational system, where the person concerned has already obtained all or part of those qualifications in another Member State. As a result, it should be laid down that any host Member State in which a profession is regulated must take account of the qualifications obtained in another Member State and assess whether they correspond to those which it requires. The general system for recognition, however, does not prevent a Member State from making any person pursuing a profession on its territory subject to specific requirements due to the application of professional rules justified by the general public interest. Rules of this kind relate, for example, to organisation of the profession, professional standards, including those concerning ethics, and supervision and liability. Lastly, this Directive is not intended to interfere with Member States' legitimate interest in preventing any of their citizens from evading enforcement of the national law relating to professions. (12) This Directive concerns the recognition by Member States of professional qualifications acquired in other Member States. It does not, however, concern the recognition by Member States of recognition decisions adopted by other Member States pursuant to this Directive. Consequently, individuals holding professional qualifications which have been recognised pursuant to this Directive may not use such recognition to obtain in their Member State of origin rights different from those conferred by the professional qualification obtained in that Member State, unless they provide evidence that they have obtained additional professional qualifications in the host Member State. (13) In order to define the mechanism of recognition under the general system, it is necessary to group the various national education and training schemes into different levels. These levels, which are established only for the purpose of the operation of the general system, have no effect upon the national education and training structures nor upon the competence of Member States in this field. (14) The mechanism of recognition established by Directives 89/48/EEC and 92/51/EEC remains unchanged. As a consequence, the holder of a diploma certifying successful completion of training at post-secondary level of a duration of at least one year should be permitted access to a regulated profession in a Member State where access is contingent upon possession of a diploma certifying successful completion of higher or university education of four years' duration, regardless of the level to which the diploma required in the host Member State belongs. Conversely, where access to a regulated profession is contingent upon successful completion of higher or university education of more than four years, such access should be permitted only to holders of a diploma certifying successful completion of higher or university education of at least three years' duration. (15) In the absence of harmonisation of the minimum training conditions for access to the professions governed by the general system, it should be possible for the host Member State to impose a compensation measure. This measure should be proportionate and, in particular, take account of the applicant's professional experience. Experience shows that requiring the migrant to choose between an aptitude test or an adaptation period offers adequate safeguards as regards the latter's level of qualification, so that any derogation from that choice should in each case be justified by an imperative requirement in the general interest. (16) In order to promote the free movement of professionals, while ensuring an adequate level of qualification, various professional associations and organisations or Member States should be able to propose common platforms at European level. This Directive should take account, under certain conditions, in compliance with the competence of Member States to decide the qualifications required for the pursuit of professions in their territory as well as the contents and the organisation of their systems of education and professional training and in compliance with Community law, and in particular Community law on competition, of those initiatives, while promoting, in this context, a more automatic character of recognition under the general system. Professional associations which are in a position to submit common platforms should be representative at national and European level. A common platform is a set of criteria which make it possible to compensate for the widest range of substantial differences which have been identified between the training requirements in at least two thirds of the Member States including all the Member States which regulate that profession. These criteria could, for example, include requirements such as additional training, an adaptation period under supervised practice, an aptitude test, or a prescribed minimum level of professional practice, or combinations thereof. (17) In order to take into account all situations for which there is still no provision relating to the recognition of professional qualifications, the general system should be extended to those cases which are not covered by a specific system, either where the profession is not covered by one of those systems or where, although the profession is covered by such a specific system, the applicant does not for some particular and exceptional reason meet the conditions to benefit from it. (18) There is a need to simplify the rules allowing access to a number of industrial, commercial and craft activities, in Member States where those professions are regulated, in so far as those activities have been pursued for a reasonable and sufficiently recent period of time in another Member State, while maintaining for those activities a system of automatic recognition based on professional experience. (19) Freedom of movement and the mutual recognition of the evidence of formal qualifications of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and architects should be based on the fundamental principle of automatic recognition of the evidence of formal qualifications on the basis of coordinated minimum conditions for training. In addition, access in the Member States to the professions of doctor, nurse responsible for general care, dental practitioner, veterinary surgeon, midwife and pharmacist should be made conditional upon the possession of a given qualification ensuring that the person concerned has undergone training which meets the minimum conditions laid down. This system should be supplemented by a number of acquired rights from which qualified professionals benefit under certain conditions. ►C2 (20) To allow for the characteristics of the qualification system for doctors and dental practitioners ◄ and the related acquis communautaire in the area of mutual recognition, the principle of automatic recognition of medical and dental specialities common to at least two Member States should continue to apply to all specialities recognised on the date of adoption of this Directive. To simplify the system, however, automatic recognition should apply after the date of entry into force of this Directive only to those new medical specialities common to at least two fifths of Member States. Moreover, this Directive does not prevent Member States from agreeing amongst themselves on automatic recognition for certain medical and dental specialities common to them but not automatically recognised within the meaning of this Directive, according to their own rules. (21) Automatic recognition of formal qualifications of doctor with basic training should be without prejudice to the competence of Member States to associate this qualification with professional activities or not. (22) All Member States should recognise the profession of dental practitioner as a specific profession distinct from that of medical practitioner, whether or not specialised in odontostomatology. Member States should ensure that the training given to dental practitioners equips them with the skills needed for prevention, diagnosis and treatment relating to anomalies and illnesses of the teeth, mouth, jaws and associated tissues. The professional activity of the dental practitioner should be carried out by holders of a qualification as dental practitioner set out in this Directive. (23) It did not appear desirable to lay down standardised training for midwives for all the Member States. Rather, the latter should have the greatest possible freedom to organise their training. (24) With a view to simplifying this Directive, reference should be made to the concept of ‘pharmacist’ in order to delimit the scope of the provisions relating to the automatic recognition of the qualifications, without prejudice to the special features of the national regulations governing those activities. (25) Holders of qualifications as a pharmacist are specialists in the field of medicines and should, in principle, have access in all Member States to a minimum range of activities in this field. In defining this minimum range, this Directive should neither have the effect of limiting the activities accessible to pharmacists in the Member States, in particular as regards medical biology analyses, nor create a monopoly for those professionals, as this remains a matter solely for the Member States. The provisions of this Directive are without prejudice to the possibility for the Member States to impose supplementary training conditions for access to activities not included in the coordinated minimum range of activities. This means that the host Member State should be able to impose these conditions on the nationals who hold qualifications which are covered by automatic recognition within the meaning of this Directive. (26) This Directive does not coordinate all the conditions for access to activities in the field of pharmacy and the pursuit of these activities. In particular, the geographical distribution of pharmacies and the monopoly for dispensing medicines should remain a matter for the Member States. This Directive leaves unchanged the legislative, regulatory and administrative provisions of the Member States forbidding companies from pursuing certain pharmacists' activities or subjecting the pursuit of such activities to certain conditions. (27) Architectural design, the quality of buildings, their harmonious incorporation into their surroundings, respect for natural and urban landscapes and for the public and private heritage are a matter of public interest. Mutual recognition of qualifications should therefore be based on qualitative and quantitative criteria which ensure that the holders of recognised qualifications are in a position to understand and translate the needs of individuals, social groups and authorities as regards spatial planning, the design, organisation and realisation of structures, conservation and the exploitation of the architectural heritage, and protection of natural balances. (28) National regulations in the field of architecture and on access to and the pursuit of the professional activities of an architect vary widely in scope. In most Member States, activities in the field of architecture are pursued, de jure or de facto, by persons bearing the title of architect alone or accompanied by another title, without those persons having a monopoly on the pursuit of such activities, unless there are legislative provisions to the contrary. These activities, or some of them, may also be pursued by other professionals, in particular by engineers who have undergone special training in the field of construction or the art of building. With a view to simplifying this Directive, reference should be made to the concept of ‘architect’ in order to delimit the scope of the provisions relating to the automatic recognition of the qualifications in the field of architecture, without prejudice to the special features of the national regulations governing those activities. (29) Where a national and European-level professional organisation or association for a regulated profession makes a reasoned request for specific provisions for the recognition of qualifications on the basis of coordination of minimum training conditions, the Commission shall assess the appropriateness of adopting a proposal for the amendment of this Directive. (30) In order to ensure the effectiveness of the system for the recognition of professional qualifications, uniform formalities and rules of procedure should be defined for its implementation, as well as certain details of the pursuit of the profession. (31) Since collaboration among the Member States and between them and the Commission is likely to facilitate the implementation of this Directive and compliance with the obligations deriving from it, the means of collaboration should be organised. (32) The introduction, at European level, of professional cards by professional associations or organisations could facilitate the mobility of professionals, in particular by speeding up the exchange of information between the host Member State and the Member State of origin. This professional card should make it possible to monitor the career of professionals who establish themselves in various Member States. Such cards could contain information, in full respect of data protection provisions, on the professional's professional qualifications (university or institution attended, qualifications obtained, professional experience), his legal establishment, penalties received relating to his profession and the details of the relevant competent authority. (33) The establishment of a network of contact points with the task of providing the citizens of the Member States with information and assistance will make it possible to ensure that the system of recognition is transparent. These contact points will provide any citizen who so requests and the Commission with all the information and addresses relevant to the recognition procedure. The designation of a single contact point by each Member State within this network does not affect the organisation of competencies at national level. In particular, it does not prevent the designation at national level of several offices, the contact point designated within the aforementioned network being in charge of coordinating with the other offices and informing the citizen, where necessary, of the details of the relevant competent office. (34) Administering the various systems of recognition set up by the sectoral directives and the general system has proved cumbersome and complex. There is therefore a need to simplify the administration and updating of this Directive to take account of scientific and technical progress, in particular where the minimum conditions of training are coordinated with a view to automatic recognition of qualifications. A single committee for the recognition of professional qualifications should be set up for this purpose, and suitable involvement of representatives of the professional organisations, also at European level, should be ensured. (35) The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission ( 20 ). (36) The preparation by the Member States of a periodic report on the implementation of this Directive, containing statistical data, will make it possible to determine the impact of the system for the recognition of professional qualifications. (37) There should be a suitable procedure for adopting temporary measures if the application of any provision of this Directive were to encounter major difficulties in a Member State. (38) The provisions of this Directive do not affect the powers of the Member States as regards the organisation of their national social security system and determining the activities which must be pursued under that system. (39) In view of the speed of technological change and scientific progress, life-long learning is of particular importance for a large number of professions. In this context, it is for the Member States to adopt the detailed arrangements under which, through suitable ongoing training, professionals will keep abreast of technical and scientific progress. (40) Since the objectives of this Directive, namely the rationalisation, simplification and improvement of the rules for the recognition of professional qualifications, cannot be sufficiently achieved by the Member States and can therefore be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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. (41) This Directive is without prejudice to the application of Articles 39(4) and 45 of the Treaty concerning notably notaries. (42) This Directive applies, concerning the right of establishment and the provision of services, without prejudice to other specific legal provisions regarding the recognition of professional qualifications, such as those existing in the field of transport, insurance intermediaries and statutory auditors. This Directive does not affect the operation of Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services ( 21 ), or of Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained ( 22 ). The recognition of professional qualifications for lawyers for the purpose of immediate establishment under the professional title of the host Member State should be covered by this Directive. (43) To the extent that they are regulated, this Directive includes also liberal professions, which are, according to this Directive, those practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services in the interest of the client and the public. The exercise of the profession might be subject in the Member States, in conformity with the Treaty, to specific legal constraints based on national legislation and on the statutory provisions laid down autonomously, within that framework, by the respective professional representative bodies, safeguarding and developing their professionalism and quality of service and the confidentiality of relations with the client. (44) This Directive is without prejudice to measures necessary to ensure a high level of health and consumer protection, Whereas: HAVE ADOPTED THIS DIRECTIVE:







