REPORT TO THE EUROPEAN PARLIAMENT AND THE COUNCIL ON THE STATE OF APPLICATION OF THE GENERAL SYSTEM FOR THE RECOGNITION OF HIGHER EDUCATION DIPLOMAS - MADE IN ACCORDANCE WITH ARTICLE 13 OF DIRECTIVE 89/48/EEC
Date: 1996-02-15
Institutions: European Commission
Subjects: higher education, professional qualifications, recognition of diplomas, right of establishment, vocational training

COMMISSION  OF THE  EUROPEAN COMMUNITIES 

Tir 

* 

Brussels,  15 02.1996 
COM(%) 4<>  final 

REPORT TO THE EUROPEAN  PARLIAMENT 
AND THE COUNCIL ON THE  STATE OF 
APPLICATION  OF THE GENERAL  SYSTEM 
FOR THE RECOGNITION OF 
HIGHER EDUCATION  DIPLOMAS. 

MADE IN ACCORDANCE WITH 
ARTICLE 13 OF DIRECTIVE 89/48/EEC. 

(Presented  by the Commission) 

Article  13  of  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  provides  that  the  Commission 
shall  report  to  the  European  Parliament  and  Council  on  the  state  of  application  of  the 
general  system  for  the  recognition  of higher-education  diplomas  awarded  on  completion 
of  professional 
three  wars'  duration  by 
training  of  at 
4 January  1996. 

education  and 

least 

In the report,  the  Commission  shall present  its conclusions  as to any  changes  that  need  to 
be  made  in  the  system  as  it  stands  and,  where  appropriate,  submit  proposals 
for 
improvements  in  the present  system  in  the  interest  of further  facilitating  the  freedom  of 
movement,  right  of establishment  and freedom  to provide  services  of the persons  covered 
by the  directive. 

OJ  of 24.01.1989n°  1,  19, p.  16. 

INTRODUCTION 

Council  Directive  89/48/EEC  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  marked  an  unprecedented  change  in  the  Community's  approach  to 
recognition  of  professional  qualifications.  The  challenge  to  Community  policy  in  this 
field  has  remained  unaltered  since  the  signature  of  the  Treaty  of  Rome:  how  to  resolve 
the  inherent  conflict  between  national  education  systems,  the  diversity  of  which  testifies 
to,  and  preserves,  national  identity,  and,  the  right  conferred  upon  every  European  citizen 
to  exercise  his  or  her  profession  throughout  the  Union.  This  conflict  centres  upon  the 
need  to possess  a qualification  for  the exercise  of a regulated  profession,  which  is  defined 
through  reference  to the  national  education  system  of  the  host  Member  State.  The general 
system  was  brought  about  by  the  realisation  that,  in  a  single  market,  it  is  no  longer 
possible  to apply  such national  criteria to determine  the quality  of education  and  training. 

The  general  system  is  founded  on  a  single,  simple  idea:  the  presumption  that  if  one  is 
qualified  in  one  Member  State  to  exercise  a  given  profession,  one  should  be  entitled  to 
exercise  that  same  profession  throughout  the  Union.  This  idea  requires  Member  States  to 
display  mutual  trust  in the education  and training  provided  elsewhere:  its consequence  for 
the  migrant  is  that  his  or  her  diploma  should  benefit  from  recognition  in  any  other 
Member  State, save exceptionally,  where, after  detailed  examination,  it appears  that  there 
are  fundamental  differences  between  the  education  and  training  to  which  the  diploma 
attests  and  the  education  and  training  required  in  the  host  State,  in  which  case,  the 
migrant  may  be  asked  to  "compensate"  for  the  differences 
in  accordance  with  the 
mechanisms  created  by  Directive  89/48/EEC.  In  other  words,  the  host  Member  State  is 
no  longer  entitled  to  require  a  migrant  to  undertake,  in  whole  or  in  part,  the  national 
course  of  education  nor  to  sit  the  examinations  laid  down  for  entrants  to  the  national 
profession. 

Seven  years  after  the  adoption  of  the  Directive,  it  appears  that  the  general  system  is 
capable  of  fulfilling 
the  hopes  placed  in  it.  The  problems  of  implementation  and 
application  to  which  it  has  given  rise,  were  to  be  expected,  although  that  should  not 
disguise  the  fact  that  for  individual  migrants  these  problems  have  turned  the  recognition 
process  into  a  frustrating  and  dispiriting  experience.  Some  of  these  problems  have  been 
resolved  after  discussion  with  the  Member  States  in  the  coordinators'  group;  others  are 
unlikely  to  be  solved  without  a  ruling  from  the  European  Court.  The  main  body  of  the 
report  reviews  the difficulties  encountered  first,  by way of a commentary  article  by  article 
of  the  directive  and,  secondly,  in  an  examination  of  its  impact  on  the  main  professional 
sectors. 

I 

LEGISLATIVE  HISTORY 

i) 

ii) 

The  roots  of Directive  89/48/EEC  can  be  traced  back  to the  European  Council  of  25 
and  26  June  1984  in  Fontainebleu  which,  deeming  it  indispensable  to  respond  to 
the  expectations  of  the  peoples  of  Europe,  called  upon  the  Council  to  introduce  a 
"general  system  for  ensuring  the  equivalence  of  university  diplomas  in  order  to 
bring  about  the effective  freedom  of establishment  within  the  Community". 

the 

introduction  of  harmonised  conditions, 

The  Commission's  response  to  this  appeal  resulted  in  the  proposal  for  a  directive 
transmitted  to  the  Council  on  9  July  1985  which  subsequently  became  Directive 
89/48/EEC.  In  its  explanatory  memorandum2  the  Commission  explained  that  the 
traditional  approach  to the  recognition  of diplomas  (the  sectoral  approach)  provides 
for 
regards 
qualifications,  for  the  purpose  of  access  to  and  exercise  of  specific  activities.  Not 
until  those  conditions  are met  does  the  mutual  recognition  of diplomas  issued  in  the 
respective  Member  States  become  possible.  The  new  "horizontal"  approach  was 
intended  to  respond  rapidly  and  without  preconditions  to  the  individual  and 
immediate  requirements  of  all  those  holding  higher  education  diplomas  wishing  to 
exercise  their  profession  in a State other  than  that  in which  they  trained.  The  system 
was  based  on  the  principle  of  mutual  confidence  and  comparability  of  training 
levels,  however,  where  major  structural  differences  between  training  courses 
existed,  the  host  Member  State  would  be entitled  to  require  compensation. 

in  particular  as 

iii)  Directive  89/48/EEC  accords  well  with  the  concept  of  subsidiarity.  Member  States 
remain  responsible  for  determining  whether  or  not  a professional  activity  should  be 
regulated  i.e.  made  subject  by  law,  regulation  or  administrative  provision  to  the 
possession  of  a  professional  qualification  and  if  so,  what  the  level,  structure  and 
content  of  the  education  should  be. As  a means  of  providing  for  the  free  movement 
of  persons  and  the  recognition  of  diplomas,  it  represented  a  new  departure  in 
Community  law.  Whereas  the  earlier  sectoral  directives  required  Member  States  to 
grant  automatic  recognition  to  diplomas  issued  elsewhere  in  the  Community  for  a 
limited  number  of  clearly  defined  professions,  the  general  system  obliges  each 
Member  State  to  put  in  place,  across  a  broad  range  of  professional  activities, 
structures  providing  for  the  case-by-case  examination  of  requests  for  recognition, 
accompanied  by  the  appropriate  procedural  guarantees,  and,  where  appropriate,  for 
the  compensation  mechanisms  laid  down  in  the  directive,  namely,  the  adaptation 
period  and  the  aptitude  test. 

iv) 

It  was  envisaged  in  the  explanatory  memorandum  to  the  Commission's  proposal 
that  the  horizontal  approach  might  be  extended  to  diplomas  and  vocational 
qualifications  falling  outside  Directive  89/48/EEC.  The  review  clause  in  Article  13 
was  included  mainly  in  order  to  enable  consideration  of  this  issue.  However, 
following  the  adoption  of  Directive  89/48/EEC,  the  Commission  decided  to  draw 
up proposals  for  a second  directive  more  or less at once  and  the horizontal  approach 
was  extended  to  other  regulated  professional  activities  by  Council  Directive 

COM (85)359  final. 

92/51/EEC3,  of  18 June  1992  on  a  second  general  system  for  the  recognition  of 
professional  education and training to supplement Directive 89/48/EEC, 

v)  After 

the  Court  of  Justice  gave  judgment 

the  adoption  of  Directive  89/48/EEC,  but  before 

the  date  set  for 
implementation, 
in  Case  C-340/89 
'Vlassopoulou'4.  The  Court's judgment  confirms  that,  independently  of  directives 
adopted  by  the Council  and the  European  Parliament  on  the  basis of Article  57 of 
the  Treaty,  Article  52  of  the  Treaty  must  be  interpreted  as  requiring  the  national 
authorities of a Member State, to which an application  for  admission  to a regulated 
profession  is  made  by  a  Community  national  who  is already  admitted  to  practise 
the  profession  in  question  in his  country  of  origin,  to  examine  to  what  extent  the 
knowledge  and  qualifications  obtained  by  the  person  concerned  in  his  country  of 
origin correspond  to those required  by the rules of the host State; if those diplomas 
correspond  only partially, the national authorities in question  are entitled to require 
the  knowledge  and 
the  person  concerned  to  prove  that  he  has  acquired 
qualifications  which  are  lacking.  In thé  course  of  its examination  of  the  migrant's 
diploma,  the  host  Member  State  may  take  into  consideration  objective  differences 
relating  to  both  the  legal  framework  of  the  profession  in  question  in  the  Member 
State of origin, and to its field  of activity. 

The competent authorities must also assess whether knowledge acquired  in thé host 
Member  State, either during a course of studies or by way of practical  experience is 
sufficient  in  order  to  prove  possession  of  the  knowledge  missing  from  the  initial 
education and training. 

The  examination  made  to  determine  whether  the  knowledge  and  qualification 
certified  by  the  foreign  diploma  and  those  required  by  the  legislation  of  the  host 
Member  State  must  comply  with  the  requirements  of  Community  law  concerning 
the  effective  protection  of  fundamental  rights. Therefore,  any  decision  taken  must 
be reasoned and open to challenge before  a national court or tribunal5. 

The  Commission  considers  that  the  Directive  must  be  read  in  the  light  of  this 
judgment:  in  particular,  when  examining  a  migrant's  application  for  recognition. 
Competent  authorities  should  take  into  consideration  not  only  the  migrant's 
"diploma" within the meaning of the Directive but also any subsequent  professional 
experience and training. 

vi)  The  application  of  Directive  89/48/EEC  was  extended  to  the  European  Economic 
Area6  with effect  from  1 January  1994 and became  applicable  in the new Member 
States  from  1 January  1995. In  this  report,  unless  otherwise  specified,  statistical 
information  which  is  gleaned  from  the  bi-annual  reports  supplied  by  Member 
States,  refers  to  EUR  12.  However,  whenever  possible,  information  on  the 

3  OJof24.07.1992,n°L209,p.25. 

4 

[1991] ECR  1-2357. 

5  On this last point, see the earlier judgement  in Case 222/86 UNECTEF v. Heylens [1987] ECR 4097. 

6  Annex VII of the EEA Agreement. 

implementation  and  application  of  the  Directive  in  the  three  new  Member  States 
has been  included. 

vii)  The  Commission  has recently  made  a new proposal7  for  a European  Parliament  and 
Council  Directive  to  facilitate  the  free  movement  and  the  mutual  recognition  of 
diplomas,  certificates  and  other  formal  evidence  of  qualification  for  professional 
activities not covered  by the general  system. The main purpose  of this  directive  will 
be  to  consolidate  the  existing  "transitional  measures"  directives  but  it  also  includes 
some  'fine  tuning'  of  the  general  system  directives.  It  is  referred  to  below  as  "the 
proposed  directive". 

viii)  As  might  have  been  predicted,  the  implementation  and  application  of  Directive 
89/48/EEC  have  not  been  without  their  difficulties.  However,  the  challenge  posed 
to  the  Member  States  and  the  Commission  has  in  large  measure  been  met.  At  least 
11.000 persons  obtained  recognition  of their  diplomas  in accordance  with  Directive 
89/48/EEC  between  4 January  1991  and  31  December  19948.  However,  it  should 
be  pointed  out  that  nearly  6.000  of  the  total  number  of  diplomas  were  recognised 
by  one  Member  State  alone  -  the  United  Kingdom9.  Some  of  these  migrations 
would,  undoubtedly,  have  taken  place  in  the  absence  of  the  general  system,  either 
in accordance  with  pre-existing  national  rules or under  bilateral  conventions, but,  in 
many  cases,  the  adoption  of the  directive  has, for  the  first  time,  simplified  or  made 
possible  movement  between  Member  States.  In  addition,  the  Directive  may  have 
improved  the  situation  of migrants  already  established  in another  Member  State: by 
obtaining  recognition  of  their  diploma,  they  have  been  able  to  improve  their 
employment  prospects  or obtain  a regrading  from  their  employers. 

ix)  The  statistics  also  show 

in  obtaining 
recognition.  Negative  decisions  run  at  around  5%  of  the  total  number  of 
applications:  very  few  appeals against  negative  decisions  have been  made. 

that  most  applicants  are  successful 

x)  Anecdotal  evidence  (gleaned  from  discussions  with  migrants  and  competent 
authorities)  suggests  that  most  moves  within  the  Community  are  made  for  personal 
reasons  (for  example,  in  order  to  marry  or  where  a  spouse  practising  a  regulated 
profession  follows  his  or  her  partner).  The  only  significant  exception  to  this  would 
appear  to be  inward  teacher  migration  to the United  Kingdom,  brought  about  by  the 
demand  for  teachers  in  that  country  and  a  surplus  in  other  Member  States.  This 
confirms  the  Commission's  experience  with  the  sectoral  directives:  in  the  absence 
of  an  acute  surplus  of professionals  in  one  Member  State  and/or  a marked  increase 
in  demand  elsewhere,  significant  migration  flows  have  yet  to  develop.  However, 
the  example  of  teacher  migration  to  the  United  Kingdom  demonstrates  that  the 
general  system  is  capable  of  responding  to  the  socio-economic  demands  of  the 
in 
internal 

therefore  of  contributing 

labour  market  and 

reduction 

to  a 

COM 96 (22) of  8.2.1996. 

