Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the recognition of professional qualifications

(presented by the Commission)

EXPLANATORY MEMORANDUM

1. Background

In May 2001 at the time of the adoption of Directive 2001/19/EC on professional recognition [1], the European Parliament, the Council and the Commission agreed that "it is important to have consolidated versions, easily accessible to everyone, of the legal texts applicable in the field of mutual recognition of professional qualifications". At the same time, the Commission stated its intention to continue this work in two parts: "initially, it plans to integrate the sectoral Directives into a consolidated framework. The Commission will then examine the possibility of consolidating the Directives relating to the general system, in order to continue simplifying the legislation and further facilitate the free provision of services with regard to the conclusions of the Lisbon Summit".

[1] Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council 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 Directive), OJ L 206 of 31.7.2001, p. 1.

Also in February 2001 the Commission adopted its Communication to the Council on New European Labour Markets, Open for All, with Access for All [2]. Specifically on professional recognition, the Commission indicated in the Communication that it will:

[2] Document COM(2001) 116.

* "present in 2002 proposals for a more uniform, transparent and flexible regime of professional recognition based on the existing General System, including ways of promoting more widespread recognition"; and

* "adopt a priority action, building on existing information and communications networks, as well as on current work on improving transparency of qualifications, to ensure that citizens can rely on a more comprehensive service providing information and advice specific to their individual interests and rights".

This Communication was presented to the Stockholm European Council on 23 and 24 March 2001. The Council Conclusions state that "the Commission intends to present for the 2002 Spring European Council [...] specific proposals for a more uniform, transparent and flexible regime of recognition of qualifications and periods of study" [3].

[3] Conclusions of the Stockholm European Council, 23 and 24 March 2001, point 15.

As also envisaged in this Communication, a High Level Task Force on Skills and Mobility was created which produced a report in December 2001 stating, in relation to professional recognition, that "the EU and Member States should attach priority to increasing the speed and ease of professional recognition (for regulated professions) including conditions supporting more automatic recognition, and introduce a more uniform, transparent and flexible regime for the recognition of qualifications in the regulated professions by 2005" [4].

[4] High Level Task Force on Skills and Mobility, Final Report, 14 December 2001, p. 20.

In the Commission's Action Plan for Skills and Mobility [5] it is stated that "comprehensive improvements should be made to the existing Community system for recognition in the regulated professions to make it easier to manage and clearer, quicker and more friendly for users. The Community institutions and Member States should facilitate employment opportunities and the provision of services through the wholesale consolidation of the existing regimes of professional recognition in the regulated professions with a view to a more uniform, transparent and flexible system with amendments particularly directed to ensuring clearer and more up-to-date and automatic conditions of recognition, through the adoption of proposals in 2003 and for implementation by 2005".

[5] Point 15 of the Commission's Action Plan for Skills and Mobility. Document COM(2002) ....

In the pursuit of the mandate from the Lisbon European Council, the Commission adopted at the end of year 2000 a Communication on An Internal Market Strategy for Services [6]. This Communication drew attention to the importance of services in the general economy, the new opportunities and practices developing out of new information and communications technologies and the need to facilitate conditions of cross-frontier service provision Community-wide.

[6] Document COM(2000) 888.

This new Directive on professional recognition in the field of regulated professions will operate in parallel with other actions which also follow-on from the decisions of the European Councils in Lisbon and Feira in 2000, as well as the Commission Communication of November 2001 on 'Making a European Area of Lifelong Learning a Reality'. This Communication describes the aim of a strategy on transparency and recognition of qualifications and competences (Action Point 1: 'Valuing learning'). This strategy supports a range of Member State and Community initiatives concerning academic and vocational qualifications and is fully coherent with the present draft Directive. In June 2001 the Commission launched a public consultation on the main issues under consideration for a new directive on the recognition of professional qualifications.

In July 2001 the Commission published its White Paper on European Governance [7]. In this document, the Commission suggested that, for its part, it will: promote greater use of different policy tools including framework directives leaving the executive to fill in the technical detail via implementing "secondary" rules; simplify existing EU law including combining legal texts; publish guidelines on the collection and use of expert advice; and combine legislative and regulatory action with action taken by the actors most concerned (co-regulation).

[7] Document COM(2001) 428.

Finally, the European Union is committed to the future enlargement of the European Union. This enlargement will extend the responsibilities of the Community institutions with respect to the application of Community law and its administration.

2. The Main Objectives of the Proposal

2.1. Contribution to flexible labour and services markets

A clear, secure and quick system for the recognition of qualifications in the field of the regulated professions is required to ensure free movement. This is important to help to ensure that employment vacancies are filled by qualified applicants and to ensure that there is a regular supply of qualified service suppliers to meet market demand. The free movement of qualified professionals makes a particular contribution to the knowledge-based society. Conditions of free movement have also proven to have particular importance in cases of specific shortages of qualified personnel at specific times in different Member States for such professions as teachers, veterinary surgeons, doctors and nurses.

To date the rules on professional recognition have evolved in a piecemeal fashion with numerous parallel provisions and variations. Detailed variations in, and links between, different parts of the legislation have produced a system which has been criticised by migrants and professionals alike as too complicated to understand, difficult to follow, often unclear and sometimes slow in its application and in places out-of-date or unsuited to the particularities of a specific profession.

In order to make the system clearer, easier and simpler to understand and apply, this proposal for a single directive comprehensively revises all of the directives founded on recognition of title so as to maintain the principal conditions and guarantees, while simplifying the structure and making improvements to the working of the system. The proposal also provides for simpler conditions for the cross-frontier provision of services compared with those applicable to the freedom of establishment in order further to contribute to the flexibility of labour and services markets.

2.2. Consolidation and simplification

The Commission has already achieved a considerable consolidation of the 35 transitional directives concerning crafts and trades professions through the third General System Directive 1999/42/EC [8]. The subsequent adoption of the Directive 2001/19/EC has further simplified the legal and procedural regime for professional recognition. There continue to exist some twelve main directives covering the seven professions of doctor [9], general care nurse [10], dental practitioner [11], veterinary surgeon [12], midwife [13], pharmacist [14] and architect [15] adopted mainly over a twenty year period in the 1970s and 1980s, plus the three General System directives [16], as up-dated by the SLIM Directive. A consolidation of these directives will provide a simpler and clearer set of rules for the professions concerned.

[8] Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 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, published in OJ L 201 of 31.7.99, p. 77.

[9] Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (hereinafter referred to as the "doctors" Directive), published in OJ L 165 of 7.7.93, p. 1, and last amended by the SLIM Directive.

[10] 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. (hereinafter referred to as the "nurses' recognition" Directive), published in OJ L 176 of 15.7.77, p. 1, and last amended by the SLIM Directive.

[11] Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (hereinafter referred to as the "dentists' recognition" Directive), published in OJ L 233 of 24.8.78, p. 1, and last amended by the SLIM Directive.

[12] Council Directive 78/1026/EEC of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (hereinafter referred to as the "veterinary surgeons' recognition" Directive), published in OJ L 362 of 23.12.78, p. 1, and last amended by the SLIM Directive.

[13] Council Directive 80/154/EEC of 21 January 1980 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in midwifery and including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (hereinafter referred to as the "midwives' recognition" Directive), published in OJ L 33 of 11.2.80, p. 1, and last amended by the SLIM Directive.