TITLE I

GENERAL PROVISIONS

Article 1

Purpose

This Directive establishes rules according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (referred to hereinafter as the host Member State) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession.

▼M9

This Directive also establishes rules concerning partial access to a regulated profession and recognition of professional traineeships pursued in another Member State.

▼B

Article 2

Scope

1. This Directive shall apply to all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications, on either a self-employed or employed basis.

▼M9

This Directive shall also apply to all nationals of a Member State who have pursued a professional traineeship outside the home Member State.

▼B

2. Each Member State may permit Member State nationals in possession of evidence of professional qualifications not obtained in a Member State to pursue a regulated profession within the meaning of Article 3(1)(a) on its territory in accordance with its rules. In the case of professions covered by Title III, Chapter III, this initial recognition shall respect the minimum training conditions laid down in that Chapter.

3. Where, for a given regulated profession, other specific arrangements directly related to the recognition of professional qualifications are established in a separate instrument of Community law, the corresponding provisions of this Directive shall not apply.

▼M9

4. This Directive shall not apply to notaries who are appointed by an official act of government.

▼B

Article 3

Definitions

1. For the purposes of this Directive, the following definitions apply:

(a) ‘regulated profession’: a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. Where the first sentence of this definition does not apply, a profession referred to in paragraph 2 shall be treated as a regulated profession;

(b) ‘professional qualifications’: qualifications attested by evidence of formal qualifications, an attestation of competence referred to in Article 11, point (a) (i) and/or professional experience;

(c) ‘evidence of formal qualifications’: diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State and certifying successful completion of professional training obtained mainly in the Community. Where the first sentence of this definition does not apply, evidence of formal qualifications referred to in paragraph 3 shall be treated as evidence of formal qualifications;

(d) ‘competent authority’: any authority or body empowered by a Member State specifically to issue or receive training diplomas and other documents or information and to receive the applications, and take the decisions, referred to in this Directive;

(e) ‘regulated education and training’: any training which is specifically geared to the pursuit of a given profession and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice. The structure and level of the professional training, probationary or professional practice shall be determined by the laws, regulations or administrative provisions of the Member State concerned or monitored or approved by the authority designated for that purpose;

▼M9

(f) ‘professional experience’:the actual and lawful full-time or equivalent part-time pursuit of the profession concerned in a Member State;

▼B

(g) ‘adaptation period’: the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of a migrant under supervision shall be laid down by the competent authority in the host Member State. The status enjoyed in the host Member State by the person undergoing the period of supervised practice, in particular in the matter of right of residence as well as obligations, social rights and benefits, allowances and remuneration, shall be established by the competent authorities in that Member State in accordance with applicable Community law;

▼M9

(h) ‘aptitude test’: a test of the professional knowledge, skills and competences of the applicant, carried out or recognised by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State. In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the host Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant. The aptitude test must take account of the fact that the applicant is a qualified professional in the home Member State or the Member State from which the applicant comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to pursue the profession in question in the host Member State. The test may also cover knowledge of the professional rules applicable to the activities in question in the host Member State. The detailed application of the aptitude test and the status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that Member State shall be determined by the competent authorities in that Member State;

▼B

(i) ‘manager of an undertaking’: any person who in an undertaking in the occupational field in question has pursued an activity: (i) as a manager of an undertaking or a manager of a branch of an undertaking; or (ii) as a deputy to the proprietor or the manager of an undertaking where that post involves responsibility equivalent to that of the proprietor or manager represented; or (iii) in a managerial post with duties of a commercial and/or technical nature and with responsibility for one or more departments of the undertaking.