This  is certainly  an  underestimation  of the true  ligure since  the  information  provided  by  the  Member 
Slates  is  incomplete. 
In  particular  it  should  be  noted  that  3  Member  States  have  yet  to  provide 
statistics for the years  1993/1994. 

The vast majority  of which were teachers' diplomas. 

unemployment.  It  also  illustrates,  incidentally,  that  such  demands  may  influence 
the  way  in  which  a  Member  State  applies  the  Directive.  It  is  noteworthy  that  the 
application  of  Directive  89/48/EEC  to  teachers  in  the  United  Kingdom  has  raised 
few  problems;  in  other  Member  States,  where  there  is  a  surplus  of  teachers,  the 
application of the Directive has given rise to a considerable number of complaints. 

xij  The  increased  student  mobility  brought  about  by the  ERASMUS  and  SOCRATES 
programmes,  may  also  act  as an  impetus to greater  professional  mobility.  There  is 
some professional  mobility  among  former  ERASMUS  students, but the goal of the 
programme  is to provide a European dimension to programmes of study and mobile 
students  are  returning  to  their  country  of  origin  after  having  spent  a  recognised 
period  of  studies  abroad.10.  There  are  also  indications  that  the  changes  brought 
about  by  the  Directive  have  had  an  impact  on  student  mobility.  Thus,  there  is 
evidence  that  French nationals  are making  increasing use  of  their  right to  study  in 
another  Member  State  (in  this  case,  Belgium)  secure  in  the  knowledge  that  their 
diploma  will  give  them  access  to  their  chosen  profession  when  they  return  home 
after  their  period  of  study.  The  existence  of  a  numerus  clausus  in  France  and  its 
absence  in  Belgium  is probably  the main  reason  for  this  trend  and  the  numbers  of 
returning nationals, particularly  in the health professions,  are a cause of concern  for 
the  French  authorities.  In addition,  Luxembourg  nationals  are choosing to study  in 
Member  States  whose  diplomas  were  not  recognised  under  pre-directive  national 
rules. 

xii)  Finally, there are indications that the existence of Directive  89/48/EEC has brought 
about a certain convergence in education and training programmes. This sometimes 
results  from  initiatives  taken  by  individual  educational  establishments,  seeking  to 
meet the needs of their  students by adapting their curricula  in a manner  intended  to 
obviate  the  need  for  compensation  mechanisms  in  other  Member  States.  In  other 
cases,  it has been  brought  about by the creation  of  "common  platforms"  agreed by 
European  professional  organisations11.  The  Commission  welcomes 
such 
arrangements  provided that they do not adversely  affect  application  for  recognition 
from  those who do not meet the requirements agreed upon in the common  platform. 

II 

IMPLEMENTATION 

i) 

Two  contrasting  methods  of  implementation  were  adopted.  Some  Member  States 
opted  for  a  "vertical"  approach,  transposing  the directive  profession  by  profession 
(A, F, GR,  L, D, S); in others a general  measure was adopted,  completed,  in some 
cases,  by  detailed  regulations  for  specific  professions  (I, IRL,  SF,  UK,  P,  E,  DK, 
NL,  B)12.  Transposition  in  some  Member  States  was  complicated  by  the  fact  that 
powers to regulate professions  are shared between the federal  government and state 
or regional  governments (D. A, B, E). 

10  There  are  also  indications  that the changes  in national  law brought  about  by the  Directive  have  had  an 

impact  on student  mobility. 

1 '  For an example, cf.  p. 24,  Engineers. 

12  A complete  table of implementing  measures  is attached  as Annex  1. 

îi)  Of  the  then  12 Member  States  only  Ireland  had  adopted  the  necessary  measures  by 
4  January  1991;  the  three  new  Member  States  had  all  adopted 
implementing 
measures  by  the  date  of  accession.  Given  the  delays  in  the  remaining  Member 
States,  a  number  of  infringement  proceedings  were  opened:  only  two  of  these 
reached  judgment:  Case  C-365/93  Commission  v/Greece  (judgment  of  23  March 
1995)  and  Case  C-216/94  Commission  v/Belgium  (judgment  of  13  July  1995).  In 
both  cases  the  Court  found  that  the  Member  State  concerned  had  failed  to  fulfil  its 
obligations  under  the  Treaty.  By  the  time  judgment  was  given,  Greece  had 
implemented  for  a number  of professions,  in  particular  in  the  field  of  health  and  for 
lawyers,  and  Belgium  had  adopted  a general  law  delegating  to  Ministers  the  power 
to  take  the  necessary  implementing  measures  (no  such  measures  had,  however, 
been  taken). 

iii) 

the  detailed  rules  governing  compensation  mechanisms 

In  a  number  of  other  Member  States  implementation  remains  incomplete,  chietly 
because 
for  certain 
professions  are  not  yet  in  place  (for  example,  those  relating  to  the  legal  profession 
in  Spain).  Where  appropriate,  infringement  proceedings  have  been  or  will  be 
commenced. 

iv)  The  Commission  takes  the  view  that  where  implementation  is  either  inexistent, 
incomplete  or  inadequate  or  where  the  provisions  of  the  directive  are  incorrectly 
applied  by  national  authorities,  Article  3, which  puts  in  place  the  basic  recognition 
mechanism,  is  sufficiently  clear,  precise  and  unconditional  to  give  rise  to  direct 
effect.  In  other  words,  Article  3  creates  a  right  to  recognition  which  individuals 
may  rely  upon  directly  before  national  authorities,  both  administrative  and judicial. 
Article  4  of  the  directive  which  provides  that  Member  States  may  in  certain 
circumstances  require  compensation  measures,  is  permissive  (Member  States  are 
not  required  to  impose  such  measures)  and  thus  does  not  detract  from  the  direct 
effect  of  Article  3.  The  direct  effect  of  Article  3  does  not,  however,  mean  that  in 
cases  where  the  directive  has  been  improperly  implemented  or  applied,  the  migrant 
has  an  automatic  right  to  exercise  his  or  her  profession  in  the  host  Member  State. 
The  Commission  considers  that  in  these  circumstances,  the  migrant  does  have  a 
right  to  obtain  from  the  competent  authority  or,  where  necessary,  from  a  national 
court  or  tribunal,  a  decision  confirming  his/her  right  to  take  up  and  practise  the 
regulated  profession  in question  in  the  host  Member  State.  It  should  be  pointed  out 
that  the  fact  that  certain  provisions  of the  directive  give  rise  to  direct  effects  cannot 
be relied  upon  by  Member  States as a justification  for  non-implementation13. 

v) 

the  Commission  has  undertaken  an  examination  of  all 

In  addition, 
the 
implementing  measures  notified  by  Member  States.  Letters  setting  out  certain 
objections  and  seeking  clarification  on  certain  points  were  sent  to  all  (12)  Member 
States  during  the  summer  of  1994. In  some  cases  the  replies  received  removed  any 
existing  doubts  as  to  the  conformity  of  national  implementing  measures:  in  others, 
the  examination  is continuing,  with  a view to opening  infringement  proceedings. 

See,  for  example,  the judgment  of the  Court  in Case  C-433/93  Commission  v.  Germany judgment  of 
11.08.1995 (not yet reported). 

vi) 

vii) 

Finally,  the  Commission  has  received  a  number  of  complaints  from  individuals 
which 
infringement 
proceedings  have  been  commenced  or are  under  consideration14. 

implementation.  Where  appropriate, 

reveal 

flaws 

in 

It  is  difficult  to  give  an  assessment  of  the  overall  quality  of  the  implementation 
Member  State  by  Member  State,  based  on 
the  Commission's  analysis  of 
implementing 
legislation  and  on  complaints  received.  On  the  one  hand,  the 
numbers  of  applications  received  by  Member  States  vary  enormously.  The  larger 
Member  States,  in  particular  those  whose  languages  are  most  widely  spoken 
elsewhere,  obviously  attract  more  migrants.  On  the  other  hand,  those  Member 
States  who  regulate  more  widely  have  more  "opportunities"  for  breaching  the 
directive;  this  is  most  marked  in  Member  States  who  chose  to  transpose  profession 
by  profession.  Taking  these  factors  into  account,  it  appears  that  fewer  problems 
have  arisen  in  the  northern  Member  States  (SW,  SF,  DK,  UK,  IRL,  F, NL)  than  in 
the  southern  Member  States  (E, G,  I, and  to  a  lesser  extent  P).  In  Germany,  serious 
problems  have  been  encountered  with  one  profession  (teachers)  and  in  Belgium,  in 
the  absence  of  implementation,  the  directive  is  being  applied  to  a  very  limited 
number  of  professions  (lawyers  and  health  professions)  via  the  adaptation  of  pre 
existing  national  rules. 

I ll  A  REVIEW OF THE PROVISIONS OF DIRECTIVE  89/48/EEC 

A R T I C LE  1(a) 

i) 

ii) 

iii) 

This  article  contains  the  definition  of  a  "diploma"  for  the  purposes  of  the 
Directive.  It  is  intended  to  define  the package  of qualifications  (for  example, 
university  diploma,  post-graduate  professional  training  course  and  period  of 
supervised  practice)  stipulated  by  national  law  for  entry  to  a  regulated 
profession. 

to 

subparagraph,  namely  as 

Some  difficulties  have  arisen  in the  interpretation  of  the  second  indent  of  the 
the  definition  of  "university,  or 
first 
establishment  of  higher  education,  or  another  establishment  of  similar 
level"'5.  In  a document  distributed  to the  coordinators'  group,  the  services  of 
the  Commission  made  it  clear  that  in  their  view  Article  1(a)  places  all 
institutes  of  higher  education  on  the  same  footing;  a  Member  State  is  not 
therefore  entitled  to refuse  recognition  of,  for  example, teachers coming  from 
another  Member  State  simply  because  they  trained  at  non-university  higher 
level  establishments  and  the  host  Member  States  stipulates  university 
education  and training  for  its teachers. 

The  same  document  makes  it  clear  that  in  accordance  with  the  principle  of 
mutual  trust  and  in  the  light  of  Article  126  of  the  Treaty,  it  is  for  each 
training 
Member  State 

to  determine  which  of 

its  educational  and 

14  Details are given  below  in the survey of individual  professions. 

15  Only  the  English  text  uses the words  "similar  level".  The other  language  versions  use the  phrase  "of 

the same level". 

establishments  fall  within  the  higher  education  sector16.  Consequently,  the 
host  Member  State  is not  entitled  to assess, applying  criteria  it has  developed 
for  national  purposes,  whether  education  and  training  pursued  in  another 
Member  State  is  of  higher  level  or  not,  and  to  refuse  recognition  to  holders 
of  those  diplomas  which,  in accordance  with  such  criteria,  it judges  to  be  not 
of higher  level. 

iv) 

The  first  subparagraph  of  Article  1(a)  also  provides,  subject  to  certain 
conditions,  for 
the  recognition  of  diplomas  obtained  by  Community 
nationals  in  third  countries.  This  provision  marked  a  new  departure  for 
Community  law  but  it has  not,  to  the  Commission's  knowledge,  given  rise  to 
any  particular  problems. 

Currently,  no  Community  mechanism  is  laid  down  in  the  sectoral  directives 
for  the  recognition  of  third-country  diplomas17.  In  its  opinion18  on  the 
Commission  proposal  for  a  Directive  of  the  European  Parliament  and 
Council  amending  Directive  93/16/EEC  to  facilitate  the  free  movement  of 
doctors  and  the  mutual  recognition  of  their  diplomas,  certificates  and  other 
evidence  of  formal  qualification19,  the  Parliament  proposed  the  insertion  of a 
new  recital,  calling  upon  the  Commission  to  examine  the  problems  of 
Community  nationals  with  third  country  medical  qualifications.  Although 
the  Commission  considers  that  the  proposed  directive,  which  lays  down  a 
comitology  procedure  for  certain  amendments  to  Directive  93/16/EEC,  is not 
an appropriate  vehicle  for  such  an exercise,  it does  recognise  that  the  absence 
of  provisions  governing  the  recognition  of  third  country  diplomas  in  the 
sectoral  directives  impedes  the  exercise  by  a  potentially  significant  number 
of  European  citizens  of  their  rights  of  free  movement  under  the  Treaty.  It 
will  again  consider  whether  the  mechanism  contained  in  Article  1(a)  could 
not  be  adapted  to  take  account  of  the  different  legal  framework  applying  to 
the  sectoral  directives20. 

v) 

The  second  subparagraph  of  Article  1(a)  contains  the  so-called  "alternative 
routes"  provision.  It  assimilates  to  a  "diploma"  for  the  purpose  of  the 
directive  a professional  qualification  awarded  in  a Member  State,  recognised 
by  a  competent  authority  as  being  of  the  same  level  as  a  "diploma"  within 
the  meaning  of  the  first  subparagraph  and  which  confers  upon  its  holder  the 
same  rights  in  respect  of the  taking  up  and  pursuit  of  a regulated  profession. 
The  provision  was  included  to  take  account  of  persons  who  had  not 

16  Cf.  also  the  judgement  of  the  CFI  in  Case  T-16/90  Panagiotopolou  v/Commission  [19921  ECR  II 

p. 89. 

17  Doctors, dentists,  veterinary  surgeons, nurses responsible  for general  care, midwives, pharmacists  and 

architects. 

18  PE. 211.189 of 26.4.1995. 

19  COM (94)626  final. 

:o  See the reply to Written Question n° 2866/93 - OJ n° C 300 of 27.10.1994. 

vi) 

10 

undergone  three  years  of  higher  education  and  training  but  who  hold 
qualifications  giving  them  the same  professional  rights. 