[14] Council Directive 85/432/EEC of 16 September 1985 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of certain activities in the field of pharmacy (hereinafter referred to as the "pharmacists coordination" Directive), published in OJ L 253 of 24.9.85, p. 34, and last amended by the SLIM Directive.

[15] Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services (hereinafter referred to as the "architects" Directive), published in OJ L 223 of 21.8.85, p. 15, and last amended by the SLIM Directive.

[16] 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, published in OJ L 19 of 24.1.89, p. 16, and last amended by the SLIM Directive.

The directives on the provision of services and establishment of lawyers [17] are not covered by this exercise, since they concern the recognition not of professional qualifications but of the authorisation to practice. Recognition of lawyers' qualifications is currently governed by Directive 89/48/EEC, which is covered by this exercise.

[17] Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services, published in OJ L 78 of 26.3.77, p. 17; 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, published in OJ L 77 of 14.3.98, p. 36.

This proposal does not propose major changes to existing co-ordinated provisions upon which recognition under the sectoral directives is founded. The public consultation organised in 2001 did not produce widespread calls for such developments. The Commission has not proposed this kind of change as inappropriate for a framework proposal largely directed to consolidation and administrative simplification of rules applicable to a large number of professions. This does not preclude continuing dialogue with interested parties and national authorities to clarify issues and positions with a view to possible future action specific to each profession. Such work should take into account actions to be undertaken under the proposed Community public health programme to promote quality in the field of health, as set out in the Commission Communication on health strategy of the European Community [18]. In addition to pure consolidation, a review of the various provisions of the different directives has shown that a rationalisation and streamlining of the provisions into a single directive would contribute to greater simplification and increased clarity while retaining existing guarantees.

[18] Document COM (2000) 285 final.

Procedural simplification is called for in addition to simplification of legal texts. The sectoral directives have in the past been supported by administratively burdensome advisory committees in addition to committees or groups of national officials. Other directives operate with the support of a single committee of national officials, meeting normally twice a year (the Co-ordinators Group of the General System). While the advisory committees have focussed on training, the Treaty and Community action in this area focus on free movement [19]. EU enlargement will bring a large number of new Member States and additional languages which would increase this form of administration.

[19] The Treaty itself excludes harmonisation in the fields of education and training (Articles 149 and 150 in Chapter 3). At the same time, Article 47.2 continues to allow for action co-ordinating national provisions for the taking up and pursuit of self-employed activities, albeit only on the basis of unanimous agreement in the Council if amendment of "existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons" is required in one Member State.

Modern information and communication systems allow for more flexible procedures for the gathering of information and the exchange of views. Means of increased co-operation at the European level have already been developed among professional and educational representatives. The requirements of an enlarged European Union and conditions of good administration require the application of simpler and more flexible procedures to ensure that the conditions underlying automatic recognition are considered by the Commission and national authorities. This can be done by maintaining regular meetings of national officials at Community level, organised by the Commission, while making more open provision for the inclusion of external views and positions for discussion at the initiative of the Commission or any Member State. Flexible means of collaboration have already been operated in some areas and produced good results. Consolidation, modernisation and simplification can therefore be obtained in the procedures which support the legal texts as well as in the texts themselves.

The Commission considers that, in addition to established means of consultation operating within the Member States, guarantees for the provision of information, recommendations and reports on the operation of the Community regime at the European level can be ensured by arrangements to be entered into between the Commission and the relevant representative bodies of the professions and educational establishments benefiting from automatic recognition on the basis of minimum co-ordination of training requirements. These arrangements should ensure that information and advice are provided to the Commission and the Member States on a regular basis. They also ensure that such contributions will be included in the agenda of the next relevant meeting of national officials organised by the Commission dealing with the relevant profession. These arrangements could be confirmed by the Commission in an appropriate form. On this basis, the Commission will withdraw its proposal to repeal the Decisions setting up advisory committees alongside the sectoral directives [20] and present a new proposal for a Council decision abolishing the existing advisory committees during the legislative process on this proposal.

[20] Proposal for a Council Decision repealing Decisions 75/364/EEC, 77/454/EEC, 78/688/EEC, 78/1028/EEC, 80/156/EEC and 85/434/EEC setting up advisory committees for the training of nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and doctors. Document COM (1999) 177 final.

2.3. Improved management, clarity and flexibility

Under the sectoral directives, automatic recognition is supported by the minimum co-ordination of training in the directives. These fundamental requirements underlying automatic recognition needed to continue to be set through co-decision of Parliament and Council. However, technical updating of some requirements is more appropriately achieved through the exercise of delegated powers. Account needs to be taken of the increasing pace of development of society and technology in the application of procedures designed to maintain the relevance of the technical provisions underlying the general rules set out in Community law. In this respect, the sectoral directives are unnecessarily inflexible. The main rules on professional recognition should continue to figure in the body of the Directive, but the technicalities specific to their application should appear in annexes, and when suitable, be subject to up-dating through the exercise of delegated powers.

In so far as the General System is concerned, it has proven its worth over some ten years of increasingly extensive application. However, there appears to be scope for adding further transparency, clarity and guarantees under the General System. Within the minimum guarantees, recent statistics on recognition processes already show considerable evidence of recognition being granted on a regular basis without the application of compensation measures in the form of an aptitude test or period of supervised practice. However, experience varies throughout the EU. In addition, some professions covered by the General System have already done considerable work towards the development of common platforms which can contribute to the understanding and recognition of qualifications [21].

[21] See the Commission's reply to Written Question No 3429/93 by Christian Rovsing. Register of EUR ING. OJ C 268 of 26/09/1994, p. 38.

The work on sectoral qualifications being promoted through the European social dialogue and activities supported by the Commission in the field of academic and vocational qualifications, can also make a contribution to the facilitation of the recognition of qualifications in the field of the regulated professions.

The General System directives do not contain specific provisions on the conditions applicable to the cross-frontier provision of services. The rights of establishment and cross-frontier service provision both apply to the benefit of the service economy. Less onerous conditions should be applied to the cross-frontier provision of services than apply to the right of establishment. For this reason the proposal envisages a lighter regime for the provision of cross-frontier services than for establishment, albeit with a safeguard clause. In this way too, the structure and approach followed by the sectoral and General System directives can be brought into combination without losing the main benefits of either approach.

2.4. Better administration and improved information and advice to citizens

The proposal also includes provision for increased means of co-operation between national administrations themselves and with the Commission for the provision of information and advice to individuals and problem solving. This forms part of a wider initiative in the Internal Market context. Information and advice to citizens on their rights and interests in professional recognition should be provided at the point closest to the citizen. This implies an obligation on home and host Member State authorities and contact points to provide information to aid those qualified or seeking recognition in connection with free movement. Existing information and advisory systems need to be developed to ensure that information can be exchanged quickly and in confidence between such authorities so that questions raised in one Member State about conditions of recognition and practice in another are quickly and fully answered.

