REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT ON THE APPLICATION OF DIRECTIVE 92/51/EEC IN ACCORDANCE WITH ARTICLE 18 OF DIRECTIVE 92/51/EEC

TABLE OF CONTENTS

I. INTRODUCTION

II. SUMMARY

III. BACKGROUND

IV. GENERAL FRAMEWORK

A. Progress with implementation

B. Application

1. Introduction

2. Reporting period 1995-96

3. Conclusion

4. Reporting period 1997-98

5. Conclusion

C. Statistics

V. COMMENTS ON THE INDIVIDUAL ARTICLES

VI. COMMENTS ON INDIVIDUAL PROFESSIONS

A. Public service

B. Teachers

C. Social professions

D. Health-related professions

1. General considerations

2. Limitations on the recognition of diplomas

a) Activities reserved for certain professions

b) Professions which may appear similar in two Member States but have different fields of activity

c) Professions with different levels

d) Limitations relating to the existence of other Directives (case of specialist nurses)

3. Problems encountered

a) Non-implementation

b) Faulty application

4. Conclusions

a) Interdependence between Member States

b) The special nature of health-care professionals

E. Transport professions

F. Professions in the tourism sector

1. Couriers/tour escorts

2. Tourist guides

a) Introduction

b) Tourist-guide case law

c) Establishment and services

3. Delimitation of the fields of activity of couriers/tour escorts and tourist

4. Conclusions

G. Sports professions

1. Free movement of workers and the freedom of establishment

2. Provision of services

VII. THE COORDINATORS' GROUP

A. Meetings and reports

B. Code of Conduct approved by the Group of Co-ordinators for the General System of recognition of diplomas.

C. Administrative co-operation between Member States

VIII.LANGUAGE REQUIREMENTS

IX. TEMPORARY PROVISION OF SERVICES

X. CONCLUSIONS

ANNEX I

I. OBSERVATIONS BY MEMBER STATES

A. Belgium

B. Denmark

1) Complicated regulations

2) The General System

3) Specific comments

a) France : sports instructor

b) Austria : ski instructors and mountain guides

c) Professions in the sports sector

C) Netherlands

D) Austria

E) Portugal

F) United Kingdom

G) Finland

H) Liechtenstein

I) Germany

ANNEX II

I. INTRODUCTION

1. Council Directive 92/51/EEC [1] was adopted in order to extend the General System for the recognition of higher education and training of at least three years' duration, laid down in Directive 89/48/EEC, to cover other levels of education and training.

[1] L209 of 24th July 1992 p.25

2. The basic principles are the same [2]: a person fully qualified to exercise a profession in one Member State is assumed to possess the necessary qualifications for exercising the profession in another Member State. As with Directive 89/48, if training is not co-ordinated [3], compensatory measures may be required, with procedural guarantees, if there are substantial differences between levels of training. However, the wider variety of training courses covered makes the Directive more complex: there are, for example, three main levels of qualification, with bridges or "passerelles", and atypical training compared with the initial system has had to be included.

[2] The complementary General System is "based on the same principles" and contains "mutatis mutandis the same rules as the initial General System" (recital 5 of the Directive).

[3] "for those professions for the pursuit of which the Community has not laid down the necessary minimum level of qualification, Member States reserve the option of fixing such a level with a view to guaranteeing the quality of services provided in their territory" (recital 2).

3. Article 18 of the Directive provides for a progress report to be made on its application five years after the implementation deadline [4].

[4] 18th June 1994.

4. The present report describes the context in which the Directive was drawn up before turning to its implementation and the statistics on its application. The individual Articles are then examined, as is the experience gained in applying the Directive to the main groups of professions concerned. The work of the Co-ordinators' Group responsible for implementing the Directive is summarised. Next, two important questions on language requirements and the provision of services are dealt with. The conclusions also attempt to identify some policy guidelines for the future.

II. SUMMARY

5. The adoption of Directive 92/51/EEC initiated the opening of a major new phase in the operation of the General System. The Directive extended the application of the General System into a large new area covering a multitude of very different professions. The range of professions covered, the variations in the relevant education and training underlying these professions in the Member States and the system of "passerelle" between this directive and the First General System directive all presented major new challenges to the application of mutual recognition by the Member States in the field of the recognition of professional qualifications.

6. Considerable delays followed in many Member States in the implementation of the Directive. Some of these delays were so extensive and so prolonged as to have deprived the Directive of any real effect across the full range of the professions covered for a whole Member State for several years.

Others have been more sporadic and specific, often following a more profession-by-profession implementation process, but which when taken collectively have produced significant and widespread delays in application. However, most of these problems are now resolved and the outlook for a more comprehensive and effective application of the Directive looks more positive.

7. Statistics are beginning to become available showing the degree of movement taking place and for which professions it is most concentrated, such as in the field of sea transport and health-related professions. More widely, the teaching and engineering professions are migrating the most under the General System as a whole. A major further step forward will be taken when the Third General System Directive - Directive 99/42/EEC [5] - has been implemented in 2001.

[5] European Parliament and Council Directive 99/42/EEC 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, Official Journal L 201, 31 July 1999.

8. Experience of the operation of the Directive has helped to clarify some important points. For example, there remains the legislative vacuum filled by the rules of the Treaty as interpreted by the Court of Justice for those cases which are neither covered by a sectoral directive nor the General System, such as the specialist nurse seeking recognition in a Member State only offering the qualification of general care nurse. There remain some difficulties over recognition under the "passerelles" provisions of the Directive requiring Member States applying Directive 89/48 level qualifications to recognise other Member States' 92/51 level qualifications. Further clarifications are also expected soon from the Court of Justice on language requirements and further work has been done by the Commission on medical certificates.

9. Some controversy still surrounds the application of Article 14 allowing for exemptions from the principle that the migrant has the choice of the type of compensation measure to be applied in cases of the existence of substantial differences between his qualification and that required in the Member State to which he is moving. There have still been few such applications and mostly only temporary exemptions have been granted so far. The most controversial case involves ski instructor recognition and further attention will be devoted to this area over the coming months. In recent months, permanent exemptions have been granted on a request from France concerning high mountain guides and potholing instructors. Temporary exemptions, lasting up to 31 July 2000, have been granted to Austria and France for various ski instruction professions as well as underwater diving and parachuting. The issue of ski instructor recognition is being further examined in a series of ad hoc meetings designed to facilitate the exchange of information, the clarification of views and the development of wide-ranging agreement on the conditions for free movement. In the light of experience so far, more time may be required to ensure the full examination of, and consultation on, future requests for exemptions.

10. In addition, the procedure for the up-dating of the Directive has been criticised as too time-consuming and work-intensive and, despite the evident difficulty of the issue, solutions need to be examined with a view to simplifying the process.

11. The application of Directive 92/51/EEC has also had some impact on the tourist industry with much discussion and some legal proceedings relating to local qualification and registration requirements for both guides and tour managers. As a result of developments in this and related areas, as well as the new proposal for a directive on electronic commerce, further reflections have been undertaken on the need for greater legal clarity, certainty and rules proportionate to modern market needs concerning the cross-frontier provision of services as opposed to local establishment.

12. The application of the General System directives has also led to the examination of some discrete issues such as the role of Community law in relation to public service recruitment, including for the exercise of specific professions in the public service, general recruitment on the basis of a certain level of qualification and the use of competitions.

13. The work of the Co-ordinators' Group has been extended to embrace Directive 92/51/EEC and the valuable work of this Group has continued and grown in importance, in particular with the adoption of the Code of Conduct approved by the Group of Co-ordinators for the General System of recognition of diplomas on administrative practice in the implementation of the General System. Under the broad ambit of the wider work of the Commission recently on the subject of mutual recognition generally, the Group is currently considering the possible enhancement of the role of Co-ordinators in the exchange of information and views to assist in the taking of decisions on mutual recognition.

III. BACKGROUND

14. The first Directive on the General System (89/48) covered only courses lasting three years or more, at a university or higher education establishment. It thus became clear that the system needed balancing with a Directive covering shorter courses and those at other levels.

15. The Commission's initial proposal, presented on 8 August 1989, thus covered two levels of training :

- secondary or occupational experience (certificate), and

- short, post-secondary training (diploma).

16. This proposal allowed for recognition within each level, between levels 2 and 3 (i.e. Directive 89/48-level qualification of at least three years and short post-secondary training diploma), and between levels 1 and 2 (i.e. the certificate and the "short post-secondary" diploma).

17. Provision for recognition of experience was also made within level 1 (certificate).

18. The amended proposal, presented on 8 August 1990, took over the substance of the amendments adopted by Parliament on 17 May 1990. The main changes were as follows: the diploma was extended to courses whose effective level was comparable to that of corresponding short higher education courses, even though they were not regarded as higher education in the Member State of origin. For the certificate, it was made clear that courses could alternate between a vocational establishment and an enterprise.

In addition, an upper limit was set on diploma equivalences between levels 2 and 3, when in the host country the course exceeded four years' duration, in order to avoid distortions in the system's application. Another amendment was to include a choice between test and work experience within the certificate level.

19. Two further notions emerged during the Council stage: a certificate of competence, covering very short courses for which the recognition and compensation mechanisms put in place for diplomas and certificates would have been too cumbersome, and regulated training which, by giving exemption from the two years' professional experience which would normally be required in an unregulated profession, created a better balance between Member States where professions are regulated and those where regulation is generally limited to training courses [6].