▼M9

(j) ‘professional traineeship’: without prejudice to Article 46(4), a period of professional practice carried out under supervision provided it constitutes a condition for access to a regulated profession, and which can take place either during or after completion of an education leading to a diploma;

(k) ‘European Professional Card’: an electronic certificate proving either that the professional has met all the necessary conditions to provide services in a host Member State on a temporary and occasional basis or the recognition of professional qualifications for establishment in a host Member State;

(l) ‘lifelong learning’: all general education, vocational education and training, non-formal education and informal learning undertaken throughout life, resulting in an improvement in knowledge, skills and competences, which may include professional ethics;

(m) ‘overriding reasons of general interest’: reasons recognised as such in the case-law of the Court of Justice of the European Union;

(n) ‘European Credit Transfer and Accumulation System or ECTS credits’: the credit system for higher education used in the European Higher Education Area.

▼B

2. A profession practised by the members of an association or organisation listed in Annex I shall be treated as a regulated profession.

The purpose of the associations or organisations referred to in the first subparagraph is, in particular, to promote and maintain a high standard in the professional field concerned. To that end they are recognised in a special form by a Member State and award evidence of formal qualifications to their members, ensure that their members respect the rules of professional conduct which they prescribe, and confer on them the right to use a title or designatory letters or to benefit from a status corresponding to those formal qualifications.

▼M9

On each occasion that a Member State grants recognition to an association or organisation referred to in the first subparagraph, it shall inform the Commission. The Commission shall examine whether that association or organisation fulfils the conditions provided for in the second subparagraph. In order to take due account of regulatory developments in Member States, the Commission shall be empowered to adopt delegated acts in accordance with Article 57c in order to update Annex I where the conditions provided for in the second subparagraph are satisfied.

Where the conditions provided for in the second subparagraph are not satisfied, the Commission shall adopt an implementing act in order to reject the requested update of Annex I.

▼B

3. Evidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualifications if the holder has three years' professional experience in the profession concerned on the territory of the Member State which recognised that evidence of formal qualifications in accordance with Article 2(2), certified by that Member State.

Article 4

Effects of recognition

▼M9

1. The recognition of professional qualifications by the host Member State shall allow beneficiaries to gain access in that Member State to the same profession as that for which they are qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals.

▼B

2. For the purposes of this Directive, the profession which the applicant wishes to pursue in the host Member State is the same as that for which he is qualified in his home Member State if the activities covered are comparable.

▼M9

3. By way of derogation from paragraph 1, partial access to a profession in the host Member State shall be granted under the conditions laid down in Article 4f.

Article 4a

European Professional Card

1. Member States shall issue holders of a professional qualification with a European Professional Card upon their request and on condition that the Commission has adopted the relevant implementing acts provided for in paragraph 7.

2. When a European Professional Card has been introduced for a particular profession by means of relevant implementing acts adopted pursuant to paragraph 7, the holder of a professional qualification concerned may choose to apply for such a Card or to make use of the procedures provided for in Titles II and III.

3. Member States shall ensure that the holder of a European Professional Card benefits from all the rights conferred by Articles 4b to 4e.

4. Where the holder of a professional qualification intends to provide services under Title II other than those covered by Article 7(4), the competent authority of the home Member State shall issue the European Professional Card in accordance with Articles 4b and 4c. The European Professional Card shall, where applicable, constitute the declaration under Article 7.

5. Where the holder of a professional qualification intends to establish himself in another Member State under Chapters I to IIIa of Title III or to provide services under Article 7(4), the competent authority of the home Member State shall complete all preparatory steps with regard to the individual file of the applicant created within the Internal Market Information System (IMI) (IMI file) as provided for in Articles 4b and 4d. The competent authority of the host Member State shall issue the European Professional Card in accordance with Articles 4b and 4d.

For the purpose of establishment, the issuance of a European Professional Card shall not provide an automatic right to practise a particular profession if there are registration requirements or other control procedures already in place in the host Member State before a European Professional Card is introduced for that profession.

6. Member States shall designate competent authorities for dealing with IMI files and issuing European Professional Cards. Those authorities shall ensure an impartial, objective and timely processing of applications for European Professional Cards. The assistance centres referred to in Article 57b may also act in the capacity of a competent authority. Member States shall ensure that competent authorities and assistance centres inform citizens, including prospective applicants, about the functioning and the added value of a European Professional Card for the professions for which it is available.

7. The Commission shall, by means of implementing acts, adopt measures necessary to ensure the uniform application of the provisions on the European Professional Cards for those professions that meet the conditions laid down in the second subparagraph of this paragraph, including measures concerning the format of the European Professional Card, the processing of written applications, the translations to be provided by the applicant to support any application for a European Professional Card, details of the documents required pursuant to Article 7(2) or Annex VII to present a complete application and procedures for making and processing payments for a European Professional Card, taking into account the particularities of the profession concerned. The Commission shall also specify, by means of implementing acts, how, when and for which documents competent authorities may request certified copies in accordance with the second subparagraph of Article 4b(3), Articles 4d(2) and 4d(3) for the profession concerned.

The introduction of a European Professional Card for a particular profession by means of the adoption of relevant implementing acts referred to in the first subparagraph shall be subject to all of the following conditions:

(a) there is significant mobility or potential for significant mobility in the profession concerned;

(b) there is sufficient interest expressed by the relevant stakeholders;

(c) the profession or the education and training geared to the pursuit of the profession is regulated in a significant number of Member States.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).

8. Any fees which applicants may incur in relation to administrative procedures to issue a European Professional Card shall be reasonable, proportionate and commensurate with the costs incurred by the home and the host Member States and shall not act as a disincentive to apply for a European Professional Card.

Article 4b

Application for a European Professional Card and creation of an IMI file

1. The home Member State shall enable a holder of a professional qualification to apply for a European Professional Card through an on-line tool, provided by the Commission, that automatically creates an IMI file for the particular applicant. Where a home Member State allows also for written applications, it shall put in place all necessary arrangements for the creation of the IMI file, any information to be sent to the applicant and the issuance of the European Professional Card.

2. Applications shall be supported by the documents required in the implementing acts to be adopted pursuant to Article 4a(7).

3. Within one week of receipt of the application, the competent authority of the home Member State shall acknowledge receipt of the application and inform the applicant of any missing document.

Where applicable, the competent authority of the home Member State shall issue any supporting certificate required under this Directive. The competent authority of the home Member State shall verify whether the applicant is legally established in the home Member State and whether all the necessary documents which have been issued in the home Member State are valid and authentic. In the event of duly justified doubts, the competent authority of the home Member State shall consult the relevant body and may request from the applicant certified copies of documents. In case of subsequent applications by the same applicant, the competent authorities of the home and the host Member States may not request the re-submission of documents which are already contained in the IMI file and which are still valid.