At the same time, the Commission intends to encourage greater use of the Europe Direct Call Centre and of the Signpost Service. The Call Centre can provide quick information to citizens on Internal Market issues by telephone and e-mail, while the Signpost Centre - linked to the Call Centre and also contactable directly by e-mail - offers personalised advice on specific problems. The Commission services provide background information for the Call Centre, which, together with the Signpost Centre, has built up considerable experience in dealing with enquiries on professional recognition. These are the routes by which the quickest and most direct response can be provided to this form of citizens' enquiry.

2.5. A simpler and more open regulatory approach

This directive will provide a framework for better government at the Community level. It will introduce maximum flexibility while respecting Treaty requirements. It will provide for several different levels of action most appropriate to the functions in question, thereby applying the principle of subsidiarity. It will introduce simplification in the interests of clarity and accessibility as well as procedural efficiency in an enlarged Union. It will provide the necessary level of detail required to maintain legal security and to avoid uncertainty or overly burdensome procedures. It seeks to privilege private/public sector co-operation. It also seeks to reinforce existing co-operation between national authorities themselves and with the Commission in the provision of information and advice to citizens and to ensure that problems are resolved as quickly and effectively as possible. The proposal follows an open consultation of Member State authorities, professional associations and other interested parties, which has allowed those most directly concerned to make their views known. The proposal therefore respects and applies some of the main lines of action identified in the White Paper on European Governance.

3. Legal basis

The legal basis is the same as for the directives proposed for repeal. Article 40 of the EC Treaty lays down that "the measures required to bring about freedom of movement for workers [...]" shall be taken in accordance with the procedure referred to in Article 251. As regards the right of establishment, Article 47 of the EC Treaty lays down that directives shall be issued, in accordance with the procedure referred to in Article 251, "for the mutual recognition of diplomas, certificates and other evidence of formal qualifications", as well as for "for the coordination of the provisions laid down by law, regulation or administrative action in the Member States concerning the taking-up and pursuit of activities as self-employed persons". Under the terms of Article 55 of the EC Treaty, Article 47 applies to the provision of services.

In so far as implementation of this Directive does not involve, in the Member States, any change in the current legislative principles governing the structure of professions as regards training and conditions for access by natural persons, the Council acts by a qualified majority in accordance with Article 47(2) of the EC Treaty.

4. Subsidiarity and proportionality

Title III of Part Three of the EC Treaty on the free movement of persons, services and capital grants the European Community powers to take suitable measures in this field. Those powers must be exercised in compliance with Article 5 of the EC Treaty, that is if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Moreover, the Community action must not go beyond what is necessary to achieve the desired objectives. This proposal meets those requirements.

4.1. Subsidiarity

The content and organisation of the education system and vocational training are a matter exclusively for the Member States, in accordance with Articles 149 and 150 of the EC Treaty. Furthermore, the Member States are responsible for determining, on their national territory, the qualifications and other conditions laid down for taking up and exercising a given profession, and for the activities covered by the profession in question. Those national rules can give rise to barriers to the free movement of workers, freedom of establishment and the freedom to provide services (Articles 39, 43 and 49 of the EC Treaty).To make these freedoms effective, it is therefore necessary to lay down common rules allowing Community nationals to have their professional qualifications recognised in the other Member States with a view to exercising a regulated profession there. Such rules can only be established at Community level.

The new rules set out in this proposal have been drafted in compliance with the principle of subsidiarity. The establishment of greater liberalisation in the field of the freedom to provide services, close partnership between the public and private sectors through the professional platforms, increased use of comitology procedures and a more central role for the competent national authorities, is only the practical application of that principle.

4.2. Proportionality

Community action must be limited, in both form and substance, to what is strictly necessary to ensure that the objective pursued by the proposal is achieved and implemented effectively. The legal instrument of the directive, proposed in accordance with Article 47 of the EC Treaty, meets that requirement, in so far as it binds the Member States as to the result to be achieved, whilst leaving them the choice of the form and the most suitable methods of achieving that result. Moreover, this proposal consolidates the existing legal instruments in the field of recognition of professional qualifications, while simplifying and improving the system of recognition in the light of the experience gained.

The new rules set out in this proposal comply with the principle of proportionality. The means devised for achieving greater liberalisation in the field of the freedom to provide services, close partnership between the public and private sectors through the professional platforms, increased use of comitology procedures and a more central role for the competent national authorities in implementing the Directive do not go beyond what is needed to achieve the desired objectives.

5. Comments on the articles

Title I - General provisions

Articles 1 to 4

Article 1 establishes the principle of mutual recognition of professional qualifications.

In accordance with the EC Treaty, Article 2 lays down that the Directive applies solely to Community nationals, when the profession which the applicant wishes to pursue is regulated in the host Member State, and when the applicant has obtained his professional qualifications in a Member State other than that in which he wishes to pursue the profession.

Article 3 essentially maintains the definitions currently contained in the general system directives concerning the concepts of regulated profession, professional qualifications and evidence of formal training (including any evidence of formal qualifications obtained in a third country, once it has been recognised by a first Member State where the applicant has pursued the profession for at least three years).

Article 4 sets out the effects of professional recognition and introduces the obligation on the host Member State to allow partial access on its territory to a regulated profession which in fact combines two distinct and autonomous professional activities.

Title II - Freedom to provide services

Articles 5 to 9

Article 5 lays down that the Member States may not, for reasons relating to professional qualifications, restrict the freedom to provide services when the beneficiary is legally established in another Member State. This is immediately applicable when the profession is regulated in the Member State of establishment. Where the Member State of establishment does not regulate the profession, the person providing services in another Member State must in addition have pursued the activity in question for two years in the former Member State.

In view of the relaxation of requirements with regard to the provision of services, as compared with establishment, and in order to avoid those rules being invoked in cases which in fact concern establishment rather than the provision of services, it appears necessary to clarify the actual concept of provision of services for the purposes of this Directive. It is proposed that the criteria derived from the case law of the Court of Justice [22] be strengthened by basing a presumption on a time criterion set at 16 weeks.

[22] See, in particular, the judgment of 30.11.1995 (conclusions of Advocate-General Léger), Case C-55/94, Gebhard, ECR 1995, p. I-4165.

Article 6 takes over the acquis of the sectoral directives as regards the dispensation from any authorisation or registration with a professional or social security body.

Article 7 lays down the obligation to inform the contact point in the Member State of establishment when the services are provided by movement of the provider.

Pursuant to Article 8, the nationality of service providers and their lawful pursuit of the activity in the Member State of establishment must be verified by the host Member State through an exchange of information with the competent authorities of the Member State of establishment. Where applicable, the host Member State may also verify, with the contact point in the Member State of establishment, whether the provider has exercised the profession for at least two years in that Member State.

With a view to consumer protection, Article 9 contains the obligation on the service provider to provide the recipient of the service with a certain amount of information. This provision is taken over from Directive 2000/31/EC on electronic commerce and hence extended, in the case of the regulated professions, to all forms of the provision of services.

Title III - Freedom of establishment

Chapter III sets out the conditions to which recognition of professional qualifications is subject and the rules for implementing the recognition mechanisms within the framework of freedom of establishment. The various mechanisms currently provided for in the general system and sectoral directives, respectively, are maintained in principle.

Chapter I - General system for the recognition of qualifications

This Section essentially takes over the principles set out by Directives 89/48/EEC and 92/51/EEC. Changes are proposed in order to simplify the current system.