[6] According to the Commission's explanations in its Communication of 5 March 1992 to Parliament on the common position of the Council.

20. Since the common position of the Council reflected the opinion of Parliament, the latter decided [7] not to submit any amendments on the second reading. The Directive was consequently approved on 18 June 1992.

[7] Doc. PE 200.275

IV. GENERAL FRAMEWORK

A. Progress with implementation

21. The Directive, due to be implemented by 18th June 1994, has now been transposed in all Member States [8]. In some it was transposed later than the two year deadline laid down in Article 16, which reduces the experience gained in applying it. Spain was approximately one year late, Ireland two years, Portugal and the United Kingdom two and a half years, Belgium three years and Greece four years late. The Commission therefore initiated and pursued infringement procedures.

[8] This is without prejudice to transposition on a profession-by-profession basis

B. Application

1. Introduction

22. In accordance with Article 18 of Directive 92/51/EEC, Member States are obliged to send the Commission statistics on the numbers of EU diplomas recognised for a 2 year reporting period together with a written report highlighting the main questions and problems arising with implementation of the Directive. The analysis below concerns the operation of Directive 92/51/EEC for the period 1995-98 inclusive and has not been made preceding this date given the little amount of information available at that time. This analysis also includes data from the European Economic Area (EEA) countries [9] given the amendments to the EEA agreement which have incorporated the directives in this field.

[9] Iceland did not recognise any diplomas falling under Directive 92/51/EEC.

2. Reporting period 1995-96

23. For the most part, the information given in this section of the report has been obtained from the northern Member States (Denmark, Germany, Austria, the Netherlands, Sweden, Finland and the United Kingdom) and from Italy. Of the EEA states, only Liechtenstein provided statistics.

24. For various reasons, the southern Member States did not supply information to the Commission (recent or continuing implementation - Portugal, Spain, Greece; few migrations - France; information not available - Ireland, Luxembourg; no applications - Belgium). An overview of the figures available confirms the nature of the free movement occurring mainly between and amongst northern Member States and Italy.

25.

Main professions for which free movement occurs under the Directive

Physiotherapists (moving to Germany)

Seafaring professionals (moving to Denmark, Sweden, United Kingdom and Germany)

Specialist Nurses (moving to both Austria and Germany)

Childcare workers (moving to Austria)

Masseurs (moving to Italy)

Radiographers (moving to Italy)

26.

Principal States which recognise diplomas // States from which they come

Germany 767 // Netherlands, UK

Austria 164 // Germany

United Kingdom 106 // Netherlands

Denmark 76 // Sweden

Italy 25 // Germany

Sweden 21 // Denmark, Norway, Finland and Iceland

Liechtenstein 8 // Germany

Netherlands 7 // Belgium

Finland 4 // Insufficient data to draw conclusions

27. Germany is by far the highest importer of diplomas (767) and such diplomas are mainly Dutch (288 physiotherapy diplomas and 102 seafaring diplomas) and British (52/64 British diplomas were in the field of seafaring). The Dutch, for their part, were called upon to recognise hardly any diplomas at all (7). Austria, at substantially less than Germany, recognised 164 foreign diplomas, most of them German in the field of childcare and specialist nursing Kindergärtner/in and Pflegehelfer. The UK was next, recognising mainly Dutch seafaring diplomas.

Denmark, a higher importer than exporter, recognised mainly Swedish diplomas also n the field of seafaring rating (matros, motormand and skibassistent) whilst the Swedish import market (21) comes from the Nordic countries (Denmark mainly, followed by Norway, Finland and Iceland), also in the seafaring sector.

28. The Dutch and Finns have been called upon to grant many fewer recognition requests than their neighbours partly because they regulate fewer activities.

29.

Principal States which export their diplomas // To :

Netherlands 574 // United Kingdom, Germany

Germany 171 // Austria

Sweden 78 // Denmark

United Kingdom 64 // Germany

Austria 55 // Germany

Denmark 29 // Germany

Finland 29 // Germany

Italy 20 // Germany

Liechtenstein 1 // Germany

30. The highest exporter of diplomas under the second Directive is the Netherlands at 574 and these diplomas are recognised mainly by the United Kingdom and Germany. The latter is both the highest importer and the second highest exporter (171) and German diplomas are mainly recognised in Austria. Swedish diplomas are mainly recognised in the seafaring sector by Denmark. The United Kingdom (64) exports mainly to Germany in the seafaring sector; Austria (55) exports mainly physiotherapists to Germany and Denmark (29) exports mainly to Germany.

31. These absolute figures should, of course, be viewed in the context of the national populations of such professions.

3. Conclusion

32. The seafaring sector benefits from two-way cross-border traffic. Professionals move from the Netherlands, Sweden and the United Kingdom to Denmark, Sweden, the United Kingdom and Germany.

33. Childcare professionals and specialist nurses tend to move in one direction: from Germany to Austria. So do physiotherapists, who move mainly from the Netherlands to Germany. Smaller numbers of masseurs and radiographers have moved to Italy.

4. Reporting period 1997-98

34. It became evident that for the above period, the main sectors where free movement occurs under this directive are health-related professions and maritime transport (seafaring). Norway (EEA country) welcomed by far the highest number of EU migrants mainly from Northern Europe (Sweden and the UK) and most of the qualifications recognised were as Marine Engineering Officers or Deck Officers. Notably, free movement is also very high amongst specialist nurses in Austria, Spain, Germany, France, Luxembourg and UK.

35. Complete data was received from all EU including EEA Member States except Greece .

36.

Main professions for which free movement occurs under the Directive

Seafaring professionals (moving to Norway, Germany, Denmark, Sweden and UK)

Physiotherapists (moving to Germany)

Specialist Nurses (moving to Austria, Spain, Germany, France, Luxembourg and UK)

Opticians (moving to France)

Engineer Technicians (moving to UK)

Dental hygienists (moving to UK) and Dental Technicians (moving to Portugal)

Masseurs (moving to Italy)

Aircraft Maintenance Engineers (moving to Ireland)

Childcare workers (moving to Austria and Italy)

37.

Member States which recognise diplomas // Member States from which they come

Norway 1535 // Sweden, UK, Greece

Germany 822 // Netherlands, UK and Belgium

Luxembourg 283 // France, Germany and Austria

Spain 229 // Germany, UK and France

UK 173 // Ireland, Netherlands and Finland

Austria 91 // Germany

Denmark 61 // Germany and Sweden

Italy 44 // Germany

France 37 // Belgium

Ireland 36 // UK

Sweden 31 // Finland

Netherlands 26 // Germany and Belgium

Portugal 20 // France and Spain

Finland 20 // Sweden

Liechtenstein 10 // Austria

Belgium 7 // Netherlands

38.

Member States which export their diplomas // To :

Sweden 701 // Norway (620), Denmark (30), Finland (15) and UK (13)

UK 580 // Norway (460), Germany (54) and Spain (32) and Ireland (21)

Netherlands 574 // Germany (504), UK (36) and Spain (12)

Germany 307 // Spain (75) , Austria (68), Luxembourg (37), Italy (32), Norway (34) and Denmark (27)

France 277 // Luxembourg (206), Spain (38) Germany (10)

Denmark 142 // Norway (86), Germany (27) and Spain (18)

Spain 136 // Norway (98), Germany (14), UK (11)

Austria 131 // Norway (51), Germany (42) and Luxembourg (24)

Belgium 124 // Germany (53), France (35), Luxembourg (11) and Spain (10)

Greece 111 // Norway (93), Germany (7)

Finland 101 // Norway (35), Sweden (22), UK (22)

Ireland 89 // UK (77) Norway (18)

Iceland 52 // Germany (35) Norway (16)

Italy 47 // Spain (22) Germany (13)

Portugal 28 // Germany (12) Norway (8)

Luxembourg 14 // Germany (13)

Norway 7 // Germany

Liechtenstein 4 // Germany

39. Excluding Greece, for the above reporting period there were some 3,425 cases of recognition. In total for 1995-98 inclusive, there were 4,603 cases of recognition under this "second" General System directive alone. The reporting period for 1997-98 shows a net increase (almost 3 times) in the numbers of cases of recognition. Many of the qualifications recognised were Diplomas falling under the definition of Annex C, Certificates or Attestations of Competence.

40. The comparatively high number of diplomas recognised by the Nordic countries can be explained by the common interest that all have in seafaring. The profession of Physiotherapist is most probably the profession which moves most under the General System as a whole; this explains the high number of recognition requests granted by Germany under Directive 92/51/EEC which is the only Member State to regulate it under the latter Directive.

The high number of specialist nurses moving between Austria, Spain, Germany, France, Luxembourg and the UK and child-care workers moving to Austria and Italy is explained by the fact that a lot of specialist nurses and child-care workers exist in these countries. The statistics from France produce the new element of the migration of opticians. The Commission is examining in detail the regulation of professions in the IT sector which should lead to an explanation as to why the UK has recognised so many Engineering Technicians. The quantity of Dental Hygienists moving to the UK also will be the subject of further examination.

