COMMON POSITION (EC) No 42/98 adopted by the Council on 29 June 1998 with a view to adopting Directive 98/. . ./EC of the European Parliament and Council of . . . establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications (98/C 262/02)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 49 and 57(1), the first and third sentences of Article 57(2), and Article 66 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion delivered by the Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 189b of the Treaty (3),

(1) Whereas, under the Treaty, all discriminatory treatment on grounds of nationality with regard to establishment and provision of services is prohibited as from the end of the transitional period; whereas, therefore, certain provisions of the Directives applying in this area have become redundant for the purposes of applying the rule of national treatment, since that rule is enshrined in the Treaty itself and has direct effect;

(2) Whereas, however, certain of the Directives' provisions designed to facilitate the effective exercise of the right of establishment and freedom to provide services should be retained, particularly where they usefully prescribe how obligations under the Treaty are to be discharged;

(3) Whereas, in order to facilitate the exercise of freedom of establishment and freedom to provide services in respect of a number of activities, Directives introducing transitional measures have been adopted pending mutual recognition of qualifications; whereas those Directives accept the fact that the activity in question has been pursued for a reasonable and sufficiently recent period of time in the Member State from which the national comes as a sufficient qualification for taking up the activities in question in Member States which have rules governing the taking up of such activities;

(4) Whereas the main provisions of the said Directives should be replaced in line with the conclusions of the European Council held in Edinburgh on 11 and 12 December 1992 regarding subsidiarity, simplification of Community legislation and, in particular, the reconsideration by the Commission of the relatively old directives dealing with professional qualifications; whereas the Directives in question should therefore be repealed;

(5) Whereas Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (4) and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/49/EEC (5) do not apply to certain professional activities covered by the Directives applying to this subject-matter (Part One of Annex A to this Directive); whereas recognition machinery in respect of qualifications should, therefore, be introduced for those professional activities not covered by Directives 89/49/EEC and 92/51/EEC; whereas the professional activities listed in Part Two of Annex A to this Directive fall for the most part within the scope of Directive 92/51/EEC as far as the recognition of diplomas is concerned;

(6) Whereas a proposal has been transmitted to the Council with a view to amending Directives 89/49/EEC and 92/51/EEC in respect of the proof of financial standing and the proof of an insurance against financial risks that a host Member State may require of the beneficiary; whereas the Council intends to deal with this proposal at a later stage;

(7) Whereas a proposal has been transmitted to the Council with a view to facilitating the free movement of specialised nurses who do not have any of the qualifications listed in Article 3 of Directive 77/452/EEC (6); whereas the Council intends to deal with this proposal at a later stage;

(8) Whereas this Directive should require regular reports to be drawn up on its implementation;

(9) Whereas this Directive is without prejudice to the application of Articles 48(4) and 55 of the Treaty,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I Scope

Article 1

1. Member States shall adopt the measures defined in this Directive in respect of establishment or provision of services in their territories by natural persons and companies or firms covered by Title I of the General Programmes for the abolition of restrictions on freedom to supply services (7) and on freedom of establishment (8) (hereinafter called 'beneficiaries`) who wish to pursue the activities listed in Annex A.

2. This Directive shall apply to the activities listed in Annex A which nationals of Member States wish to pursue in a host Member State in a self-employed or employed capacity.

Article 2

Member States in which the taking-up or pursuit of any activity referred to in Annex A is subject to possession of certain qualifications shall ensure that any beneficiaries who apply therefore be provided, before they establish themselves or before they begin to provide services, with information as to the rules governing the occupation which they propose to pursue.

TITLE II Recognition of formal qualifications awarded by another Member State

Article 3

1. Without prejudice to Article 4, a Member State may not, on the grounds of inadequate qualifications, refuse to permit a national of another Member State to take up or pursue any of the activities listed in Part One of Annex A on the same conditions as apply to its own nationals, without having first compared the knowledge and skills certified by the diplomas, certificates or other evidence of formal qualifications obtained by the beneficiary with a view to pursuing the same activity elsewhere in the Community with those required under its own national rules. Where the comparative examination shows that the knowledge and skills certified by a diploma, certificate or other evidence of formal qualifications awarded by another Member State correspond to those required by the national rules, the host Member State cannot refuse the holder the right to pursue the activity in question. Where, however, the comparative examination shows a substantial difference, the host Member State shall give the beneficiary the opportunity to demonstrate that he has acquired the knowledge and skills which were lacking by, at the choice of the host Member State, attending an adaptation period or taking an aptitude test by analogy with Directives 89/48/EEC and 92/51/EEC. Member States shall endeavour to take into consideration the beneficiary's preference as between these alternatives.