4. The Commission may, by means of implementing acts, adopt the technical specifications, the measures necessary to ensure integrity, confidentiality and accuracy of information contained in the European Professional Card and in the IMI file, and the conditions and the procedures for issuing a European Professional Card to its holder, including the possibility of downloading it or submitting updates for the IMI file. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).

Article 4c

European Professional Card for the temporary and occasional provision of services other than those covered by Article 7(4)

1. The competent authority of the home Member State shall verify the application and the supporting documents in the IMI file and issue the European Professional Card for the temporary and occasional provision of services other than those covered by Article 7(4) within three weeks. That time period shall start upon receipt of the missing documents referred to in the first subparagraph of Article 4b(3) or, if no further documents were requested, upon the expiry of the one-week period referred to in that subparagraph. It shall then transmit the European Professional Card immediately to the competent authority of each host Member State concerned and shall inform the applicant accordingly. The host Member State may not require any further declaration under Article 7 for the following 18 months.

2. The decision of the competent authority of the home Member State, or the absence of a decision within the period of three weeks referred to in paragraph 1, shall be subject to appeal under national law.

3. If a holder of a European Professional Card wishes to provide services in Member States other than those initially mentioned in the application referred to in paragraph 1 that holder may apply for such extension. If the holder wishes to continue providing services beyond the period of 18 months referred to in paragraph 1, that holder shall inform the competent authority accordingly. In either case, that holder shall also provide any information on material changes in the situation substantiated in the IMI file that may be required by the competent authority in the home Member State in accordance with the implementing acts to be adopted pursuant to Article 4a(7). The competent authority of the home Member State shall transmit the updated European Professional Card to the host Member States concerned.

4. The European Professional Card shall be valid in the entire territory of all the host Member States concerned for as long as its holder maintains the right to practice on the basis of the documents and information contained in the IMI file.

Article 4d

European Professional Card for establishment and for the temporary and occasional provision of services under Article 7(4)

1. The competent authority of the home Member State shall, within one month, verify the authenticity and validity of the supporting documents in the IMI file for the purpose of issuing a European Professional Card for establishment or for the temporary and occasional provision of services under Article 7(4). That time period shall start upon receipt of the missing documents referred to in the first subparagraph of Article 4b(3) or, if no further documents were requested, upon the expiry of the one-week period referred to in that subparagraph. It shall then transmit the application immediately to the competent authority of the host Member State. The home Member State shall inform the applicant of the status of the application at the same time as it transmits the application to the host Member State.

2. In the cases referred to in Articles 16, 21, 49a and 49b, a host Member State shall decide whether to issue a European Professional Card under paragraph 1 within one month of receipt of the application transmitted by the home Member State. In the event of duly justified doubts, the host Member State may request additional information from, or the inclusion of a certified copy of a document by, the home Member State, which the latter shall provide no later than two weeks after the submission of the request. Subject to the second subparagraph of paragraph 5, the period of one month shall apply, notwithstanding any such request.

3. In the cases referred to in Articles 7(4) and 14, a host Member State shall decide whether to issue a European Professional Card or to subject the holder of a professional qualification to compensation measures within two months of receipt of the application transmitted by the home Member State. In the event of duly justified doubts, the host Member State may request additional information from, or the inclusion of a certified copy of a document by, the home Member State which the latter shall provide no later than two weeks after the submission of the request. Subject to the second subparagraph of paragraph 5, the period of two months shall apply, notwithstanding any such request.

4. In the event that the host Member State does not receive the necessary information which it may require in accordance with this Directive for taking a decision on the issuance of the European Professional Card from either the home Member State or the applicant, it may refuse to issue the Card. Such refusal shall be duly justified.

5. Where the host Member State fails to take a decision within the time limits set out in paragraphs 2 and 3 of this Article or fails to organise an aptitude test in accordance with Article 7(4), the European Professional Card shall be deemed to be issued and shall be sent automatically, through IMI, to the holder of a professional qualification.

The host Member State shall have the possibility to extend by two weeks the deadlines set out in paragraphs 2 and 3 for the automatic issuance of the European Professional Card. It shall explain the reason for the extension and inform the applicant accordingly. Such an extension may be repeated once and only where it is strictly necessary, in particular for reasons relating to public health or the safety of the service recipients.

6. The actions taken by the home Member State in accordance with paragraph 1 shall replace any application for recognition of professional qualifications under the national law of the host Member State.

7. The decisions of the home and the host Member State adopted under paragraphs 1 to 5 or the absence of decision by the home Member State shall be subject to appeal under the national law of the Member State concerned.

Article 4e

Processing and access to data regarding the European Professional Card

1. Without prejudice to the presumption of innocence, the competent authorities of the home and the host Member States shall update, in a timely manner, the corresponding IMI file with information regarding disciplinary actions or criminal sanctions which relate to a prohibition or restriction and which have consequences for the pursuit of activities by the holder of a European Professional Card under this Directive. In so doing they shall respect personal data protection rules provided for in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data ( 23 ) and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications) ( 24 ). Such updates shall include the deletion of information which is no longer required. The holder of the European Professional Card as well as the competent authorities that have access to the corresponding IMI file shall be informed immediately of any updates. That obligation shall be without prejudice to the alert obligations for Member States under Article 56a.

2. The content of the information updates referred to in paragraph 1 shall be limited to the following:

(a) the identity of the professional;

(b) the profession concerned;

(c) information about the national authority or court which has adopted the decision on restriction or prohibition;

(d) the scope of the restriction or the prohibition; and

(e) the period for which the restriction or the prohibition applies.

3. Access to the information in the IMI file shall be limited to the competent authorities of the home and the host Member States, in accordance with Directive 95/46/EC. The competent authorities shall inform the holder of the European Professional Card of the content of the IMI file upon that holder’s request.

4. The information included in the European Professional Card shall be limited to the information that is necessary to ascertain its holder’s right to exercise the profession for which it has been issued, namely the holder’s name, surname, date and place of birth, profession, formal qualifications, and the applicable regime, competent authorities involved, Card number, security features and reference to a valid proof of identity. Information relating to professional experience acquired, or compensation measures passed, by the holder of the European Professional Card shall be included in the IMI file.

5. The personal data included in the IMI file may be processed for as long as it is needed for the purpose of the recognition procedure as such and as evidence of the recognition or of the transmission of the declaration required under Article 7. Member States shall ensure that the holder of a European Professional Card has the right at any time, and at no cost to that holder, to request the rectification of inaccurate or incomplete data, or the deletion or blocking of the IMI file concerned. The holder shall be informed of this right at the time the European Professional Card is issued, and reminded of it every two years thereafter. The reminder shall be sent automatically via IMI where the initial application for the European Professional Card was submitted online.

In the event of a request for deletion of an IMI file linked to a European Professional Card issued for the purpose of establishment or temporary and occasional provision of services under Article 7(4), the competent authorities of the host Member State concerned shall issue the holder of professional qualifications with evidence attesting to the recognition of his professional qualifications.

6. In relation to the processing of personal data in the European Professional Card and all IMI files, the relevant competent authorities of the Member States shall be regarded as controllers within the meaning of point (d) of Article 2 of Directive 95/46/EC. In relation to its responsibilities under paragraphs 1 to 4 of this Article and the processing of personal data involved therein, the Commission shall be regarded as a controller within the meaning of point (d) of Article 2 of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data ( 25 ).

7. Without prejudice to paragraph 3, host Member States shall provide that employers, customers, patients, public authorities and other interested parties may verify the authenticity and validity of a European Professional Card presented to them by the Card holder.