5. Conclusion

41. An overview of the various independent or combined reasons for migration appear to be : the existence of professionals in the same category in one or more Member States and an equivalent corresponding level of qualification under the Directive - Diploma, Certificate, Attestation of Competence, etc - (e.g. specialist nurses moving between Austria, Spain, Germany, France, Luxembourg and the UK) : the high quantity of seafaring professionals existing in Sweden, UK, Greece and Norway, a possible explanation for the high number of seafarers moving from these countries mainly to Norway : and both geographical proximity and cultural similarity (e.g. Dutch physiotherapists, licensed boat masters and speech therapists moving to Germany : British Aircraft Maintenance Engineers moving to Ireland : Belgian dispensing opticians moving to France : and French and Spanish Dental Technicians moving to Portugal).

C. Statistics

42. This section includes some additional statistical information concerning recognition decisions granted under the whole of the General System.

43. All inclusive, from 1993-98 the total number of recognition requests granted under both General System Directives was 23,224. An analysis of the period 1993-96 showed that of the 12,595 [10] requests granted, compensation measures were applied in 1,954 cases, or 15.5%. Of this 15.5%, 63% were adaptation periods and 37% aptitude tests. If we break down the 15.5%, the relative percentages are as follows: aptitude tests were used in 5.6% of all cases of recognition granted under the General System and adaptation periods in 9.8% of such cases. On the other hand, some 1,781 negative decisions were also taken, which amounts to a 12% failure rate, at least on first attempt. Some 7.13% of those refused recognition had undergone compensation measures of which some 95% were aptitude tests. In other words, 6.7% of negative decisions happened after the migrant had undergone an aptitude test and 0.3% after the adaptation period 14.47% of all recognition decisions taken, positive and negative, were the result of the application of compensation measures.

[10] This is the most complete figure available.

44. It is not necessarily possible or appropriate to try to draw specific conclusions from the statistical information so far available on the application of the acquis communautaire in the area of the General System on the recognition of professional qualifications. The information and analysis provided in this report may be found useful for the purposes of further reflection and discussion on the operation of the acquis. Nevertheless, it may be possible to conclude in very general terms that the statistics so far available tend to confirm what could be expected from the nature of the different kinds of Community legislation applied in this area.

45. Volumes of migration may not be critical to an evaluation of the General System directives either; partly because they have been in application for a shorter period and so understanding of their availability and application may still be growing. Individuals, in whatever professional walk of life can justifiably expect support from Community law for the facilitation of migration within the European Union. However, high levels of existing migration can also already be taken to show the very success of the General System directives.

V. COMMENTS ON THE INDIVIDUAL ARTICLES

46. Directive 92/51/EEC refers to the former Articles 49 (now renumbered 40), 57(1) (now 47(1)) and 66 (now 55) of the Treaty, following the Amsterdam amendments. It therefore applies to employees, establishment and the provision of services.

47. The preamble explains the main provisions of the Directive. The main recitals are quoted in this report in conjunction with the provisions to which they refer.

48. The definitions used in the Directive are set out in Article 1. Article 2 explains its scope, particularly where this differs from that of other Directives. Next come the principal mechanisms for recognition on the basis of the level of training required in the host Member State: the Diploma (Articles 3 to 5) or the Certificate (Articles 6 and 7), including the compensatory measures which may be demanded in the event of substantial differences between training levels (Articles 4, 5 and 7). Articles 8 and 9 provide for simplified mechanisms for other types of training. Horizontal provisions cover the recognition of proofs of good character, repute etc. (Article 10), the use of professional qualifications and titles (Article 11) and guaranteed procedures for applying for recognition (Article 12). The co-ordinating group set up by the first Directive on the General System is made responsible for this Directive (Article 13). Article 14 provides for an exemption procedure from the choice between an adaptation period and an aptitude test, and Article 15 for a procedure for amending Annexes C and D. The remaining Articles refer to with the reports to be provided by the Member States (Article 16) and by the Commission (Article 18) and the implementation of the Directive (Article 17).

A. ARTICLE 1

49. Article 1 defines a number of concepts essential to proper understanding of the Directive.

ARTICLE 1(a)

50. This provision defines the Diploma as the result of a post-secondary course lasting at least a year (but less than the three years required for a diploma as defined in Directive 89/48). The course is deemed to be higher education by virtue of requiring the same admission qualifications as a university or higher education course. Article 1(a) also includes in the definition any education or training course listed in Annex C (see comments on Article 15).

51. As in Directive 89/48, the Diploma must have been awarded by a competent authority, and it must show that the holder has the professional qualifications required to take up or pursue a regulated profession in that Member State.

52. Like the corresponding text of Directive 89/48, it covers third-country diplomas under certain conditions, and includes those issued in recognition of courses outside the Community at teaching establishments which provide education and training in accordance with the law, regulations or administrative provisions of a Member State.

53. Also like Directive 89/48, the Directive recognises alternative education and training, provided that it is recognised by a competent authority in the same Member State as being of equivalent level and confers the same rights to take up or pursue a regulated profession. Such alternative paths may be courses parallel to the main training course or to former courses.

ARTICLE 1(b)

54. The Certificate covers post-secondary professional training and secondary-level training which may be either technical or professional.

55. This post-secondary training may take the form of a formal course, or on-the-job or in-service training, or a probationary period. It is compulsory if the secondary education is general, but optional for the purposes of the certificate if the secondary education is technical or vocational. The training may be in a teaching establishment or in an enterprise, or alternately in both.

56. Like the Diploma, the Certificate must be awarded by a competent authority, and must entitle the holder to take up or pursue an activity which is regulated in the Member State concerned.

57. If a Member State recognises training acquired in a country outside the European Economic Area which was not provided in an establishment teaching in accordance with that Member State's rules, two years' professional experience are required in the Member State before the General System can be invoked to give rights of recognition in other Member States (as against three years for diplomas).

58. Alternative training is recognised in the same way as diplomas.

ARTICLE 1(c)

59. This paragraph defines the attestation of competence as certifying training which gives rise neither to a diploma under either Directive, nor to a certificate. It is thus a very short course. An attestation can also be awarded following an authority's assessment of an applicant's personal qualities, aptitudes or knowledge, without proof of any prior education or training.

60. During the adoption of the Directive, the Commission undertook to pay particular attention, when conducting the review of the functioning of the Directive as foreseen in its Article 18 and in the light of any problems which might have arisen in practice, to the fact that "an attestation of competence" was less substantial than a certificate given the concern expressed regarding the distinction between the two concepts. The Commission is not, however, to this date aware of any particular problems arising.

ARTICLE 1(g)

61. In some Member States there are relatively few regulated professions, but training for professions which are not regulated may be specifically geared to the pursuit of that profession, with the structure and level of training being monitored or approved by the authorities.

62. This regulated training gives guarantees equivalent to those provided in connection with a regulated profession, and the migrant is thus not required to demonstrate professional experience when the activity is not regulated in the Member State of origin (see Articles 3, 5 and 6).

63. Annex D (see below) lists regulated training deemed equivalent in level to the diploma. Other regulated training, e.g. of certificate level, is possible.

ARTICLE 1(d), (e), (f), (h), (i) and (j)

64. The definitions of host Member State, regulated profession, regulated professional activity, professional experience, adaptation period and aptitude test are substantially those of Directive 89/48. No list of regulated professional activities is annexed, however, since many more activities are involved than with Directive 89/48.

65. No particular comments are needed on these definitions compared with those of Directive 89/48 [11].

[11] Document COM(96) 46 final, 15 February 1996. If a profession is not regulated under Directives 89/48/EEC and 92/51/EEC, the host Member State still has Treaty obligations in the field of the recognition of professional qualifications (cf. Bobadilla case law n° 234/97of 8.7.1999).

B. ARTICLE 2 (and Annexes A and B)

66. Article 2 begins by stating that the Directive applies to any national of a Member State wishing to pursue a profession in a self-employed capacity or as an employee.

67. According to the second paragraph of Article 2, the Directive does not cover professions which are the subject of a specific Directive establishing arrangements for the mutual recognition of diplomas by Member States, i.e. nurses, doctors, midwives, pharmacists, veterinary surgeons, dentists and architects, and professions in the transport sector (cf. Section VI E "Transport"), nor does it apply to activities covered by a Directive listed in Annex A concerning transitional measures, freedom of establishment and freedom to provide services.

68. Following this second exclusion, the Commission suggested a mechanism for recognising the diplomas for professions in its proposal for a third Directive on the General System, which was approved by the European Parliament (second reading) on 7 May 1999 and by the Council on 11th May 1999. This Directive, signed on 7 June, is to be implemented within two years of its publication in the Official Journal before 31st July 2001. The mechanism is similar to the General System, but differs in two respects. First, it is simpler, particularly because there is only one level of training; the professions covered show fewer differences in terms of training. Secondly, the choice between aptitude test and adaptation period, where there is a substantial difference between training courses, falls to the host Member State if the migrant wishes, in a self-employed capacity or as a manager of an undertaking, to exercise an activity requiring the knowledge and application of national rules. This second difference stems from the agreement finally reached by Parliament and the Council under the conciliation procedure provided for in Article 189b (now 251) of the EC Treaty.