2. Applications for recognition within the meaning of paragraph 1 shall be examined within the shortest possible time, and the competent authority in the host Member State shall state its reasons when giving a decision, which shall be taken no later than four months from the date on which the application and comprehensive supporting documentation were submitted. There shall be a right to appeal under national law against a decision or against the absence of such decision.

TITLE III Recognition of professional qualifications on the basis of professional experience acquired in another Member State

Article 4

Where, in a Member State, the taking-up or pursuit of any activity listed in Annex A is subject to possession of general, commercial or professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued in another Member State. Where the activity is mentioned in Part One of Annex A, it must have been pursued:

1. in the case of the activities in List I:

(a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or

(b) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years' prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(c) for three consecutive years in a self-employed capacity where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity; or

(d) for five consecutive years in a managerial capacity of which at least three years were spent in technical posts with responsibility for one or more departments of the undertaking where the beneficiary proves that he has received at least three years' prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements.

In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application under Article 8 is made;

2. in the case of the activities in List II:

(a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or

(b) - for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years' prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

- for four consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least two years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(c) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity; or

(d) - for five consecutive years in an employed capacity where the beneficiary proves that he has received at least three years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

- for six consecutive years in an employed capacity where the beneficiary proves that he has received at least two years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements.

In the case referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made;

3. in the case of the activities in List III:

(a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or

(b) for three consecutive years in a self-employed capacity or as a manager of an undertaking, where the beneficiary proves that he has received at least three years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(c) for three consecutive years in a self-employed capacity where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity.

In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made;

4. in the case of the activities in List IV:

(a) for five consecutive years in either a self-employed capacity or as a manager of an undertaking; or

(b) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years' prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(c) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least two years' prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(d) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least three years in an employed capacity; or

(e) for three consecutive years in an employed capacity where the beneficiary proves that he has received at least two years' previous training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements;

5. in the case of the activities in List V(a) and (b):

(a) for three years in a self-employed capacity or as a manager of an undertaking, provided that pursuit of the activity in question did not cease more than two years before the date on which the application provided for in Article 8 is made;

(b) for three years in a self-employed capacity or as a manager of an undertaking, provided that pursuit of the activity in question did not cease more than two years before the date on which the application provided for in Article 8 is made, unless the host Member State permits its nationals to interrupt their pursuit of that activity for a longer period; or

6. in the case of the activities in List VI:

(a) for three consecutive years in either a self-employed capacity or as a manager of an undertaking; or

(b) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or

(c) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least three years in an employed capacity; or

(d) for three consecutive years in an employed capacity where the beneficiary proves that he has received previous training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements.

In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made.

Article 5

Where a beneficiary holds a nationally recognised certificate obtained in a Member State attesting to knowledge of and ability in the activity in question equivalent to at least two or three years, as appropriate, of professional training, that certificate may be treated by the host Member State in the same way as a certificate attesting to training of the duration required by Article 4(1)(b) and (d), (2)(b) and (d), (3)(b) and (4)(b), (c) and (e).

Article 6

Where the duration of the training of the beneficiary is at least two years and less than three years, the requirements of Article 4 shall be satisfied if the duration of professional experience in a self-employed capacity or as a manager specified in Article 4(1)(b) and (d), (2)(b), first indent, (3)(b) and (4)(b) or in an employed capacity specified in Article 4(2)(d), first indent is extended in the same proportion to cover the difference in the duration of the training.

Article 7

A person shall be regarded as having pursued an activity as a manager of an undertaking within the meaning of Article 4 if he has pursued such an activity in an undertaking in the occupational field in question:

(a) as a manager of an undertaking or a manager of a branch of an undertaking; or

(b) 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

(c) in a managerial post with duties of a commercial and/or technical nature and with responsibility for one or more departments of the undertaking.