The Commission shall, by means of implementing acts, lay down rules concerning access to the IMI file, and the technical means and the procedures for the verification referred to in the first subparagraph. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 58(2).

Article 4f

Partial access

1. The competent authority of the host Member State shall grant partial access, on a case-by-case basis, to a professional activity in its territory only when all the following conditions are fulfilled:

(a) the professional is fully qualified to exercise in the home Member State the professional activity for which partial access is sought in the host Member State;

(b) differences between the professional activity legally exercised in the home Member State and the regulated profession in the host Member State as such are so large that the application of compensation measures would amount to requiring the applicant to complete the full programme of education and training required in the host Member State to have access to the full regulated profession in the host Member State;

(c) the professional activity can objectively be separated from other activities falling under the regulated profession in the host Member State.

For the purpose of point (c), the competent authority of the host Member State shall take into account whether the professional activity can be pursued autonomously in the home Member State.

2. Partial access may be rejected if such rejection is justified by overriding reasons of general interest, suitable for securing the attainment of the objective pursued, and does not go beyond what is necessary to attain that objective.

3. Applications for the purpose of establishment in a host Member State shall be examined in accordance with Chapters I and IV of Title III.

4. Applications for the purpose of providing temporary and occasional services in the host Member State concerning professional activities that have public health or safety implications shall be examined in accordance with Title II.

5. By derogation from the sixth subparagraph of Article 7(4) and Article 52(1), the professional activity shall be exercised under the professional title of the home Member State once partial access has been granted. The host Member State may require use of that professional title in the languages of the host Member State. Professionals benefiting from partial access shall clearly indicate to the service recipients the scope of their professional activities.

6. This Article shall not apply to professionals benefiting from automatic recognition of their professional qualifications under Chapters II, III and IIIa of Title III.

▼B







TITLE II

FREE PROVISION OF SERVICES

Article 5

Principle of the free provision of services

1. Without prejudice to specific provisions of Community law, as well as to Articles 6 and 7 of this Directive, Member States shall not restrict, for any reason relating to professional qualifications, the free provision of services in another Member State:

(a) if the service provider is legally established in a Member State for the purpose of pursuing the same profession there (hereinafter referred to as the Member State of establishment), and

▼M9

(b) where the service provider moves, if he has pursued that profession in one or several Member States for at least one year during the last 10 years preceding the provision of services when the profession is not regulated in the Member State of establishment. The condition of one year’s pursuit shall not apply if the profession or the education and training leading to the profession is regulated.

▼B

2. The provisions of this title shall only apply where the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, the profession referred to in paragraph 1.

The temporary and occasional nature of the provision of services shall be assessed case by case, in particular in relation to its duration, its frequency, its regularity and its continuity.

3. Where a service provider moves, he shall be subject to professional rules of a professional, statutory or administrative nature which are directly linked to professional qualifications, such as the definition of the profession, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety, as well as disciplinary provisions which are applicable in the host Member State to professionals who pursue the same profession in that Member State.

Article 6

Exemptions

Pursuant to Article 5(1), the host Member State shall exempt service providers established in another Member State from the requirements which it places on professionals established in its territory relating to:

(a) authorisation by, registration with or membership of a professional organisation or body. In order to facilitate the application of disciplinary provisions in force on their territory according to Article 5(3), Member States may provide either for automatic temporary registration with or for pro forma membership of such a professional organisation or body, provided that such registration or membership does not delay or complicate in any way the provision of services and does not entail any additional costs for the service provider. A copy of the declaration and, where applicable, of the renewal referred to in Article 7(1), accompanied, for professions which have implications for public health and safety referred to in Article 7(4) or which benefit from automatic recognition under Title III Chapter III, by a copy of the documents referred to in Article 7(2) shall be sent by the competent authority to the relevant professional organisation or body, and this shall constitute automatic temporary registration or pro forma membership for this purpose;

(b) registration with a public social security body for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons.

The service provider shall, however, inform in advance or, in an urgent case, afterwards, the body referred to in point (b) of the services which he has provided.

Article 7

Declaration to be made in advance, if the service provider moves

1. Member States may require that, where the service provider first moves from one Member State to another in order to provide services, he shall inform the competent authority in the host Member State in a written declaration to be made in advance including the details of any insurance cover or other means of personal or collective protection with regard to professional liability. Such declaration shall be renewed once a year if the service provider intends to provide temporary or occasional services in that Member State during that year. The service provider may supply the declaration by any means.

2. Moreover, for the first provision of services or if there is a material change in the situation substantiated by the documents, Member States may require that the declaration be accompanied by the following documents:

(a) proof of the nationality of the service provider;

(b) an attestation certifying that the holder is legally established in a Member State for the purpose of pursuing the activities concerned and that he is not prohibited from practising, even temporarily, at the moment of delivering the attestation;

(c) evidence of professional qualifications;

▼M9

(d) for cases referred to in point (b) of Article 5(1), any means of proof that the service provider has pursued the activity concerned for at least one year during the previous 10 years;

(e) for professions in the security sector, in the health sector and professions related to the education of minors, including in childcare and early childhood education, where the Member State so requires for its own nationals, an attestation confirming the absence of temporary or final suspensions from exercising the profession or of criminal convictions;

▼M9

(f) for professions that have patient safety implications, a declaration about the applicant’s knowledge of the language necessary for practising the profession in the host Member State;

(g) for professions covering the activities referred to in Article 16 and which were notified by a Member State in accordance with Article 59(2), a certificate concerning the nature and duration of the activity issued by the competent authority or body of the Member State where the service provider is established.

2a. Submission of a required declaration by the service provider in accordance with paragraph 1 shall entitle that service provider to have access to the service activity or to exercise that activity in the entire territory of the Member State concerned. A Member State may require additional information listed in paragraph 2 concerning the professional qualifications of the service provider if:

(a) the profession is regulated in parts of that Member State’s territory in a different manner;

(b) such regulation is applicable also to all nationals of that Member State;

(c) the differences in such regulation are justified by overriding reasons of general interest relating to public health or safety of service recipients; and

(d) the Member State has no other means of obtaining such information.

▼B

3. The service shall be provided under the professional title of the Member State of establishment, in so far as such a title exists in that Member State for the professional activity in question. That title shall be indicated in the official language or one of the official languages of the Member State of establishment in such a way as to avoid any confusion with the professional title of the host Member State. Where no such professional title exists in the Member State of establishment, the service provider shall indicate his formal qualification in the official language or one of the official languages of that Member State. By way of exception, the service shall be provided under the professional title of the host Member State for cases referred to in Title III Chapter III.

▼M9

4. For the first provision of services, in the case of regulated professions that have public health or safety implications which do not benefit from automatic recognition under Chapter II, III or IIIa of Title III, the competent authority of the host Member State may check the professional qualifications of the service provider prior to the first provision of services. Such a prior check shall be possible only where the purpose of the check is to avoid serious damage to the health or safety of the service recipient due to a lack of professional qualification of the service provider and where the check does not go beyond what is necessary for that purpose.

No later than one month after receipt of the declaration and accompanying documents, referred to in paragraphs 1 and 2, the competent authority shall inform the service provider of its decision:

(a) not to check his professional qualifications;

(b) having checked his professional qualifications: (i) to require the service provider to take an aptitude test; or (ii) to allow the provision of services.