69. The third paragraph of Annex B extends certain Directives mentioned above to employed persons.

70. This extension fills a gap which did not exist in the other Directives on mutual recognition, since the first Directives dealt only with establishment and provision of services as part of the Council's general programmes for eliminating restrictions on the freedom of establishment and the freedom to provide services. The subsequent Directives included the pursuit as an employed person of the activities in question.

71. As far as the Commission is aware, the application of these Directives to employed persons, even in a capacity other than that of manager of an undertaking, has not given rise to any particular problems.

C. ARTICLE 3

72. This Article lays down the principles of recognition when the host Member State requires the possession of a diploma as defined in either Directive 92/51/EEC or Directive 89/48/EEC.

73. The difference between the diplomas of the two Directives lies in the level of the training. In principle, the newer Directive's definition embraces university training of at least one year (but less than three).

74. There are several approaches, depending on whether the profession is regulated in the Member State of origin and, if not, whether the training is regulated.

75. (a) If the profession is regulated in the Member State of origin and the applicant holds a diploma of either type (89/48/EEC or 92/51/EEC), the diploma should in principle be recognised by the host Member State (with any necessary compensatory measures - see Article 4).

76. (b) If the profession is not regulated in the Member State of origin but the applicant nevertheless holds one or more training qualifications [12] at the 92/51/EEC diploma level, this qualification must as a matter of principle be recognised by the host Member State, provided that the holder has exercised the profession concerned for at least two of the preceding ten years, without prejudice to any compensatory measures (see Article 4).

[12] If the training is parallel to a normal or former training course, it may be recognised on the same basis as normal training if the conditions set out in the penultimate paragraph of this Article are met.

77. The two years' experience cannot be required, however, if the training is regulated in the Member State of origin. Regulated education and training are defined in Article 1, which requires them to be specifically geared to the pursuit of a given profession and for their structure and level to be determined by the laws, regulations or administrative provisions of the Member State concerned.

78. The guarantee offered by the legislation of the Member State of origin to the host Member State is replaced, as it were, by a minimum degree of experience of the profession or by the official status of the training obtained.

79. There is no recognition mechanism for Directive 92/51 diplomas when access to the profession in question is contingent on holding a Directive 89/48 diploma, one of the conditions for the award of which is success in a course of post-secondary studies lasting more than four years. The gap between the two types of training would then be more than three years. In this case the migrant may invoke the "Vlassopoulou" [13] case law to obtain recognition of her or his qualifications.

[13] In the judgement handed down in Case C-340/89, the Court of Justice derives from Article 52 (now 43) of the EC Treaty on freedom of establishment the obligation for the host Member State to "take into consideration the diplomas, certificates and other evidence of qualifications which the person concerned has acquired in order to exercise the same profession in another Member State by making a comparison between the specialised knowledge and abilities certified by those diplomas and the knowledge and qualifications required by the national rules" (point 16). Only if the diplomas correspond no more than partially is the Member State in question entitled to require the person concerned to show that he/she has acquired the knowledge and qualifications which are lacking (point 19). It must also take into consideration the professional experience acquired in the Member State of origin or in the host Member State (point 21). The examination procedure must be accompanied by guarantees: any decision taken must be capable of being made the subject of judicial proceedings in which its legality under Community law can be reviewed and the person concerned must be able to ascertain the reasons for the decision taken in his/her regard (point 22). This judgement was followed by consistent case-law which has embraced salaried practice (cf. the judgement in Case 234/97, "Bobadilla").

D. ARTICLE 4

80. Article 4 provides for measures which may be imposed on the migrant to compensate for any shortfall in her or his training compared with that required in the host Member State under Article 3. Three measures are provided for according to the type of serious shortfall: (a) if it concerns the duration of training, the compensatory measure is professional experience; (b) if it concerns the content and possibly the scope of the training, the compensatory measure is the adaptation period or the aptitude test.

81. (a) Professional experience may be required if the duration of the migrant's training was a year or more less than that required in the host Member State.

82. The experience which the migrant must prove must not be more than twice the shortfall in training time. In certain cases where the shortfall in training time in fact corresponds to professional practice, the host Member State's requirement must not exceed the equivalent time. In no case may the period exceed four years. Moreover, if the host Member State requires a diploma awarded on the basis of one of the training courses listed in Annex C, it is not entitled to require an applicant with an 89/48 or 92/51 diploma to have experience, since the training courses listed in Annex C have very specific durations which are difficult to compare with those of the diplomas "proper" covered by these two Directives, even though they are equivalent to 92/51 diplomas.

83. (b) An adaptation period or aptitude test may be required if:

84. the training received by the migrant was substantially different from the training required in the host Member State or

85. the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the regulated profession in the Member State of origin which are subject to specific training which is not substantially covered by that of the migrant.

86. The Directive limits the adaptation period to not more than three years.

87. The applicant may choose between the adaptation period and the aptitude test. The choice falls to the national authorities in three cases only:

- when practice of the profession concerned requires "a precise knowledge of national law", and the provision of advice and/or assistance concerning national law is an "essential and constant" feature of the professional activity;

- when the host Member State has obtained an exemption under Article 14 on the migrant's right to choose (see below);

- when the host Member State requires a diploma in respect of a three-year course and the migrant has only a diploma in respect of a one-year course or less [14].

[14] There is no recognition procedure when the migrant has this qualification and the host Member State requires a level exceeding four years of higher education. The Vlassopoulou case law applies in this event.

88. The adaptation period and the aptitude test are defined in Article 1(i) and (j).

89. Only one of these three compensatory measures may be demanded of the migrant (Article 4(2).

E. ARTICLE 5

90. Article 5 considers the case where the host Member State requires a Directive 92/51 diploma, whereas the applicant has only a certificate.

91. Here, the host Member State must recognise the certificate prescribed in another Member State for entry to a regulated profession. It may, however, require the migrant to undergo an adaptation period of not more than three years or to take an aptitude test. This requirement is not subject to proof of a shortfall between the migrant's training and that required of nationals; such a shortfall is assumed by virtue of the difference in level between the diploma required and the certificate held. The migrant may choose between the two compensatory measures unless an exemption has been granted according to the procedure laid down in Article 14.

92. If the profession is not regulated in the Member State of origin but the applicant holds one or more qualifications of certificate level, his/her training must as a matter of principle be recognised by the host Member State, provided that the applicant has exercised the profession for at least two of the preceding ten years. The host Member State is not entitled to require the two years' experience if the training is regulated in the Member State of origin. Regulated training is defined in Article 1(g).

93. All this is without prejudice to any compensatory measures taken under the terms set out above.

F. ARTICLE 6

94. Article 6 lays down the principle of recognition when the host Member State requires a certificate before a profession may be pursued.

95. Access to a regulated profession cannot be refused on the grounds of lack of qualifications if:

96. (a) the applicant holds either the diploma or the certificate prescribed by another Member State for access to this profession;

97. (b) unless the profession is regulated in the Member State of origin, the applicant has had two years of professional experience during the preceding ten years, and holds one or more training qualifications [15] of diploma or certificate level. Such experience cannot be required if the training is regulated;

[15] If the training is parallel to normal or former training, it may be recognised as equivalent to normal training if the conditions laid down in the last indent of this Article are met.

98. (c) the applicant holds no diploma, certificate or other evidence of education and training but has exercised the profession for three consecutive years of the preceding ten-year period. This mechanism gives a migrant who has been unable to find training suited to his or her situation access to a regulated profession at certificate level on the strength of professional experience. One example might be a pruner who has gained expertise while working in the sector.

G. ARTICLE 7

99. Article 7 sets out the cases in which the host Member State may impose compensatory measures when it requires a certificate for the pursuit of a profession.

100. It distinguishes between two hypothetical cases:

101. (a) the migrant holds a diploma, certificate or other evidence of education and training [16]:

[16] Cases covered by Article 6(a) and (b).

102. - the Member State must show that there is a substantial difference between training courses or differences in the fields of activity characterised by specific education and training relating to matters which are substantially different,

103. - but the migrant is entitled to choose between an adaptation period (not exceeding two years) and an aptitude test (unless the Member State obtains an exemption under Article 14);

104. (b) the migrant does not hold any diploma, certificate or other evidence of education and training [17]:

[17] Cases covered by Article 6(c).

105. - the Member State need not show that there are differences as outlined above (since the absence of qualifications suggests that there are such differences),

106. - and the Member State is entitled to choose between an adaptation period (not exceeding two years) and an aptitude test (without having to obtain an exemption under Article 14).

H. ARTICLE 8

107. Since the attestation of competence covers very short courses or an appreciation of personal qualities, aptitudes, or knowledge without proof of prior education and training (see definition in Article 1(c)), the Directive's principal recognition mechanism would be too cumbersome. If the host Member State requires an attestation of competence, it must recognise, without proof of qualifications, the attestation of competence required in another Member State for the taking up or pursuit of the same profession. Failing this, it must accept the qualifications of which the applicant provides proof, if they give guarantees, particularly in the matter of health, safety, environmental protection and consumer protection, equivalent to those it requires. These qualifications may also be personal qualities, knowledge or aptitudes obtained outside a training course.

108. In short, the attestation of competence exists for two purposes: as evidence of a very short course not connected with the preceding secondary education or, in the case of certain activities which nevertheless require some specific knowledge, of an examination at a modest level.

