EFTA SURVEILLANCE AUTHORITY DECISION No 163/94/COL of 16 November 1994 according to Article 10 (2) of the Act referred to in point 1 of Annex VII to the EEA Agreement (Council Directive 89/48/EEC), on a draft provision submitted by the Austrian Federal Minister for Economic Affairs

THE EFTA SURVEILLANCE AUTHORITY,

Having regard to the Agreement on the European Economic Area, and in particular Article 30 thereof,

Having regard to the Agreement between the EFTA States on the establishment of a Surveillance Authority and a Court of Justice, and in particular Article 5 thereof,

Having regard to the Act referred to in point 1 of Annex VII to the EEA Agreement 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 (Council Directive 89/48/EEC, hereinafter to as Directive 89/48/EEC), and in particular Articles 4 (1) (b) and 10 thereof,

Whereas:

I. BACKGROUND

The Surveillance Authority received on 19 August 1994, in accordance with Article 10 (1) of Directive 89/48/EEC, a draft provision together with the justifying grounds from the Austrian authorities which would withdraw from migrants the right to choose between an adaptation period and an aptitude test and impose the aptitude test on the migrant for the profession of Ingenieurkonsulent (engineering consultant). The draft provision and the justification were both submitted exclusively in the German language.

On 12 September 1994 the other EFTA States and the Commission were notified of the Austrian draft, and were also provided with an English translation of the documents. The date of 14 November 1994 was set as a deadline for comments from EFTA States on the draft so that any observation could be taken into consideration when the derogation was decided on.

A discussion on the draft took place on 11 October 1994 during a meeting of the Coordinating Group on Mutual Recognition of Higher-Education Diplomas referred to in the EEA Agreement, Protocol 37, point 9. The Austrian arguments failed to convince the coordinators from the EU and EFTA Member States that the derogation was justified.

On 28 October 1994 the Commission transmitted a comment on the Austrian draft indicating that it did not consider the derogation justified.

On 31 October 1994 Finland indicated in its comment on the draft that it did not consider the derogation justified.

II. THE RELEVANT LEGAL PROVISIONS

Directive 89/48/EEC on a general system for the recognition of higher education diplomas awarded on completion of professional education of at least three years' duration states in Article 3 that the competent authority of a Member State may not, on the grounds of inadequate qualifications, refuse to authorize a national of a Member State to take up or pursue a profession on the same conditions as apply to its own nationals if the applicant holds the diploma required in another Member State for the taking up or pursuit of that profession in question or if the applicant possesses evidence of formal qualification of an equivalent level and has pursued the profession full-time for two years during the previous 10 years in another Member State which does not regulate that profession.

However, Article 4 (1) (b) of the Directive entitles the host Member State to require the applicant to complete an adaptation period not exceeding three years or take an aptitude test where the matters covered by the education and training he has received differ substantially from those covered by the diploma required in the host Member State. Should the host Member State make use of this possiblity, it must give the applicant the right to choose between an adaptation period and an aptitude test. By way of derogation from this principle, for professions whose practice requires precise knowledge of national law and in respect of which the provision of advice and/or assistance concerning national law is an essential and constant aspect of the professional activity, the host Member State may stipulate either an adaptation period or an aptitude test. Where the host Member State intends to introduce derogations for other professions as regards an applicant's right to choose the procedure laid down in Article 10 applies.

Article 10 of Directive 89/48/EEC stipulates that if a Member State proposes not to grant applicants the right to choose between an adaptation period and an aptitude test in respect of a profession within the meaning of the Directive, it shall immediately communicate to the Commission/Surveillance Authority for the EFTA States the corresponding draft provision. It shall at the same time notify the Commission/Surveillance Authority of the grounds which make the enactment of such a provision necessary. The Commission/Surveillance Authority shall immediately notify the other Member States of any draft it has received; it may also consult the coordinating group referred to in Article 9 (2) of the Directive. Without prejudice to the possibility for the Commission/Surveillance Authority and the other Member States of making comments on the draft the Member State may adopt the provision only if the Commission/Surveillance Authority has not taken a decision to the contrary within three months.

III. AUSTRIAN ARGUMENTS

Austria listed as reasons which justify the exclusion of the option to choose the fact that although for the profession of engineering consultant knowledge of the relevant technical literature is an essential requisite for pursuing the profession, the scope of the work involved means that precise knowledge of the relevant Austrian legislation and administrative law is also an essential prerequisite for pursuing the profession. Engineering consultants have the special entitlement of acting as a professional representative before authorities and public corporations. Furthermore engineering consultants are 'technical notaries' meaning that they are by law persons with public trust and are as such entitled to draw up public documents. In view of this and the explicit or general references to engineering consultants in more than 50 Austrian Federal laws or Austrian ordinances, precise knowledge of national law constitutes an indispensable precondition for the proper pursuance of the profession. Therefore it was considered necessary to impose the aptitude test.

IV. LEGAL ASSESSMENT

Articles 4 (1) (b) and 10 of Directive 89/48/EEC provide for exceptions to the general rule granting to migrants the right to choose between an aptitude test and an adaptation period. As such they are, in accordance with general principles of interpretation of Community law, to be given a strict interpretation. For the reasons of homogeneity the same should apply in the context of the Agreement on the European Economic Area.

As indicated in the ninth recital of the preamble to the Directive, both the aptitude test and the adaptation period are intended to assess the ability of the migrant to adapt to his new professional environment. Although the aptitude test has the advantage, from the migrant's point of view, of offering a more rapid means of obtaining recognition, the adaptation period gives him the opportunity to practice his profession immediately in the host Member State, albeit under the supervision of a qualified member of the profession. Migrants should, as far as possible, be entitled to choose the adaptation mechanism which is better suited to their personal circumstances. Any removal of this right must be fully justified by proving that one of the two mechanisms is unsuitable.

The Austrian argument that precise knowledge of the relevant Austrian legislation and administrative law is an essential prerequisite for pursuing the profession can be applied to a large number of professions and is no peculiarity of the engineering profession. Each professional, whatever his main professional activity may involve, needs to know the legal framework in which the profession is exercised. This applies in particular to professions practised after completion of higher education at university level. No other EEA Member State which regulates the profession of engineer has felt it necessary to impose the aptitude test. An examination of the provisions in the Austrian legal system explicitly or generally referring to the engineering consultant has shown that the nature of the profession is mainly a technical one.

The power to draw up public documents is shared with many other professions, for example, architects and doctors. These professions fall within the scope of sectorial Directives where recognition is automatic, meaning that neither the adaptation period nor the aptitude test can be imposed on the migrant.

Finally, in accordance with Article 1 (f) of Directive 89/48/EEC, the adaptation period can possibly be accompanied by further training. Thus it would be possible to require engineering consultants who choose the adaptation period to attend a law course.

Having regard to all the preceding considerations, the Surveillance Authority concludes that no convincing reasons were offered that the adaptation period was an inadequate or inappropriate means of compensating for the missing skills,

HAS ADOPTED THIS DECISION:

1. Austria may not adopt the draft provision communicated which derogates from the applicant's right pursuant to Article 4 (1) (b) of the Act referred to in point 1 of Annex VII to the EEA Agreement to choose between an aptitude test and an adaptation period in respect of the profession of 'Ingenieurkonsulent.'

2. This Decision is addressed to the Republic of Austria. It shall be communicated to the EFTA States and the Commission of the European Communities. It shall be published in the EEA section of, and in the EEA supplement to the Official Journal of the European Communities.

Done at Brussels, 16 November 1994.

For the EFTA Surveillance Authority

Knut ALMESTAD

The President