Where there is a difficulty which would result in delay in taking a decision under the second subparagraph, the competent authority shall notify the service provider of the reason for the delay within the same deadline. The difficulty shall be solved within one month of that notification and the decision finalised within two months of resolution of the difficulty.

Where there is a substantial difference between the professional qualifications of the service provider and the training required in the host Member State, to the extent that that difference is such as to be harmful to public health or safety, and that it cannot be compensated by the service provider’s professional experience or by knowledge, skills and competences acquired through lifelong learning formally validated to that end by a relevant body, the host Member State shall give that service provider the opportunity to show, by means of an aptitude test, as referred to in point (b) of the second subparagraph, that they have acquired the knowledge, skills or competence that were lacking. The host Member State shall take a decision on that basis on whether to allow the provision of services. In any case, it must be possible to provide the service within one month of the decision taken in accordance with the second subparagraph.

In the absence of a reaction of the competent authority within the deadlines set out in the second and third subparagraphs, the service may be provided.

In cases where professional qualifications have been verified under this paragraph, the service shall be provided under the professional title of the host Member State.

▼B

Article 8

Administrative cooperation

▼M9

1. The competent authorities of the host Member State may ask the competent authorities of the Member State of establishment, in the event of justified doubts, to provide any information relevant to the legality of the service provider’s establishment and good conduct, as well as the absence of any disciplinary or criminal sanctions of a professional nature. In the event that the competent authorities of the host Member State decide to check the service provider’s professional qualifications, they may ask the competent authorities of the Member State of establishment for information about the service provider’s training courses to the extent necessary to assess substantial differences likely to be harmful to public health or safety. The competent authorities of the Member State of establishment shall provide that information in accordance with Article 56. In the case of non-regulated professions in the home Member State, the assistance centres referred to in Article 57b may also provide such information.

▼B

2. The competent authorities shall ensure the exchange of all information necessary for complaints by a recipient of a service against a service provider to be correctly pursued. Recipients shall be informed of the outcome of the complaint.

Article 9

Information to be given to the recipients of the service

In cases where the service is provided under the professional title of the Member State of establishment or under the formal qualification of the service provider, in addition to the other requirements relating to information contained in Community law, the competent authorities of the host Member State may require the service provider to furnish the recipient of the service with any or all of the following information:

(a) if the service provider is registered in a commercial register or similar public register, the register in which he is registered, his registration number, or equivalent means of identification contained in that register;

(b) if the activity is subject to authorisation in the Member State of establishment, the name and address of the competent supervisory authority;

(c) any professional association or similar body with which the service provider is registered;

(d) the professional title or, where no such title exists, the formal qualification of the service provider and the Member State in which it was awarded;

(e) if the service provider performs an activity which is subject to VAT, the VAT identification number referred to in Article 22(1) of the sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment ( 26 );

(f) details of any insurance cover or other means of personal or collective protection with regard to professional liability.







TITLE III

FREEDOM OF ESTABLISHMENT







CHAPTER I

General system for the recognition of evidence of training

Article 10

Scope

This Chapter applies to all professions which are not covered by Chapters II and III of this Title and in the following cases in which the applicant, for specific and exceptional reasons, does not satisfy the conditions laid down in those Chapters:

(a) for activities listed in Annex IV, when the migrant does not meet the requirements set out in Articles 17, 18 and 19;

(b) for doctors with basic training, specialised doctors, nurses responsible for general care, dental practitioners, specialised dental practitioners, veterinary surgeons, midwives, pharmacists and architects, when the migrant does not meet the requirements of effective and lawful professional practice referred to in Articles 23, 27, 33, 37, 39, 43 and 49;

(c) for architects, when the migrant holds evidence of formal qualification not listed in Annex V, point 5.7;

(d) without prejudice to Article 21(1), 23 and 27, for doctors, nurses, dental practitioners, veterinary surgeons, midwives, pharmacists and architects holding evidence of formal qualifications as a specialist who must have taken part in the training leading to the possession of a title ◄ listed in Annex V, points 5.1.1, 5.2.2, 5.3.2, 5.4.2, 5.5.2, 5.6.2 and 5.7.1, and solely for the purpose of the recognition of the relevant specialty;

(e) for nurses responsible for general care and specialized nurses holding evidence of formal qualifications as a specialist who have taken part in the training leading to the possession of a title ◄ listed in Annex V, point 5.2.2, when the migrant seeks recognition in another Member State where the relevant professional activities are pursued by specialised nurses without training as general care nurse;

▼C2

(f) for specialised nurses without training as general care nurse, when the migrant seeks recognition in another Member State where the relevant professional activities are pursued by nurses responsible for general care, specialised nurses without training as general care nurse or specialised nurses holding evidence of formal qualifications as a specialist who have taken part in the training leading to the possession of the titles listed in Annex V, point 5.22;

▼B

(g) for migrants meeting the requirements set out in Article 3(3).

Article 11

Levels of qualification

▼M9

For the purposes of Article 13 and Article 14(6), professional qualifications shall be grouped under the following levels:

▼B

(a) an attestation of competence issued by a competent authority in the home Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State, on the basis of: (i) either a training course not forming part of a certificate or diploma within the meaning of points (b), (c), (d) or (e), or a specific examination without prior training, or full-time pursuit of the profession in a Member State for three consecutive years or for an equivalent duration on a part-time basis during the previous 10 years, (ii) or general primary or secondary education, attesting that the holder has acquired general knowledge;

(b) a certificate attesting to a successful completion of a secondary course, (i) either general in character, supplemented by a course of study or professional training other than those referred to in point (c) and/or by the probationary or professional practice required in addition to that course, (ii) or technical or professional in character, supplemented where appropriate by a course of study or professional training as referred to in point (i), and/or by the probationary or professional practice required in addition to that course;

(c) a diploma certifying successful completion of (i) either training at post-secondary level other than that referred to in points (d) and (e) of a duration of at least one year or of an equivalent duration on a part-time basis, one of the conditions of entry of which is, as a general rule, the successful completion of the secondary course required to obtain entry to university or higher education or the completion of equivalent school education of the second secondary level, as well as the professional training which may be required in addition to that post-secondary course; or ▼M9 (ii) regulated education and training or, in the case of regulated professions, vocational training with a special structure, with competences going beyond what is provided for in level b, equivalent to the level of training provided for under point (i), if such training provides a comparable professional standard and prepares the trainee for a comparable level of responsibilities and functions provided that the diploma is accompanied by a certificate from the home Member State;

(d) a diploma certifying that the holder has successfully completed training at post-secondary level of at least three and not more than four years’ duration, or of an equivalent duration on a part-time basis, which may in addition be expressed with an equivalent number of ECTS credits, at a university or establishment of higher education or another establishment of equivalent level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course;

(e) a diploma certifying that the holder has successfully completed a post-secondary course of at least four years’ duration, or of an equivalent duration on a part-time basis, which may in addition be expressed with an equivalent number of ECTS credits, at a university or establishment of higher education or another establishment of equivalent level and, where appropriate, that he has successfully completed the professional training required in addition to the post-secondary course.

▼M9 —————

▼B

Article 12

Equal treatment of qualifications

▼M9

Any evidence of formal qualifications or set of evidence of formal qualifications issued by a competent authority in a Member State, certifying successful completion of training in the Union, on a full or part-time basis, within or outside formal programmes, which is recognised by that Member State as being of an equivalent level and which confers on the holder the same rights of access to or pursuit of a profession or prepares for the pursuit of that profession, shall be treated as evidence of formal qualifications referred to in Article 11, including the level in question.