109. There is thus no question of compensatory mechanisms. The Directive allows only two outcomes: recognition if the conditions set out in the Directive are met, or non-recognition. There is no other possibility. But the logic of the text in its context requires that Member States should set up a mechanism which is more favourable to the applicant than simple refusal to recognise. If the conditions of the Directive are manifestly not met, it would seem logical and in the spirit of the Directive's aims for the Member State to be able to provide gateways (examination, further training, etc.) to allow the migrant access to the profession in that Member State. This can only be beneficial to freedom of movement. Moreover, the Vlassopoulou case law obliges each Member State to take into consideration the diplomas of other Member States held by Community nationals, even when no provision of a Directive is applicable. The national authorities are required to examine how far the knowledge and qualifications attested by the applicant's diploma from his/her country of origin correspond to those required by the regulations of the host Member State.

110. This problem has been raised [18] in the Co-ordinators' Group set up under the Directives. The Commission and most Member States believe that, if a migrant complies with only part of the provisions of the host Member State, his or her qualifications must nevertheless be taken into consideration under the case law of the Court of Justice.

[18] At the meeting held on 10 and 11 April 1995.

I. ARTICLE 9

111. When the host Member State requires evidence of general education at primary or secondary school level, it is not entitled to refuse formal qualifications of the corresponding level awarded by a competent authority in another Member State.

J. ARTICLE 10

112. This Article deals with the production of proof that persons are of good character, financially sound, and in good physical and mental health. These provisions are taken from earlier Directives concerning the free movement of persons such as traders or certain health professionals.

113. The application of these provisions has given rise to certain questions, particularly in the case of Directive 89/48. They are, however, applicable mutatis mutandis to Directive 92/51.

114. For example, in connection with the award of "qualified teacher status", the Commission has been consulted by the competent British authorities on the possibility of requiring candidates from other Member States to produce an official document attesting that they are of good character and repute and have not been convicted of any offence against children. This goes beyond what is provided for in the Directives.

115. The question is therefore whether more rigorous conditions than those provided for in the Directives may legitimately be laid down, and whether applicants producing the declaration on oath provided for in the Directives, but not an official document attesting that they are of good character and have not been convicted of any offence against children, can be refused access to the teaching profession. The competent national authorities think that, in the case of teachers, a simple declaration on oath as provided for in the second paragraph of Article 6 of Directive 89/48 and the second paragraph of Article 10 of Directive 92/51/EEC, is not a sufficient guarantee that people who might be harmful to children, such as paedophiles, may not obtain "qualified teacher status".

116. The Commission considers it disproportionate to conclude, on the basis of a literal reading of the Directives, that since they do not provide for any exemption from the obligation to accept a declaration on oath, the host Member State must accept a declaration of this kind in the case of persons whose professional activity involves direct daily contact with children. Protecting children against paedophiles can be regarded as a compelling reason of general interest justifying a restriction on the freedoms of movement enshrined in the Treaty. Requiring an official certificate (extract from police records or similar document drawn up by a competent authority) would seem an appropriate way of achieving a legitimate aim without going beyond what is strictly necessary.

117. Another example arises from a complaint against a host Member State on the grounds that, for access to and pursuit of the profession of frogman, a certificate which can be issued only by medical practitioners approved by the local competent authorities is required.

118. In order to assess the acceptability within the meaning of Directives 89/48 and 92/51 of the system whereby the authorities in the host Member State approve medical practitioners, the system must be examined case by case in the light of criteria established by the case law [19] of the Court of Justice (general interest, non-discrimination, proportionality). The following general principles may be put forward:

[19] Without prejudice to Directive 89/391/EEC which in substance permits Member States to impose more severe requirements in matters of health with the aim of protecting the safety and health of workers at the workplace. The impact of this Directive is under examination.

119. - when a Member State requests a medical certificate signed and endorsed by an accredited medical practitioner, it must be in the general interest i.e. required for fulfilling certain health requirements in the host Member State for the exercise of given professions, such as those relating to passenger transport;

120. - it would not be acceptable to restrict the opportunity to obtain approval to national medical practitioners alone, since this would certainly render access to a profession on the territory of the host Member State more difficult in practice for nationals of other Member States than for its own nationals;

121. - the proportionality principle implies that the host Member State should seek the least restrictive means of ensuring a high level of health protection. The following conclusions may be drawn from this:

122. (1) If an approval system offering equivalent guarantees also exists in the Member State of origin, the host Member State is not entitled to refuse the certificate issued in the country of origin.

123. (2) If the Member State of origin does not require a document of the same type as that required in the host Member State, i.e. if the certificate required is not issued by an approved medical practitioner or if no certificate is required, the second paragraph of Article 6(2) and Article 10(2) of Directives 89/48 and 92/51 respectively applies. The host Member State may then demand an attestation issued by an authority in the Member State of origin which is more than a simple certificate issued by an unapproved medical practitioner, even if the authority issuing the attestation is not itself approved. Moreover, Directive 89/391 does not explicitly provide for the approval of medical practitioners in order to guarantee the health monitoring referred to in its Article 14.

124. (3) Lastly, only if the authorities of the Member State of origin fail to issue an attestation within the meaning of the above-mentioned provisions is the host Member State entitled to require the migrant to produce a medical certificate issued by a practitioner approved by that Member State.

125. (4) It is worth adding that, to avoid placing excessive restrictions on the free movement of professionals, the entitlement of the host Member State to draw up a list of approved medical practitioners should, in any event, be accompanied by two obligations: first, it must justify the specific health requirements making such a network of approved practitioners necessary, and it must secondly inform the migrant of the various means by which he/she can meet these requirements (approved medical practitioner in the Member State of origin, attestation from the authorities of the Member State of origin or, failing these, approved medical practitioner in the host Member State).

K. ARTICLE 11

126. Under this Article, the competent authorities of the host Member State must recognise the right of nationals of other Member States who fulfil the conditions for taking up and pursuing a regulated profession to use the corresponding professional title in the host Member State.

127. The same applies to the right to use an attestation of competence, but the host Member State may require this qualification to be accompanied by details of its origin, so as to avoid confusion with qualifications awarded on its territory.

128. If the profession is regulated in the host Member State by an association or organisation, migrants may use its professional title only if they can prove that they are members. If the association or organisation restricts membership to certain qualifications, it must comply with the provisions of the Directive, particularly those laid down in Articles 3, 4 and 5 (recognition of diplomas, certificates or professional titles).

L. ARTICLE 12

129. This Article deals with the proof of qualifications the applicant must provide, and certain procedural points.

130. First, it is up to the applicant to prove what qualifications he/she holds. However, the host Member State must accept as evidence documents issued by competent authorities in the Member States. In other words, the host Member State may not be unreasonable in the evidence it demands. The Commission has therefore, in close co-operation with the Member States, compiled a "Code of Conduct" on administrative formalities which embodies a consensus by the Co-ordinators' Group on the question (see below). The Commission considers that it can be of great practical help to the migrant for the authorities of the Member State of origin to issue a document attesting his qualifications in terms of the Directive (89/48 diploma, 92/51 diploma, certificate or attestation of competence). Nevertheless, the host Member State is not, as a matter of principle, entitled to demand an attestation from the Member State of origin to certify the possession of a diploma as defined by the Directive or the authorisation to pursue the profession in the country of origin (see Code, point 3Cb).

131. The procedure for examining applications must be completed within four months of the presentation of the full set of documents. It must be endorsed by a reasoned decision. This decision, or its absence, must be subject to appeal under national law.

M. ARTICLE 13

132. This Article requires Member States to designate the competent authorities to receive applications and take recognition decisions under the Directive and to communicate this information to each other and to the Commission.

133. It also requires each Member State to appoint a co-ordinator, above all to promote the uniform application of the Directive. These Co-ordinators become members of the Co-ordinators' Group set up under Directive 89/48. The tasks of the Co-ordinators' Group * to foster the implementation of that Directive and assemble all information relevant to its application * are also extended to this Directive.

134. There is an obligation for Member States to provide information on the recognition of qualifications and related issues using existing information networks and professional associations and organisations, where appropriate. The Commission is responsible for initiating any necessary developments in co-ordination and communication measures.

135. The work done by the Co-ordinators' Group is described in Part VII below.

N. ARTICLE 14:

1. General

136. If a Member State proposes not to grant applicants the right to choose between an adaptation period and an aptitude test, it is required immediately to communicate to the Commission the corresponding draft provision. It shall at the same time notify the Commission of the grounds which make the enactment of such a provision necessary.

137. The Commission shall immediately notify the other Member States of any draft which it has received; it may also consult the Co-ordinators' Group.

138. The Member State may adopt the provision only if the Commission has not taken a decision to the contrary within three months. It may also submit its observations on the draft.

139. The definitive text is communicated by the Member State concerned at the request of a Member State or of the Commission.

140. In connection with the application of Directive 92/51/EEC, the Commission has received three applications for exemptions under Article 14. In one case the Article was deemed not to apply, but in the others the Commission's responses were partly favourable. These applications came from France, the United Kingdom and Austria.