Article 8

Proof that the conditions laid down in Article 4 are satisfied shall be established by a certificate concerning the nature and duration of the activity issued by the competent authority or body in the home Member State or in the Member State from where the beneficiary comes which the beneficiary must submit in support of his application for authorisation to pursue the activity or activities in question in the host Member State.

TITLE IV Recognition of other professional qualifications obtained in another Member State

Article 9

1. Where a host Member State requires its own nationals wishing to take up any activity referred to in Article 1(2) to furnish proof of good character and proof that they are not and have not previously been declared bankrupt, or proof of either of these, it shall accept as sufficient evidence, in respect of nationals of other Member States, the production of an extract from the 'judicial record` or, failing this, of an equivalent document issued by a competent judicial or administrative authority in the home Member State or in the Member State from where the beneficiary comes showing that these requirements are satisfied.

2. Where a host Member State imposes on its own nationals wishing to take up any activity referred to in Article 1(2) certain requirements as to good character and requires them to prove that they are not and have not previously been declared bankrupt and have not previously been the subject of professional or administrative disciplinary measures (for example, withdrawal of the right to hold certain offices, suspension from practice or striking-off), but proof cannot be obtained from the document referred to in paragraph 1 of this Article, it shall accept as sufficient evidence in respect of nationals of other Member States a certificate issued by a competent judicial or administrative authority in the home Member State or in the Member State from where the beneficiary comes attesting that the requirements are satisfied. Such certificate shall relate to the specific facts regarded as relevant by the host Member State.

3. Where the home Member State or the Member State from where the beneficiary comes does not issue the documents referred to in paragraphs 1 and 2, such documents shall be replaced by a declaration on oath - or, in those Member States where there is no provision for such declaration on oath, by a solemn declaration - made by the person concerned before a competent judicial or administrative authority or, where appropriate, a notary in that Member State; such authority or notary shall issue a certificate attesting the authenticity of the declaration on oath or solemn declaration. The declaration of no previous bankruptcy may also be made before a competent professional or trade body in that Member State.

4. Where a host Member State requires proof of financial standing, it shall regard certificates issued by banks in the home Member State from where the beneficiary comes as equivalent to those issued in its own territory.

5. Where a host Member State requires its own nationals wishing to take up or pursue any activity referred to in Article 1(2) to furnish proof that they are insured against the financial risks arising from their professional liability, it shall accept certificates issued by the insurance undertakings of other Member States as equivalent to those issued in its own territory. Such certificates shall state that the insurer has complied with the laws and regulations in force in the host Member State regarding the terms and extent of cover.

6. At the time of their production, the documents referred to in paragraphs 1, 2, 3 and 5 may not date from more than three months after their date of issue.

TITLE V Procedural provisions

Article 10

1. Member States shall designate, within the period stipulated in Article 14, the authorities and bodies responsible for issuing the certificates referred to in Articles 8 and 9(1), (2) and (3) and shall communicate this information forthwith to the other Member States and to the Commission.

2. Each Member State may nominate a coordinator for the activities of the authorities and bodies referred to in paragraph (1) to the coordinating group set up under Article 9(2) of Directive 89/48/EEC. The tasks of the coordinating group shall also be as follows:

- facilitating the implementation of this Directive,

- collecting all useful information for its application in the Member States and especially gathering and comparing information on the different professional qualifications in the areas of activity falling within the scope of this Directive.

TITLE VI Final provisions

Article 11

1. The Directives listed in Annex B are hereby repealed.

2. References to the repealed Directives shall be construed as references to this Directive.

Article 12

As from 1 January 2001, Member States shall communicate to the Commission every two years a report on the application of the system introduced.

In addition to general remarks, that report shall contain a statistical summary of the decisions taken and a description of the main problems arising from the application of this Directive.

Article 13

Not later than five years after the date referred to in Article 14, the Commission shall report to the European Parliament and the Council on the state of application of this Directive, and in particular of Article 5, in the Member States.

After undertaking all the necessary hearings, especially of the coordinators, the Commission shall submit its conclusions regarding any changes to the existing arrangement. If necessary, the Commission shall also submit proposals for improving the existing arrangements with the aim of facilitating free movement of persons, the right of establishment and freedom to provide services.

Article 14

1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before. . . . . . . . . . . . . . (9*). They shall immediately inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 15

This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 16

This Directive is addressed to the Member States.

