Proposal for a European Parliament and Council Directive amending Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and supplementing Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (98/C 28/01) (Text with EEA relevance) COM(97) 638 final - 97/0345(COD)

(Submitted by the Commission on 3 December 1997)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission,

Having regard to the opinion of the Economic and Social Committee,

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

Whereas, in its Report to the European Parliament and to the Council on the state of application of the general system for the recognition of higher-education diplomas (1), made in accordance with Article 13 of 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 (2), the Commission undertook to examine the possibility of incorporating into that Directive the obligation to take into consideration, when examining applications for recognition, experience gained following the award of the qualification in question, the possibility of introducing the concept of 'regulated education and training`, and the arrangements whereby the role of the Coordinators Group could be developed in order to ensure more uniform application and interpretation of the Directive;

Whereas the concept of regulated education and training, introduced by Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (3), should be extended to the initial general system and should be based on the same principles by applying to it the same rules;

Whereas the two general system Directives permit the host Member State to require, subject to certain conditions, the migrant to undertake compensation measures, notably where substantial differences exist between the theoretical and/or practical education and training undergone and that covered by the qualification required in the host Member State; whereas, within the meaning of Articles 48 and 52 of the Treaty, as interpreted by the Court of Justice of the European Communities, inter alia, in Case C-340/89 (Vlassopoulou) (4), the host Member State must assess whether professional experience is sufficient in order to prove possession of the knowledge which is lacking; whereas, in the interests of clarity and legal certainty for individuals wishing to practise their profession in another Member State, it is desirable to incorporate into those two Directives the requirement that the host Member State has to examine whether the professional experience gained by the migrant since obtaining his qualification(s) covers the subjects referred to above;

Whereas the coordination procedure provided for by the two general system Directives should be improved and simplified by enabling the Coordinators Group to adopt and publish opinions on questions referred to it by the Commission that relate to the practical application of the general system;

Whereas, in its Communication to the Council and the European Parliament on the SLIM initiative (5), the Commission undertook, in response to a request from the 'qualifications` team, to present proposals aimed at simplifying the updating of the lists of qualifications eligible for automatic recognition; whereas 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 (6) provides for a simple procedure in the case of general practitioners' qualifications; whereas experience has shown that the procedure affords sufficient legal certainty; whereas it is desirable to extend it to qualifications held by nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and doctors as referred to in Council Directives 77/452/EEC (7), 78/686/EEC (8), 78/1026/EEC (9), 80/154/EEC (10), 85/433/EEC (11) and 93/16/EEC respectively;

Whereas, in its judgment in Case C-319/92 (Haim) (12), the Court of Justice of the European Communities ruled that, while not obliged to recognise qualifications awarded on completion of education and training undergone in a third country, Member States must take into account professional experience gained by the person concerned in another Member State; whereas, that being so, it should be stipulated in the sectoral Directives that recognition by the initial host Member State of a diploma, certificate or other evidence of formal qualification awarded to a nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist or doctor on completion of education and training in a third country and professional experience gained by the person concerned in that Member State constitute Community elements which the other Member States must take into account;

Whereas the period within which Member States must reach a decision on applications for recognition of diplomas, certificates and other evidence of formal qualifications obtained by nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, architects, pharmacists or doctors in a third country should be stipulated;

Whereas Member States must state their reasons for all decisions taken regarding the recognition of diplomas, certificates and other evidence of formal qualifications held by nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, architects, pharmacists or doctors; whereas the applicant must have right of appeal under national law if his application is rejected or if a decision is not reached within the stipulated period;

Whereas, for reasons of fairness, transitional measures should be taken in respect of certain dental practitioners in Italy who hold diplomas, certificates or other evidence of formal qualifications in medicine awarded in Italy but on completion of medical training begun after the deadline stipulated in Article 19 of Directive 78/686/EEC, considering judgment in Case C-40/93 (Commission/Italy) of the Court of Justice (13);