Articles 10 to 14

The scope of the general system, as set out in Article 10, is broader than that of Directives 89/48/EEC and 92/51/EEC. It is extended in a subsidiary manner to all cases which are not eligible for automatic recognition on the basis of professional experience or the coordination of minimum training conditions.

With a view to simplification, the limits currently laid down in Directives 89/48/EEC and 92/51/EEC for application of mutual recognition are formulated with reference to five levels of training set out in theoretical terms in Articles 11 and 12. Recognition is granted on the basis of the Directive only if the level required in the host Member State is no higher than the level immediately above that attested by the applicant's evidence of qualifications.

Article 13 essentially takes over Article 3 of Directives 89/48/EEC and 92/51/EEC.

Article 14 maintains the possibility for the host Member State to make recognition of qualifications subject to the applicant's completing a compensation measure, which can be either an aptitude test or an adaptation period. However, the possibility for a Member State to require professional experience rather than a compensation measure in the event of substantial differences relating to the duration and not the content of training is abolished. It is also proposed that the automatic derogations for professions involving a knowledge of national law be abolished, as this is in line with the provisions governing recognition of lawyers' authorisation to practise. Lastly, it is proposed that the current provisions on derogations from the migrant's right to choose between the aptitude test and the adaptation period be simplified.

The concept of "matters which are substantially different" can only be defined preciselycase by case. It is nevertheless proposed that the principle of the proportionality of the measure be incorporated into the Directive, meaning in particular that the relevant professional experience of the applicant must be taken into account.

Article 15

Article 15 provides for dispensation from compensation measures where the applicant's qualifications meet the criteria laid down by a decision of the Committee on Recognition of Professional Qualifications pursuant to the comitology procedure (regulation). These criteria would be proposed by a professional association in the context of a common platform established at European level and providing adequate guarantees as regards the applicant's level of qualification.

Chapter II - Recognition of professional experience

Articles 16 to 19

Articles 16 to 19 take over the principle and - subject to the amendments set out below - the provisions of Article 4 of Directive 1999/42/EC, which provides for the automatic recognition of qualifications on the basis of the applicant's professional experience in the case of the craft, industrial and commercial activities set out in the restrictive list in Annex A. It appeared appropriate to simplify the system by regrouping the existing categories. By making a number of amendments in substance, it was possible to reduce the number of categories of professional experience to two, based on professional experience of three or five years in a self-employed capacity or as a manager of an undertaking.

The comitology procedure (regulation) is applicable with a view to amending the list of professional activities set out in the Annex.

Chapter III - Recognition on the basis of coordination of the minimum training conditions

This section takes over the existing principles governing the automatic recognition of evidence of training while maintaining the guarantees set out in the current sectoral directives. Certain aspects were the subject of a standardisation of the systems in order to simplify matters.

Articles 20 to 45

These articles take over the relevant existing provisions for coordination of the minimum training conditions, automatic recognition of evidence of formal training (and, if necessary, the detailed arrangements for such recognition), access to the professions concerned, the exercise of the professional activities in question, the procedures for including the evidence of training in the Annex, and acquired rights.

The following amendments, in particular, should be stressed:

* A change in the procedure currently laid down for the inclusion of the evidence of trainingas architect;

* Incorporation into the general system of recognition of the medical and dental specialisations common to a limited number of Member States which are currently subject to automatic recognition, without prejudice to acquired rights. In a move to simplify the system, particularly with a view to enlargement, this means that only those medical specialisations which are common to and obligatory for all the Member States will henceforth benefit from automatic recognition;

* The abolition of the form of training for general medical practitioners set out in Article 32 of the "doctors" Directive;

* The abolition, for nurses responsible for general care, of the references to the specifically professional nature of the training and to the passing of an examination, which have become superfluous in view of the current systems of training in the Member States;

* The abolition of the derogation from the minimum training conditions set out in Article 2(4)(a) of the "pharmacists coordination" Directive;

* The extension of automatic recognition of evidence of training as a pharmacist to the setting-up of new pharmacies open to the public;

* The abolition of the provisions of the "pharmacists' recognition" Directive specific to Luxembourg (two-year period of professional experience required for the grant of a State public pharmacy concession).

The comitology (regulation) procedure applies to changing the minimum duration of training in medical specialisations, for the introduction into the Annex of new medical specialisations which are common to and obligatory for all Member States, and for updating the knowledge and competences and the list of subjects set out in the Annex with a view to adapting them to scientific and technical progress.

Chapter IV - Common provisions relating to establishment

Articles 46 to 49

In accordance with Article 46, when deciding on a request to exercise a regulated profession in the implementation of the provisions on establishment, the competent authorities of the host Member State may require the specific documents and certificates set out in the Annex.

Article 47 strengthens the existing rules of procedure, in particular through the generalised application of the three-month period granted to the competent national authorities to decide on requests for recognition and by introducing the obligation on those authorities to acknowledge receipt of the file and, where applicable, to inform the applicant of any missing document.

Article 48 essentially takes over the existing rules on the use of the professional title of the host Member State and lays down, in this respect, the rules applicable in the event of partial access to the profession in accordance with Article 4(3) of the Directive.

Having regard to the case law of the Court of Justice [23], Article 49 allows the host Member State to require the applicant to have the language skills needed to practise the profession. Assessment of the compatibility of the requirement imposed with Community law must be based on its proportionality as regards the needs of the profession. Where the competent authority considers that the applicant does not have the necessary language skills, it is for the host Member State to ensure that the applicant can acquire the missing skills.

[23] See judgment of 4.7.2000, Case C-424/97, Salomone Haim v. Kassenzahnärztliche Vereinigung Nordrhein, ECR 2000, p. I-5123.

Title IV - Arrangements for practising the profession

Articles 50 and 51

These articles lay down the arrangements for practising the profession relating to the use of title and the conclusion of an agreement with a sickness insurance fund, which are common to the provision of services and establishment.

Title V - Administrative cooperation and implementing powers

Articles 52 to 54

Article 52 extends to the whole of the Directive the obligation on the competent authorities of the Member State of origin and the host Member State to cooperate closely in order to ensure that the provisions of the Directive are applied adequately and to avoid the rights deriving from it being deflected from their objective and used in a fraudulent fashion. In addition, the Member States must appoint a coordinator responsible for promoting the uniform application of the Directive and collecting information useful for its implementation.

Article 53 is intended to put the role of the contact points onto a more formal basis, since networks have been set up for dealing with certain cases covered in general terms by the Internal Market and, more recently, for the recognition of professional qualifications.

Article 54 sets up a single committee to administer the Directive and its updating, which replaces all the committees set up under the previous system. This is a "comitology" committee acting in accordance with the regulation procedure as set out in the relevant provisions. The committee can also be seized of all questions concerning the working of the Directive.

Title VI - Other provisions

Articles 55 to 60

Article 55 lays down the obligation on the Member States to inform the Commission every two years about the application of the system of recognition of professional qualifications.

Article 56 lays down that, in the event of major difficulties in applying a provision of the Directive, the Commission will examine these in collaboration with the Member State concerned. Where applicable, the Commission will present the committee with suitable proposals addressed to a Member State with a view to derogating from the application of that provision on its territory for a limited period. Such measures are adopted according to the comitology (regulation) procedure.