Done at

For the European Parliament

The President

For the Council

The President

(1) OJ C 115, 19.4.1996, p. 16 and OJ C 264, 30.8.1997, p. 5.

(2) OJ C 295, 7.10.1996, p. 43.

(3) Opinion of the European Parliament of 20 February 1997 (OJ C 85, 17.3.1997, p. 114), Common Position of the Council of 29 June 1998, and Decision of the European Parliament of . . . (not yet published in the Official Journal).

(4) OJ L 19, 24.1.1989, p. 16.

(5) OJ L 209, 24.7.1992, p. 25. Directive as last amended by Commission Directive 97/38/EC (OJ L 184, 12.7.1997, p. 31).

(6) Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services (OJ L 176, 15.7.1977, p. 1) Directive as last amended by Directive 90/658/EC (OJ L 353, 17.12.1990, p. 73).

(7) OJ 2, 15.1.1962, p. 32/62.

(8) OJ 2, 15.1.1962, p. 36/62.

(9*) 24 months from the date of its entry into force

ANNEX A

PART ONE ACTIVITIES RELATED TO CATEGORIES OF PROFESSIONAL EXPERIENCE

List I Major groups covered by Directive 64/427/EEC, as amended by Directive 69/77/EEC, and by Directives 68/366/EEC, 75/368/EEC and 75/369/EEC

1 Directive 64/427/EEC (liberalisation Directive: 64/429/EEC) NICE Nomenclature (corresponding to ISIC Major Groups 23-40)

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2 Directive 68/366/EEC (liberalisation Directive 68/365/EEC) NICE Nomenclature

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3 Directive 75/368/EEC (activities listed in Article 5(1)) ISIC Nomenclature

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4 Directive 75/369/EEC (Article 6: where the activity is regarded as being of an industrial or small-craft nature) ISIC Nomenclature

The following itinerant activities:

(a) - by itinerant tradesmen, hawkers or pedlars (ex ISIC Group 612),

- in covered markets other than from permanently fixed installations and in open-air markets,

(b) activities covered by transitional measures already adopted that expressly exclude or do not mention the pursuit of such activities on an itinerant basis.

List II Directive 82/470/EEC (Article 6(3))

Groups 718 and 720 of the ISIC Nomenclature

The activities comprise in particular:

- organising, offering for sale and selling, outright or on commission, single or collective items (transport, board, lodging, excursions, etc.) for a journey or stay, whatever the reasons for travelling (Article 2(B)(a)).

List III Directive 82/489/EEC

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List IV Directive 82/470/EEC (Article 6(1))

Group 718 and 720 of the ISIC Nomenclature:

The activities comprise in particular:

- acting as an intermediary between contractors for various methods of transport and persons who dispatch or receive goods, and carrying out related activities:

(aa) by concluding contracts with transport contractors, on behalf of principals;

(bb) by choosing the method of transport, the firm and the route considered most profitable for the principal;

(cc) by arranging the technical aspects of the transport operation (e.g. packing required for transportation); by carrying out various operations incidental to transport (e.g. ensuring ice supplies for refrigerated wagons);

(dd) by completing the formalities connected with the transport such as the drafting of way bills; by assembling and dispersing shipments;

(ee) by coordinating the various stages of transportation, by ensuring transit, reshipment, transshipment and other termination operations;

(ff) by arranging both freight and carriers and means of transport for persons dispatching goods or receiving them,

- assessing transport costs and checking the detailed accounts

- taking certain temporary or permanent measures in the name of and on behalf of a shipowner or sea transport carrier (with the port authorities, ship's chandlers, etc.).

(The activities listed under Article 2(A)(a), (b) and (d))

List V Directives 64/222/EEC and 70/523/EEC

a See Article 4(5)(a) of this Directive Directive 64/222/EEC (liberalisation Directive 64/224/EEC

1. Professional activities of an intermediary who is empowered and instructed by one or more persons to negotiate or enter into commercial transactions in the name of and on behalf of those persons.

2. Professional activities of an intermediary who, while not being permanently so instructed, brings together persons wishing to contract directly with one another or arranges their commercial transactions or assists in the completion thereof.

3. Professional activities of an intermediary who enters into commercial transactions in his own name on behalf of others.

