EN Official Journal of the European Union CE 70/257

(2004/C 70 E/278)

WRITTEN QUESTION E-3337/03

by Roberta Angelilli (UEN) to the Commission

(12 November 2003)

Subject: Legal protection for commercial diving

For some years now the European Diving Technology Committee (EDTC) has been committed to disseminating information on standards of competence for people working underwater (Commercial Diving Certificate) in order to simplify the current national regulations in the Member States. At present only the countries of northern Europe have regulated commercial diving as a service provided for the oil industry ignoring underwater activities in the recreational and tourism sectors, although they constitute an important and fast-expanding sector of economic development. In actual fact, there is at present no legal basis harmonising this sector throughout Europe. Back in 1994 the EDTC drew up a document entitled ‘Goal-setting Principles for Harmonised Diving Standings in Europe’, sponsored by the Commission's Labour DG, intended to improve European legislation on commercial diving.

However, this sector does not seem to have been included in the proposal for a directive COM(2002) 119 final (1) on the recognition of professional qualifications.

Nevertheless, one of the main objectives mentioned by the European Council in Stockholm in March 2001 was to ensure a more flexible labour market, by promoting mobility and adopting the necessary legal instruments, as well as removing unnecessary regulatory obstacles to the recognition of professional qualifications.

In view of all this, can the Commission say:

1. whether it does not consider that the lack of harmonisation in this sector violates the principle of the free movement of persons and services;

2. what instruments it intends to adopt to coordinate the existing laws, as envisaged in Articles 40, 47 and 55 of the EC Treaty;

3. what the situation is overall?

Answer given by Mr Bolkestein on behalf of the Commission

(12 December 2003)

The right of free movement of workers, the right of establishment and the freedom to provide services are fundamental principles of the EC Treaty. In order to enable these freedoms to be exercised, several legal instruments concerning the recognition of diplomas have been adopted at European level on the basis of Article 47 of the EC-Treaty.

The provisions adopted at Union level have the main objective of ensuring conditions for the recognition of qualifications within the regulated professions. As a general rule, it is up to each Member State to determine if a professional activity is to be regulated or not.

According to the Commission's information, in the case of commercial divers, the majority of the Member States have not regulated this profession and no coordination of education and training exists in this sector at Union level.

However, if someone is seeking recognition of a diploma in order to pursue a regulated profession in the field of commercial diving in a Member State other than that in which the individual has obtained a professional qualification, one of the two following Directives may apply, depending on the level of studies recognised by the diploma: Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (2) (Α-levels or equivalent + three years) or Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training (3) which covers diplomas, certificates and other vocational training titles at a lower level than those covered by Directive 89/48/EEC (General System).

Thanks to these Directives, Union citizens have the right to pursue a specific regulated profession in any Member State under the same conditions as the holders of diplomas from that Member State. Whenever substantial differences exist between the applicant's qualifications and experience and the requirements of the host State, the host State may require a compensation measure from the applicant in the form of a period of relevant professional experience, an aptitude test or a period of supervised practice. In particular, when the profession at stake is one which is regulated in the host Member State, but not in the Member State from which the applicant comes, the host Member State can not refuse to authorise the applicant to take up or pursue the profession on the same conditions as those which apply to its own nationals, if the applicant has pursued that profession in another Member State for a sufficiently long period of time. Nevertheless, the host Member State may also require the applicant to undergo compensation measures where, despite that period of practice, substantial differences are identified between the competencies of the person and local qualification requirements (see Directive 89/48/EEC, Articles 3 (b) and 4.1 (b), and Directive 92/51/EEC, Articles 3 (b) and 4.1 (b)).

The proposal for a Directive on the recognition of professional qualifications (4), which is currently at the stage of first reading in the Parliament, consolidates the existing mechanism aimed to ensure professional recognition, while simplifying and clarifying it. In this context, Article 15 of the proposal gives the possibility to professional associations to create professional platforms aimed to facilitate the recognition procedure through qualification standards. Once a platform has been adopted in a Commission decision, professionals fulfilling the relevant standard will have the right not to have any compensation measure applied.

This mechanism, which could also apply to the profession of commercial divers, is therefore very flexible and seems to be particularly appropriate for situations concerning professions which are not regulated in all Member States.

(1) OJ C 181 E, 30.7.2002, p. 183.

(2) OJ L 19, 24.1.1989.

(3) OJ L 209, 24.7.1992.

(4) OJ C 181, 30.7.2002.