Report from the Commission to the Council and the European Parliament on the application of Directive 92/51/EEC in accordance with Article 18 of Directive 92/51/EEC
Date: 2000-02-03
Institutions: European Commission
Subjects: application of EU law, education policy, higher education, recognition of diplomas, student mobility

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 03.02.2000
COM(2000) 17 final

REPORT FROM THE COMMISSION
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

ON THE APPLICATION OF DIRECTIVE 92/51/EEC
IN ACCORDANCE WITH ARTICLE 18 OF DIRECTIVE 92/51/EEC

TABLE OF CONTENTS

I.

INTRODUCTION ............................................................................................... 5

II. SUMMARY ........................................................................................................ 5

III. BACKGROUND ................................................................................................. 7

IV. GENERAL FRAMEWORK ................................................................................ 8

A.

B.

Progress with implementation ....................................................................... 8

Application ................................................................................................... 8

1.

Introduction............................................................................................ 8

2. Reporting period 1995-96....................................................................... 9

3. Conclusion ........................................................................................... 11

4. Reporting period 1997-98..................................................................... 11

5. Conclusion ........................................................................................... 14

C.

Statistics...................................................................................................... 14

V. COMMENTS ON THE INDIVIDUAL ARTICLES .......................................... 15

VI. COMMENTS ON INDIVIDUAL PROFESSIONS ............................................ 33

A.

B.

C.

Public service.............................................................................................. 33

Teachers...................................................................................................... 35

Social professions ....................................................................................... 37

D. Health-related professions ........................................................................... 37

1. General considerations ......................................................................... 37

2. Limitations on the recognition of diplomas........................................... 38

a) Activities reserved for certain professions...................................... 38

b) Professions which may appear similar in two Member States but
have different fields of activity ...................................................... 38

c) Professions with different levels .................................................... 39

d) Limitations relating to the existence of other Directives (case of
specialist nurses) ........................................................................... 39

3. Problems encountered .......................................................................... 40

2

a) Non-implementation...................................................................... 40

b) Faulty application .......................................................................... 40

4. Conclusions.......................................................................................... 42

a)

Interdependence between Member States ...................................... 42

b) The special nature of health-care professionals .............................. 42

E.

F.

Transport professions .................................................................................. 43

Professions in the tourism sector ................................................................. 43

1. Couriers/tour escorts ............................................................................ 44

2. Tourist guides....................................................................................... 45

a)

Introduction................................................................................... 45

b) Tourist-guide case law................................................................... 45

c) Establishment and services ............................................................ 46

3. Delimitation of the fields of activity of couriers/tour escorts and tourist 46

4. Conclusions.......................................................................................... 47

G.

Sports professions ....................................................................................... 49

1. Free movement of workers and the freedom of establishment............... 49

2. Provision of services ............................................................................ 50

VII. THE COORDINATORS’ GROUP .................................................................... 50

A. Meetings and reports................................................................................... 50

B.

Code of Conduct approved by the Group of Co-ordinators for the General
System of recognition of diplomas. ............................................................. 52

C.

Administrative co-operation between Member States .................................. 53

VIII.LANGUAGE REQUIREMENTS ..................................................................... 54

IX. TEMPORARY PROVISION OF SERVICES .................................................... 55

X. CONCLUSIONS ............................................................................................... 60

ANNEX I............................................................................................................................. 62

I. OBSERVATIONS BY MEMBER STATES ...................................................... 62

A.

B.

Belgium ...................................................................................................... 62

Denmark ..................................................................................................... 62

3

1) Complicated regulations....................................................................... 62

2) The General System ............................................................................. 63

3) Specific comments ............................................................................... 63

a) France : sports instructor ............................................................... 63

b) Austria : ski instructors and mountain guides................................. 65

c) Professions in the sports sector ...................................................... 65

C) Netherlands................................................................................................. 65

D) Austria ........................................................................................................ 66

E)

F)

G)

H)

I)

Portugal ...................................................................................................... 66

United Kingdom.......................................................................................... 66

Finland........................................................................................................ 67

Liechtenstein............................................................................................... 67

Germany ..................................................................................................... 67

ANNEX II ........................................................................................................................... 68

4

I.

