Amended proposal for a EUROPEAN PARLIAMENT AND COUNCIL DIRECTIVE AMENDING DIRECTIVE 93/16/EEC, WHICH FACILITATES THE FREE MOVEMENT OF DOCTORS AND PROVIDES FOR THE MUTUAL RECOGNITION OF THEIR DIPLOMAS, CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS, AND CONFERRING IMPLEMENTING POWERS ON THE COMMISSION FOR THE UPDATING OF CERTAIN ARTICLES THEREOF
Date: 1995-11-27
Institutions: European Commission
Subjects: freedom to provide services, physician, recognition of diplomas, right of establishment

COMMISSION  OF THE EUROPEAN  COMMUNITIES 

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Brussels,  27.11  1995 
COM(95) 437  final 

94/0305 (COD) 

Amended  proposal  for  a 

EUROPEAN  PARLIAMENT  AND COUNCIL  DIRECTIVE 

AMENDING  DIRECTIVE 93/16/EEC, WHICH FACILITATES THE FREE MOVEMENT OF 
DOCTORS AND PROVIDES FOR THE MUTUAL RECOGNITION OF THEIR DIPLOMAS, 
CERTIFICATES AND OTHER EVIDENCE OF FORMAL QUALIFICATIONS, AND 
CONFERRING  IMPLEMENTING  POWERS ON THE COMMISSION  FOR THE UPDATING OF 
CERTAIN ARTICLES THEREOF 

(presented  by  the Commission  pursuant  to Article  189 a (2) 
of the  EC-Treaty) 

EXPLANATORY  MEMORANDUM 

I. 

(iKNKKAL  CONSIDERATIONS 

A(  ils  part-session  from  27  to  29 June  1995,  Parliament  approved  -  subject  to  its  own 
amendments - the Commission's  proposal  for a Directive amending  Directive  93/16/EEC, 
which  facilitates  the  free  movement  of doctors and provides  for  the mutual  recognition  of 
their  diplomas,  certificates  and  other  evidence  of  formal  qualifications,  and  conferring 
implementing  powers on the Commission  for the updating  of certain articles thereof. 

The  amended  proposal  incorporates  the  amendment  pointing  out  the  existence  of  the 
modus  vivendi  as  regards  committee  procedure,  together  with  all  the  amendments 
clarifying  the extent  of the powers to be assigned to the  Commission. 

However,  the  remaining  amendments  have  not  been  incorporated;  the  Commission 
already  explained  the  reasons  for  this  when  its  original  proposal  was  discussed,  both 
within  the Committee  on  Legal Affairs  and Citizens' Rights and  in plenary  sitting. 

The  amendment 
to  re-examine,  in 
inserting  a  recital  calling  on  the  Commission 
accordance  with  the  procedures  introduced  by  the  new  Article 44a,  the  question  of 
nationals  of  Member  States  who  hold  qualifications  obtained  in  third  countries  has 
nothing  to  do  with  the  proposal  for  a  Directive.  The  matter  is  dealt  with  in  Article 23, 
which  makes  specific  provision  for  qualifications  obtained  in  third  countries  to  be 
recognised,  not  automatically,  but  individually  on  a  case-by-case  basis,  while  the 
committee  procedure  to be  introduced  by  means  of the  new  Article 44a  will  permit  only 
Articles  5,  7,  26  and  27  to  be  amended.  Automatic  recognition  would  entail  abandoning 
checks  on  the content  of  training  received  in third  countries,  whereas  training  undergone 
in  the  Member  States  has  to  satisfy  the  minimum  requirements  laid  down  in  the 
Directive.  Moreover,  the  individual  recognition  already  provided  for  by  the  Directive  is 
consistent  with  the subsidiarity  principle. 