Whereas Article 15 of Directive 85/384/EEC (14) provides for a derogation during a transitional period that has now expired; whereas that provision should be expressly repealed;

Whereas Article 24 of that Directive should distinguish clearly between the formalities to be completed in the case of establishment and those to be completed in the case of provision of services, thereby rendering more effective the exercise of the freedom to provide architectural services;

Whereas, for reasons of fairness, transitional measures should be applied in respect of certain holders of diplomas, certificates and other evidence of formal qualifications in pharmacy awarded in Italy on completion of training that does not fully comply with Council Directive 85/432/EEC (15), considering judgment in Case C-307/94 (Commission/Italy) of the Court of Justice (16);

Whereas it is desirable to extend the scope of mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy in order to facilitate effective exercise of the right of establishment between Greece and the other Member States; whereas, therefore, the derogation provided for in Article 3 of Directive 85/433/EEC should be deleted;

Whereas, in its Report on specific training in general medical practice provided for by Title IV of Directive 93/16/EEC (17), the Commission recommended that the requirements applying to part-time training in general medical practice should be brought into line with those applying to other medical specialisms,

HAVE ADOPTED THIS DIRECTIVE:

SECTION I AMENDMENTS TO THE GENERAL SYSTEM DIRECTIVES

Article 1

Directive 89/48/EEC is hereby amended as follows:

1. In Article 1, the following point (d)(a) is inserted after point (d):

'(d)(a) regulated education and training: any education and training which:

- is specifically-geared to the practice of a given profession

and

- comprises a course of study supplemented, as necessary, by professional training, professional traineeship or professional practice the structure and level of which are determined by the laws, regulations or administrative provisions of the Member State in question or which are monitored or approved by the authority designated for that purpose;`.

2. In Article 3(b), the following subparagraph is inserted after the first subparagraph:

'However, the two years' of professional experience referred to in the first subparagraph cannot be required where the qualification or qualifications held by the applicant and referred to here were awarded on completion of regulated education and training`.

3. In article 4(1)(b), the following subparagraph is inserted after the first subparagraph:

'If the host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must examine whether the knowledge acquired by the applicant in the course of his professional experience covers subjects substantially different from those covered by the qualification or qualifications he holds`.

4. In Article 9(2), the first indent of the second subparagraph is replaced by:

'- to facilitate the implementation of this Directive, in particular by adopting and publishing opinions on the questions referred to it by the Commission,`.

Article 2

Directive 92/51/EEC is hereby amended as follows:

1. In Article 4(1)(b), the following subparagraph is inserted after the first subparagraph:

'If the host Member State intends to require the applicant to complete an adaptation period or take an aptitude test, it must examine whether the knowledge acquired by the applicant in the course of his professional experience covers subjects substantially different from those covered by the qualification or qualifications he holds`.

2. In Article 13(2), the first indent of the second subparagraph is replaced by:

'- to facilitate the implementation of this Directive, in particular by adopting and publishing opinions on the questions referred to it by the Commission,`.

SECTION 2 HORIZONTAL AMENDMENTS TO THE SECTORAL DIRECTIVES

Article 3

'Member States shall notify the Commission of the laws, regulations or administrative provisions they adopt as regards the award of diplomas, certificates and other evidence of formal qualifications of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, pharmacist or doctor referred to in Directives 77/452/EEC, 78/686/EEC, 78/1026/EEC, 80/154/EEC, 85/433/EEC and 93/16/EEC respectively. The Commission shall publish an appropriate notice in the Official Journal of the European Communities, listing the names adopted by the Member States for the training qualifications' concerned and, where applicable, for the corresponding professional title.`

Article 4

'Each Member State shall recognise as sufficient proof, in respect of nationals of Member States whose diplomas, certificates and other evidence of formal qualifications of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, pharmacist or doctor referred to in Directives 77/452/EEC, 78/686/EEC, 78/1026/EEC, 80/154/EEC, 85/433/EEC and 93/16/EEC respectively do not correspond to the names listed for that Member State in the relevant Directive, the diplomas, certificates and other evidence of formal qualifications awarded by those Member States and accompanied by a certificate issued by the competent authorities or bodies. The certificate shall state that the diplomas, certificates and other evidence of formal qualifications in question have been awarded on completion of education and training that complies with the provisions of the relevant Directive and are treated by the awarding Member Sate as equivalent to those whose names are listed in the said Directive.`

