WRITTEN QUESTION E-0380/01

by Klaus-Heiner Lehne (PPE-DE) to the Commission

(15 February 2001)

Subject: Freedom of establishment in the Netherlands

A German refrigeration plant manufacturer wishing to work in the Netherlands applied for exemption from the CFC exam required by that country. This application was rejected with reference made to the unique requirements of Dutch training. Furthermore, his master craftsman's certificate has not been recognised, even at the request of the LGH.

1. What is the Commission's view of this case in the context of freedom of establishment?

2. What action does the Commission intend to take, should it establish that the Dutch authorities have breached the right of establishment?

Answer given by Mr Bolkestein on behalf of the Commission

(26 March 2001)

In the case of the mutual recognition of professional qualifications, the profession of refrigeration system engineer inasmuch as it comes under the construction of machinery and electrical supplies is covered by Directive 1999/42/EC of the European Parliament and of the Council of 7 June 1999 establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications(1).

Under Article 4 of the Directive which incorporates without amendment the corresponding provision of Council Directive 64/427/EEC of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries)(2), which is no longer in force where, in a Member State, the taking-up or pursuit of an activity is subject to possession of general, commercial or professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued, generally for six years, in a self-employed capacity or as a manager of an undertaking in another Member State

After the full transposition of the Directive the deadline for which is 31 July 2001 those who do not satisfy the conditions of professional experience laid down in Article 4 will also be able to apply for recognition of their diploma, certificate or other qualifications in accordance with Article 3 of the Directive.

It follows from the above that Directive 1999/42/EC does not currently allow applications to be made for the recognition of training qualifications. However, in accordance with Articles 43 and 49 (ex Articles 52 and 59) of the EC Treaty as interpreted by the Court of Justice (Vlassopoulou judgement), the Member States must henceforth take account of training qualifications acquired in another Member State and conduct an examination to compare the qualification acquired by the migrant in his country of origin and that required in the host Member State. While any discrimination based solely on the origin of qualifications is banned by Articles 43 and 49 of the EC Treaty, these articles nevertheless do not unlike the Directive in question indicate any specific requirement with regard to the result of such a comparative examination.

In the absence of more detailed information on the professional experience of the person in question and the reasons for the rejection of his application, the Commission is not in a position to comment on the compliance with Community law of the decision that the Dutch authorities took in this instance.

As for the measures planned by the Commission, it should be pointed out that the infringement procedure laid down in Article 226 (ex Article 169) of the EC Treaty is appropriate when a Member State's national legislation does not comply with Community law or when, although the legislation complies, there is a recurrent administrative practice that is contrary to Community law.

On the other hand, the Commission is not in a position to deal directly with individual cases. Neither the Commission nor the Court of Justice has the power to repeal a decision made by a national authority or to insist that a Member State pay compensation to individuals. The national courts have sole competence in this. In order to facilitate informal settlement of individual cases, however, a network of national contact points has been set up.

(1) OJ L 201, 31.7.1999.

(2) OJ 117, 23.7.1964.