The  amendments  placing  an  obligation  on  the  Commission  to  consult  the  EC  Standing 
Committee  of  Doctors  and  the Advisory  Committee  on Medical  Training  before  referring 
an)  matter  to  the  Committee  of  Senior  Officials  on  Public  Health  set  up  under  Council 
Decision  75/365/EEC  fail  to  take  into  account  the  Council's  "committee  procedure" 
Decision  (X7/373/EEC).  The  latter  Decision  lays  down  procedures  for  the  exercise  of 
implementing  powers  conferred  on  the  Commission,  stipulating  that  the  Commission  is 
to  be  assisted  by  a  committee  composed  of  representatives  from  the  Member  States  and 
chaired  by  a  representative  from  the  Commission.  Only  the  Committee  of  Senior 
Officials  on  Public  Health, which  is already  referred  to  in Article 43 of the  Directive  and 
whose  exclusive  jurisdiction  has  thus  already  been  recognised,  satisfies  this  dual 
requirement.  What  is  more,  the  explanatory  statement  on  the  draft  legislative  resolution 
contained  in the report by the Committee on Legal  Affairs  and  Citizens' Rights  states  that 
"whilst  the  involvement  of  a  committee  of  medical  experts  would  be  welcome  it  is 
obvious  that  this  could  not  be  brought  about  under  the  rules  laid  down  in  Decision 
87/373/EEC  on  commitology  ...  " (point  7 in part  B of the report) and  the amendments  in 
question  thus contradict  the legal  assessment  given in the  report. 

The  text  proposed  by  the  Commission  does not preclude  consultation  of any  body  whose 
opinion  it  regards  as  helpful,  but  introducing  mandatory  consultation  before  referral  to 
the  Committee  ol  Senior  Officials  on  Public  Health  -  as  proposed  in  the  amendments 

z 

concerned  - would make the procedure cumbersome in cases where there was no  apparent 
need  for  such  consultation  and  distort  Decision  87/373/EEC  by  imposing,  through  a 
supplementary  procedural  stage,  additional  requirements  never  previously  stipulated  in 
Community  legislation  regarding committee  procedures.  Moreover,  in  accordance  with 
the  subsidiarily  principle  it  is  for  each  Member State  represented  on  the  Committee  of 
Senior  Officials  to  undertake  such  consultation  among  members  of  the  profession  as  it 
sees  lit. 

Lastly,  the  EC  Standing  Committee  of  Doctors  is a  private professional  association.  To 
dale, no directive has required mandatory consultation of such an  association. 

2. 

C OM  M O T I TS  ON  H IE  P R E A M B LE  AJVD  T HE  A R T I C L ES 

1.  The  recital  (amendment  1)  proposed  by  Parliament  in  order  to  point  out  the 
existence  of  the  modus  vivendi  as  regards  the  committee  procedure  has  been 
incorporated  in  full. 

2.  Amendments 4 ,5 and 6 - proposed by Parliament in order to clarify  the extent of the 
powers to be assigned  to the Commission  by  stating mat it may not amend the basic 
provisions of Articles 5Q% 7(2), 26 and 27, as provided for  in the original  proposal, 
but  only  the  lists  of  designations  and  minimum  course  lengths  contained  therein  -
have  been incorporated  in fulL, subject to minor changes cm specific  legal points. 

3.  The  ii rst part of amendment 8 proposed  by Parliament - which likewise relates to the 
extent  of  tlie  powers  to  be  assigned  -  has  also  been  incorporated  in  M i,  subject 
(once  again) to minor changes on specific  legal points. However,  the second  part  of 
this  amendment  -  which  relates  to  die  mandatory  consultation  of  the  EC  Standing 
Committee  of  Doctors and  the Advisory  Committee  on  Medical  Training  - has  not 
been  incorporated  for the reasons stated above. 

3. 

CONCLUSION 

The  amended  proposal  for  a  Directive  takes  very  extensive  account  of  the  concerns 
expressed  by the Economic and Social Committee and by Parliament regarding the  scope 
of  the  powers  which  it  is  proposed  to  assign  to the Commission;  those  powers  form  the 
core  of  the  proposal.  Although the Commission  has also taken note of the other  concerns 
expressed,  lor live legal  reasons set out above it has not been possible to incorporate  these 
into the text. 