Pursuant to Article 57, the existing directives on the recognition of professional qualifications are repealed.

Articles 58 to 60 set out the final provisions on implementation, entry into force and addressees of the Directive.

2002/0061 (COD)

Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 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 Economic 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 [24]

[24] OJ C of , p. .

Having regard to the opinion of the Economic and Social Committee [25],

[25] OJ C of , p. .

Acting in accordance with the procedure laid down in Article 251 of the Treaty,

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 exercise 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" [26], 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" [27], 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 [...]".

[26] Document COM (2000) 888.

[27] Document COM (2001) 116.

(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 access which might be laid down by the latter Member State, provided that the these objectively justified and proportionate.

(4) In order to facilitate the free provision of services, there should be specific rules aimed at extending the exercise of 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 [28] also apply.

[28] OJ L 178 of 17.7.2000, p.1.

(5) In view of the different systems established for the provision of services 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 must be clarified by establishing a simple presumption based on a time criterion.

(6) While maintaining, for the freedom of establishment, the principles and safeguards underlying the different systems for recognition in force, their rules must be improved in the light of experience. Moreover, the relevant directives have been amended on several occasions, and their provisions must be reorganised and rationalised by standardising the principles applicable. It is therefore necessary to replace Council Directives 89/48/EEC [29] and 92/51/EEC [30], as well as Directive 1999/42/EEC of the European Parliament and of the Council [31] on the general system for the recognition of professional qualifications, and Council Directives 77/452/EEC [32], 77/453/EEC [33], 78/686/EEC [34], 78/687/EEC [35], 78/1026/EEC [36], 78/1027/EEC [37], 80/154/EEC [38], 80/155/EEC [39], 85/384/EEC [40], 85/432/EEC [41], 85/433/EEC [42] and 93/16/EEC [43] concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, as last amended by Directive 2001/19/EC of the European Parliament and of the Council [44], by combining them in a single text.

[29] OJ L 19 of 24.1.1989, p. 16.

[30] OJ L 209 of 24.7.1992, p. 25.

[31] OJ L 201 of 31.7.1999, p. 77.

[32] OJ L 176 of 15.7.1977, p. 1.

[33] OJ L 176 of 15.7.1977, p. 8.

[34] OJ L 233 of 24.8.1978, p. 1.

[35] OJ L 233 of 24.8.1978, p.10.

[36] OJ L 362 of 23.12.1978, p. 1.

[37] OJ L 362 of 23.12.1978, p. 7.

[38] OJ L 33 of 11.2.1980, p. 1.

[39] OJ L 33 of 11.2.1980, p. 8.

[40] OJ L 223 of 21.8.1985, p. 15.

[41] OJ L 253 of 24.9.1985, p. 34.

[42] OJ L 253 of 24.9.1985, p. 37.

[43] OJ L 165 of 7.7.1993, p. 1.

[44] OJ L 206 of 31.7.2001, p. 1.

(7) In the case of the professions covered by the general system for the recognition of qualifications, hereinafter referred to as "the general system", the Member States 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 EC Treaty, they may 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 their 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.

(8) Absent harmonisation of the minimum training conditions for access to the professions governed by the general system, it must be possible for the host Member States to impose a compensation measure. This measure must 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.

(9) In order to promote the free movement of workers, freedom of establishment and the free provision of services, while ensuring an adequate level of qualification, various professional associations and organisations have established common platforms at European level under which professionals meeting a number of criteria relating to professional qualifications are awarded the right to bear the professional title awarded by those associations or organisations. The Directive should take account, under certain conditions 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.

(10) In order to take into account all situations for which there was still no provision relating to the recognition of professional qualifications, the general system must 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 meet the conditions to benefit from it.

(11) 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.

(12) Freedom of movement and the mutual recognition of the evidence of formal training of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and architects must 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 must 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 must be supplemented by a number of acquired rights from which qualified professionals benefit under certain conditions.

(13) The professional activities of general practitioners are covered by a specific system which differs from that for basic practitioners and specialised medical practitioners. The Member States cannot therefore recognise any medical specialism which has a field of professional activity similar to that of general practitioners.

(14) In an effort to simplify the system, particularly with a view to enlargement, the principle of automatic recognition must apply only to those medical specialisms which are common to and obligatory for all the Member States. Those medical specialisms which are common to a limited number of Member States must be incorporated into the general system for recognition without prejudice to the established rights. In practice, the effects of this amendment should be limited for the migrant, in so far as these situations should not be subject to compensation measures. Moreover, this Directive is without prejudice to the possibility for Member States to establish, amongst themselves, automatic recognition for certain medical and dental specialisms common to them according to their own rules.

(15) All Member States must recognise the profession of dental practitioner as a specific profession distinct from that of medical practitioner, whether or not specialised in odontostomatology. The Member States must 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 must be carried out by holders of a qualification as dental practitioner set out in this Directive.

(16) 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.

(17) 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.

(18) Holders of qualifications as a pharmacist are specialists in the field of medicines and must, in principle, have access in all Member States to a minimum range of activities in this field. In defining this minimum range, this Directive must 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 must be able to impose these conditions on the nationals who hold qualifications which are covered by automatic recognition within the meaning of this Directive.

(19) This Directive does not coordinate all the conditions for access to activities in the field of pharmacy and the exercise of these activities. In particular, the geographical distribution of pharmacies and the monopoly for dispensing medicines remain a matter for the Member States. This Directive leaves unchanged the legislative, regulatory and administrative provisions of the Member States forbidding companies from exercising certain pharmacist's activities or subjecting them to certain conditions.

(20) 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 must 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.

(21) National regulations in the field of architecture and on access to and the exercise of the professional activities of an architect vary widely in scope. In most Member States, activities in the field of architecture are exercised, 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 exercise of such activities, unless there are legislative provisions to the contrary. These activities, or some of them, may also be exercised 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, without prejudice to the special features of the national regulations governing those activities.

(22) In order to ensure the effectiveness of the system for the recognition of professional qualifications, uniform formalities and rules of procedure must be defined for its implementation, as well as certain details of the exercise of the profession.

(23) 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 must be organised.

(24) 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 must be set up for this purpose.

(25) Pursuant to Article 2 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission [45], the measures needed to implement this Directive should be adopted according to the procedure laid down in Article 5 of that Decision.

[45] OJ L 184 of 17.7.1999, p. 23.

(26) 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.

(27) 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.

(28) 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 exercised under that system.

(29) 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.

(30) In accordance with the principles of subsidiarity and proportionality set out in Article 5 of the Treaty, the objectives of the proposed measure, that is 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 by the Community. This Directive confines itself to the minimum required in order to achieve those objectives and does not go beyond what is necessary for that purpose.

(31) This Directive is without prejudice to the application of Article 39(4) and Article 45 of the Treaty, nor of the measures necessary to ensure a high level of health and consumer protection.

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 hereafter as the "host Member State") shall accept professional qualifications obtained in one or more other Member States (referred to hereafter as the "home Member State") and which allow the holder of the said qualifications to pursue the same profession there, as a sufficient condition for access to and pursuit of that profession.