1.

2.

3.

4.

II.

5.

6.

1

2

3

4

INTRODUCTION

Council Directive 92/51/EEC1 was adopted in order to extend the General System for
the recognition of higher education and training of at least three years' duration, laid
down in Directive 89/48/EEC, to cover other levels of education and training.

The basic principles are the same2: a person fully qualified to exercise a profession in
one Member State is assumed to possess the necessary qualifications for exercising
the profession in another Member State. As with Directive 89/48, if training is not
co-ordinated3, compensatory measures may be required, with procedural guarantees,
if there are substantial differences between levels of training. However, the wider
variety of training courses covered makes the Directive more complex: there are, for
example,
three main levels of qualification, with bridges or “passerelles”, and
atypical training compared with the initial system has had to be included.

Article 18 of the Directive provides for a progress report
application five years after the implementation deadline4.

to be made on its

The present report describes the context in which the Directive was drawn up before
turning to its implementation and the statistics on its application. The individual
Articles are then examined, as is the experience gained in applying the Directive to
the main groups of professions concerned. The work of the Co-ordinators’ Group
responsible for implementing the Directive is summarised. Next, two important
questions on language requirements and the provision of services are dealt with. The
conclusions also attempt to identify some policy guidelines for the future.

SUMMARY

The adoption of Directive 92/51/EEC initiated the opening of a major new phase in
the operation of the General System. The Directive extended the application of the
General System into a large new area covering a multitude of very different
professions. The range of professions covered,
the variations in the relevant
education and training underlying these professions in the Member States and the
system of "passerelle" between this directive and the First General System directive
all presented major new challenges to the application of mutual recognition by the
Member States in the field of the recognition of professional qualifications.

Considerable delays followed in many Member States in the implementation of the
Directive. Some of these delays were so extensive and so prolonged as to have
deprived the Directive of any real effect across the full range of the professions
covered for a whole Member State for several years.

L209 of 24th July 1992 p.25
The complementary General System is “based on the same principles” and contains “mutatis mutandis
the same rules as the initial General System” (recital 5 of the Directive).
“for those professions for the pursuit of which the Community has not laid down the necessary
minimum level of qualification, Member States reserve the option of fixing such a level with a view to
guaranteeing the quality of services provided in their territory” (recital 2).
18th June 1994.

5

7.

8.

9.

10.

5

Others have been more sporadic and specific, often following a more profession-by-
profession implementation process, but which when taken collectively have
produced significant and widespread delays in application. However, most of these
problems are now resolved and the outlook for a more comprehensive and effective
application of the Directive looks more positive.

Statistics are beginning to become available showing the degree of movement taking
place and for which professions it is most concentrated, such as in the field of sea
transport and health-related professions. More widely, the teaching and engineering
professions are migrating the most under the General System as a whole. A major
further step forward will be taken when the Third General System Directive -
Directive 99/42/EEC5 - has been implemented in 2001.

Experience of the operation of the Directive has helped to clarify some important
points. For example, there remains the legislative vacuum filled by the rules of the
Treaty as interpreted by the Court of Justice for those cases which are neither
covered by a sectoral directive nor the General System, such as the specialist nurse
seeking recognition in a Member State only offering the qualification of general care
nurse. There remain some difficulties over recognition under the "passerelles"
provisions of the Directive requiring Member States applying Directive 89/48 level
qualifications to recognise other Member States' 92/51 level qualifications. Further
clarifications are also expected soon from the Court of Justice on language
requirements and further work has been done by the Commission on medical
certificates.

Some controversy still surrounds the application of Article 14 allowing for
exemptions from the principle that
the migrant has the choice of the type of
compensation measure to be applied in cases of the existence of substantial
differences between his qualification and that required in the Member State to which
he is moving. There have still been few such applications and mostly only temporary
exemptions have been granted so far. The most controversial case involves ski
instructor recognition and further attention will be devoted to this area over the
coming months. In recent months, permanent exemptions have been granted on a
request from France concerning high mountain guides and potholing instructors.
Temporary exemptions, lasting up to 31 July 2000, have been granted to Austria and
France for various ski instruction professions as well as underwater diving and
parachuting. The issue of ski instructor recognition is being further examined in a
series of ad hoc meetings designed to facilitate the exchange of information, the
clarification of views and the development of wide-ranging agreement on the
conditions for free movement. In the light of experience so far, more time may be
required to ensure the full examination of, and consultation on, future requests for
exemptions.