Such  qualifications  exist  primarily  in  the  United  Kingdom  and  Ireland 
(awards  made  by  chartered  bodies  and  others)  but  are  not  unknown 
elsewhere  (for  example,  awards  made  by  the  "Jury  central"  in  Belgium)  and 
run  concurrently  with  the  standard  "diploma"  course.  However,  in  the 
Commission's  view,  discussed  at  length  in  the  coordinators'  group,  the 
second  subparagraph  of  Article  1(a)  can  also  be  applied  to  an  "alternative 
route"  which  preceded  and  has  been  replaced  by  a  course  of  education  and 
training  leading  to a  "diploma"  within  the  meaning  of  the  lirst  subparagraph. 
Typically,  when  a  Member  State  undertakes  a  reform  of  the  education  and 
training  necessary  for  entry  to  a  regulated  profession,  it  also  takes  steps  to 
secure  the  rights  of  existing  members  of  the  profession  and  those  who  have 
already  embarked  on  the previous  course  of education  and  training  (so  called 
"acquired  rights"  provisions).  Where  a  course  of  education  and  training 
falling  outside  Article  1(a) is replaced  by  one  leading  to a diploma  within  the 
meaning  of  the  first  subparagraph  thereof,  holders  of  the  "old"  qualification 
are,  in  the  Commission's  view,  entitled  to  take  the  benefit  of  the  second 
subparagraph  provided  that  the  national  legislation  explicitly  recognises  that 
their  education  and  training  is  of  equivalent  level  to  the  new  "diploma"  and 
confers  upon  them  the  same  rights  to  take  up  and  pursue  the  profession  in 
question  (same  professional  title,  same  scope  of  activity,  etc.).  The  grant  of 
these  acquired  rights  may,  of  course,  be  made  conditional  in  national  law, 
upon  the  fulfilment  of  some  additional  condition  (for  example,  a  specified 
training  or  a 
number  of  years  of  professional  experience,  additional 
professional  review). 

vii) 

It  was  on  the  basis  of  this  interpretation  of  the  second  subparagraph  of 
Article  1(a), that  the  Commission  provided  in  Directive  94/38/EEC21  for  the 
removal  of  two  Italian  courses  of  education  and  training  (namely,  those  for 
accountants  ("ragionieri")  and  accountancy  experts  ("periti  commerciali") 
from  Annex  C  of  Directive  92/51/EEC.  Changes  in  Italian  education  and 
training  had  brought  the  new  courses  within  Article  1(a),  first  subparagraph 
of  Directive  89/48/EEC  and  holders  of  the  "old"  qualification,  previously 
covered  by  Directive  92/51/EEC,  were  by  virtue  of  the  second  subparagraph 
of  Article  1(a),  to  be  treated  in  the  same  way  as  new  entrants  to  the 
profession. 

A R T I C LE  1(b) 

i) 

Article  1(b) contains  the  definition  of host  Member  State.  It has  given  rise  to 
few  difficulties  in  practice  although  it  should  be  emphasised  that  a  national 
of  Member  State  A  who  has  obtained  his/her  diploma  in  Member  State  B  is 

21  OJ of 23.08.1994 n° L 217, p. 8, see seventh recital. 

entitled  to  rely  upon  Directive  89/48/EEC  if  he/she  subsequently  seeks 
recognition  in Member  State  A22. 

// 

ii) 

One  case  which  has  been  examined  by  the  Commission  and  drawn  to  the 
attention  o^  the  coordinators'  group  is  that  of  a  course  of  education  and 
training  for  physiotherapy,  the overall  duration  of  which  is 4 years, the  first  2 
years  of  which  take  place  in  Greece  and  the  final  two  years  in  the  United 
Kingdom,  culminating  in  the  award  of  a  degree  by  a  British  university.  If 
that  degree  were  to  be accepted  by  the  British  competent  authority  for  access 
to  the  regulated  professional  activity  of  physiotherapy2\  there  is  in  the 
Commission's  view  no  reason  why  the  qualification  should  not  be  treated  as 
a  "diploma"  within  the  meaning  of  Article  1(a).  The  holder  of  such  a 
diploma  would  therefore  be  entitled  to  rely  upon  the  directive  as  against 
Greece  "the  host  Member  State"  if he/she  wished  to  return  there  to  exercise 
the  profession. 

ARTICLES  1(c)  AND (d) 

i) 

ii) 

iii) 

iv) 

These  provisions  which 
the  concepts  of  "regulated 
profession"  and  "regulated  professional  activity"  have  given  rise  to  fewer 
difficulties  than might  have  been  foreseen. 

together  define 

One  doubt  which  has  arisen  is  in  relation  to  the  first  indent  of  the  first 
subparagraph  namely  the pursuit  of an  activity  under  a professional  title24. 

Some  Member  States  have  a  generic  title  for  engineers  (in  Belgium  and  the 
Netherlands  "Ing"  or  "Ir" according  to  the  category  of engineer  and  in  France 
"ingénieur  civil  diplômé  de"  followed  by  the  name  of  the  establishment 
awarding  the  academic  diploma).  These  Member  States  have  indicated  that 
they  do  not  consider  that  the  profession  of  engineer  is  regulated  within  the 
meaning  of  the  directive.  This  point  is  one  which  the  Commission  is 
considering  in its review  of implementing  measures. 

The  other problem  which  has arisen  is that  of determining  whether  the  public 
service  is  a  regulated  professional  activity  for  the  purpose  of  the  directive. 
This  point  is dealt  with  below  in the review  of the application  of the  directive 
to specific  professions. 

The  second  subparagraph  of  Article  1(d)  was  adopted  chiefly  in  order  to 
address  the  situation  in  the  United  Kingdom  where  many  professions  are 
regulated  by  private  associations  (in  the  United  Kingdom,  by  chartered 
bodies).  This  provision  has  not  given  rise  to  any  particular  difficulty 

22  This  is settled  caselaw.  See most  recently  the judgement  of the Court  in Case C-19/92  Kxaus. [1993] 

ECR  1-1663. 

23  Which, according to information  available to the Commission,  is still under  consideration 

-4  The  interpretation  of this part of Article  1(d) is raised  in a preliminary  ruling  Case C-164/94  Aranitig, 

currently  pending before the European  Court. 

although  the  non-exhaustive  list  set  out  in  Annex  A  of  the  Directive  is  no 
longer entirely  accurate. The United Kingdom  authorities have undertaken  to 
update  it  when  the  necessary  amendments  to national  regulations  have  been 
made. 

12 

ARTICLE  1(f) 

i) 

ii) 

The  functioning  of  the  adaptation  period  has  given  rise  to  few  difficulties. 
According  to the  statistics  supplied  by the  Member  States  under  Article  11, 
adaptation  periods  have  been  undertaken  by  migrants  in  the  health  sector 
(physiotherapists,  speech  therapists,  occupational  therapists,  optometrists, 
psychologists25),  teachers26,  engineers27,  lawyers28,  organists29,  and  by 
priests30. 

The detailed rules governing the adaptation period are to be laid down by the 
competent authority31. They vary from  country to country. In some cases, the 
migrant  may  choose  his  or  her  supervisor,  subject  to  the  approval  of  the 
competent  authority;  in  others,  the  migrant  must  undertake  the  stage  at  an 
approved  centre. In all  cases the adaptation  period  is structured  to the  needs 
of the  individual  migrant  and  in some cases (for  example,  for  professions  in 
the  health  sector  in  France)  very  detailed  indication  of  the  areas  of 
experience  to  be  acquired  is  given  by  the  competent  authority.  Most  cases 
reported  by  coordinators  involve  adaptation  periods  of  a  much  shorter 
duration  than  the  permitted  maximum  (3 years  cf.  Article  4(1 )(b)),  in  many 
cases limited to several weeks only. 

iii) 

In  all  cases  reported  by  coordinators,  assessment  is  by  way  of  a  written 
evaluation  made by the supervisor  either directly  to  the competent  authority 
or  supplied  to  the  migrant  for  transmission  to  the  competent  authority.  All 
coordinators  reported  a willingness  to consider  sympathetically  the  cases  of 
migrants  who  fail  satisfactorily  to  complete  the  adaptation  period  by 
providing for the possibility of an extension or the opportunity to undertake a 
second period. Very few failures were reported, however. 

25  L, F, E, UK, NL. 

26  L, D, UK,  IRL 

27  UK.,  IT. 

28  UK (Northern  Ireland), DK 

29  DK. 

30  S. 

31  The  Luxembourg  authorities  have, however,  indicated  that the organisation  of the  adaptation  period  in 
the  health  sector  has  posed  certain  difficulties  for  them,  for  example,  in  relation  to  remuneration, 
professional  liability  and finding  supervisors. 

iv) 

in  a  petition32  concerning 

One  particular  problem  was  reported 
the 
recognition  of a speech  therapist's  diploma  in  France.  Where  a  compensation 
mechanism  is  applied  to  migrants  seeking  recognition  in  the  health  sector, 
the  French  authorities  require  that  the  adaptation  period  be  undertaken  in  an 
approved  centre.  At  the  time  of  the  petitioner's  application  only  four  such 
centres  existed  in  France,  none  of  which  were  in  the  immediate  vicinity  of 
the  petitioner's  home. 

13 

The  Commission  considered  an  argument  that  such  an  arrangement  was 
discriminatory  given  that  a  far  greater  number  of  establishments  exist  in 
France,  offering  education  and  training  in  speech  therapy.  It  concluded, 
however,  that  the  French  arrangement  was  neither  discriminatory  (because 
the  situation  of  those  training  for  the  profession  in  their  Member  State  of 
origin  and  those  undergoing  the adaptation  period  were  objectively  different) 
nor  in  breach  of  the  directive.  The  resources  devoted  by  the  French 
authorities  were  proportionate  to  the  demand  for  adaptation  periods  (at  the 
time,  only  one  other  request  for  recognition  had  been  received  by  the  French 
light  of  changing 
authorities)  and  were  subject 
circumstances.  The  individual  case  was  resolved  when  the  French  authorities 
agreed  to  approve  an  establishment  closer  to  the  petitioner's  home  for  the 
purpose  of the adaptation  period. 

review 

the 

in 

to 

A R T I C LE  1(g) 

i) 

ii) 

The  purpose  of  both  the  aptitude  test  and  the  adaptation  period  is,  in  the 
Commission's  view,  to  assess  the  capacity  of  the  migrant  to  adapt  to  a  new 
professional  environment.  As  the  definition  in  Article  1(g)  indicates,  the 
aptitude  test  should  therefore  sample33  the  migrant's  knowledge  of  subjects 
missing  from  his or her  initial  education  and  training. 

Aptitude  tests  have  been  taken  by  migrants  seeking  recognition  in  order  to 
practice  as  lawyers34,  auditors/accountants35,  engineers36,  environmental 
health  officers37,  textile  technologists38,  in  the  health  sector39,  priests40, 
teachers41,  and  foresters42. 

32  Petition n° 718/92. 

33  The  subjects  chosen  for  the  aptitude  test  are  to  be  taken  from  a  list  drawn  up  by  the  competent 

authorities, of subjects which are not covered by the applicant's diploma. 

34  All Member  States with the exception of P, DK, E, B, NL. 

35  UK, P, LUX, D. 

36  UK. 

37  UK. 

38  UK. 

39  UK, D, F. 

iii) 

14 

Following  its  examination  of  the  implementation  of  the  directive43,  the 
Commission  expressed  its  concern  to  a  number  of  Member  States  that  the 
tests provided  for  under national  rules  for  migrant  lawyers  did  not  respect  the 
definition  in  Article  1(g).  In  some  cases  this  was  because  no  provision  was 
made  for  dispensations  from  certain  subjects  -  thereby  failing  to  respect  the 
second  subparagraph  of  Article  1(g)  which  provides  that  the  aptitude  test 
must  be  adapted  to  take  account  of  each  individual's  education  and  training. 
Elsewhere,  the  length  (up  to  fifteen  hours)  and  nature  of  the  tests  bears  a 
strong  resemblance  to  final  university  and/or  professional  examinations  and 
may  not  take  account  of  the  fact,  as  required  by  the  third  subparagraph  of 
Article  1(g),  that  the  migrant  is  a  fully-qualified  professional,  sometimes 
with  many  years  of  experience,  in  his  or  her  Member  State  of  origin.  The 
application  of  the  aptitude  test  for  lawyers  in  the  Member  States  was 
discussed  at a special  meeting  of the  coordinators'  group  on  20  October  1995 
in  the  presence  of  national  experts  responsible  for  organising  or  conducting 
the  test.  Even  though  the  Commission  is  not  entirely  satisfied  with  the 
regulations  and/or  application  of  the  test  in  some  cases,  the  meeting  showed 
as  well  that  the  practice  of  the  aptitude  test  in  some  Member  States  appears 
to  be  more  liberal  and  seems  to  take  into  account  the  particular  situation  of 
migrant  lawyers  as opposed  to  national  candidates  to  a higher  extent  than  the 
relevant  regulations  suggest.  When  replies  from  all  of  the  Member  States 
concerned  to  the  letters  sent  out  by  the  Commission  have  been  received  and 
analysed,  the  Commission  will  decide  whether  it  is  appropriate  to  begin 
infringement  proceedings  on this  point. 

iv) 

Although  the  following  figures44  have  to  be  considered  with  some  caution 
taking  into  account  the  particular  situation  in  the  different  Member  States45, 
the  success  rate  in the  aptitude  test  for  lawyers, may  offer  some  indication  of 
the obstacle  it presents  to migrants. In France, 25 out  of 40  candidates  passed 
the  test;  22  of  them  at  their  first  examination;  in  Germany,  55  out  of  73 
migrant  lawyers  passed;  in  Greece  all  7 Community  lawyers  who  sat  the  test 

40  S. 

41  UK, D. 

42  A. 

43  Cf.  Paragraph  II (iv) above. 

44 

In  most  cases  the  figures  are  taken  from  the  statistics  made  available  at  the  meeting  on  20  October 
1995 and cover the period running from  1991 to October  1995. Otherwise the figures  are taken  either 
from  statistics  supplied  by  the  CCBE  in  December  1994 or  from  the  Article  11  Reports  of  Member 
States. No account  is taken of those whose diplomas were recognised without a test. A high number of 
direct recognitions were granted in the case of migrations between  the UK and IRL, some (15) as well 
in  the  case  of  migrations  from  B  or  LUX  to  F.  The  following  figures  do  not  include  either  those 
applicants who choose not to proceed with their application by not taking the test. 