Article 2 Scope

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

2. Each Member State may permit persons in possession of evidence of formal qualifications not obtained in a Member State to perform regulated professional activities on its territory, in accordance with its rules. In the case of professions covered by Title III, Chapter III, this initial recognition must respect the minimum training conditions laid down in that Chapter.

Article 3 Definitions

1. For the purposes of this Directive, the following terms are defined as follows:

a) regulated profession: a professional activity or group of professional activities, access to which, the practice of which, or one of the modes of pursuit is subject, directly or indirectly, to legislative, regulatory or administrative provisions concerning possession of specific professional qualifications.

b) professional qualifications: qualifications attested by evidence of formal training, an attestation of competence referred to in Article 11(2)(a) and/or professional experience;

c) evidence of formal qualifications: diplomas, certificates and other evidence issued by an authority in a Member State and certifying successful completion of professional training obtained mainly in the Community,

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

On each occasion that a Member State grants recognition to an association or organisation referred to in the first paragraph, it shall inform the Commission, which shall issue an appropriate notification in the Official Journal of the European Communities.

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

Article 4 Effects of recognition

1. The recognition of professional qualifications by the host Member State allows the beneficiary to gain access in that Member State to the same profession to that for which he is qualified in the home Member State and to practise it in the host Member State with the same rights as its nationals.

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 similar.

3. Where the profession for which the applicant is qualified in the home Member State constitutes an autonomous activity a profession covering a wider field of activities in the host Member State and where the difference cannot be made up by a compensatory measure referred to in Article 14, the recognition of the applicant's qualifications gives him access to that activity alone in the host Member State.

Title II Free movement of services

Article 5 Principle of the free provision of services

1. Without prejudice to Article 6(2), 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 practising the same professional activity there, and

b) where the service provider moves, if he has practised that activity for at least two years in the Member State of establishment when the profession is not regulated in that Member State.

2. For the purposes of this Directive, where the service provider moves to the territory of the host Member State, the pursuit of a professional activity for a period of not more than sixteen weeks per year in a Member State by a professional established in another Member State shall be presumed to constitute a "provision of services".

The presumption referred to in the previous paragraph shall not preclude assessment on a case-by-case basis, for example, in the light of the duration of the provision, its frequency, regularity and continuity.

3. The service shall be provided under the professional title of the Member State in which the service provider is legally established, insofar 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 qualification of the host 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;

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 first paragraph of the services which he has provided.

Article 7 Information to be provided in advance if the service provider moves

Where the service provider moves in order to provide services, he shall, in advance, inform the contact point of the Member State of establishment, referred to in Article 53. In urgent cases, the service provider shall inform the contact point of that Member State as soon as possible after the services have been provided.

Article 8 Administrative cooperation

The competent authorities of the host Member State may ask the competent authorities of the Member State of establishment to provide proof of the service provider's nationality and proof that he is legally practising the activities in question in that Member State. The competent authorities of the Member State of establishment shall provide this information in accordance with the provisions of Article 52.

Furthermore, in the cases referred to in Article 5.1(b), the competent authorities of the host Member State may ask the contact point of the Member State of establishment, referred to in Article 53, to provide proof that the service provider has practised the activities in question in the Member State of establishment for at least two years. Such proof may take any form.

Article 9 Information to be given to the recipients of the service

In addition to the other requirements relating to information contained in Community law, the Member States shall ensure that the service provider furnishes the recipient of the services with the following information:

a) if the service provider is registered in a commercial register or similar public register, the commercial 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 qualification and the Member State in which it was awarded;

e) a reference to the professional rules applicable in the Member State of establishment and to the means of gaining access to those rules;

f) 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 [46].

[46] OJ L 145, 13.6.1977, p. 1. Directive last amended by Directive 1999/85/EC (OJ L 277 of 28.10.1999, p. 34).

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 to all cases in which the applicant does not satisfy the conditions laid down in those Chapters.

Article 11 Levels of qualification

1. For the purpose of applying Article 13, the following five levels of professional qualification are established:

a) level 1, "attestation of competence";

b) level 2, "certificate";

c) level 3, "diploma certifying successful completion of a short training course";

d) level 4, "diploma certifying successful completion of an intermediate training course";

e) level 5, "diploma certifying successful completion of a higher training course".

2. Level 1 corresponds to:

a) an attestation of competence issued by a competent authority in the home Member State on the basis of a very short training course, a specific examination without prior training or full-time practice 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,

b) general primary or secondary education, attesting that the holder has acquired general knowledge.

3. Level 2 corresponds to training at secondary level, of a professional nature or general in character, supplemented by a professional course.

4. Level 3 corresponds to training at post-secondary level and of a duration of at least one year and less than three years.

The following shall be treated as level-3 training courses:

a) training courses with a special structure which provide a comparable professional standard and which prepare the trainee for a comparable level of responsibilities and functions. The courses listed in Annex II are specific examples;

b) regulated training which is specifically directed to the practice of a particular profession and which consists of a course of education supplemented, where appropriate, by professional training, probationary or professional practice, for which the structure and level are laid down in the legislative, regulatory or administrative provisions of the Member State in question, or which are subject to control or approval by the authority designated for that purpose. The regulated training courseslisted in Annex III are specific examples.

5. Level 4 corresponds to a course of training at higher or university level and of a duration of at least three years and less than four years.

The following shall be treated as level-4 training: Regulated training which is directly aimed at the practice of a particular profession and which consist of a three-year programme of post-secondary study or a part-time programme of post-secondary study of equivalent duration, carried out in a university or an institution providing an equivalent level of training, and, possibly, professional training, probationary or professional practice required in addition to the programme of post-secondary study.

The structure and level of the professional training, probationary or professional practice shall be laid down in the legislative, regulatory or administrative provisions of the Member State in question or be subject to control or approval by the authority designated for that purpose.

6. Level 5 corresponds to training at higher education level and of a minimum duration of four years.

The following shall be treated as level-5 training: regulated training aimed specifically at the pursuit of a particular profession and which consist of a programme of post-secondary study of at least four years' duration or a programme of part-time post-secondary study of equivalent duration, carried out in a university or an institution providing an equivalent level of training and, possibly, professional training, probationary or professional practice required in addition to a programme of post-secondary study.

The structure and level of the professional training, probationary or professional practice shall be laid down in the legislative, regulatory or administrative provisions of the Member State in question or be subject to supervision or approval by the authority designated for that purpose.

Article 12 Conditions for recognition

Any document or set of documents issued by a competent authority in a Member State, certifying successful completion of training in the Community, recognised by that Member State as being of an equivalent level and conferring on the holder the same rights of access to or pursuit of a profession, shall be treated as proof of training of the type covered by Article 11, including the level in question.

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 practice of a profession, confers on the holder acquired rights by virtue of these provisions, shall be treated as a professional qualification under the first paragraph and under the same conditions.

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 access to and pursuit of that profession, under the same conditions as apply to its nationals, to applicants possessing the attestation of competence or evidence of formal training 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 training shall satisfy the following conditions:

a) they shall have been obtained in another Member State;

b) they shall attest a level of professional qualification at least equivalent to the level immediately below that which is required in the host Member State, as described in Article 11.