In addition, the procedure for the up-dating of the Directive has been criticised as too
time-consuming and work-intensive and, despite the evident difficulty of the issue,
solutions need to be examined with a view to simplifying the process.

European Parliament and Council Directive 99/42/EEC establishing a mechanism for the recognition of
qualifications in respect of the professional activities covered by the Directives on liberalisation and
transitional measures and supplementing the General Systems for the recognition of qualifications,
Official Journal L 201, 31 July 1999.

6

11.

12.

13.

III.

14.

The application of Directive 92/51/EEC has also had some impact on the tourist
industry with much discussion and some legal proceedings relating to local
qualification and registration requirements for both guides and tour managers. As a
result of developments in this and related areas, as well as the new proposal for a
directive on electronic commerce, further reflections have been undertaken on the
need for greater legal clarity, certainty and rules proportionate to modern market
needs concerning the cross-frontier provision of services as opposed to local
establishment.

The application of the General System directives has also led to the examination of
some discrete issues such as the role of Community law in relation to public service
recruitment, including for the exercise of specific professions in the public service,
general recruitment on the basis of a certain level of qualification and the use of
competitions.

The work of the Co-ordinators' Group has been extended to embrace Directive
92/51/EEC and the valuable work of this Group has continued and grown in
importance, in particular with the adoption of the Code of Conduct approved by the
Group of Co-ordinators for the General System of recognition of diplomas on
administrative practice in the implementation of the General System. Under the
broad ambit of the wider work of the Commission recently on the subject of mutual
recognition generally, the Group is currently considering the possible enhancement
of the role of Co-ordinators in the exchange of information and views to assist in the
taking of decisions on mutual recognition.

BACKGROUND

The first Directive on the General System (89/48) covered only courses lasting three
years or more, at a university or higher education establishment. It thus became clear
that the system needed balancing with a Directive covering shorter courses and those
at other levels.

15.

The Commission's initial proposal, presented on 8 August 1989, thus covered two
levels of training :

• secondary or occupational experience (certificate), and

• short, post-secondary training (diploma).

16.

17.

18.

This proposal allowed for recognition within each level, between levels 2 and 3 (i.e.
Directive 89/48-level qualification of at least three years and short post-secondary
training diploma), and between levels 1 and 2 (i.e. the certificate and the “short post-
secondary” diploma).

Provision for recognition of experience was also made within level 1 (certificate).

The amended proposal, presented on 8 August 1990, took over the substance of the
amendments adopted by Parliament on 17 May 1990. The main changes were as
follows: the diploma was extended to courses whose effective level was comparable
to that of corresponding short higher education courses, even though they were not
regarded as higher education in the Member State of origin. For the certificate, it was

7

19.

20.

IV.

A.

21.

B.

1.

22.

made clear that courses could alternate between a vocational establishment and an
enterprise.

In addition, an upper limit was set on diploma equivalences between levels 2 and 3,
when in the host country the course exceeded four years' duration, in order to avoid
distortions in the system's application. Another amendment was to include a choice
between test and work experience within the certificate level.

Two further notions emerged during the Council stage: a certificate of competence,
covering very short courses for which the recognition and compensation mechanisms
put in place for diplomas and certificates would have been too cumbersome, and
regulated training which, by giving exemption from the two years' professional
experience which would normally be required in an unregulated profession, created a
better balance between Member States where professions are regulated and those
where regulation is generally limited to training courses6.

Since the common position of the Council reflected the opinion of Parliament, the
latter decided7 not to submit any amendments on the second reading. The Directive
was consequently approved on 18 June 1992.