45  e. g. some  Member  States  (e.g.  UK  and  D) allow  establishment  under  the  home  country  professional 
title,  while  as  this  possibility  does  not  exist  in  other  Member  States  (e.g.  F and  LUX);  in  LUX  the 
diploma  comprises  an  approved  law  degree  obtained  in another  Member  State,  in most  cases  B or F, 
which  is completed by a three-month  course in Luxembourg  law and a stage. 

15 

passed;  in  Ireland,  6 out  of  7 candidates  were  admitted  to  the  Bar  at  the  first 
attempt,  all  3  candidates  who  took  the  test  for  solicitors  succeeded;  in  Italy, 
all  8  candidates  passed;  in  Luxembourg,  12  out  of  14  applicants  passed;  in 
England  and  Wales, 65  out  of  143 candidates  from  Member  States  other  than 
Ireland  were  successful  in the  Qualified  Lawyers  Transfer  Test  for  solicitors, 
7  cases  were  referred;  all  17 applicants  obliged  to  take  the  test  for  barristers 
passed;  in Finland,  4 out of 7 candidates  failed. 

It  is  difficult  to  estimate  from  the  statistics  alone  how  many  candidates  who 
apply  for  recognition  subsequently  choose  not  to  attempt  the  aptitude  test46 
and  how  many  would-be  migrants  are  deterred  by  the  prospect  of  taking  the 
test. 

v) 

vi) 

All  Member  States  allow  applicants  to  resit  the  test,  in  whole  or  in  part.  In 
some  cases,  the  number  of  attempts  is  limited,  in  accordance  with  national 
tradition,  to two or three. 

Some  Member  States charge  a fee  for  taking  the test  and  the  level  of  fees  has 
been  examined  by  the  Commission.  In  its view,  such  fees  would  constitute  a 
breach  of  Community  law  if they  were  set  at  a  higher  level  than  comparable 
fees  in  the  national  system,  if  they  exceeded  the  actual  cost  incurred  by  the 
competent  authority  in  arranging  the  test  or  if  they  were  set  at  a  level  which 
rendered  free  movement  virtually  impossible. 

A R T I C LE  2 

i) 

ii) 

Article  2  defines  the  scope  of  the  directive.  Like  the  sectoral  directives  it 
applies  only  to  Community  nationals.  In  the  Commission's  view,  nothing 
prevents  a  third  country  national  who  subsequently  acquires  the  nationality 
of  one  of  the  Member  States  from  relying  upon  the  directive  to  obtain 
recognition  of a diploma  which  he  or  she  acquired  prior  to  the  acquisition  of 
Community  citizenship. 

The  second  subparagraph  of  Article  2  excludes  from  the  scope  of  the 
Directive  professions  which  are 
the  subject  of  a  separate  directive 
establishing  arrangements  for  mutual  recognition  of  diplomas.  These  are 
Directive  77/452/EEC47  (nurses  responsible  for  general  care),  Directive 
surgeons)49, 
78/686 

(dentists)48,  Directive  78/1026/EEC 

(veterinary 

46  While  there  are  no  figures  for  the  other  Member  States  the  statistics  submitted  by  the  French 
delegation  at the meeting  on 20 October  1995 show that only 40 out of 78 applicants  admitted  to take 
the test had actually  sat it by  1  October 1995. 

47  OJ  1977 n°L  176, p. 1. 

48  OJ  1978n°L233,p.  1. 

49  OJ  1978 n°L  362, p.l. 

iii) 

16 

Directive  80/154/EEC50  (midwives),  Directive  85/384/EEC51  (architects), 
Directive  85/433/EEC52  (pharmacists)  and  Directive  93/16/EEC53  (doctors). 

In  the  Commission's  view,  the  general  system  will  not  apply  where  the 
activity  which  the  migrant  wishes  to  exercise  in  the  host  Member  State  is 
reserved  to  one  of  the  above  professions.  Thus,  for  example,  an  osteopath 
qualified 
in  the  United  Kingdom,  where  osteopathy  is  recognised  as  a 
profession  in  its  own  right,  could  not  rely  upon  Directive  89/48/EEC  to 
obtain  recognition  of  his  or  her  diploma  in  a  Member  State,  such  as  France, 
which  reserves the exercise  of this activity  to  medical  practitioners. 

However,  a British  osteopath  would,  in the  Commission's  view  be  entitled  to 
rely  upon  Article  52  of  the  Treaty,  as  interpreted  by  the  Court  in  the 
Vlassopoulou  judgment.  The  Court  ruled  that  Member  States  are  required  to 
compare  the  education  and  training  attested  to  by  the  migrant's  diplomas 
with  that required  under  national  law.  Where  the  migrant's  diplomas  are  only 
partially  equivalent  to  those  required  in  the  host  State,  he  or  she  must  be 
given  an  opportunity  to  demonstrate  that  the  missing  skills  or  competence 
have  been  acquired. 

The  second  subparagraph  of  Article  2  has  caused  particular  problems  in 
relation  to  specialised  nurses.  In  some  Member  States  (such  as  the  United 
Kingdom  and  the Netherlands)  separate training  courses  exist  for  general  and 
some  specialist  nurses  (e.g.  psychiatric  nurses,  paediatric  nurses);  in  other 
Member  States,  (such  as  Germany,  Luxembourg),  those  qualified  as  nurses 
responsible  for  general  care  may  take  post-diploma  specialist  courses;  the 
activity  of  specialist  nurse  is  a  regulated  activity  distinct  from  that  of  nurse 
responsible  for  general  care.  Finally,  some  Member  States  (such  as 
Denmark)  regulate  only  a  single  activity,  that  of  nurse  responsible  for 
general  care.  Movement  between  Member  States  (e.g.  the  United  Kingdom 
to  Germany)  in  the  first  two  groups  is  governed  by  the  general  system  and 
has caused  few  problems. 

Difficulties  arise  when  a  nurse  from  the  first  group  of  Member  States  (for 
example,  from  the  United  Kingdom)  wishes  to  move  to  a  Member  State  in 
the  last  group  (for  example,  Denmark).  They  cannot  rely  upon  the  sectoral 
directive,  Directive  77/452/EEC,  because  the  specialist  diploma  in  question 
is  not  one  which  is  listed  in  Article  3  thereof  nor  can  they  rely  upon 
Directive  89/48/EEC  as  a  result  of  the  second  subparagraph  of  Article  2. 
Someone  in this position  is of course  entitled  to  rely  upon  Articles  48  and  52 
of  the  Treaty,  as  interpreted  by  the  Court  of  Justice  in  its  caselaw  and  in 
particular  in  the  Vlassopoulou  judgment  which  requires  Member  States  to 

50  OJ  1980n°L33,  p.l. 

51  OJ  1985 n°L  223, p. 15. 

52  OJ  1985n°L253,p. 37. 

53  OJ  1993 n°L  165, p. 1. 

17 

effect  a comparison  between  the  specialised  knowledge  and  abilities  certified 
by  professional  qualifications  acquired  elsewhere  in  the  Community  with 
those  required  under  national  law  for  access  to  the  profession  in  question. 
However,  in  the  Commission's  view,  the  general  system  offers  certain 
advantages  by  comparison 
to  the  application  of  Articles  48  and  52, 
principally  as  regards  legal  certainty  but  also  because  of  the  specific 
compensation  mechanisms  which  Directive  89/48/EEC  puts  in  place.  The 
Commission  has 
second 
subparagraph  of Article  2 in its proposed  directive54. 

suggested  an  amendment 

therefore 

the 

to 

The  amendment  would  enable  a  specialist  nurse  to  obtain  recognition  in 
accordance  with  Directive  89/48/EEC  or  Directive  92/51/EEC,  as 
appropriate,  as  a  nurse  responsible  for  general  care  in  Member  States  where 
nursing  specialisations  are not  legally  regulated. 

A R T I C LE  3 

i) 

ii) 

Article  3  is  the  crux  of  the  directive  and  establishes  the  general  rule  that  a 
person  who  is entitled  to  exercise  a profession  in the  Member  State  of  origin 
is  entitled  to  recognition  of  his  or  her  diploma  for  the  purpose  of  taking  up 
the  same profession  in the host Member  State. 

that 

the  fact 

recognition 

professional 

it 
The  principle,  thus  stated,  appears  clear  and  easily  understandable: 
underlines 
the  recognition  procedure 
the  foundation  of 
established  by  the  general  system  is  the  identity  between  the  professional 
activity  the  migrant  is qualified  to  exercise  in  the  Member  State  from  which 
she/he  comes  and  that  in  the  host  Member  State.  The  Commission  has, 
however,  observed  a  worrying  tendency  in  some  cases  to  transpose  to  the 
general  system,  habits  of  mind  which  are  familiar  in  the  context  of  academic 
recognition.  The  differences,  similarities  and  synergies  between  academic 
the  Commission 
in 
and 
are 
for  academic  and 
recognition  of  qualifications 
"Communication  on 
professional  purposes"55  and  a  synthesis  report  will  be  presented  to  the 
European  institutions  and  the  Member  States  in  the  spring  of  1996.  This 
sometimes  leads to  an over-detailed  comparison  of  the  structure,  content  and 
length  of  education  and  training  with  the  consequence  that  the  focus  of  the 
recognition  process  becomes  Article  4  (the  compensation  mechanisms) 
rather  than  Article  3  (recognition  per  se  of  the  migrant's  qualifications). 
Consequently,  the  Commission's  services  have  attempted  in  contacts  with 
national  competent  authorities  and  professional  organisations  and  at 
conferences  and  seminars  to  emphasise  that  the  general  system  represents  a 
new  approach  to professional  recognition  and  that  Article  3 may  require  new 
ways of  thinking. 

outlined 

54  Forthcoming. 

55  COM (94) 596  final 

Where  a Member  State  refuses  recognition  of  a  diploma  on  the  grounds  that 
the  profession  for  which  the  migrant  is qualified  is not  the  "same  profession" 
as  that  which  she/he  is seeking  to  exercise,  the  question  is principally  one  of 
fact  and  can  only  adequately  be  determined  with  the  assistance  of  experts56 
by  a national  court  or  tribunal. 

18 

iii) 

The  identity  of  the  professional  activity  (Member  State  of  origin/host 
Member  State)  is  also  central  to  another  problem  of  interpretation  of 
Article  3. In some  Member  States, two  qualifications57  exist,  within  the  same 
field  of  professional  activity  -  this  is  the  case  in  many  Member  States  for 
engineers58  and  in some  Member  States  for  accountants59. 

Usually,  since  regulation  in these  cases  is by  means  of  protected  professional 
titles  (different  titles  corresponding  to  the  different  diplomas),  the  question 
which  arises  is  whether  the  activities  exercised  under  these  titles  are  the 
same.  If  so,  the  incoming  migrant  should  be  able  to  elect  to  apply  for 
recognition  under  one  or  the  other  title  and  the  outgoing  migrant  should  be 
entitled,  whichever  diploma  she or  he possesses,  to obtain  recognition  for  the 
purpose  of exercising  the  (unified)  profession  in question  in another  Member 
State60.  This  is  an  area  where  the  application  of  the  directive  has  been 
particularly  susceptible  to  the  influence  of  academic  recognition  procedures: 
rather  than  considering  what  professional  activities  the  migrant  is  entitled  to 
exercise  in  the  Member  State  of  origin,  competent  authorities  have  tended  to 
assess  the  level  and  quality  of  the  education  and  training,  by  reference  to  its 
duration  or  to  the  nature  of  the  establishment  (university/non-university 
higher  education)  in which  the  migrant  trained. 

iv) 

v) 

Article  3(b)  defines  "evidence  of  one  or  more  formal  qualifications",  which 
is the  term  used  to  signify  a qualification  acquired  in  a Member  State  which 
does  not  regulate  the  profession;  it  therefore  corresponds  to  the  concept  of 
diploma  in Article  1(a). 

is 
The  definition  of  "evidence  of  one  or  more  formal  qualifications" 
contained  within  the  three  indents  in  Article  3(b);  these  indents  correspond 
to the three  indents  in Article  1(a), the definition  of  diploma. 

the  second  indent  provides  that  the  evidence  of  formal  qualification 
must  show  that  the  holder  has  completed  a  post-secondary  course  of  at 

-6  This question  is brought  into sharpest  focus  where the professional  title  is the same in the two  Member 
States (for  example, "psychologue clinique'Vclinical  psychologist) but where the authorities  in the host 
state  argue  that  the  activities  exercised  under  these  two  titles  are  so  different  as  to  constitute  two 
distinct  professions. 

57  Either two diplomas within the meaning of Article  I (a) or two sets of evidence of formal  qualification, 

i.e. both encompassing  a course of at least three years' duration  at university of higher level. 

-8  For example, "ingénieur civil" et "ingénieur  industriel" in Belgium. 