2. France: sports instructors

141. On 17 June 1996, France applied for an exemption under Article 14 of Directive 92/51/EEC for the supervision of certain sporting activities. France's application concerned the profession of sports instructor and asked for permission to make an exception to the principle of the applicant's freedom of choice in the case of certain sporting activities. The French authorities wanted to be able to impose an aptitude test on the applicant if the diplomas awarded in other Member States were substantially different from the qualifications required in France.

142. The French authorities accompanied their application to the Commission with a draft decree which concerns only the establishment of instructors etc. who are qualified in another Member State. This was because, in relation to the temporary provision of services, an infringement procedure opened by the Commission had already been concluded by the grant to France of a permanent exemption, based on a separate piece of French legislation and the relevant Articles of the Treaty rather than on Directive 92/51/EEC, for the same professions. Although intended to transpose the Community law applicable in this field, this draft decree on establishment still maintains special rules for five sporting activities, for which "the Minister for Sport may stipulate the aptitude test". According to the text submitted to the Commission, this aptitude test could be stipulated for ski instructors, mountain guides, diving instructors, parachute instructors and potholing instructors. The French authorities stressed that this application, drawn up pursuant to Article 14, did not call into question the principle of mutual trust but "tended rather to affirm it in the case of activities where objectives of general interest such as safety were at stake." It therefore concerned only "dangerous sports". In the view of the French authorities, this application was justified by the dangerous nature of the activities in question.

143. In accordance with Article 14 of Directive 92/51/EEC, the application was submitted to the Member States. It was sent to all the Co-ordinators of the General System for the recognition of diplomas, who stated their views at the meeting of the Co-ordinators' Group held on 8 July 1996.

144. After examining France's application, the Commission thought that the absence of freedom of choice might be justified in this case, provided of course that the Member State shows in each case that the compensatory measure is justified by a substantial difference between the material covered by the migrant's training and the qualification required, taking into consideration the professional experience of the person concerned. The dangerous nature of the activities and the concern for the safety of those involved were arguments against freedom of choice and in favour of an obligation to take an aptitude test in the specific cases mentioned by France in its application and in accordance with Directive 92/51/EEC.

145. In its decision, adopted on 9 January 1997, the Commission granted an exemption for a trial period to end on 30 September 1999. Before making a final pronouncement on this exemption, it wanted to evaluate the practical problems it would entail. It also wanted to enable France to determine whether or not these aptitude tests were in fact the best way of achieving the objective. Finally, it wanted all the parties concerned to make any comments they might have before taking a final decision.

146. The Commission asked France to submit an evaluation report by 30 April 1999 and, if it wished, to submit a new application for an exemption by 30 June 1999. The Commission also decided to ask the other Member States and all the parties concerned to state their views and submit their observations. The Commission itself was also to produce a report.

147. France submitted its evaluation report on 12 May 1999 and requested a permanent exemption for these five professions. After asking for and obtaining additional information, the Commission decided on 14 July 1999 to extend the exemption for one year for ski instructors, but under strict conditions, and for diving instructors and parachute instructors, and for an unlimited period for mountain guides and potholing instructors.

3. Austria: mountain professions

148. In a letter of 15 July 1998, Austria applied for an exemption under Article 14 of Directive 92/51/EEC for the supervision of certain sporting activities. This letter was accompanied by two draft regulations and an account of the motives. The application concerned eight sporting professions (ski instructors, trainee ski instructors, graduate ski instructors, ski guides, cross-country ski instructors, trainee cross-country ski instructors, mountain guides and trainee mountain guides), for which it wanted to be able to depart from the principle of freedom of choice for the applicant. The Austrian authorities wanted to be able to impose an aptitude test if the diplomas awarded in other Member States were substantially different from the qualifications required in Austria.

149. The Austrian authorities stressed that their request pursuant to Article 14, exclusively concerned activities involving risks. In the view of the Austrian authorities, this application was justified on the basis of the dangerous nature of the sporting activities in question.

150. In accordance with Article 14 of Directive 92/51, the application was submitted to the Member States. It was sent on 11 August 1998 to all the Co-ordinators of the General System for the recognition of diplomas, who received supplementary information at the meeting of the Co-ordinators' Group held on 19 November 1998. Additional information and guarantees were then requested and obtained from Austria. On the basis of these, the Commission decided on 14 July 1999 to grant an exemption for one year, in parallel with the decision taken by France on the same day.

4. United Kingdom: seafaring professions

151. On 20 February 1998, the Commission received an application from the United Kingdom authorities for an exemption to Article 10 of Directive 89/48 and Article 14 of Directive 92/51, concerning merchant navy and fishing vessel deck and engineer officers. The British authorities wanted to be able to depart from the principle of free choice by the migrant if a "compensatory measure" (adaptation period or aptitude test) could be stipulated. In the interests of safety, the British authorities wanted to be able to stipulate a test whenever there appeared to be a "substantial shortfall" in knowledge of the language.

152. On careful examination of this application and its professional context, it appeared that the problem raised by the British authorities fell outside the scope of these Directives, since such language requirements did not form part of the education or training which might give rise to compensatory measures. A letter to this effect was sent to the British authorities on 7 May 1998.

5. Conclusions:

153. All of the information presently available to the Commission has indicated that the principal issue of concern to interested parties in connection with the exemptions so far granted is that of ski instructor recognition. While the real underlying issue appears to centre on differing views as to the level of qualification objectively appropriate for ski instructor recognition - and, therefore, also as to the relevance and substantial character of any differences between existing national qualifications - the debate so far has largely focussed on the application of the Article 14 exemptions. This has been the case despite the fact that these exemptions in no way affect the level of qualification required, but rather concern the type of compensation measures which can be applied in cases of substantial differences in qualifications.

154. At the same time, it is clear that the way in which a recognition system is administered can be as important as the underlying law in terms of the conditions applied to market access. In this respect, the degree of clear objectivity involved in all aspects of a recognition process, the manner in which the process of recognition is administered, the reality of the appreciation given to the abilities and experience of each candidate and the degree of explanation given of decisions taken, all constitute elements which contribute to the reasonable character of a recognition procedure and the level of its acceptability to those subject to it. These factors clearly obtain even more importance when the rights normally accorded to migrants are the subject of an exceptional restriction, such as is the case under an Article 14 exemption.

155. Against this background, the Commission has decided to grant temporary exemptions for Austria and France up to 31 July 2000 when it is intended that final decisions, of permanent application, will be taken. It is the intention of the Commission services to use the period of the temporary exemptions to ensure the maximum exchange of information and views between the Member States and interested parties. This process will be directed to the collection and assessment of all relevant information and the discussion of issues in order to prepare for the final decisions to be taken by the Commission and to try to obtain a level of common understanding and agreement which will provide a stable and permanent basis for the future. The process will cover both the exemption issue and all other substantive and procedural issues relevant to ski instructor recognition.

156. At the same time, the procedure and timeframe for the taking of decisions on exemptions under Article 14 has been shown by experience to be very short, particularly in view of the consultations with the Member States which the Commission values greatly. On more than one occasion, the actual three month period between submission of a Member State application and the decision of the Commission has been exceeded because a request for additional information has been required, given that the time period in question is deemed to flow only from the moment when the Commission has all necessary information at its disposal. In the light of experience so far it seems likely that any future applications for exemptions, including in particular any raising important, wide-ranging, complex or very technical questions, could require more than the three month period from the date of submission of the application to that of the adoption of the Commission decision. Consultation and examination of all relevant views and information may justify the Commission taking a preliminary decision, in any particular case, entailing a negative decision of temporary duration being taken, if only to allow more time for a fuller consideration of the issues, albeit within a set timetable within which a final decision would be taken.

157. It is also evident that the Commission has had recourse to the grant of exemptions on a temporary basis and subject to conditions. While it is clearly preferable that final and permanent decisions be taken on applications, for reasons of legal stability and certainty, it is not possible to rule out continuing recourse to temporary and conditional decisions. One major benefit of such decisions is that they allow for a probation period in which the actual effects of the exemption can be registered and the views of those most directly concerned taken into account before any final decision is taken. In view of the general case law of the Court of Justice on the restrictive interpretation of exemptions from general rules of Community law, [20] it still seems appropriate that these kinds of checks and balances continue to be capable of being applied to requests for exemptions under this Directive.

[20] See for example the Gebhardt case law C55/94 of 30.11.95.

O. ARTICLE 15 and Annexes C and D

1. Ratio legis

158. Certain types of education and training not covered by the definition of "diploma" within the meaning of Article 1, first paragraph, a), second indent, i) of Directive 92/51/EEC nevertheless lead to a comparable level of professional competency and prepare people for similar responsibilities and activities [21] * for example, training as a physiotherapist in Germany or children's nurse in Luxembourg. Because of their wide diversity, Directive 92/51/EEC provides for the same treatment as diplomas by listing them (cf. Recital 15) in Annex C. Certain types of regulated education and training have also been given diploma status by inclusion in the list in Annex D.

[21] As set out in recitals 15 and 16 of the Directive.

159. This provides a link in the host Member State with diplomas covered by Directive 89/48 (awarded on completion of professional education and training of three or four years' duration) and, if a diploma within the meaning of Directive 92/51/EEC is needed, limits the requirement for compensatory measures to the case of substantial differences between types of education and training.