4. Professional activities of an intermediary who carries out wholesale selling by auction on behalf of others.

5. Professional activities of an intermediary who goes from door to door seeking orders.

6. Provision of services, by way of professional activities, by an intermediary in the employment of one more commercial, industrial or small craft undertakings.

b See Article 4(5)(b) of this Directive Directive 70/523/EEC

Activities of self-employed persons in the wholesale coal trade and activities of intermediaries in the coal trade (ex Group 6112, ISIC Nomenclature)

(See Article 4(5)(b) of this Directive

List VI Directives 68/364/EEC, 68/368/EEC, 75/368/EEC, 75/369/EEC and 82/470/EEC

1 Directive 68/364/EEC (liberalisation Directive 68/363/EEC)

ISIC ex Group 612 Retail trade

Excluded activities:

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2 Directive 68/368/EEC (liberalisation Directive 68/367/EEC ISIC Nomenclature

ISIC ex Major Group 85:

1. Restaurants, cafés, taverns and other drinking and eating places (ISIC Group 852)

2. Hotels, rooming houses, camps and other lodging places (ISIC Group 853)

3 Directive 75/368/EEC (Article 7)

All the activities listed in the Annex to Directive 75/368/EEC, except those referred to in Article 5 of that Directive (List I, No 3 of this Annex).

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4 Directive 75/369/EEC (Article 5)

The following itinerant activities:

(a) the buying and selling of goods:

- by itinerant tradesmen, hawkers or pedlars (ex ISIC Group 612),

- in covered markets other than from permanently fixed installations and in open-air markets;

(b) activities covered by transitional measures already adopted that expressly exclude or do not mention the pursuit of such activities on an itinerant basis.

5 Directive 82/470/EEC (Article 6(2)) (Activities listed in Article 2(A)(c) and (e), (B)(b), (C) and (D))

These activities comprise in particular:

- hiring railway cars or wagons for transporting persons or goods,

- acting as an intermediary in the sale, purchase or hiring of ships,

- arranging, negotiating and concluding contracts for the transport of emigrants,

- receiving all objects and goods deposited, on behalf of the depositor, whether under customs control or not, in warehouses, general stores, furniture depots, coldstores, silos, etc.

- supplying the depositor with a receipt for the object or goods deposited,

- providing pens, feed, and sales rings for livestock being temporarily accommodated while awaiting sale or while in transit to or from the market;

- carrying out inspection or technical valuation of motor vehicles,

- measuring, weighing and gauging goods.

PART TWO ACTIVITIES OTHER THAN THOSE COVERED IN PART ONE

1 Directives 63/261/EEC, 63/262/EEC, 65/1/EEC, 67/530/EEC, 67/531/EEC, 67/532/EEC, 68/192/EEC, 68/415/EEC and 71/18/EEC ISIC Nomenclature

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2 Directive 63/607/EEC (Films)

3 Directive 64/223/EEC ISIC Nomenclature

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4 Directive 64/428/EEC NICE Nomenclature

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5 Directive 65/264/EEC (cinema)

6 Directive 66/162/EEC ISIC Nomenclature

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7 Directive 67/43/EEC ISIC Nomenclature

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8 Directive 67/654/EEC ISIC Nomenclature

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9 Directives 68/369/EEC and 70/451/EEC ISIC Nomenclature

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10 Directive 69/82/EEC ISIC Nomenclature

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11 Directive 70/522/EEC ISIC Nomenclature

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ANNEX B

Repealed Directives

PART ONE: Liberalisation Directives

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Part Two: Directives providing for transitional measures

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STATEMENT OF THE COUNCIL's REASONS

I. INTRODUCTION

1. On 9 February 1996, the Commission sent to the Council a proposal for a Directive establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications.

That proposal was based on Article 49, Article 58(1), the first and third sentences of Article 57(2), and Article 66 of the EC Treaty.

2. The European Parliament delivered its Opinion at first reading on 20 February 1997.

The Economic and Social Committee delivered its Opinion on 10 July 1996.

In the light of those opinions, the Commission submitted an amended proposal on 16 July 1997.

3. The Council adopted its common position in accordance with Article 189b of the Treaty on 29 June 1998.

II. OBJECTIVE

The aim of the proposal is to establish a mechanism for the recognition of qualifications in respect of professional activities not covered by the general system. This mechanism will enable migrants to ask for the recognition of their qualifications where they do not have the necessary professional experience to seek application of a Directive on transitional measures.