59  For example, Chartered  Accountant and Certified  Accountant  in the United  Kingdom. 

60  Subject,  of course, to the application  of Article 4. 

19 

three  years'  duration  and,  where  appropriate, 

least 
that  he  has 
successfully  completed  the  professional  training  required  in  addition  to 
the  post-secondary  course.  In  the  context  of  Article  3(b)  the  word 
"required"  must  be  taken  to  mean  "required  by  the  rules  governing  the 
award  of the  evidence  of  formal  qualifications".  This  would  be  the  case 
where  the  evidence  of  formal  qualification  is  awarded  on  successful 
completion  of  a  course  complemented  by  professional 
training  or 
professional  practice,  the  structure  and  level  of  which  are  determined 
by  the  laws,  regulations  or administrative  provisions  of  a  Member  State 
or  which  are  monitored  or  approved  by  an  authority  designated  for  that 
purpose. 

the  third  indent  diverges  most  obviously  from  the  text  of  Article  1(a), 
which  provides  that  the  diploma  must  show  that  its  holder  has  the 
taking  up  or  pursuit  of  a 
professional  qualifications  required  for 
regulated  profession.  The  wording  of  the  provision  indicates  that  there 
must  be  some  objective  link  between  the  matters  studied  and  the 
professional  activity  exercised  by  the  migrant  in  his  or  her  Member 
State  of  origin.  However,  since,  in  the  home  Member  State  the  taking 
up  and  pursuit  of  the  activity  are  not  regulated,  the  link  between  the 
evidence  of  formal  education  and  training  and  the  professional  activity 
may  be  more  nebulous  than  in  the  case  of  a diploma  giving  access  to  a 
regulated  activity. 

Two  further  points  should  be  made  in  relation  to  the  definition  of  evidence 
of  formal  qualifications.  First,  the  education  and  training  leading  to  the 
award  of  the  evidence  of  formal  qualifications  must  have  been  followed 
entirely  within  the  Community;  there  is  no  equivalent,  in  Article  3(b),  to  the 
provision  at  the  end  of  the  first  subparagraph  of  Article  1 (a),  which  extends 
the  definition  of  diploma  to  education  and  training  received  mainly  in  the 
Community  (but  partly  in  a  third  country)  and  to  third  country  diplomas 
recognised  in  the  Member  State  of  origin  and  supplemented  by  three  years' 
formal 
professional  experience.  Holders  of  third  country  evidence  of 
qualifications  or  of  evidence  of  formal  qualifications  awarded 
the 
in 
Community  but  attesting  to  education  and  training  received  mainly  outside 
the  Community  fall  outside 
the  Council 
Recommendation  concerning  nationals  of  Member  States  who  hold  a 
diploma  conferred 
in  the  Official  Journal, 
immediately  after  the  text  of the  Directive). 

the  Directive  (cf.  however, 

in  a  third  State,  published 

for 

routes", 

the  conditions 

Secondly,  although  both  Article  1(a)  and  Article  3(b)  make  provision  for 
"alternative 
recognition  are  different.  A 
qualification  obtained  by  an  "alternative  route"  is  to  be  treated  as  a  diploma 
provided  that  it  is  recognised  by  a  competent  authority  in  the  awarding 
Member  State  as  being  of  an  equivalent  levei  and  that  it  confers  the  same 
rights  in respect  of  the  taking  up  and  pursuit  of  a regulated  profession  in  that 
Member  State  (Article  1(a)).  A  qualification  obtained  by  an  "alternative 
route"  is to  be treated  as evidence  of  formal  qualifications,  provided  that  it  is 
recognised  by  the  awarding  Member  State  as  being  the  equivalent  level  and 

vi) 

vii) 

that  the  other  Member  States  and  the  Commission  have  been  notified  of  the 
recognition61. 

20 

viii)  Article  3(b)  refers  to  a Member  State  which  does  not  regulate  the  profession 
"within  the  meaning  of  Article  1(c)  and  the first  subparagraph  of  Article 
1(d)".  Article  1(c)  contains  the  definition  of  regulated  profession,  Article 
1(d)  that  of  regulated  professional  activity.  This  wording  was  intended  to 
deal  with  a  potential  difficulty  in  the  United  Kingdom:  in  some  cases,  a 
professional  activity  (e.g.  estate  agency)  is  covered  by  two  professional 
organisations.  One  of  these  organisations  is  a  Chartered  Body  listed  in  the 
Annex  to  Directive  89/48/EEC  (Royal  Institution  of  Chartered  Surveyors) 
and  in  accordance  with  the  second  subparagraph  of  Article  1(d),  the  activity 
is  considered  to  be  regulated  for  the  purposes  of  the  Directive.  However,  it 
was  necessary  to ensure  that  members  of  the  other  organisation  (the  Institute 
of Valuers)  would  be  treated  as coming  from  a Member  State  which  does  not 
regulate  the  profession  and  that  they  could,  provided  that  their  qualification 
falls  within 
take 
advantage  of  Article  3(b).  The  result  is  that  those  who  are  members  of  a 
Chartered  Body  and  hold  a  diploma  awarded  by  it  fall  within  Article  3(a), 
those  who  exercise  the  same  professional  activity  and  possess  evidence  of 
formal  qualification  but  are  members  of  the  non-chartered  organisation  fall 
under  Article  3(b). 

the  definition  of  "evidence  of  formal  qualification" 

ix) 

x) 

In  order  to  obtain  recognition,  the  migrant  who  moves  from  a Member  State 
which  does  not  regulate  the  profession  in  question  to  one  which  does  must, 
in addition  to evidence  of  formal  qualification,  "show that  he has pursued  the 
profession  in question  full-time  for  two  years  during  the  previous  ten  years". 
The  professional  experience  thus defines,  in the  absence  of a legal  definition, 
the  profession  exercised  by the migrant  in his  or her Member  State of  origin. 

In  order  to  obtain  recognition,  the  migrant  must,  as  under  Article  3  (a), 
establish  that  he or  she  has  pursued  the same  profession  in  his  Member  State 
of  origin  as  the  one  which  he  or  she  now  wishes  to  pursue  in  the  host 
Member  State.  The  difficulty  of  identifying  the  profession  arises  in  this 
instance  because,  ex  hypothesi,  the  profession  is  not  regulated,  within  the 
meaning  of  the  Directive,  in  the  home  Member  State62.  The  question  is 
essentially  one  of  fact  (what  were  the  activities  effectively  exercised  by  the 
migrant  during  the  two  years  in  question?)  and  it  should  be  borne  in  mind 
that  the  range  of  activities  which  constitute  a profession  will  inevitably  vary 
is  regulated).  The 
between  Member  States  (even  where  the  profession 
Commission  has  suggested  that  the  following  factors  may  provide  assistance 
in identifying  the profession  exercised  in the Member  State of  origin: 

61  The  Commission  received  notifications  from  the  French  authorities  of  Loi  n° 92-672  of 20.07.92  and 
Décret n3 93/538 of 27.03.93 concerning alternative routes to French higher education  diplomas. 

62  A similar  problem  may arise under  Article 3(a), where  in the  Member  State of origin  the profession  is 
regulated  only  by  means  of  a  protected  title  ;  it  then  becomes  necessary  to  ascertain  whether  the 
activities exercised  under this title correspond to those which are regulated  in the host Member State. 

xi) 

21 

the  taking  up  or  pursuit  of the  profession  in  the  Member  State  of  origin 
may  be  subject  to  rules  other  than  the  possession  of  a  diploma,  such  as 
proof  of  financial  standing,  good  character  etc.  In  this  case,  the 
profession  would  not  be  "regulated"  within 
the 
Directive,  but  the  relevant  national  rules  might  nevertheless  contain  a 
definition  of  the  scope  of  the  professional  activities  (cf.,  for  example: 
stockbrokers,  financial  advisers). 

the  meaning  of 

membership  of  a  professional  organisation,  the  statutes  of  which  make 
reference  to the activities  exercised  by their  members. 

the  existence  of  regulated  education  and  training  which  was  conceived 
to meet  the needs of a particular  profession. 

in  pressure  being  exerted  on  national  authorities 

Some  Member  States,  particularly  those  who  regulate  very  few  professions, 
argue  that  the  requirement  of  two  years'  professional  experience  works  to 
their  disadvantage.  Article  3(b)  prevents  young  members  of  unregulated 
professions  from  moving  to  a  Member  State  which  regulates  the  profession 
until  they  have  acquired  the  necessary  professional  experience.  This  in  turn 
results 
to  regulate 
professions  which  are  currently  open  to  all.  Were  Member  States  to  cede  to 
this  pressure,  the  Directive  would,  paradoxically,  result  in  the  creation  of 
new  obstacles  to  free  movement.  A  potential  solution  to  this  problem  would 
be  to  transpose  to  Directive  89/48/EEC,  the  concept  of  regulated  education 
and  training  introduced  by  Directive  92/51/EEC  Article  1  (g).  Regulated 
education  and  training  is  defined  as  "any  education  and  training  which  -  is 
specifically  geared  to  the  pursuit  of  a  given  profession  and  -  comprises  a 
course  or  courses  complemented,  where  appropriate,  by  professional  training 
or  probationary  or  professional  practice,  the  structure  and  level  of  which  are 
determined  by  the  laws,  regulations  or  administrative  provisions  of  that 
Member  State  or  which  are  monitored  or  approved  by 
the  authority 
designated  for  that  purpose".  Where  a  migrant  falling  under  Directive 
92/51/EEC  comes  from  a  Member  State  which  does  not  regulate 
the 
professional  activity  but holds  a diploma  which  attests  to regulated  education 
and  training,  he  or  she  is  dispensed  from  the  requirements  of  professional 
experience. 

ARTICLE  4 

i) 

ii) 

"compensation 
Article  4(1)  contains  rules  for  applying 
mechanisms":  professional  experience,  the  adaptation  period  and  the  aptitude 
test. 

the  so-called 

Article  4(1 )(a)  related  to  differences  in  the  duration  of  the  education  and 
training.  Although  Member  States  have  included  this  possibility  in  their 
implementing 
legislation,  the  provision  appears,  with  the  exception  of 
Luxembourg,  to be applied  very  rarely.  This  is probably  because  Article  4(2) 
forbids  Member  States  to  apply  paragraphs  1(a)  and  (b)  cumulatively  Le, 
they  may  not  require  both  professional  experience  and  an  aptitude  test  or 
adaptation  period. 

iii)63  Apart 

the  so-called  "legal"  professions 
the  statistics  provided  by  Member  States  show 

(lawyers,  patent  agents., 
from 
accountants) 
the 
imposition  of  a compensation  requirement  remains,  rightly,  the  exception  to 
the  general  rule.  The  statistics  also  show,  that  migrants  much  prefer 
adaptation  periods  to aptitude  tests  where  they  are offered  the  choice. 

that 

iv) 

The  migrant's  right  to  choose  between  an  aptitude  test  and  an  adaptation 
period  is withdrawn  where: 

the  practice  of  the  profession  in  question  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. 

professions  for  which  the  Member  State  has  obtained  a  derogation 
under  Article  10 (no  such derogations  have  been  granted64). 

v) 

vi) 

The  first  exception  has  been  interpreted  by  Member  States  to  include 
lawyers,  judges  and  other  members  of  the  judicial  organisation,  legally-
qualified  civil  servants,  patent  agents,  tax  advisers,  auditors  and  accountants 
(in  virtually  all  cases,  Member  States  have  chosen  to  apply  the  aptitude 
test65).  In  the  context  of  their  examination  of  implementing  measures,  the 
Commission's  services  have  raised  doubts  as  to  whether  some  national 
accountancy  professions 
final 
subparagraph  of  Article  4(1 )(b).  If  the  replies  from  Member  States  fail  to 
in 
allay 
appropriate  cases. 

these  doubts,  Article  169  procedures  may  be  decided  upon 

the  criteria 

laid  down 

satisfy 

the 

in 

Although  Article  4(1)  allows  Member  States  to  require  a  compensation 
mechanism  when  the  matters  covered  by  the  migrant's  "education  and 
training"  differ  substantially  from  those  covered  by  the  diploma  required  in 
the  host  Member  State,  the  Commission  considers  that  this  provision  should 
be  interpreted  in the  light  of  the  Court's  caselaw  interpreting  Articles  48  and 
52  of  the  Treaty,  in  particular,  the  Vlassopoulou  judgment.  This  requires 
Member  States  to  consider  whether  knowledge  acquired  in the  host  Member 
State,  either  during  a  course  of  study  or  by  way  of  practical  experience,  is 
sufficient  in order  to prove  possession  of knowledge  which  is  lacking.  In  the 
Commission's  view66,  such  "post-diploma"  study  or  practical  experience, 
whether  acquired  in  the  host  Member  State,  the  Member  State  of  origin  or  a 
third  state  may  reduce  or  obviate  altogether  the  need  for  a  compensation 
mechanism. 

63  For  other  comments  on  the  aptitude  test  and  adaptation  period  see,  supra,  comments  on  Article  1(f) 

and (g). 

64  See further  below, comments on Article  10. ' 

65  The  only  exception  appear  to  be  Denmark  where,  for  the  time  being,  an  adaptation  period  has  been 

required  of migrant lawyers. 

66  Cf.  Answer to written Question 2790/93, OJ C 268 of 06.09.1994, p. 19. 

vii) 

the 
Article  8  of  the  Directive  required  any  decision  taken  concerning 
applicant's  request  for  recognition  to  be  reasoned.  The  Commission 
is 
somewhat  concerned  by  the  practice  of  some  competent  authorities  of 
justifying 
unspecified 
compensation 
"substantial  differences". 

requirements 

reference 

by 

to 

23 

ARTICLE  5 

This  provision  is  something  of  a  curiosity,  it  invites  Member  States  to  offer  to 
applicants  not  yet  in  possession  of  a  "diploma"  within  the  meaning  of  Article  1(a) 
the  opportunity  of  undergoing  part  of  their  professional  education  and  training  -
professional  practice,  acquired  with  the  assistance  of  a  qualified  member  of  the 
profession  -  in  the  host  state,  yet  imposes  no  legal  obligation.  Few  Member  States 
have  transposed  Article  5 into  national  legislation  but  it  is applied  in  Finland  to  the 
teaching  profession.  Flowever,  its merit  would  seem  to be  that  it draws  the  attention 
of Member  States  to the  possibility  of  going  beyond  the  strict  terms  of  the  directive 
in this particular  case. 