GENERAL FRAMEWORK

Progress with implementation

The Directive, due to be implemented by 18th June 1994, has now been transposed in
all Member States8. In some it was transposed later than the two year deadline laid
down in Article 16, which reduces the experience gained in applying it. Spain was
approximately one year late, Ireland two years, Portugal and the United Kingdom
two and a half years, Belgium three years and Greece four years late. The
Commission therefore initiated and pursued infringement procedures.

Application

Introduction

In accordance with Article 18 of Directive 92/51/EEC, Member States are obliged to
send the Commission statistics on the numbers of EU diplomas recognised for a 2
year reporting period together with a written report highlighting the main questions
and problems arising with implementation of the Directive. The analysis below
concerns the operation of Directive 92/51/EEC for the period 1995-98 inclusive and
has not been made preceding this date given the little amount of information
available at that time. This analysis also includes data from the European Economic
Area (EEA) countries9 given the amendments to the EEA agreement which have
incorporated the directives in this field.

6

7

8

9

According to the Commission's explanations in its Communication of 5 March 1992 to Parliament on
the common position of the Council.
Doc. PE 200.275
This is without prejudice to transposition on a profession-by-profession basis
Iceland did not recognise any diplomas falling under Directive 92/51/EEC.

8

Reporting period 1995-96

For the most part, the information given in this section of the report has been
obtained from the northern Member States (Denmark, Germany, Austria,
the
Netherlands, Sweden, Finland and the United Kingdom) and from Italy. Of the EEA
states, only Liechtenstein provided statistics.

For various reasons, the southern Member States did not supply information to the
Commission (recent or continuing implementation – Portugal, Spain, Greece; few
information not available – Ireland, Luxembourg; no
migrations – France;
applications – Belgium). An overview of the figures available confirms the nature of
the free movement occurring mainly between and amongst northern Member States
and Italy.

Main professions for which free movement occurs under the Directive

Physiotherapists (moving to Germany)

Seafaring professionals (moving to Denmark, Sweden, United Kingdom and
Germany)

Specialist Nurses (moving to both Austria and Germany)

Childcare workers (moving to Austria)

Masseurs (moving to Italy)

Radiographers (moving to Italy)

2.

23.

24.

25.

26.

Principal
States
recognise diplomas

Germany 767

Austria 164

United Kingdom 106

Denmark 76

Italy 25

Sweden 21

Liechtenstein 8

Netherlands 7

Finland 4

which

States from which they come

Netherlands, UK

Germany

Netherlands

Sweden

Germany

Denmark, Norway, Finland and
Iceland

Germany

Belgium

Insufficient
conclusions

data

to

draw

9

Germany is by far the highest importer of diplomas (767) and such diplomas are
mainly Dutch (288 physiotherapy diplomas and 102 seafaring diplomas) and British
(52/64 British diplomas were in the field of seafaring). The Dutch, for their part,
were called upon to recognise hardly any diplomas at all (7). Austria, at substantially
less than Germany, recognised 164 foreign diplomas, most of them German in the
field of childcare and specialist nursing Kindergärtner/in and Pflegehelfer. The UK
was next, recognising mainly Dutch seafaring diplomas.

Denmark, a higher importer than exporter, recognised mainly Swedish diplomas also
n the field of seafaring rating (matros, motormand and skibassistent) whilst the
Swedish import market (21) comes from the Nordic countries (Denmark mainly,
followed by Norway, Finland and Iceland), also in the seafaring sector.

The Dutch and Finns have been called upon to grant many fewer recognition requests
than their neighbours partly because they regulate fewer activities.

27.

28.

29.

Principal States which export
their diplomas

To :

Netherlands 574

United Kingdom, Germany

Germany 171

Sweden 78

United Kingdom 64

Austria 55

Denmark 29

Finland 29

Italy 20

Liechtenstein 1

Austria

Denmark

Germany

Germany

Germany

Germany

Germany

Germany

30.

The highest exporter of diplomas under the second Directive is the Netherlands at
574 and these diplomas are recognised mainly by the United Kingdom and Germany.
The latter is both the highest importer and the second highest exporter (171) and
German diplomas are mainly recognised in Austria. Swedish diplomas are mainly
recognised in the seafaring sector by Denmark. The United Kingdom (64) exports
mainly to Germany in the seafaring sector; Austria (55) exports mainly
physiotherapists to Germany and Denmark (29) exports mainly to Germany.