2. Access to and pursuit of the profession, as described in paragraph 1, shall also be granted to applicants who have practised the profession referred to in that paragraph on a full-time basis for two years during the previous 10 years in another Member State which does not regulate that profession, providing they possess one or more attestations of competence or documents providing evidence of formal training.

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

a) they shall have been issued by a competent authority in a Member State, designated in accordance with the legislative, regulatory or administrative provisions of that Member State;

b) they shall attest a level of professional qualification at least equivalent to the level immediately below that required in the host Member State, as described in Article 11;

c) they shall attest that the holder has been prepared for the practice of the profession in question.

The two years' professional experience referred to in the first subparagraph may not, however, be required if the evidence of formal training which the applicant possesses, and which is referred to in that subparagraph, certifies regulated training within the meaning of Article 11.4(b), 11.5, second subparagraph and 11.6, second subparagraph.

Article 14 Compensation measures

1. Article 13 does 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 duration of the training of which he provides evidence under the terms of Article 13, paragraph 1 or 2, is at least one year shorter than that required by the host Member State;

b) the training he has received covers substantially different matters than those covered by the evidence of formal training required in the host Member State;

c) 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 within the meaning of Article 4(2), and that difference consists in specific training which is required in the host Member State and which covers substantially different matters from those covered by the applicant's attestation of competence or evidence of formal training.

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.

If, after receiving all necessary information, the Commission considers that the derogation referred to in the second subparagraph is inappropriate or that it is not in accordance with Community law, it shall, within three months, ask the Member State in question to refrain from taking the envisaged measure. In the absence of a response from the Commission within the above-mentioned deadline, the derogation may be applied.

3. For the purpose of applying paragraph 1(b) and (c), "substantially different matters" means matters of which knowledge is essential for practising the profession and with regard to which the training received by the migrant shows important differences in terms of duration or content from the training required by the host Member State.

4. 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 acquired by the applicant in the course of his professional experience in a Member State or in a non-member country, is of a nature to cover, in full or in part, the substantial difference referred to in paragraph 3.

Article 15 Waiving of compensation measures on the basis of common platforms

1. Professional associations may notify the Commission of common platforms which they establish at European level. For the purposes of this Article, "common platform" means a set of criteria of professional qualifications which attest to a sufficient level of competence for the pursuit of a given profession and on the basis of which those associations accredit the qualifications obtained in the Member States.

If the Commission is of the opinion that the platform in question facilitates the mutual recognition of professional qualifications, it shall inform the Member States thereof and shall take a decision in accordance with the procedure referred to in Article 54(2).

2. Where the applicant's qualifications satisfy the criteria established by a decision within the meaning of paragraph 1, the host Member State shall waive application of Article 14.

3. If a Member State considers that a common platform no longer offers adequate guarantees with regard to professional qualifications, it shall inform the Commission accordingly, which shall, if appropriate, take a decision in accordance with the procedure referred to in Article 54(2).

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 and 18.

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) either for five consecutive years on a self-employed basis or as a company director,

b) or for three consecutive years on a self-employed basis or as a company director, 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 that Member State or judged by a competent professional body to be fully valid,

c) or for four consecutive years on a self-employed basis or as a company director, 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,

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

e) either 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 that Member State or judged by a competent professional body to be fully valid,

f) or for six consecutive years on a 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 that 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 52.

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 three consecutive years, either on a self-employed basis or as a company director,

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

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

d) or 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 that Member State or judged by a competent professional body to be fully valid.

2. In cases a) and c), the activity must not have ended more than ten years prior to the date on which the complete application is presented by the person concerned to the competent authority referred to in Article 52.

Article 19 Amendment of the list of activities in Annex IV

The lists of activities in Annex IV which are the subject of recognition of professional experience pursuant to Article 16 may be amended in accordance with the procedure referred to in Article 54(2).

Chapter III Recognition on the basis of coordination of minimum training conditions

Section 1 General Provisions

Article 20 Principle of automatic recognition

1. Each Member State shall recognise evidence of training giving access to the professional activities of general practitioner and specialised doctor, nurse responsible for general care, dental practitioner, veterinary surgeon, pharmacist and architect, listed in Annex V, points 5.1.2, 5.1.3, 5.2.3, 5.3.3, 5.4.3, 5.6.4 and 5.7.2 respectively, which satisfy the minimum training conditions referred to in Articles 22, 23, 29, 32, 35, 40 and 42 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 training 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 5.1.2, 5.1.3, 5.2.3, 5.3.3, 5.4.3, 5.6.4 and 5.7.2 respectively.

The provisions of subparagraphs 1 and 2 do not affect the acquired rights referred to in Articles 21, 25, 31, 34 and 45.

2. Each Member State shall recognise, for the purpose of pursuing general medical activities in the framework of its national social security system, evidence of formal training listed in Annex V, point 5.1.5 and issued to nationals of the Member States by the other Member States in accordance with the minimum training conditions laid down in Article 26.

The provisions of the previous subparagraph do not affect the acquired rights referred to in Article 28.

3. Each Member State shall recognise evidence of formal training as a midwife, awarded to nationals of Member States by the other Member States, listed in Annex V, point 5.5.4, which complies with the minimum training conditions referred to in Article 36 and satisfies the criteria set out in Article 37, 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 training which it itself issues. This provision does not affect the acquired rights referred to in Articles 21 and 39.

4. Evidence of formal training as an architect referred to in Annex V, point 5.7.2, 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.

5. 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 training referred to in Annex V, points 5.1.2, 5.1.3, 5.1.5, 5.2.3, 5.3.3, 5.4.3, 5.5.4 and 5.6.4 respectively, attesting that the person concerned has acquired, over the duration of his training, and where appropriate, the knowledge and aptitudes referred to in Annex V, points 5.1.1, 5.2.1, 5.3.1, 5.4.1, 5.5.1 and 5.6.1.

The knowledge and aptitudes referred to in Annex V, points 5.1.1, 5.2.1, 5.3.1, 5.4.1, 5.5.1 and 5.6.1, may be amended in accordance with the procedure referred to in Article 54(2) with a view to adapting them to scientific and technical progress.

Such updates shall not entail, for any Member State, an amendment of its existing legislative principles regarding the structure of professions as regards training and conditions of access by natural persons.

6. Each Member State shall notify the Commission of the legislative, regulatory and administrative provisions which it adopts with regard to the issuing of evidence of formal training in the area covered by this Chapter.

The Commission shall publish an appropriate communication in the Official Journal of the European Communities, indicating the titles adopted by the Member States for evidence of formal training and, where appropriate, the body which issues the evidence of formal training, the certificate which accompanies it and the corresponding professional title referred to in Annex V, points 5.1.2, 5.1.3, 5.1.5, 5.2.3, 5.3.3, 5.4.3, 5.5.4, 5.6.4 and 5.7.2 respectively.

Article 21 Acquired rights

1. Without prejudice to the acquired rights specific to the professions concerned, in cases where the evidence of medical training provides access to the professional activities of general practitioners and specialised doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists held by nationals of Member States do not satisfy all the training requirements referred to in Articles 22, 23, 29, 32, 35, 36 and 40, each Member State shall recognise as sufficient proof certificates of training issued by those Member States insofar as they attest successful completion of training which began before the reference dates laid down in Annex V, points 5.1.2, 5.1.3, 5.2.3, 5.3.3, 5.4.3, 5.5.4 and 5.6.4 and are accompanied by a certificate stating that the holders have been effectively and lawfully engaged in the activities in question for at least three consecutive years during the five years preceding the award of the certificate.