Article 5

'Member States shall take account of diplomas, certificates and other evidence of formal qualifications of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist or doctor obtained by the holder outside the European Union in cases where those diplomas, certificates and other evidence of formal qualifications have been recognised in a Member State, as well as of training undergone and/or professional experience gained in a Member State. The Member State shall deliver its decision within four months of the date on which the applicant submits his application together with full supporting documentation.`

Article 6

'Member States shall duly give the reasons for decisions on applications for recognition of diplomas, certificates and other evidence of formal qualifications of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist or doctor, and applicants shall have a right of appeal before the courts under national law. That right of appeal shall likewise apply in the event of failure to reach a decision.`

SECTION 3 SPECIFIC AMENDMENTS TO THE SECTORAL DIRECTIVES

Section 3.1. Nurses responsible for general care

Article 7

Directive 77/452/EEC is hereby amended as follows:

1. In Article 2, the words 'listed in Article 3` shall be replaced by 'listed in the Annex`.

2. Article 3 is deleted.

3. Article 4(2) is deleted.

4. References made to deleted Article 3 are understood as made to the Annex.

5. Annex I to this Directive is added.

Article 8

Council Directive 77/453/EEC (18) is hereby amended as follows:

In Article 1(1), the words 'as specified in Article 3 of Directive 77/452/EEC` are replaced by 'as specified in the Annex to Directive 77/452/EEC`.

Section 3.2. Dental practitioners

Article 9

Directive 78/686/EEC is hereby amended as follows:

1. In Article 2, the words 'listed in Article 3` are replaced by 'listed in Annex A`.

2. Article 3 is deleted.

3. The title of Chapter III is replaced by:

'Diplomas, certificates and other evidence of formal qualifications in specialised dentistry`.

4. Article 4 is replaced by:

'Each Member State with provisions in this field laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of formal qualifications of dental practitioners specialising in orthodontics and oral surgery awarded to nationals of Member States by other Member States in accordance with Articles 2 and 3 of Directive 78/687/EEC and which are listed in Annex B, by granting such qualifications the same effect in its territory as the diplomas, certificates and other evidence of formal qualifications which it itself awards`.

5. Article 5 is deleted.

6. Article 6 is amended as follows:

(a) the following subparagraph shall be added to paragraph 2:

'It shall also take into account any professional experience they possess`;

(b) paragraph 3 is replaced by:

'3. The competent authorities or bodies of the host Member Sate, having verified the content and duration of the training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, and taking into account any professional experience that he possesses, shall inform him of the period of additional training required and of the fields to be covered by it.`;

(c) the following paragraph 4 is added:

'4. The Member State shall deliver its decision within four months of the date on which the application and full supporting documentation are submitted`.

7. Article 7(3) is deleted.

8. The following paragraph 2 is added to Article 19:

'2. Member States shall recognise the diplomas, certificates and other evidence of formal qualifications in medicine awarded in Italy to persons who commenced their university medical training between 28 January 1980 and 31 December 1984 and accompanied by a certificate issued by the Italian competent authorities stating:

- that the persons concerned have passed the specialist aptitude test set by the Italian competent authorities in order to ascertain that they possess a level of knowledge and skills comparable to those of persons holding the qualification listed for Italy in Annex A to this Directive,

- that they have effectively lawfully and principally been engaged in Italy in the activities specified in Article 5 of Directive 78/687/EEC for at least three consecutive years during the five years prior to the issue of the certificate,

- and that they are authorised to engage in, or are effectively, lawfully and principally engaged in, the activities referred to in Article 5 of Directive 78/687/EEC, subject to the same conditions as holders of the qualification listed for Italy in Annex A to this Directive.