ARTICLE  6 

Article  6 contains  standard  provisions  concerning  proof  of  good  character,  financial 
standing  and  mental  and  physical  health.  Its  application  has  given  rise  to  no 
particular  problems.  However,  in  the  Commission's  "proposed  directive",  it  is 
proposed  to  complete  Article  6  by  adding  two  new  paragraphs.  The  first  would 
issued  by  banks  in  the  migrant's  country  of  origin, 
provide  that  certificates 
concerning  his  or  her  financial  standing  should  be  regarded  as  equivalent  to  those 
delivered  on  the  territory  of  the  host  Member  State67.  The  second,  inspired  by  a 
similar  provision  in  the  architects'  directive68  provides  for  acceptance  in  the  host 
Member  State  of  certificates  of  insurance  issued  by  an  insurance  company  in  the 
migrant's  Member  State  of  origin. 

ARTICLE  7 

This  provision  governs  the  use  of  professional  and  academic  titles  by  the  migrant. 
The  migrant  is  entitled  to  make  use  of  the  professional  title  of  the  host  Member 
State  (Article  7(1))  and  to  continue  to  use  his  academic  title  there  (Article  7(2)).  It 
is  important  to  note  that  Article  7(2)  only  applies  where  a  migrant  has  obtained 
recognition  in  accordance  with  the  directive  and  does  not  grant  an  independent 
right  to  make  use  of  an  academic  title69.  Article  7(3)  contains  a  specific  application 
of  these  rules  to  Chartered  Bodies  and  similar  associations  in  the  United  Kingdom 
and  Ireland. 

67  This  provision  replicates  that  in  a  number  of  liberalisation  directives,  for  example,  Directive 

77/92/EEC  (insurance brokers and agents). OJ L n° 26 of 21.01.1977. 

68  Directive  85/384/EEC, OJ N° L 223 of 21.08.1985, p.  15. 

6Q  As to which, see the judgement of the Court Kraus. 

ARTICLE  8 

i) 

Article  8(1)  provides  that  the  host  Member  State  must  accept  as  proof  that 
the  conditions  laid  down  in  Articles  3  and  4  are  satisfied,  documents  and 
certificates  issued  in  the  Member  State  of  origin.  In  practice,  hosi  Member 
States  require,  as  they  are  entitled  to  do,  in  addition  to  the  migrant's  diploma 
and  the documents  referred  to  in Article  6, proof  of the  migrant's  nationality. 

In  addition,  migrants  are  often  asked  to  supply  information  concerning  their 
education  and  training:  whilst  such  a  demand  may  be  legitimate  in  order  to 
enable  the  competent  authority  to  assess  whether  or  not  a  compensation 
mechanism  is  justified,  it  should  not  result  in  a  detailed  comparison  of 
course  syllabi,  as  is  sometimes  the  case  in  academic  recognition  procedures. 
In  addition,  older  migrants  sometimes  have  difficulty  in  providing  details  of 
courses  studied  ten,  twenty  or  even  thirty  years  ago.  The  Commission  is 
currently  investigating  with  Member  States  the  extent  of  documentation  Lhey 
require  in  support  of  a request  for  recognition  and  is exploring  with  them  the 
solutions  which  might  be  applied  where  the  migrant  is  unable  to  supply  the 
detail  required. 

ii) 

iii) 

iv) 

the  usefulness  of  such  a  document, 

The  Italian  implementation  legislation  provides  for  the  issue  of  an  attestation 
to outgoing  migrants  by  the  Italian  authorities  certifying  that  the  professional 
qualifications  are  a  "diploma"  or  "evidence  of  one  or  more 
formai 
qualifications"  within  the  Directive.  Although  the  Commission  would  not 
the 
deny 
coordinator's  group  that  Member  States  are  neither  obliged  to  supply  nor 
entitled  to  demand  such  an  attestation.  Doubts  as  to  whether  evidence 
presented  by  a migrant  is  or  is not  a diploma  are,  in  the  Commission's  view, 
best  settled  by  bilateral  contacts  either  directly  between  competent 
authorities  or via  national  coordinators. 

it  has  made  clear 

in 

is  also  continuing 

The  Commission 
its  examination  of  the  formalities 
surrounding  the  presentation  of  documents  in  support  of  a  recognition 
request.  In  many  cases,  translations  of  diplomas  are  required  and  some 
Member  States  require  the  translation  to  be  undertaken  by  a  certified  or 
approved  translator.  The  Commission  will  continue  to keep  such  requirement 
under  review,  since  it considers that a systematic  requirement,  in cases  where 
competent  authorities  have  become 
issued 
elsewhere  in the  Community  may  not  be  justified. 

familiar  with  documents 

The  Commission  considers  that  a Member  State  is not  entitled  to  require  that 
a  migrant  submit  the  original  of  his  or  her  diploma  but  may  require  that  any 
copy  be  certified 
in  accordance  with  national  practice.  Following  a 
complaint,  the  Commission's  services  examined  the  requirement  made  by 
Spain  that  diplomas  and  other  documents  be  authenticated  in  accordance 
with  the  Hague  Convention  of  5  October  1961  by  the  addition  of  an 
"apostille".  The Commission's  services took  the  view  that  such  a  requirement 
was  not  justified  in  the  context  of  the  single  market  and,  more  especially, 
Directive  89/48/EEC  since  it  was  disproportionate  to  the  objective  it  aimed 
to  achieve  namely  guaranteeing  the  authenticity  of  the  document.  Where 
doubts  arise  as  to  the  authenticity  of  a  diploma,  bilateral  contacts  should 

v) 

vi) 

allow  the  competent  authorities  to  obtain  the  necessary  verification.  The 
Spanish  authorities  accepted  this  point  of  view  and  agreed  to  withdraw  the 
requirement. 

25 

Article  8(2)  requires  Member  States  to  reply  to  requests  for  recognition  by 
way  of  a  decision  within  four  months  of  presentation  of  all  the  documents 
necessary.  The  decision,  or  its  absence,  must  be  open  to  challenge  before  a 
national  court  or  tribunal.  The  role  of  the  national  court  is  extremely 
important  in  recognition  cases:  only  a  national  judge  can  rule  on  issues  of 
fact, 
justifying  a 
compensation  requirement),  take  a decision  in the  individual  case  and,  where 
appropriate,  award  damages.  The  Commission's  services  have  taken  the  view 
that  the  four  month  limit  is  to  be  applied  to  the  initial  decision:  where  that 
in  accordance  with 
decision 
Article  4(1 )(b), the recognition  procedure  may  take considerably  longer. 

there  are  substantial  differences 

imposes  a  compensation 

(such  or  whether 

requirement 

Although  the  absence  of  any  decision  at  the  end  of  the  four  month  period 
opens  the  way  to  national  legal  proceedings,  the  Commission's  services  are 
concerned  that  in  a  number  of  cases  consideration  of  the  migrant's  request 
regularly  takes  longer  (periods  of  up  to  18  months  have  been  cited  by 
complainants).  Where  there  is evidence  that  delays  are  a  regular  occurrence, 
the  Commission  will  consider  bringing  proceedings  under  Article  169  of  the 
Treaty. 

ARTICLE  9 

i) 

ii) 

Article  9(1)  is  a  standard  clause  requiring  Member  States  to  designate  the 
authorities  empowered  to  take  decisions  on  recognition.  In  many  cases  these 
authorities  are named  in national  implementing  legislation. 

Article  9(2)  deals  with  the  appointment  of  national  coordinators  and  the 
tasks  of  the  coordinators'  group.  The  role  played  by  national  coordinators  is 
an  important  one: their  formal  task  is to ensure  the  uniform  application  of  the 
directive  to  all  the  professions  concerned  but  in  practice  they  also  act  as  a 
conduit  of  information  between  the  Commission  and  national  competent 
authorities.  In  many  instances,  contacts  between  a  national  coordinator  and 
the  Commission  or between  two  national  coordinators  have helped  to  resolve 
problems  which  have  arisen  with  the  operation  of the  directive.  This  network 
is  bolstered  by  regular  meetings  of  the 
of  administrative  cooperation 
coordinators'  group. The personal  contacts made  in these  meetings,  are  in  the 
Commission's  view, an essential  element  in bringing  about  the  atmosphere  of 
mutual  trust necessary  to the proper  functioning  of the  system. 

iii) 

The  coordinators'  group  began  its  meetings  in  March  1989  and  has  now  met 
on  29  occasions.  From  1993  onwards,  coordinators  responsible  for  the 
application  of  the  second  general  systems  directive,  92/51/EEC  have 
participated  in  the  group70.  The  group  discusses  problems  arising  from  the 

70 

In  some  Member  States  (B,  DK,  D,  IRL,  I,  SF,  F)  a  single  coordinator  is  responsible  for  both 
directives,  in some  cases assisted  by a deputy.  In the other  Member  States  separate  coordinators  have 

26 

application  of  the  directive,  sometimes  on  the  basis  of  "position  papers" 
prepared  by  the  Commission's  services,  exchanges 
information  on  the 
individual  professions  covered  by  the  directive  (whether  regulated  or  not, 
form  of  regulation,  nature  and  duration  of  the  education  and  training).  Items 
are  included  on  the  agenda  either  on  the  initiative  of  the  Commission  or  at 
the  request  of  a national  coordinator.  The  group  has  also  heard  presentations 
from  other  services  of  the  Commission  working  in  related  fields  (for 
example  the  EURES  project).  National  coordinators  also  took  part  in  the  ad 
hoc  advisory  committee  which  assisted  the  Commission  in the  preparation  of 
its  "Communication  on  Recognition  of  Qualifications  for  Academic  and 
Professional  Purposes".71 

In  order  to  enhance  the  role  of  the  coordinators'  group,  the  Commission 
intends  to  consider  ways  in  which  its  deliberations  might  be  put  on  a  more 
formal  footing.  One  possibility  would  be  for  the  coordinators'  group  to  issue 
advisory  opinions  on the  interpretation  of the  Directive  or to approve  "Codes 
of Practice"  for  its  application. 

All  Member  States  have  appointed  a  contact  point  responsible  for  providing 
information  on the application  of the  directive  to migrants.  In  some  cases  (B, 
D, GR,  F, IRL,  L,  SF, S) Member  States  have  nominated  their  representative 
in  the  NARIC  (National  Adademic  Recognition 
Information  Centres) 
network  referred  to  in  Article  9(3);  in  other  Member  States,  the  coordinator 
or  a  third  person  has  been  appointed  as  a  contact  point.  Several  joint 
meetings  between  the  coordinators  and  the  NARIC  network  have  been  held 
to  discuss  provision  of  information  on  the  directive  and  a  member  of  the 
service  within  the  Commission  responsible  for  the  general  system  attends 
other NARIC  meetings  to report  on the application  of the  Directive. 

Many  Member  States  have  produced  explanatory  leaflets  on  the  application 
of  the  general  system.  The  Commission  has  commissioned  consultants  to 
produce  a vade-mecum,  destined  for  national  competent  authorities  and  other 
experts  involved  in the  application  of  the  two  general  system  directives.  The 
French  version  has  already  been  distributed  in  draft  to  coordinators  and  it  is 
currently  being  translated  into  English  and  German.  Once  these  translations 
are  complete,  the  Commission  will  take  appropriate  steps  to  ensure  that  the 
vade-mecum  is made  available  to all  interested  parties. 

iv) 

v) 

vi) 

vii) 

In  addition  to  the  vade-mecum,  the  consultants  produced  a  12-page  users' 
guide  which  explains  by  means  of  questions  and  answers  how  the  general 
system  works.  A  provisional  version  of  this  guide  is  already  being  supplied 
to  anyone  who  contacts  the  Commission's  services  for  information  on  the 
general  system.  A  printed  version  will  be  available  shortly  and  will  be 

been  appointed  for the two directives. In accordance with the EEA Joint Committee  Decision  n°  5/94, 
the  coordinators  of  the  EEA  contracting  States  (currently  Norway,  Iceland  and  Lichtenstein)  also 
anend  meetings  of  the  coordinators'  group.  Representatives  of  the  EFTA  Secretariat  and  the  EFTA 
Surveillance  Authority are also invited. 

71  COM (94) 596  final. 

distributed  to  Commission  Information  Offices  in  the  Member  States,  to 
contact  points,  professional  bodies  and  other  organisations  who  are  called 
upon  to answer  enquiries  on the  directive. 

27 

ARTICLE  10 

i) 

ii) 

Article  10  lays  down  the  procedure  by  which  Member  States  may  obtain  a 
derogation,  allowing  them  the  right  to withdraw  from  the  migrant  the  right  to 
choose  between 
(cf. 
Article  4(1 )(b), last  subparagraph). 

the  adaptation  period 

the  aptitude 

test  and 

The  Commission  has  not  yet  been  required  to  take  a  decision  under 
Article  10(2).  The  only  request  in  due  form  received  from  a  Member  State, 
the  Netherlands,  was  withdrawn  after  initial  discussions  in  the  coordinators' 
group72.  However,  the  EFTA  Surveillance  Authority  did  take  a  negative 
decision  on  a  request  made  by 
restrict 
compensation  measures  for  civil  engineers  to  the  aptitude  test73.  This 
the 
taken  after  consultation  of 
decision  was 
coordinators'  group and  is one which the Commission  endorses. 

the  Austrian  authorities 

the  Commission  and 

to 

ARTICLE  11 

i) 

As  the  deadline  set  for  transposition  was  4  January  1991, the  Commission 
has  asked  Member  States to  supply  Article  11 reports  for  two  calendar  years 
at  a  time.  So  far  reports  have  been  requested  in  the  years  91/92  and  93/94. 
Ten  Member  States74  supplied  a report  for  the  first  period.  Complete  reports 
from  France,  Ireland,  Luxembourg,  Italy,  Greece,  and  Belgium  have  not  yet 
been  received  for  the period  93/94.75 

IV  A  REVIEW OF THE MAIN PROFESSIONS COVERED BY DIRECTIVE  89/48/EEC 

HEALTH PROFESSIONS 

i) 

in  this  sector  -  although 
The  directive  has  worked  very  satisfactorily 
problems  have  arisen  in  a  certain  number  of  cases,  they  have  usually  been 
the  result  of  individual  circumstances  and  have  not  raised  more  general 

It  concerned  (i)  the  judiciary  and  other  professions  connected  to  the  administration  of  justice, 
(ii) maritime  professions,  (iii)  health  and  safety  experts,  (iv)  paramedical  professions.  For  the  first 
three  groups,  the  proposed  regulations  imposed  an  'aptitude  test',  where  a compensation  requirement 
was justified,  for  the  fourth,  an adaptation  period.  It was agreed  that  the  first  group  came  within  the 
"legal professions"  exception  in Article  4(1 )(b)  ; for  the  other  professions,  the  migrant  will  retain  his 
or her right to choose the method of compensation. 