2. Updating procedures

160. The procedure for amending these annexes is described in Article 15 [22]. It involves verifying whether the qualification resulting from education and training courses forming the subject of a reasoned request by a Member State confers on the holder a level of professional education or training comparable to a diploma within the meaning of Directive 92/51/EEC (duration of one year, after the secondary level required for admission to university or higher education) and a similar level of responsibility and activity.

[22] This procedure will have to be changed in order to adapt it to the new Council general Decision n°1999/468/EC of 28 June 1999 laying down the procedure for the exercise of powers conferred on the Commission. (OJ L 184 of 17 July 1999, p.23ff.)

3. Amendments through the Treaty of Accession with Austria, Finland and Sweden

161. According to Article 29 of the Treaty of Accession of 24 June 1994 numerous education and training courses were added to Annexes C, effective as of 1 January 1995. This amendment concerned only Austrian professions.

162. Under the heading "health-related and childcare training courses" this related to contact lens opticians, pedicurists, acoustic-aid technicians, druggists, masseurs, kindergarten workers and childcare workers. In the sector "Master craftsmen" the professions of surgical truss maker, corset maker, optician, orthopaedic shoemaker, orthopaedic technician, dental technician, gardener and furthermore 14 master craftsman courses were added. In the "technical sector" the following training courses were included: forester, technical consulting, labour leasing, employment agent, investment adviser, private investigator, security guard, real estate agent, real estate manager, advertising and promotion agency, building project organiser, debt-collecting institute, insurance consultant, master builder or wood builder/planning and technical calculation.

4. Implementing Directives

163. The Commission has received numerous requests for amendments to the lists set out in Annexes C and D. Having examined these requests (together with the committee [23] established in Article 15), three Commission Directives have been adopted so far.

[23] The work of this committee has often been prepared by discussions within the Co-ordinators' Group (see Part VII of this report referring to the Group).

a) Commission Directive 94/38/EC of 26 July 1994

164. Several health-related training courses in Germany were added to Annex C: medical laboratory technician, medical X-ray technician, medical functional diagnostics technician, veterinary technician, dietician, pharmacy technician, psychiatric nurse and speech therapist. Italian training courses for accountants, accountancy experts and consulente del lavoro were deleted.

165. Annex D was supplemented by a section on certain German specialist school courses preparatory to the professions of technical assistant, commercial assistant, State-certified respiration and elocution instructor, State-certified technician, business economist, designer, family assistant and several social professions under specified conditions.

b) Commission Directive 95/43/EC of 20 July 1995

96. 166. This Directive is based on requests from the Netherlands and Austria. The new provisions in Annex C are based on requests from the Netherlands referring to courses for veterinary assistants, and several professions in the sea transport sector (first mate, coaster engineer and VTS official). To Annex D training courses in Dutch colleges for intermediate vocational training and in the apprenticeship system were added as well as training courses in Austrian higher vocational schools, higher education establishments for agriculture and forestry, master schools, master classes and building craftsmen schools. For all these training courses specific conditions were set up.

167. Together with the numerous amendments caused by the accession of the Republic of Austria the contents of the Annexes would have become unclear. With the new Directive, therefore the amended lists of courses were published in a consolidated version.

c) Commission Directive 97/38/EC of 20 June 1997

168. Several professions in the list of the United Kingdom courses accredited as National Vocational Qualifications or Scottish Vocational Qualifications were deleted, because they are now covered by Directive 89/48/EEC (medical laboratory scientific officer) or are no longer regulated (probation officer, prosthetist).

d) Commission Directive 99/ / of ............. 1999

169. A draft Directive has been unanimously approved by the Committee of Representatives of Member States formed pursuant to Article 15 (3). This draft Directive responds to reasoned requests from Austria and the United Kingdom concerning the following issues:

170. Certain certificates of technical competence in waste management in the UK shall be added to Annex C, as well as special training for psychiatric nurses and paediatric nurses in Austria. On the other hand, the professions in the UK "approved social worker - mental health" and "trade mark agent" shall be deleted. Furthermore, the wording of Annex C and D regarding "National/Scottish Vocational Qualifications" in the UK shall be adapted to the terminology presently used in the relevant national law. The Commission early in the year 2000 could possibly adopt the Directive.

171. Owing to new amendments to national legislation, further Directives will probably have to be drawn up in the future.

5. Conclusions

172. Experience [24] has shown that this procedure is cumbersome and complex, and is becoming increasingly difficult to implement as the list grows. The question is therefore whether it would be useful to find an alternative approach - for example, replacing this procedure and these lists with one general definition [25] giving these types of education and training the same status as those leading to a diploma within the meaning of Directive 92/51/EEC.

[24] See in particular the criticisms in Annex I from Belgium, Denmark and Finland, which wished to see the system changed.

[25] The Netherlands Co-ordinator has suggested a general formulation or a procedure by which the migrant or the competent authority would attest that his education or training met the criteria set out in the Directive.

173. Such a solution is being studied by the Commission services. This general definition, to be included under that of the diploma, would be a reminder that the professional level of the course should be comparable to that of the course of studies defined as a diploma course; in addition it would set out that the course served as a preparation for a level of responsibilities and tasks to be stated by the authorities of the Member State of origin in a supplementary attestation. A migrant claiming the rights of recognition on this basis could be required to produce a certificate from a competent authority confirming the status of the course in question and providing information enabling the host Member State to know where to obtain any further information required.

174. Annexes C and D would then be deleted, with a clause safeguarding the acquired rights of the holders of the qualifications listed in those Annexes.

P. ARTICLE 16

175. Article 16 is the first Article of Chapter XI of the Directive containing the concluding provisions of general application. It provides for the Member States to report to the Commission every two years on the application of the Directive. These reports are to include any general remarks, statistical summaries of decisions taken and a description of the main problems of application which have arisen.

176. For the latest statistical information resulting from this reporting process see Part IV.B.

Q. ARTICLE 17

177. This Article lays down a maximum period of two years for transposing [26] the Directive.

[26] Implementation was dealt with above in Part IV.A.

R. ARTICLE 18

178. As well as providing for this report, this Article adds that: "After conducting all necessary consultations, the Commission shall present its conclusions as to any changes which need to be made to this Directive. At the same time the Commission shall, where appropriate, submit proposals for improving the existing rules in the interest of facilitating freedom of movement, right of establishment and freedom to provide services".

179. This report already includes suggestions for some changes to the Annex C and D qualifications and their up dating and possibilities of the introduction of further flexibility in relation to the cross-frontier provision of services. The question of any proposals for the improvement of the existing rules also, however, gives rise to wider considerations having some relevance also to Directive 89/48/EEC.

S. ARTICLE 19

180. No comments.

VI. COMMENTS ON INDIVIDUAL PROFESSIONS

A. Public service

181. The public service is traditionally a very important professional sector in terms of freedom of movement. The Commission is often approached on this matter, either through letters from members of the public or in connection with complaints or requests. For some years now, therefore, there have been a number of infringement procedures on questions of recognition of diplomas, involving several Member States in several professional sectors covered by both Directive 89/48/EEC and Directive 92/51/EEC (teachers, translators, hospital administrators, aircrew and mariners, general government administration, etc.), at both national and local levels. Under these procedures, some Member States have raised basic problems that have led to very careful examination on the part of the Commission, under three main headings:

182. - the basic principle of the application of the General System for the recognition of diplomas (Directives 89/48 and 92/51) to the public service;

183. - the question of the application of the General System to the entire public service or to only those professions or activities requiring specific professional training;

184. - competitions.

185. According to recital 8 of Directive 92/51, "the complementary General System is entirely without prejudice to the application of Article 48(4) and Article 55 of the Treaty". There are no further direct or indirect references to the public service. Moreover, Articles 48(4) (now 39) and 55 (now 45) refer only to nationality.

186. The Commission has always taken the view that the public service is not excluded a priori from the scope of the Directives: the mere fact that a profession is exercised in the public service does not place it outside the scope of the Directive. The Court of Justice has pointed out that public bodies are bound to comply with Directives 89/48/EEC and 92/51/EEC [27]. However, this does not mean that the General System applies to the entire public service. This question is closely related to those of the definition of a diploma, regulated profession and professional qualification.

[27] Point 12 of the judgement handed down on 8 July 1999 in Case 234/97, Bobadilla.

187. According to the definition of the diploma, the holder is required to have successfully completed a course of study or training of a certain duration. The holder must also have all the professional qualifications (diploma or set of diplomas or certificate) required for the taking up or pursuit of a regulated profession in the Member State of origin. This final criterion must be understood as referring only to the qualifications obtained after receiving training geared to the pursuit of a specific profession.

188. Compensatory mechanisms (aptitude test, adaptation period) are not appropriate if there are several very different routes to a profession which itself is general in nature (for example, general competition open to holders of various types of diploma). On the other hand, if such a variety of expertise is accepted for the public service activity in question, the presence or absence of more specific elements of individual professional qualifications would appear less relevant and thereby compensation measures less relevant. Absent a fundamental difference in the nature or level of the professional qualification concerned, the principle of mutual confidence should apply. On the other hand, where compensatory mechanisms would be applied to make up a difference in the overall level of qualification, such measures seem not easily to fit public service recruitment methods. The Commission intends to continue to examine possible solutions.