▼B

Any professional qualification which, although not satisfying the requirements contained in the legislative, regulatory or administrative provisions in force in the home Member State for access to or the pursuit of a profession, confers on the holder acquired rights by virtue of these provisions, shall also be treated as such evidence of formal qualifications under the same conditions as set out in the first subparagraph. This applies in particular if the home Member State raises the level of training required for admission to a profession and for its exercise, and if an individual who has undergone former training, which does not meet the requirements of the new qualification, benefits from acquired rights by virtue of national legislative, regulatory or administrative provisions; in such case this former training is considered by the host Member State, for the purposes of the application of Article 13, as corresponding to the level of the new training.

▼M9

Article 13

Conditions for recognition

1. If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.

Attestations of competence or evidence of formal qualifications shall be issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State.

2. Access to, and pursuit of, a profession as described in paragraph 1 shall also be granted to applicants who have pursued the profession in question on a full-time basis for one year or for an equivalent overall duration on a part-time basis during the previous 10 years in another Member State which does not regulate that profession, and who possess one or more attestations of competence or evidence of formal qualifications issued by another Member State which does not regulate the profession.

Attestations of competence and evidence of formal qualifications shall satisfy the following conditions:

(a) they are issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State;

(b) they attest that the holder has been prepared for the pursuit of the profession in question.

The one year of professional experience referred to in the first subparagraph may not, however, be required if the evidence of formal qualifications which the applicant possesses certifies regulated education and training.

3. The host Member State shall accept the level attested under Article 11 by the home Member State, as well as the certificate by which the home Member State certifies that regulated education and training or vocational training with a special structure referred to in point (c)(ii) of Article 11 is equivalent to the level provided for in point (c)(i) of Article 11.

4. By way of derogation from paragraphs 1 and 2 of this Article and from Article 14, the competent authority of the host Member State may refuse access to, and pursuit of, the profession to holders of an attestation of competence classified under point (a) of Article 11 where the national professional qualification required to exercise the profession on its territory is classified under point (e) of Article 11.

▼B

Article 14

Compensation measures

▼M9

1. Article 13 shall not preclude the host Member State from requiring the applicant to complete an adaptation period of up to three years or to take an aptitude test if:

(a) the training the applicant has received covers substantially different matters than those covered by the evidence of formal qualifications required in the host Member State;

(b) the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home Member State, and the training required in the host Member State covers substantially different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications.

▼B

2. If the host Member State makes use of the option provided for in paragraph 1, it must offer the applicant the choice between an adaptation period and an aptitude test.

Where a Member State considers, with respect to a given profession, that it is necessary to derogate from the requirement, set out in the previous subparagraph, that it give the applicant a choice between an adaptation period and an aptitude test, it shall inform the other Member States and the Commission in advance and provide sufficient justification for the derogation.

▼M9

Where the Commission considers that the derogation referred to in the second subparagraph is inappropriate or that it is not in accordance with Union law, it shall adopt an implementing act, within three months of receiving all necessary information, to ask the relevant Member State to refrain from taking the envisaged measure. In the absence of a response from the Commission within that deadline, the derogation may be applied.

▼B

3. By way of derogation from the principle of the right of the applicant to choose, as laid down in paragraph 2, for professions whose pursuit requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may stipulate either an adaptation period or an aptitude test.

►C2 This applies also to the cases provided for in Article 10 points (b) and (c), in Article 10 point (d) concerning doctors and dental practitioners in Article 10 point (f) when the migrant seeks recognition in another Member State where the relevant professional activities are pursued by nurses responsible for general care or specialised nurses holding evidence of formal qualifications as a specialist who have taken part in the training ◄ leading to the possession of the titles listed in Annex V, point 5.2.2 and in Article 10 point (g).

In the cases covered by Article 10 point (a), the host Member State may require an adaptation period or an aptitude test if the migrant envisages pursuing professional activities in a self-employed capacity or as a manager of an undertaking which require the knowledge and the application of the specific national rules in force, provided that knowledge and application of those rules are required by the competent authorities of the host Member State for access to such activities by its own nationals.

▼M9

By way of derogation from the principle of the right of the applicant to choose, as laid down in paragraph 2, the host Member State may stipulate either an adaptation period or an aptitude test in the case of:

(a) a holder of a professional qualification referred to in point (a) of Article 11, who applies for recognition of his professional qualifications where the national professional qualification required is classified under point (c) of Article 11; or

(b) a holder of a professional qualification referred to in point (b) of Article 11, who applies for recognition of his professional qualifications where the national professional qualification required is classified under point (d) or (e) of Article 11.

In the case of a holder of a professional qualification referred to in point (a) of Article 11 who applies for recognition of his professional qualifications where the national professional qualification required is classified under point (d) of Article 11, the host Member State may impose both an adaptation period and an aptitude test.

▼M9

4. For the purposes of paragraphs 1 and 5, ‘substantially different matters’ means matters in respect of which knowledge, skills and competences acquired are essential for pursuing the profession and with regard to which the training received by the migrant shows significant differences in terms of content from the training required by the host Member State.

5. Paragraph 1 shall be applied with due regard to the principle of proportionality. In particular, if the host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must first ascertain whether the knowledge, skills and competences acquired by the applicant in the course of his professional experience or through lifelong learning, and formally validated to that end by a relevant body, in any Member State or in a third country, is of such nature as to cover, in full or in part, the substantially different matters defined in paragraph 4.

▼M9

6. The decision imposing an adaptation period or an aptitude test shall be duly justified. In particular, the applicant shall be provided with the following information:

(a) the level of the professional qualification required in the host Member State and the level of the professional qualification held by the applicant in accordance with the classification set out in Article 11; and

(b) the substantial differences referred to in paragraph 4 and the reasons for which those differences cannot be compensated by knowledge, skills and competences acquired in the course of professional experience or through lifelong learning formally validated to that end by a relevant body.

7. Member States shall ensure that an applicant has the possibility of taking the aptitude test referred to in paragraph 1 not later than six months after the initial decision imposing an aptitude test on the applicant.

▼M9 —————

▼B







CHAPTER II

Recognition of professional experience

Article 16

Requirements regarding professional experience

If, in a Member State, access to or pursuit of one of the activities listed in Annex IV is contingent upon possession of general, commercial or professional knowledge and aptitudes, that Member State shall recognise previous pursuit of the activity in another Member State as sufficient proof of such knowledge and aptitudes. The activity must have been pursued in accordance with Articles 17, 18 and 19.

Article 17

Activities referred to in list I of Annex IV

1. For the activities in list I of Annex IV, the activity in question must have been previously pursued:

(a) for six consecutive years on a self-employed basis or as a manager of an undertaking; or

(b) for three consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary proves that he has received previous training of at least three years for the activity in question, evidenced by a certificate recognised by the Member State or judged by a competent professional body to be fully valid; or

(c) for four consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary can prove that he has received, for the activity in question, previous training of at least two years' duration, attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid; or

(d) for three consecutive years on a self-employed basis, if the beneficiary can prove that he has pursued the activity in question on an employed basis for at least five years; or

(e) for five consecutive years in an executive position, of which at least three years involved technical duties and responsibility for at least one department of the company, if the beneficiary can prove that he has received, for the activity in question, previous training of at least three years' duration, as attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid.