Doc  163/94/COL 

74 

Not  Portugal and  Luxembourg. 

The then  EEA contracting states (A, S, SF, N, IS) supplied a report for  1994. 

problems  of  interpretation  or  application.  Although  differences  in  education 
and  training  have  led  to  compensation  requirements  in  many  cases  (in 
practice,  the  adaptation  period),  there  is  evidence  that  their  use  is  declining 
either  because  of  voluntary  adaptation  of  training  courses  or  because 
competent  authorities,  increasingly  familiar  with  qualifications  awarded 
elsewhere  in the Community,  see  less need  for  them. 

28 

ii) 

The  numbers  making  use  of  the  directive  in this  field  may  be  compared  with 
those  obtaining  recognition  under  the  sectoral  directives  for  other  health 
professions.  Between  4  January  1991  and  31  December  1994,  at  least  1450 
physiotherapists  obtained  recognition76,  an  average  of  about  310  per  year77 
or  about  1.5  per  thousand  active  physiotherapists78.  This  figure  may  to  be 
compared  with  the  1991  statistics  for  the  sectoral  directives  where  the 
numbers  obtaining  recognition  in the health  professions  were  as  follows:  205 
pharmacists,  1969  doctors  (about  1.7  per  thousand  doctors),  230  veterinary 
surgeons,  2588  nurses, 253  dentists  (about  1.2  per  thousand  dentists)  and  87 
midwives. 

ENGINEERS 

i) 

ii) 

Since  most  engineers  are  salaried  and  since  the  profession  is  either  not 
regulated79  or  regulated  by  way  of  reservation  of  title  in  most  Member 
States80,  recognition  of  an  engineering  diploma  is  not  a  pre-requisite  to  free 
movement  and  the  numbers  of  migrants  making  use  of  the  directive  gives 
only  a  partial  indication  of  mobility  within  this  profession.  To  the  end  of 
1994  at  least  1050  engineers  had  obtained  recognition  of  their  diplomas 
under  Directive  89/48/EEC. 

Difficulties  were  encountered  mainly  by  engineers  moving  towards  the 
southern  Member  States.  In  Greece,  these  were  caused  by  the  absence  of 
implementing  legislation  and  mainly  affected  Greek  nationals  who  had 
studied  elsewhere  in  the  Community.  In  Spain  and  Italy,  delays  were  also 
in  place  the  necessary 
encountered  as  a  result  of  the  failure 
compensation  mechanisms.  Finally  some  problems  arose  as  a  result  of  the 
situation  described  under  the  commentary  to  Article  3  above  where  an 
engineer  was  seeking  to  move  from  a  Member  State  which  awards  two 

to  put 

6  This  figure  includes  recognition  of  physiotherapists  in  Germany  and  of  German  physiotherapists 
elsewhere  in the Community  who are governed  by Directive 92/51/EEC, which  came  into force  on  19 
June  1994. It also includes recognition of physiotherapists  in Sweden, Austria and Finland  in  1994 and 
of their nationals  in the Community under the EEA agreement. 

77  Given  the  late  implementation  of  the  directive  in  many  Member  States,  the  yearly  average  will 

increase in  future. 

78  Calculated  on  the  basis  of  figures  for  active  physiotherapists  supplied  by  the  Standing  Liaison 

Committee of Physiotherapists within the EC. 

79  DK, NL, B, F (but cf.  comments made in relation to Article  la), S, SF. 

80  UK, IRL, D. 

29 

categories  of  engineering  qualifications  (for  example,  Belgium,  Germany)  to 
one  in which  only  one qualification  exists  (for  example,  Greece  or Italy). 

iii) 

In  a  written  question81  the  Commission  was  asked  whether  it  felt  that  the 
register  of engineering  qualifications  and  the  title  of  "Eur  IngM created  by  the 
Federation  of  National  Engineering  Association  (FEANI)  might  facilitate  the 
recognition  of  national  engineering  diplomas  amongst  Member  States.  The 
minimum  requirements  for  admission  to  the  register  are  (i)  full  secondary 
education,  (ii)  education  and  training  extending  over  seven  years,  including 
at  least  three  years  of  theoretical  education  at  higher  level  and  two  years  of 
assessed  professional  experience). The  Commission  replied  as  follows: 

"Although  the  Eur  Ing title  cannot  itself  be  considered  as  a  "diploma"  within 
the  meaning  of  Article  1(a) of  Council  Directive  89/48/EEC  of 21  December 
1988  on  a general  system  for  the  recognition  of higher  education  diplomas82, 
it  may  nevertheless  be  of  assistance  to  the  competent  national  authorities 
when  they  examine  a request  for  recognition  under  Article  3 of the  Directive. 
Registration  on  the  FEANI  register  indicates  that,  whatever  the  duration  or 
content  of  his  or  her  initial  training,  the  engineer  has  reached  a  certain  level 
of  professional  competence,  certified  by  his  or  her  peers  both  at  national  and 
European  level.  Bearing  in  mind  that  Member  States  are  required  by  the 
caselaw  of the  Court  to  take  into  consideration,  when  reaching  their  decision 
on  recognition,  post-diploma  professional.  experience, 
the  Commission 
considers  that  an  engineer  who  has  obtained  the  title  of  "Eur  Ing"  should  not 
normally  be  required  to undertake  an adaptation  period  or  sit  an  aptitude  test, 
as provided  for  in Article  4 of  Directive  89/48/EEC." 

TEACHERS 

i) 

The  application  of  the  directive  to  the  teaching  profession  has  been  rather 
unusual.  On  the  one  hand,  in  absolute  terms,  teachers  represent  the  largest 
single  professional  group  to  have  benefited  from  the  directive.  More  than 
5000  teachers83  have  obtained  access  to  their  profession  in  another  Member 
State,  but  of  these  380084  were  recognised  in  the  United  Kingdom  alone85. 
Elsewhere  the application  of the directive  to the teaching  profession  has  been 
fraught  with  difficulty. 

ii) 

Some  Member  States  separate  the process of qualifying  as a teacher  from  the 
process  of recruiting  teachers  into the  state school  systems.  In these  states  the 

81  n° 3429/93 - OJ N° C 268 of 26.09.1994, p. 38. 

82  OJn°L  19 of 24.01.1989, p. 16. 

83  Based  on  figures  supplied  by  Member  States  to  the  end  of  1994  includes  all  categories  of  teaching 

(including those  in higher education). 

84  No compensation  measures have been applied  for this profession  in the United  Kingdom. 

85  Given recruitment  procedures  in the United Kingdom, it is not possibly to say how many  of those who 

obtained  recognition  of their diplomas subsequently  found  employment  in the public sector. 

30 

would-be  teacher  first  acquires  a  "diploma"  and  then  seeks  employment.  In 
some  Member  States  (for  example,  the  United  Kingdom  and  Ireland) 
recruitment  procedures  are  similar  to those  in the  private  sector;  vacant  posts 
are  advertised,  and  selection  is  made,  usually  after  an  interview  from  the 
candidates  who  apply.  In  other  Member  States,  for  example,  Spain, 
recruitment  is  by  way  of  an  open  competitive  examination,  open  to  those 
who  hold  a teaching  qualification;  successful  candidates  are  then  placed  on  a 
list  and  take  up  posts  as  and  when  they  fall  vacant.  In  the  Commission's 
opinion,  Member  States  are  free 
recruitment: 
recognition  of  a teaching  diploma  from  elsewhere  in  the  Community  entitles 
the  migrant  teacher  to  enter  the  recruitment  procedure  in  the  host  Member 
State.  In  other  words,  where  recruitment  in  public  sector  teaching  is  by  way 
of  competition,  recognition  entitles 
the 
to  take  part 
competition  but does  not  guarantee  that he or she will  be  successful. 

to  use  either  form  of 

the  migrants 

in 

for 

teacher 

In  other  Member  States  (for  example,  France  and  Luxembourg)  teacher 
training  and  recruitment  are  inextricably  linked.  After  obtaining  a  primary 
training  sit  an  open 
academic  qualification,  candidates 
competition.  The  number  of  successful  candidates  is  determined  by  the 
demand  for  teachers  in  the  Member  State  concerned.  Success 
in  the 
competition  gives  access  to  teacher  training  and,  if  this  is  successfully 
completed86,  to  a  guaranteed  post  in  a  state  school.  Recruitment  thus  takes 
place  prior  to  the  award  of  the  "diploma"  within  the  meaning  of  the 
Directive.  This  has  caused  difficulties 
in  the  application  of  the  general 
system  to  teachers  moving  to  such  Member  States.  In  the  Commission's 
view,  the  migrant  teacher  must  go  through  the  normal  recruitment  process 
i.e.  he  or  she  must  participate  in the  competition;  however,  since  the  migrant 
is already  a fully  qualified  teacher,  the  host  Member  State  should  grant  them 
a  dispensation  from  that  part  of the  education  and  training  which  follows  the 
competition87.  In  line  with  this  view,  infringement  proceedings  have  been 
opened  against  France. 

The  Commission  has  also  received  a  number  of  complaints  from  teachers 
seeking  recognition  in  Germany.  In  part,  problems  have  arisen  from  the 
apparent  refusal  of some  German  Lander  to  recognise  teaching  qualifications 
awarded  by  non-university  higher  education  establishments  (in  the  United 
Kingdom,  the  Netherlands,  Denmark  and  Austria).  The  Commission  has 
made  clear  its  view  that  such  an  approach  contravenes  the  directive  and  as  a 
consequence,  infringement  proceedings  are under  consideration. 

A  further  difficulty  encountered  by  migrant  teachers  in  Germany  is  the 
requirement  that  all  teachers  should  be  capable  of  teaching  two  subjects88. 
Teachers  qualified  elsewhere  in  the  Community  as  single-subject  teachers 
have  been  refused  recognition  on  this  basis.  The  two-subject  requirement  is 

iii) 

iv) 

v) 

86  As is almost always the case. 

87  Subject to the application of a compensation  mechanism  under Article 4. 

88  A similar requirement exists in Austria. 

vi) 

vii) 

viii) 

not,  as  such,  contrary  to  the  Treaty  or  the  directive  but,  in  the  view  of  the 
Commission's  services,  it  cannot  be  argued  that  single-subject  teaching  and 
two-subject  teaching  are  different  activities, justifying  a  refusal  to  apply  the 
Directive  to  single-subject  teachers  moving  to  Germany.  It  is clear,  however, 
that  a  compensation  mechanism  under  Article  4(1 )(b)  will  be  appropriate. 
The  Commission  is continuing  its examination  of this  problem. 

31 

A  final  problem  concerns  language  requirements  for  teachers.  Article  3(1)  of 
Council  Regulation  n°  1612/6889  permits 
regulations  or 
administrative  provisions  or  administrative  practices  of  a  Member  State  "to 
lay  down  conditions  relating  to  linguistic  knowledge  required  by  reason  of 
the  nature  of  the  post  to  be  filled".  Such  requirements,  like  all  other 
requirements  laid  down  by  national  law  are  subject  to  the  general  principle 
of non-discrimination  contained  in Article  6 of the  EC  Treaty. 

laws, 

the 

Furthermore,  in the  view  of the  Commission,  Member  States  are  not  entitled 
to  make  proof  of  linguistic  ability  a  precondition  to  the  examination  of  a 
request  for  recognition  under  the  Directive.  Thus  a  Member  State  is  not 
entitled  to  include  proof  of  the  migrant's  knowledge  of  the  host  State's 
language  amongst  the  documents  which  must  be  submitted  in  support  of  the 
request  for  recognition  or  to  treat  the  migrant's  file  as  incomplete  in  the 
absence  of such  proof. 

The  Commission  accepts  that  requirements  relating  to  linguistic  knowledge 
which  are  non-discriminatory  and  which  are  proportionate  to  the  actual  need 
to  speak  the  host  State  language90  may  be  in  conformity  with  Community 
law.  Where  the  migrant's  diploma,  within  the  meaning  of  Article  1(a),  does 
in 
not  attest 
accordance  with  the  Vlassopoulou  judgment, 
the 
migrant  has  acquired  the necessary  linguistic  capacity  by  prior  or  subsequent 
education  and  training,  or  by  professional  experience.  If  no  such  proof  is 
submitted,  the  absence  of the  necessary  linguistic  ability  may  be  viewed  as  a 
"substantial  difference"  justifying  an aptitude  test or an  adaptation  period. 

the  host  Member  State 

to  examine  whether 

to  that  knowledge, 

is  required, 

LAWYERS 

Some  620  lawyers  obtained  recognition  under  the  directive  until  autumn  199591, 
more  than  400  of  them  in  the  UK,  at  least  76  in  Ireland,  55  in  Germany,  and  40  in 
France.  Nearly  400  lawyers  were  granted  immediate  recognition  without  having  to 
take  an  aptitude  test,  the  vast  majority  of  them  representing  migrants  moving 

89  Council  regulation  n°  1612/68 of  15 October  1968 on  freedom  of  movement  for  workers  within  the 
Community  as amended by Regulation n° 2434/92 of 27 July  1992. OJ n° L 245 of 26 August  1992. 

90  Cf.  Case  379/87  Groener  [19891  ECR. 3967.  It  should  be raoted that  in  those  Member  States  which 
recruit  public  sector  teachers  by  way  of  open  competition,  the  migrant  is  required  de  facto  to 
demonstrate  his or her  linguistic  ability.  In addition,  aptitude test or  adaptation  period  will take  place 
in the national  language. 