The requirement to take the aptitude test referred to in the first subparagraph shall be waived in the case of persons who have successfully completed at least three years' of study which are certified by the competent authorities as being equivalent to the training referred to in Article 1 of Directive 78/687/EEC.

9. References made to deleted Articles 3 and 5 are understood as made to Annexes A and B respectively.

10. Annex II to this Directive is added.

Article 10

In Article 1(1) of Council Directive 78/687/EEC (19), the words 'referred to in Article 3 of the same Directive` are replaced by 'referred to in the Annex to that Directive`.

Section 3.3. Veterinary surgeons

Article 11

Directive 78/1026/EEC is hereby amended as follows:

1. In Article, the words 'in Article 3` are replaced by 'in the Annex`.

2. Article 3 is deleted.

3. References made to deleted Article 3 are understood as made to the Annex.

4. Annex III to this Directive is added.

Article 12

In Article 1(1) of Council Directive 78/1027/EEC (20), the words 'referred to in Article 3 of Directive 78/1026/EEC` are replaced by 'referred to in Annex A to Directive 78/1026/EEC`.

Section 3.4. Midwives

Article 13

Directive 80/154/EEC is hereby amended as follows:

1. In Article 2(1), the words 'listed in Article 3` are replaced by 'listed in the Annex`.

2. In the second and third indents of Article 2(1), the words 'referred to in Article 3 of Directive 77/452/EEC` are replaced by 'referred to in the Annex to Directive 77/452/EEC`.

3. Article 3 is deleted.

4. References made to deleted Article 3 are understood as made to the Annex.

5. Annex IV to this Directive is added.

Article 14

Council Directive 80/155/EEC (21) is hereby amended as follows:

1. In Article 1(1), the words 'referred to in Article 3` are replaced by 'referred to in the Annex`.

2. In the second indent of Article 1(2), the words 'referred to in Article 3 of Directive 77/452/EEC` are replaced by 'referred to in the Annex to Directive 77/452/EEC`.

Section 3.5. Architects

Article 15

Directive 85/384/EEC is hereby amended as follows:

1. Article 15 is deleted.

2. In Article 24(1), the words 'pursuant to Articles 17 and 18` are replaced by 'pursuant to Articles 17 and 18 in the case of establishment and pursuant to Article 22 in the case of provision of services`.

Section 3.6. Pharmacists

Article 16

In Article 2 of Directive 85/432/EEC, the following paragraph 6 is added:

'6. As a transitional measure and by way of derogation from paragraphs 3 and 5, Italy, whose laws, regulations and administrative provisions prescribed training which was not brought fully into line with the training requirements laid down in this Article by the deadline stipulated in Article 5 of this Directive, may continue to apply those provisions to persons who commenced their training in pharmacy on 31 October 1990 at the latest.

Each host Member State shall be authorised to require that holders of diplomas, certificates and other evidence of formal qualifications in pharmacy awarded in Italy on completion of training commenced before 1 November 1990 produce, together with their qualifications, a certificate stating that, for at least three consecutive years during the five years prior to the issue of the certificate, they were effectively and lawfully engaged in one of the activities referred to in Article 1(2) of this Directive in so far as such activity is regulated in Italy`.

Article 17

Directive 85/433/EEC is hereby amended as follows:

1. In Article 1, the words 'referred to in Article 4` are replaced by 'referred to in the Annex`.

2. Article 3 is deleted.

3. Article 4 is deleted.

4. References made to deleted Article 4 are understood as made to the Annex.

5. Annex V to this Directive is added.

Section 3.7. Doctors

Article 18

Directive 93/16/EEC is hereby amended as follows:

1. In Article 2, the words 'listed in Article 3` are replaced by 'listed in the Annex`.

2. Article 3 is deleted.

3. The title of Chapter II is replaced by the following:

'Diplomas, certificates and other evidence of formal qualifications in specialised medicine`.