The proposal is also designed to recast the main provisions of the Directives on transitional measures and liberalisation relating in particular to trade, industry and small craft industries so as to make Community legislation clearer and simpler.

III. COMMON POSITION

1. General comments

The Council's common position is in line with the objective of the Commission proposal as indicated in section II above. However, the Council has amended the proposal, in particular to ensure that the common position reflects more faithfully the systems of professional training in all the Member States, and especially the most recent trends in that sector.

The Council has accepted most of the amendments proposed by the European Parliament at first reading (1).

2. Specific comments

The amendments to the Commission proposal - other than the European parliament's amendments - are summarised below.

(i) Choice of compensatory measure by the host Member State (Article 3(1)

In the last sentence but one, for the sake of clarity and legal certainty, the Council wished to specify that, within the framework of the recognition of diplomas, it is for the host Member State to choose the measure (adaptation period or aptitude test) offered to the migrant to make up for the training deficit.

A last sentence has been added so that the migrant's preferences are taken into account as far as possible.

(iii) Additions to Article 4 to take account of professional training systems based on assessment of skills rather than on duration of training (new articles 5 and 6)

Article 4 consolidates the transitional and liberalisation Directives as regards the recognition of professional qualifications on the basis of professional experience gained in another Member State. Several passages of this Article provide that access to certain activities is granted to migrants who have pursued an activity after a period of previous training. The duration of the experience and of the training is expressly indicated in each case.

However, this Article, which already existed in the transitional and liberalisation Directives, does not take account of the systems of certain Member States which recognise professional qualifications on the basis of acquired skills rather than duration of training. Such systems often involve a shorter period of training than other systems. It should also be pointed out that the latest trend in the area of professional training is to put the emphasis on acquired skills. The conclusion was that there was a gap in the system established by the transitional and liberalisation Directives.

In order to fill that gap, the Council has added new Articles 5 and 6:

- Article 5 enables Member States to equate with certificates awarded after two or three years of training, as required under Article 4, certificates issued on the basis of acquired skills provided the latter are equivalent to two or three years of training, as appropriate,

- Article 6 makes it possible to compensate for an insufficient period of training by extending the duration of professional experience proportionately.

(iii) Reference to the technical duties of persons in managerial posts (Article 7(c))

To reflect economic reality, the Council has added technical duties to the functions which may be carried out by a manager of an undertaking.

(iv) Deletion of Article 8 of the Commission proposal

The Council decided to transfer this Article to the proposal for a Directive amending Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and supplementing Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, hereinafter referred to as the 'SLIM proposal`. Recitals 6 and 7 refer to this transfer.

The SLIM proposal seems to be the most suitable place for the old Article 8, which basically made amendments to the general Directives, especially the one on nurses.

(v) Deletion of Articles 9 and 10 (Committee procedure)

The Council did not adopt Articles 9 and 10 introducing a Committee procedure for updating the lists in Annex A. In the interests of legal certainty, the Council considered that such updating should be the subject of Directives and hence of a co-decision procedure.

(iv) Possibility of appointing an additional coordinator (first subparagraph of Article 10(2))

It is provided that the coordinating group for Directive 89/48/EEC is also responsible for this Directive. The Council considered it advisable to allow Member States, if they so wish, to appoint an additional coordinator to the group so as to be able to benefit from any knowledge gained by experts in the specific area of this Directive.

(vii) Report on the application of Article 5 (first paragraph of Article 13)

In Article 13 (former Article 13a inserted by the European Parliament), the Council decided to refer specifically to Article 5. As Article 5 is an important innovation in the system for the recognition of professional qualifications, the Commission should monitor its application very closely and, if necessary, submit proposals aimed at facilitating the free movement of persons holding a certificate of the type defined in Article 5.

IV. CONCLUSION

The Council considers that all the amendments made to the Commission proposal meet the objectives of the proposed Directive. The common position reproduces the substance of all the amendments proposed by the European Parliament and included in the amended Commission proposal, except in the case of Article 9, which has been deleted. The most significant change in the common position compared with the Commission's original proposal is the inclusion of Articles 5 and 6, which are based on the same concern to facilitate free movement which is at the root of the Commission proposal.

(1) It should be noted that the former Article 9, which was the subject of an amendment by the European Parliament, has been deleted (see point 2(v) below).