91  Cf.  Footnote 44 

32 

between  the  UK  and  Ireland92.  Due  to this  phenomenon  and  to  the  fact  that  many 
Member  States  were  late  in  adopting  the  implementing  rules  on  the  aptitude  test, 
only  about  340  lawyers took  the aptitude  test  in the period  concerned,  at  least  180 
in  the  UK  alone.  214  lawyers  managed  to  pass  the  aptitude  test.  There  are, 
however,  considerable  differences  as  to  the  pass  rate  in  the  Member  States,  as  is 
pointed out on page  11. 

The relatively  low number of lawyers having obtained recognition  can probably be 
explained,  to  some  extent,  by  the  right  granted  to  lawyers  by  the  national  law  of 
some Member States to practise under the title of the Member State of origin93 and, 
in part, by the fact  that  many  Member  States  were  late  in implementing  or, as  it is 
the  case  especially  for  Spain,  have  not  yet  implemented  the  directive  for  lawyers, 
but  it is likely  that  the mere requirement  that migrant  lawyers  sit an aptitude  test94 
has also acted as a disincentive. 

The need to further  facilitate  the free  movement of lawyers within the single market 
led the Commission  to make a proposal  for a new directive95 which is based on the 
idea  of  mutual  recognition  of  authorisations  to  exercise/licences  to  practise.  A 
lawyer  from  one  Member  State  would  be  entitled  to  exercise  in  another  Member 
State under his or her home title for  a period  of 5 years. According to the proposal, 
lawyers practising  under their home title would be entitled  to be granted  a full  or a 
partial  exemption  from  the aptitude  test on the basis of the professional  experience 
gained in the host Member State. 

AUDITORS/ACCOUNTANTS 

The  numbers  of  auditors  and  accountants  having  made  use  of  the  directive  is 
minimal  (50  on  the  basis  of  current  statistics).  Whilst  the  prospect  of  taking  an 
aptitude  test  is  no  doubt  a  factor,  it  has  also  been  suggested  that  multinational 
accountancy  firms  increasingly  recruit  their  personnel  locally  and  that  posting, 
within the undertaking, is usually  for  short  periods only. This would  not,  however, 
explain  the  failure  of sole practitioners  and those  in small  and  medium-sized  firms 
to make  use of the directive. The F.E.E. (the European  Federation  of  Accountants) 
is  currently  exploring  with  its  members  the  form  which  a  specific  directive  for 
accountants might take. 

92  At least 311 in the UK and 67 in IRE,  15 applicants from  B and LUX were accepted directly  in F. 

93  Albeit,  in some  cases, with a limited  field  of activity (advke  on home state  law, international  law  and 

Community law). 

94  Cf.  comments made above under Article  1(g). 

95  COM  94(572)  OJ  n°  C  128  of  24.05.1995.  Final  Proposal  for  a  European  Parliament  and  Council 
Directive  to  facilitate  practice  of  the  profession  of  lawyer  on  a  permanent  basis  in  a  Member  State 
other than that in which the qualification  was obtained. 

PUBLIC  SERVICE 

33 

i) 

the  recognition  of  diplomas 

The  twelfth  recital  of  Directive  89/48/EEC  provides  that  "the  general  system 
the 
for 
application  of Article  48(4)  and  Article  55  of  the Treaty".  The  application  of 
the  general  system  to posts  in the  public  service  falling  outside  these  articles 
and  therefore  open  to  non-nationals  has  given  rise  to  a  certain  number  of 
problems. 

is  entirely  without  prejudice 

to 

ii) 

In  attempting  to  resolve  those  problems  with  the  coordinators'  group,  the 
Commission's  services  have  identified  three  possible  situations. 

The  first,  and  simplest,  is where  national  regulations  apply  indistinctly  to  the 
public  and  private  sectors  i.e.  the  same  professional  qualification  is  required 
regardless  of  whether  the  professional  activity  is exercised  within  the  public 
service  or  in the private  sector.  Typically  this  is the case  of professions  in the 
health  sector.  The  regulations  governing  access  to  the  profession  are  distinct 
from  those  governing  access  to  a  post  in  the  public  sector.  One  set  of  rules 
regulates  access  to  the  profession  and  the  individual  then  has  to  decide 
whether  to  seek a post  in the public  or private  sector. 

the  application  of 

relatively 
In  such  cases, 
straightforward  (recognition  places  the  migrant  in  the  same  situation  as  the 
national  who  has  completed  professional 
training  but  has  yet  to  find 
employment). 

the  general 

system 

is 

iii) 

In  the  second  situation  different  rules  apply  respectively  to  the  public  and 
private  sector.  Either  both  the  public  sector  and  the  private  sector  are 
regulated  but  different  rules  apply,  the  requirements  in  the  private  sector 
being  in  general  less  strict,  or  the  profession  is regulated  in  the  public  sector 
but not  in the private  sector. 

Examples  of  this  form  of  regulation  include  teaching  (both  variants)  and 
certain  health  sector  professions  where  for  example  there  is  a  reservation  of 
activity  in  the  public  sector  to  those  holding  certain  qualifications  (often 
enforced  via  the  social  security  scheme)  and  either  a  simple  protection  of 
title or no  regulation  whatsoever  in the private  sector. 

This  situation  applies  to  recognisable  "professions"  i.e.  a  range  of  activities 
which,  even  if  unregulated,  exists  as  a  distinct  discipline  in  the  private 
sector. 

iv) 

Again,  in  principle,  this  form  of  regulation  presents  few  difficulties  for  the 
application  of the General  System. A migrant  is in accordance  with  Article  3, 
only  entitled  to  recognition  for  the  purpose  of  taking  up  and  pursuing  the 
profession  which  she/he  is  entitled  to  exercise  in his  or  her  Member  State  of 
origin.  A  migrant  who  satisfies  the  requirements  in  his  or  her  Member  State 
of  origin  for  exercise  in  the  private  sector  but  not  those  for  exercise  in  the 
public  sector  is  not  therefore  entitled 
to  rely  on  the  General  System 
directives  for  the  purpose  of  obtaining  access  to  the  public  sector  in  the  host 
Member  State.  (Nothing,  of  course,  prevents  the  authorities  of  the  host 

v) 

vi) 

vii) 

viii) 

34 

Member  State  from  taking  a  more  generous  approach  and  it  is  arguable  that 
they  are even  required  to do  so under the Vlassopoulou  caselaw). 

If  a  migrant  has  in  fact  worked  in  the  private  sector  in  his  or  her  Member 
State  of  origin  but  has  all  the  qualifications  necessary  for  practice  in  the 
public  sector,  she/he  is entitled  to  rely  on  Article  3  to  obtain  recognition  for 
the  purpose  of access to the public  sector. 

The  third  and  final  situation  concerns  activities  exercised  exclusively  in  the 
public  sector.  Essentially,  this  category  consists  of  posts  in  the  general 
administration  (administrators,  executive  officers,  assistants,  secretaries, 
clerks,  messengers,  etc.)  where  no  equivalent  "profession"  exists  in  the 
private  sector. 

For  such  posts,  some  Member  States  have  recruitment  procedures  which  are 
very  similar  to  those  applying  in  the  private  sector:  announcement  in  the 
press  with  an  indication  of  the  likely  education  profile  of  successful 
candidates.  In  such  circumstances,  no  requirement  is  made  with  respect  to 
candidates'  qualifications.  Such  procedures  should  be  sufficiently  flexible  to 
allow  applicants  from  other  Member  States  to  be  taken  into  account.  A 
breach  of  Article  48  would  only  occur  if it  were  established  that,  in  practice, 
candidates  with  non-national  diplomas  were  systematically  rejected  for  posts 
in the public  service. 

On  the  other  hand,  some  Member  States  (particularly,  but  not  exclusively, 
those  which  use  the  competitive  examination  as  a  means  of  recruitment)  lay 
down  more  formal  requirements  whether  by  law,  regulation  or  (more 
commonly)  administrative  provision.  In  some  instances,  the  qualification 
requirement  takes  the  form  of  a list  of  specified  diplomas,  in  others  a  certain 
level  of  education  is  required  (e.g.  a degree,  a  baccalaureate).  In  the  view  of 
the  Commission  the  activity  in question  is a  "regulated  professional  activity" 
within  the  meaning  of  Directive  89/48/EEC  and  the  recognition  mechanisms 
laid  down  in the directive  apply. 

It  is  true  that  Article  3  may  be  difficult  to  apply  to  this  type  of  regulated 
professional  activity  in  the  public  service.  Article  3  entitles  a  migrant  to 
recognition  for  the  purpose  of  taking  up  and  pursuing  the  same  activity  on 
that  which  they  are  qualified  to  pursue  in  their  Member  State  of  origin.  The 
problem  is  therefore  to  identify  the  "same"  activity  in  the  Member  State  of 
origin  since  the  categories  of  employment  in  the  public  service  do  not 
correspond  exactly  between  Member  States. There  is no  complete  solution  to 
this  problem  but  this  is  not  a  difficulty  which  is  peculiar  to  the  public 
service:  many  other  instances  exist  where  it  is  difficult  to  identify 
the 
"profession  in question"  for  the  purpose  of  Article  3. It  is  for  the  migrants  to 
establish,  if  necessary  with  the  assistance  of  the  authorities  of  the  Member 
the 
their  diploma  would  give 
State  of  origin, 
corresponding  activity  in the public  service  in that  State. 

them  access 

that 

to 

It  is  also  true,  that,  in  this  situation,  compensation  mechanisms  which  are 
in  the  duration  and/or  content  of  the 
based  on  substantial  difference 
education  and  training  are  difficult  to  apply,  particularly  in  the  context  of  an 
open  competitive  examination,  where  time  may  be  of  the  essence.  The  view 
of  the  Commission  is  that  where  a  general  requirement  is  made,  relating  to 

the  level  of  qualification,  it  will  be  difficult  to  establish  the  existence  of  a 
substantial  difference  and/or  that  any  missing  matters  are  essential  to  the 
exercise  of  the  activity  in  question.  In  any  event,  where  an  open  competitive 
examination  exists,  it  effectively  takes  the  place  of  any  other  compensation 
mechanism. 

v 

CONCLUSIONS 

legislation,  administrative 

Directive  89/48/EEC  embodies  the  subsidiarity  principle  but  it  demonstrates  that,  whilst 
respecting  this  principle,  Community  measures  can  bring  about  far-reaching  changes  in 
national 
structures  and  administrative  practice.  The 
implementation  of  the  directive  has  seen  the  incorporation  into  the  laws  of  the  Member 
States  of  rules  which  reflects  a new  and  fundamentally  différent  approach  to  professional 
recognition.  It  has  obliged  Member  States  to  create  new  administrative  structures  to  deal 
with  applications  for  recognition  and  to  provide  for  the  necessary  coordination  between 
the  different  competent  authorities  within  Member  States. 

The  directive  was  also  intended  to  bring  about  new  administrative  practices,  and  new 
ways  of  addressing  the  issue  of  recognition  for  professional  purposes.  Unfortunately,  as 
in  the  sphere  of  academic 
has  been  observed  above,  habits  of  mind,  developed 
recognition,  continue  to  prevail  in some  Member  States. 

The directive  has  also  brought  about  a changed  situation  for  would-be  migrants:  it  grants 
to  them  new  rights  and  new  remedies.  From  the  correspondence  received  by  the 
Commission,  it  appears  that  many  migrants  are  aware  of  the  existence  of  the  right  to 
recognition  but  are  all-informed  as  to  the  mechanics  of  the  general  system.  The  ratio  of 
complaints  received  by  the  Commission  to  the  number  of  appeals  reported  by  Member 
States  suggests  that  migrants  are  either  unaware  of  their  rights  of  appeal  or  reluctant  to 
exercise  those  rights. 

Finally,  the  directive  has  given  added  impetus  to  the  cooperation  between  national 
professional  organisations  at  European  level  and  there  have  been  many  initiatives  aiming 
at bringing  about  voluntary  convergence  of education  and  training. 

Changes  of  this  degree  and  nature  take  time  and  it  is  not  yet  possible  to  reach  any  final 
conclusions  as to the  functioning  of the  general  system. 

For  this  reason,  the  Commission  does  not  intend  at  present  to  propose  any  fundamental 
changes  to  Directive  89/48/EEC.  The  review  of  Directive  92/51/EEC,  the  second  general 
system  directive,  which  is  scheduled  to  take  place  in  1999  will  offer  an  opportunity  for  a 
review  of  the  system  as  a  whole.  However,  it  does  intend  to  examine  the  possibility  of 
proposing  certain  limited  amendments  to  the  directive  before  this  date.  In  addition  to  the 
proposals  contained  in  the  forthcoming  consolidation  directive,  the  Commission  will 
examine: 

the  possibility  of  incorporating  into  Directive  89/48/EEC  the  obligation  to take  into 
consideration,  when  examining  the  migrant's  application  for  recognition,  post-
diploma  experience; 

the  possibility  of  introducing  into  Directive  89/48/EEC  the  concept  of  "regulated 
education  and  training",  thereby  obviating  the  need  for  a  migrant  coming  from  a 
Member  State  which  does  not  regulate  the  profession  in  question  to  demonstrate 
two  years' professional  experience; 

ways  in  which  the  role  of  the  coordinators'  group  could  be  developed  in  order  to 
secure  a more  uniform  interpretation  and application  of the  directive. 

36 

In  addition,  the  Commission  will  continue  its  efforts,  first,  to  ensure  that  the  basic 
principle  of  the  directive,  enshrined  in  Article  3  (namely,  recognition  per  se  of  the 
migrant's  qualification)  is  respected  and  that  the  right  to  impose  the  compensation 
mechanisms  contained  in  Article  4  is  not  misused  and,  secondly,  to  make  migrants  fully 
aware  of their rights  under the  directive. 

The  Commission  remains  convinced  that  the  strong,  simple  idea  at  the  heart  of  the 
directive  remains  as valid  in  1995  as  it was  in  1988 and that  the  play  of  the  single  market 
and  the  increasing  use  of the  general  system  will  lead  to  an  improvement  before  the  1999 
report  to the  European  Parliament  and the  Council. 

il 

ISSN 0254-1475 

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