4. Article 4 is replaced by the following:

'Each Member State with provisions in this field laid down by law, regulation or administrative action shall recognise the diplomas, certificates and other evidence of formal qualifications in specialised medicine awarded to nationals of Member States by the other Member States in accordance with Articles 24, 25, 26 and 29 and which are listed in Annexes B and C, by giving such qualifications the same effect in its territory as those which the Member State itself awards`.

5. Article 5 is replaced by the following:

'The diplomas, certificates and other evidence of formal qualifications referred to in Article 4 shall be those which, having been awarded by the competent authorities or bodies listed in Annex B, correspond, for the purposes of the specialised training in question, to the qualifications listed in Annex C in respect of those Member States where such training exists`.

6. The title of Chapter III and Articles 6 and 7 are deleted.

7. In Article 8:

(a) the following subparagraph is added to paragraph 2:

'It shall also take into account any professional experience they possess`;

(b) paragraph 3 is replaced by the following:

'3. The competent authorities or bodies of the host Member State, having verified the content and duration of the training of the person concerned on the basis of the diplomas, certificates and other evidence of formal qualifications submitted, and taking into account any professional experience he possesses, shall inform him of the period of additional training required and of the fields to be covered by it`;

(c) the following paragraph 4 is added:

'4. The Member State shall deliver its decision within four months of the date on which the application and full supporting documentation are submitted`.

8. Articles 26 and 27 are replaced by the following:

'Article 26

Member States with provisions in this field laid down by law, regulation or administrative action shall ensure that the minimum length of the specialised training courses may not be not less than the course lengths stipulated in Annex C in respect of each training course.

Such minimum course lengths shall be amended pursuant to the procedure laid down in Article 44a(3).`

9. In the second indent of Article 34(1), the amount '60 %` is replaced by '50 %`.

10. References made to deleted Articles 3, 6, 7 and 27 are understood as made to Annex A, Article 4, Article 5 and Article 26 respectively.

11. Article 44a is amended as follows:

(a) in paragraph 1, the word 'procedures` is replaced by 'procedure`;

(b) paragraph 2 is deleted.

12. Annex VI to this Directive is added.

Article 19

1. The Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by . . . at the latest and shall forthwith inform the Commission thereof.

When the Member States adopt such provisions, they shall contain a reference to this Directive or shall be accompanied by such reference on their official publication. The arrangements for such reference shall be decided by the Member States.

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

Article 20

This Directive shall enter into force on the 20th day following its publication in the Official Journal of the European Communities.

Article 21

This Directive is addressed to the Member States.

(1) COM(96) 46 final 15.2.1996.

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

(3) OJ L 209, 24.7.1992, p. 25.

(4) [1991] ECR I-2357, at 19 to 21.

(5) COM(96) 559 final, 6.11.1996.

(6) OJ L 165, 7.7.1993, p. 1.

(7) OJ L 176, 15.7.1977, p. 1.

(8) OJ L 233, 24.8.1978, p. 1.

(9) OJ L 362, 23.12.1978, p. 1.

(10) OJ L 33, 11.2.1980, p. 1.

(11) OJ L 253, 24.9.1985, p. 37.

(12) [1994] ECR I-425.

(13) [1995] ECR I-1319.

(14) OJ L 223, 21.8.1985, p. 15.

(15) OJ L 253, 24.9.1985, p. 34.

(16) [1996] ECR I-1011.

(17) COM(96) 434 final, 9.9.1996.

(18) OJ L 176, 15.7.1977, p. 8.

(19) OJ L 233, 24.8.1978, p. 10.

(20) OJ L 362, 23.12.1978, p. 7.

(21) OJ L 33, 11.2.1980, p. 8.

ANNEX I

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ANNEX II

'ANNEX A

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ANNEX B

Titles of diplomas, certificates and other evidence of formal qualifications in specialised dentistry

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ANNEX III

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ANNEX IV

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ANNEX V

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ANNEX VI

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ANNEX B

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ANNEX C

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