189. Three questions arise concerning the use of competitions for professional recognition in relation to public service work. How should competitions be considered- Are the professions accessible by competition regulated professions within the meaning of the Directive- How should the concept of a fully-qualified person be defined in connection with a profession to which recruitment is by means of a competition-

190. The Commission's view, which it has frequently expressed in several replies to written and oral parliamentary questions and requests regarding the principle of competitions and within the framework of infringement proceedings, is that each Member State remains free to lay down its own recruitment procedures providing diplomas awarded in other Member States are recognised in accordance with Community law. Competitions, like other recruitment methods, (CV, interview, examinations, etc.) are only one procedure for access to a profession. If, therefore, nothing prevents a Member State from using competitions to recruit its civil servants, it must, if a regulated profession within the meaning of Directive 92/51/EEC is concerned, allow holders of diplomas awarded by other Member States to apply, provided the diploma in question qualifies them to take up that profession in the Member State in which it was awarded. This also means that a person from another Member State who is qualified for the profession must accept the competition procedure, since the right he enjoys under the Directive is to have access to the profession in question on the same terms as nationals.

191. Are the professional activities to which access is by means of a public competition open to the holders of certain diplomas regulated professions within the meaning of Directive 92/51/EEC-

192 Article 1(f) of Directive 92/51/EEC defines a regulated professional activity as "a professional activity the taking up or pursuit of which, or one of its modes of pursuit in a Member State, is subject, directly or indirectly, by virtue of laws, regulations or administrative provisions, to the possession of evidence of education and training or an attestation of competence". The Directives can therefore be regarded as applying in the case of competitions admission to which is subject to having a specific professional qualification leading to the pursuit of the profession in question.

193. The mechanisms set out in the Directive are, after all, based on the principle of professional activities being the same in the host Member State and the Member State of origin. Migrants must hold the diploma required for carrying out the same profession in the Member State of origin.

194. In relation to a more general public service activity than the more specific professional qualifications required to accede to that public service work, it is still true that a recognition process could take place in the context of the specific professional concerned, with perhaps even more flexible application of the principle of mutual confidence due to the fact that the qualifications required relate more to the general level of professional activity required than the particular elements of knowledge relevant to each specific profession. Grading within the public service and other means could be used to take account of some of the differences in the relevant professional qualifications in the absence of sufficient justification for a refusal. This kind of analysis would need to be further tested before final conclusions could be drawn.

195. Finally, in order to be able to take advantage of the "General System" Directives, persons must be fully qualified in their Member State of origin, which poses certain problems if a competition is followed by a course of professional training. In this case, persons could not be regarded as fully qualified in their Member State of origin unless they a) held a diploma giving them admission to the competition, b) passed the competition and c) had completed the course of professional training, which might, depending on the professional or national context, be regarded as either forming part of the training and hence of the diploma, or as subsequent to the acquisition of the diploma). This rule puts holders of diplomas awarded by countries where competitions are followed by professional training at a disadvantage, since only if they have passed the competition (and hence followed the subsequent professional training) can they be regarded as "finished products". Failing this, they may be unable to take advantage of the Directives, which often means that a qualification from a French university, for example, may not constitute a diploma within the meaning of the Directives for the purposes of recruitment to the public service (France has a strong tradition of competitions followed by training). On the other hand, fully qualified professionals e.g. teachers from other Member States, seeking recognition in France also suffer the disadvantages of having to undergo the final (competition) stage of the French professional qualification.

196. This places a very large number of applications for recognition with a view to taking a competition outside the scope of the Directive. The Commission is examining this question.

B. Teachers

197. Most countries make access to the pre-school "teaching" profession subject to an 89/48 diploma, the exceptions being Spain, Germany,Austria and Liechtenstein, where a 92/51 diploma is required for the status of educador infantil, Erzieher, and Kindergärtner respectively. The Commission has not detected any specific problems with the application of Directive 92/51/EEC in this sector.

198. Access to the primary-teaching profession is subject to an 89/48 diploma in all Member States, except Italy and Liechtenstein.

199. For secondary education, all the Member States require a 89/48 diploma, except in Luxembourg and Greece, where certain teaching posts require a 92/51 diploma.

200. However, there have been problems in this area with the interpretation of Directive 92/51/EEC. The Commission has received complaints from teachers with 92/51 diplomas [28] - this type of training used to exist in certain countries - who have been refused recognition.

[28] It should be noted that this refers to teachers with 92/51 diplomas, and not those holding diplomas for a two-year course deemed equivalent to an 89/48 diploma, which eventuality is covered directly by Directive 89/48/EEC. For this, refer to the 1996 report on the implementation of Directive 89/48/EEC, Doc. COM(46) final of 15 February 1996, p. 10

201. Article 3 of Directive 92/51/EEC provides for a system for linking the two Directives: the host Member State must recognise 89/48 diplomas if it requires only 92/51-level training for the profession in question. Conversely, it must in principle recognise 92/51 diplomas, even if it requires a 89/48 diploma for the profession in question.

202. The Directive provides for an exception to this link: the host Member State is not obliged to apply this equivalence principle if access to the profession is subject to the possession of a "diploma as defined in Directive 89/48, one of the conditions for the issue of which shall be the completion of a post-secondary course of more than four years duration".

203. It was on the basis of this exception that 92/51 diplomas held by several teachers have been refused recognition.

204. The Commission thinks that the equivalence principle is applicable in such cases, since the Directive does not provide for exemption when access to the profession is subject to the possession of a diploma awarded on completion of general training of more than four years' duration. For the exception to apply, the diploma required would have to be one as defined in Directive 89/48 [29], one of the conditions for the issue of which is the completion of a post-secondary course of more than four years' duration. For the purpose of applying the equivalence principle, therefore, the decisive element is the duration of the course, irrespective of the duration of any profession training required over and above the course.

[29] Diplomas as defined in Directive 89/48 are awarded on completion of a course of study of at least three years' duration, possibly followed by a course of profession training required in addition to the course of study (cf. Art. 1a) of Directive 89/48)

205. Teachers with 92/51 diplomas are, in general, holders of "old" diplomas, awarded at a time when training in their country of origin lasted two years. Nowadays, teacher training is, in general, covered by Directive 89/48 in all the Member States. The problem with the application of the equivalence principle is a hangover from this former period that affects very few teachers. Concerning as it does holders of "old" diplomas, the migrants in question usually have considerable professional experience.

206. It should be borne in mind that, even if the Directives are not applicable, the Member States are still obliged, under Article 48 of the Treaty, to guarantee the free movement of workers within the Community (cf. Aranitis judgement). It should not be forgotten that these are people who have all the qualifications required in their country of origin and who are holders of a 92/51 diploma rather than a 89/48 diploma simply because that is what was available at the time.

207. It would seem difficult, therefore, to justify refusing recognition in the light of the Community legislation applicable to freedom of movement.

C. Social professions

208. According to the information available to the Commission's departments, the profession of social worker is subject - in the countries where it is regulated - to the possession of an 89/48 diploma. In certain countries where the profession is not regulated there are two-year post-secondary courses for social workers.

209. The statistics show that the migratory flows of social workers between the Member States are not very large (except in France, where according to the statistics for 1995/96 the recognition applications submitted for pursuing this profession amounted to 127) and do not pose any particular problems.

210. There are certain situations, however, which are not covered by the provisions of the Directives on the General System of recognition. In Finland and Portugal, access to the profession of social worker is subject to the possession of a diploma awarded on completion of a 5-year course. Consequently, in the case of migrants from countries where training is of the 92/51 level, the authorities of these two countries can legitimately invoke an exception to the equivalence arrangements and the migrants would thus be excluded from the system.

211. However, according to the information provided by the Member States concerned, this discrepancy between training arrangements is not in practice likely to impede the free movement of the professionals concerned. In Finland the applications received were all granted, including the one that was submitted by the holder of a 92/51 level diploma.

212. In addition, the International Federation of Social Workers (IFSW) has informed the Commission of its plans to set up a register of social workers and to create a "European social workers' qualification" on similar lines to that created by engineers, which should further facilitate free movement of these professionals. The professionals concerned have in fact advised the Commission of the divergences which exist between Member States as regards training of social workers (content, length and level) and have stressed that some convergence in training would be desirable in order to enhance the mobility of social workers within the European Union.

D. Health-related professions

1. General considerations

213. A large portion of the professions in the health-related sector come under Directive 89/48, but others come under Directive 92/51, while in some cases the profession may come under the first Directive or the second, depending on the Member State concerned. One example of this is the profession of physiotherapist, which comes under Directive 89/48 for most Member States but is covered by Annex C to Directive 92/51/EEC for Germany, since the level of training is different.

214. A Conference was held in September 1999 in order to further examine the current position concerning the migration of physiotherapists within the EU. This Conference confirmed a certain progress being achieved through bilateral discussions between Member States and otherwise in this area. A significant result of this Conference was the unanimous agreement between all representatives of the profession on the fact that they all exercise the same profession in the different Member States of the EU. Further work has also been scheduled by the European Region of the World Confederation for Physical Therapy concerning the compensation measures applied by Member States to migrating physiotherapists to further clarify continuing obstacles to free movement.

215. The figures collected by the Member States, together with the information obtained by the Commission, show that the Directive has made it possible to recognise a large number of diplomas for a number of professions in the health sector, even though there have been found to be problems or limitations in the application of the Dire