2. In cases (a) and (d), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority referred to in Article 56.

3. Paragraph 1(e) shall not apply to activities in Group ex 855, hairdressing establishments, of the ISIC Nomenclature.

Article 18

Activities referred to in list II of Annex IV

1. For the activities in list II of Annex IV, the activity in question must have been previously pursued:

(a) for five consecutive years on a self-employed basis or as a manager of an undertaking, or

(b) for three consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary proves that he has received previous training of at least three years for the activity in question, evidenced by a certificate recognised by the Member State or judged by a competent professional body to be fully valid, or

(c) for four consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary can prove that he has received, for the activity in question, previous training of at least two years' duration, attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid, or

(d) for three consecutive years on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he has pursued the activity in question on an employed basis for at least five years, or

(e) for five consecutive years on an employed basis, if the beneficiary can prove that he has received, for the activity in question, previous training of at least three years' duration, as attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid, or

(f) for six consecutive years on an employed basis, if the beneficiary can prove that he has received previous training in the activity in question of at least two years' duration, as attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid.

2. In cases (a) and (d), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority referred to in Article 56.

Article 19

Activities referred to in list III of Annex IV

1. For the activities in list III of Annex IV, the activity in question must have been previously pursued:

(a) for three consecutive years, either on a self-employed basis or as a manager of an undertaking, or

(b) for two consecutive years, either on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he has received previous training for the activity in question, as attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid, or

(c) for two consecutive years, either on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he has pursued the activity in question on an employed basis for at least three years, or

(d) for three consecutive years, on an employed basis, if the beneficiary can prove that he has received previous training for the activity in question, as attested by a certificate recognised by the Member State or judged by a competent professional body to be fully valid.

2. In cases (a) and (c), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority referred to in Article 56.

▼M9

Article 20

Adaptation of lists of activities in Annex IV

The Commission shall be empowered to adopt delegated acts in accordance with Article 57c concerning the adaptation of the lists of activities set out in Annex IV which are the subject of recognition of professional experience pursuant to Article 16, with a view to updating or clarifying the activities listed in Annex IV in particular in order to further specify their scope and to take due account of the latest developments in the field of activity-based nomenclatures, provided that this does not involve any narrowing of the scope of the activities related to the individual categories and that there is no shift of activities between the existing lists I, II and III of Annex IV.

▼B







CHAPTER III

Recognition on the basis of coordination of minimum training conditions







Section 1

General Provisions

Article 21

Principle of automatic recognition

1. Each Member State shall recognise evidence of formal qualifications as doctor giving access to the professional activities of doctor with basic training and specialised doctor, as nurse responsible for general care, as dental practitioner, as specialised dental practitioner, as veterinary surgeon, as pharmacist and as architect, listed in Annex V, points 5.1.1, 5.1.2, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.6.2 and 5.7.1 respectively, which satisfy the minimum training conditions referred to in Articles 24, 25, 31, 34, 35, 38, 44 and 46 respectively, and shall, for the purposes of access to and pursuit of the professional activities, give such evidence the same effect on its territory as the evidence of formal qualifications which it itself issues.

Such evidence of formal qualifications must be issued by the competent bodies in the Member States and accompanied, where appropriate, by the certificates listed in Annex V, points 5.1.1, 5.1.2, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.6.2 and 5.7.1 respectively.

The provisions of the first and second subparagraphs do not affect the acquired rights referred to in Articles 23, 27, 33, 37, 39 and 49.

2. Each Member State shall recognise, for the purpose of pursuing general medical practice in the framework of its national social security system, evidence of formal qualifications listed in Annex V, point 5.1.4 and issued to nationals of the Member States by the other Member States in accordance with the minimum training conditions laid down in Article 28.

The provisions of the previous subparagraph do not affect the acquired rights referred to in Article 30.

3. Each Member State shall recognise evidence of formal qualifications as a midwife, awarded to nationals of Member States by the other Member States, listed in Annex V, point 5.5.2, which complies with the minimum training conditions referred to in Article 40 and satisfies the criteria set out in Article 41, and shall, for the purposes of access to and pursuit of the professional activities, give such evidence the same effect on its territory as the evidence of formal qualifications which it itself issues. This provision does not affect the acquired rights referred to in Articles 23 and 43.

▼M9

4. In respect of the operation of pharmacies that are not subject to territorial restrictions, a Member State may, by way of derogation, decide not to give effect to evidence of formal qualifications referred to in point 5.6.2 of Annex V, for the setting up of new pharmacies open to the public. For the purposes of this paragraph, pharmacies which have been open for less than three years shall also be considered as new pharmacies.

That derogation may not be applied in respect of pharmacists whose formal qualifications have already been recognised by the competent authorities of the host Member State for other purposes and who have been effectively and lawfully engaged in the professional activities of a pharmacist for at least three consecutive years in that Member State.

▼B

5. Evidence of formal qualifications as an architect referred to in Annex V, point 5.7.1, which is subject to automatic recognition pursuant to paragraph 1, proves completion of a course of training which began not earlier than during the academic reference year referred to in that Annex.

▼M9

6. Each Member State shall make access to, and pursuit of, the professional activities of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists subject to possession of evidence of formal qualifications referred to in points 5.1.1, 5.1.2, 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2 and 5.6.2 of Annex V respectively, attesting that the professional concerned, over the duration of his training, has acquired, as appropriate, the knowledge, skills and competences referred to in Articles 24(3), 31(6), 31(7), 34(3), 38(3), 40(3) and 44(3).

In order to take account of generally acknowledged scientific and technical progress, the Commission shall be empowered to adopt delegated acts in accordance with Article 57c to update the knowledge and skills referred to in Articles 24(3), 31(6), 34(3), 38(3), 40(3), 44(3) and 46(4) to reflect the evolution of Union law directly affecting the professionals concerned.

Such updates shall not entail an amendment of existing essential legislative principles in Member States regarding the structure of professions as regards training and conditions of access by natural persons. Such updates shall respect the responsibility of the Member States for the organisation of education systems, as set out in Article 165(1) of the Treaty on the Functioning of the European Union (TFEU).

▼M9 —————

▼M9

Article 21a

Notification procedure

1. Each Member State shall notify the Commission of the laws, regulations and administrative provisions which it adopts with regard to the issuing of evidence of formal qualifications in the professions covered by this Chapter.

In the case of evidence of formal qualifications referred to in Section 8, notification in accordance with the first subparagraph shall also be addressed to the other Member States.

2. The notification referred to in paragraph 1 shall include information about the duration and content of the training programmes.

3. The notification referred to in paragraph 1 shall be transmitted via IMI.

4. In order to take due account of legislative and administrative developments in the Member States, and on condition that the laws, regulations and administrative provisions notified pursuant to paragraph 1 of this Article are in conformity with the conditions set out in this Chapter, the Commission shall be empowered to adopt delegated acts in accordance with Article 57c in order to amend points 5.1.1 to 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2, 5.6.2 and 5.7.1 of Annex V, concerning the updating of the titles adopted by the Member States for evidence of formal qualifications and, where appropriate, the body which issues the evidence of formal qualifications, the certificate which accompanies it and the corresponding professional title.

5. Where the legislative, regulatory and administrative provisions notified pursuant to paragraph 1 are not in conformity with the conditions set out in this Chapter, the Commission shall adopt an implementing act in order to reject the requested amendment of points 5.1.1 to 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2, 5.6.2 or 5.7.1 of Annex V.

▼B

Article 22

Common provisions on training

With regard to the training r