2. The same provisions shall apply to evidence of medical training providing access to the professional activities of general practitioners, specialised doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists obtained in the territory of the former German Democratic Republic and which do not satisfy all the minimum training requirements laid down in Articles 22, 23, 29, 32, 35, 36 and 40 if they certify successful completion of training which began before:

a) 3 October 1989 for general practitioners, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists, and

b) 3 April 1992 for specialised doctors.

The evidence of training referred to in the first subparagraph confers on the holder the right to pursue professional activities throughout German territory under the same conditions as evidence of formal training issued by the competent German authorities referred to in Annex V, points 5.1.2, 5.1.3, 5.2.3, 5.3.3, 5.4.3, 5.5.4 and 5.6.4.

3. Each Member State shall recognise as sufficient proof for nationals of Member States whose evidence of formal training as a doctor, nurse responsible for general care, dental practitioner, veterinary surgeon, midwife and pharmacist does not correspond to the titles given for that Member State in Annex V, points 5.1.2, 5.1.3, 5.1.4, 5.1.5, 5.2.3, 5.3.3, 5.4.3, 5.5.4 and 5.6.4, evidence of formal training issued by those Member States accompanied by a certificate issued by the competent authorities or bodies.

The certificate referred to in the first subparagraph shall state that the evidence of formal training certifies successful completion of training in accordance with Articles 22, 23, 26, 29, 32, 35, 36 and 40 respectively of this Directive and is treated by the Member State which issued it in the same way as the qualifications whose titles are listed in Annex V, points 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.2.3, 5.3.3, 5.4.3, 5.5.4 and 5.6.4.

Section 2 Doctors of medicine

Article 22 Basic medical training

1. Admission to basic medical training shall be contingent upon possession of a diploma or certificate providing access, for the studies in question, to universities or institutes of a Member State which provide higher education of a level recognised as being of an equivalent level, for the studies in question, of a Member State.

2. Basic medical training shall comprise a total of at least six years of study or 5 500 hours of theoretical and practical training provided by, or under the supervision of, a university.

For persons who began their studies before 1 January 1972, the course of training referred to in paragraph 1 may comprise six months of full-time practical training at university level under the supervision of the competent authorities.

3. Continuous training shall ensure, in accordance with the procedures specific each Member State, that persons who have completed their studies are able to keep abreast of medical progress.

Article 23 Specialist medical training

1. Admission to specialist medical training shall be contingent upon completion and validation of six years of study as part of a training programme referred to in Article 22 in the course of which the trainee has acquired the relevant knowledge of general medicine.

2. Specialist medical training shall comprise theoretical and practical training at a university or medical teaching hospital or, where appropriate, a medical care establishment approved for that purpose by the competent authorities or bodies.

The Member States shall ensure that the minimum duration of specialist medical training courses referred to in Annex V, point 5.1.4 is not less than the duration provided for in that point.

Training shall be given under the supervision of the competent authorities or bodies. It shall include personal participation of the trainee specialised doctor in the activity and responsibilities entailed by the services in question.

3. Training shall be given on a full-time basis at specific establishments which are recognised by the competent authorities. It shall entail participation in the full range of medical activities of the department where the training is given, including duty on call, in such a way that the trainee specialist devotes all his professional activity to his practical and theoretical training throughout the entire working week and throughout the year, in accordance with the procedures laid down by the competent authorities. Accordingly, these posts shall be the subject of appropriate remuneration.

This training may be interrupted for reasons such as military service, scientific missions, pregnancy or illness. Such interruptions may not result in a reduction in the overall duration of the training.

4. By way of exception, the Member States may authorise part-time specialist training, under conditions allowed by the competent national authorities, if, in the light of individual justified circumstances, full-time training is not feasible. The competent authorities shall ensure that the overall duration and quality of part-time specialist training shall not be lower than that of full-time training. This level may not be compromised by the part-time nature of the training, nor by the pursuit of paid professional activity.

The part-time training of specialised doctors shall satisfy the same requirements as full-time training, from which it is distinguished only by the possibility of limiting the participation in medical activities to a duration of at least half of that provided for with full-time training.

Such part-time training shall therefore be the subject of appropriate remuneration.

5. The Member States shall make the issuance of evidence of specialist medical training contingent upon possession of evidence of basic medical training referred to in Annex V, point 5.1.2.

6. The minimum periods of training referred to in Annex V, point 5.1.4 may be amended in accordance with the procedure referred to in Article 54(2).

Article 24 Types of specialist medical training

Evidence of formal training as a specialised doctor referred to in Article 20 is such evidence awarded by the competent authorities or bodies referred to in Annex V, point 5.1.3 as corresponds, for the specialised training in question, to the titles in use in the various Member States and referred to in Annex V, point 5.1.4.

The inclusion in Annex V, point 5.1.4 of new medical specialties common to all the Member States may be decided on in accordance with the procedure referred to in Article 54(2).

Article 25 Acquired rights specific to specialised doctors

1. A host Member State may require of specialised doctors whose part-time specialist medical training was governed by legislative, regulatory and administrative provisions in force as of 20 June 1975 and who began their specialist training no later than 31 December 1983 that their evidence of formal training be accompanied by a certificate stating that they have been effectively and lawfully engaged in the relevant activities for at least three consecutive years during the five years preceding the award of that certificate.

2. Every Member State shall recognise the qualification of specialised doctors awarded in Spain to doctors who completed their specialist training before 1 January 1995, even if that training does not satisfy the minimum training requirements provided for in Article 23, insofar as that qualification is accompanied by a certificate issued by the competent Spanish authorities and attesting that the person concerned has passed the examination in specific professional competence held in the context of exceptional measures concerning recognition laid down in Royal Decree 1497/99, with a view to ascertaining that the person concerned possesses a level of knowledge and aptitude comparable to that of doctors who possess a qualification as a specialised doctor defined for Spain in Annex V, points 5.1.3 and 5.1.4.

3. Every Member State which applies relevant legislative, regulatory or administrative provisions shall accept as sufficient proof evidence of formal training as a specialised doctor issued by other Member States which correspond, for the specialist training in question, to the titles listed in Annex VI, point 6.1, insofar as they attest a course of training which began before the reference date referred to in Annex V, point 5.1.3 and are accompanied by a certificate stating that the holders have been effectively and lawfully engaged in the activities in question for at least three consecutive years during the five years preceding the award of the certificate.

The same provisions shall apply to evidence of specialist medical training obtained in the territory of the former German Democratic Republic if they attest a course of training which began before 3 April 1992 and confer on the holder the right to pursue the professional activities throughout German territory under the same conditions as evidence of formal training awarded by the competent German authorities referred to in Annex VI, point 6.1.

4. Every Member State which applies relevant legislative, regulatory or administrative provisions shall accept evidence of specialist medical training corresponding, for the specialist training in question, to the titles listed in Annex VI, point 6.1, awarded by the Member States listed therein and attesting a course of training which began after the reference date laid down in Annex V, point 5.1.3 and before the