The  European  Parliament  and  the  Council  are  invited  to  adopt  the  proposal  in  the 
amended  form  attached. 

AlYlENDKl)  PROPOSAL FOR A EUROPEAN  PARLIAMENT  AND COUNCIL  DIRECTIVE 

AMENDING  DIRECTIVE  9 3 / 1 6 / E E C,  WHICH  FACILITATES THE  FREE  MOVEMENT OF 

DOCTORS  AND  PROVIDES  FOR THE MUTUAL  RECOGNITION  OF THEIR  DIPLOMAS, 

CERTIFICATES  AND OTHER  EVIDENCE OF FORMAL QUALIFICATIONS,  AND CONFERRING 

IMPLEMENTING  POWERS ON THE COMMISSION  FOR THE  UPDATING  OF CERTAIN 
ARTICLES  THEREOF 

In  the  light  of  the  opinion  delivered  by  the  European  Parliament  on  29 June  1995 
regarding  the  proposal  for  a  European  Parliament  and  Council  Directive  amending 
Directive  93/16/liEC,  which  facilitates  the free  movement  of doctors  and  provides  for  the 
mutual  recognition  of  their  diplomas,  certificates  and  other  evidence  of  formal 
qualilkatioiis,  and  conferring  implementing  powers  on the  Commission  for  the  updating 
of  certain  articles  thereof,1  and  in  accordance  with  Article  189a(2)  of  the  EC  Treaty  as 
inserted  by  the  Treaty  on  European  Union,  the  Commission  has  decided  to  amend  the 
above-mentioned  proposal  as  follows: 

1. 

In the  preamble, the following  is inserted between the second  and third  recitals: 

"Whereas  the procedures  laid down  in Council  Decision  87/373/EEC  will  be  applied 
on  the  basis  of  the  transitional  modus  vivendi  relating  to  commitology  as agreed  by 
Parliament,  the  Council  and  the  Commission  until  such  time  as  a  revision  of  the 
Treaties  is carried  out pursuant to Article N(2) of the Treaty  on European  Union;". 

2.  Article  I is replaced  by the  following: 

Article  1 

1. 

The  following  paragraph  is added to Article  5 of Directive  93/16/EEC: 

"4. 

The list  of designations  in paragraph  3 shall  be  amended  in  accordance 
with  the procedure  laid down in Article 44a(2)." 

2. 

The  following  paragraph  is added to Article 7 of Directive  93/16/EEC: 

"3.  The  list  of designations  in paragraph  2  shall  be  amended  in  accordance 
" 

with the procedure  laid down  in Article 44a(2)." 

3.  Article  2 is replaced  by the  following: 

Article  2 

The  following  paragraph  is added at the end of Articles 26 and 27: 

"The  list  of  the  minimum  lengths  of the  specialised  training  courses  referred 
to  in  this  Article  shall  be  amended  in  accordance  with  the  procedure  laid 
clown  in Article 44a(3)." 

O.I NoC.WJ, 31.12.1994, p.  19. 

4.  The  introductory  phrase  in  Article  3  and  paragraph  1 of  the  new  Article  44a  are 

replaced  by: 

The  following  Article 44a  is inserted  after  Article 44 of  Directive 93/16/EEC: 

" 

Article  44a 

1.  Whenever  reference  is  made  to  this  Article  the  Commission  shall  be 
assisted  by  the  Committee  of  Senior  Officials  on  Public  Health,  set  up 
" 
under Council  Decision  75/365/EEC 

5" 

ISSN 0254-1475 

COM(95) 437  final 

DOCUMENTS 

EN 

04  01 

Catalogue number  : CB-CO-95-478-EN-C 

ISBN 92-77-93702-5 

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