31.

These absolute figures should, of course, be viewed in the context of the national
populations of such professions.

10

3.

32.

33.

4.

34.

35.

36.

37.

Conclusion

The seafaring sector benefits from two-way cross-border traffic. Professionals move
from the Netherlands, Sweden and the United Kingdom to Denmark, Sweden, the
United Kingdom and Germany.

Childcare professionals and specialist nurses tend to move in one direction: from
Germany to Austria. So do physiotherapists, who move mainly from the Netherlands
to Germany. Smaller numbers of masseurs and radiographers have moved to Italy.

Reporting period 1997-98

It became evident that for the above period, the main sectors where free movement
occurs under this directive are health-related professions and maritime transport
(seafaring). Norway (EEA country) welcomed by far the highest number of EU
migrants mainly from Northern Europe (Sweden and the UK) and most of the
qualifications recognised were as Marine Engineering Officers or Deck Officers.
Notably, free movement is also very high amongst specialist nurses in Austria, Spain,
Germany, France, Luxembourg and UK.

Complete data was received from all EU including EEA Member States except
Greece .

Main professions for which free movement occurs under the Directive

Seafaring professionals (moving to Norway, Germany, Denmark, Sweden and
UK)

Physiotherapists (moving to Germany)

Specialist Nurses (moving to Austria, Spain, Germany, France, Luxembourg
and UK)

Opticians (moving to France)

Engineer Technicians (moving to UK)

Dental hygienists (moving to UK) and Dental Technicians (moving to
Portugal)

Masseurs (moving to Italy)

Aircraft Maintenance Engineers (moving to Ireland)

Childcare workers (moving to Austria and Italy)

Member States which recognise
diplomas

Member
which they come

States

from

Norway 1535

Germany 822

Sweden, UK, Greece

Netherlands,
Belgium

UK

and

11

Luxembourg 283

Spain 229

UK 173

Austria 91

Denmark 61

Italy 44

France 37

Ireland 36

Sweden 31

France, Germany
Austria

and

Germany, UK and France

Ireland, Netherlands and
Finland

Germany

Germany and Sweden

Germany

Belgium

UK

Finland

Netherlands 26

Germany and Belgium

Portugal 20

Finland 20

Liechtenstein 10

France and Spain

Sweden

Austria

Belgium 7

Netherlands

38.

Member States which export
their diplomas

To :

Sweden 701

UK 580

Netherlands 574

Germany 307

France 277

Norway (620), Denmark (30),
Finland (15) and UK (13)

Norway (460), Germany (54)
and Spain (32) and Ireland
(21)

Germany (504), UK (36) and
Spain (12)

Spain (75)
, Austria (68),
Luxembourg (37), Italy (32),
Norway (34) and Denmark
(27)

Luxembourg
(38) Germany (10)

(206),

Spain

12

Denmark 142

Spain 136

Austria 131

Belgium 124

Greece 111

Finland 101

Ireland 89

Iceland 52

Italy 47

Portugal 28

Luxembourg 14

Norway 7

Liechtenstein 4

Norway (86), Germany (27)
and Spain (18)

Norway (98), Germany (14),
UK (11)

Norway (51), Germany (42)
and Luxembourg (24)

Germany (53), France (35),
Luxembourg (11) and Spain
(10)

Norway (93), Germany (7)

Norway (35), Sweden (22),
UK (22)

UK (77) Norway (18)

Germany (35) Norway (16)

Spain (22) Germany (13)

Germany (12) Norway (8)

Germany (13)

Germany

Germany

39.

40.

Excluding Greece, for the above reporting period there were some 3,425 cases of
recognition. In total for 1995-98 inclusive, there were 4,603 cases of recognition
under this “second” General System directive alone. The reporting period for 1997-
98 shows a net increase (almost 3 times) in the numbers of cases of recognition.
Many of the qualifications recognised were Diplomas falling under the definition of
Annex C, Certificates or Attestations of Competence.

The comparatively high number of diplomas recognised by the Nordic countries can
be explained by the common interest that all have in seafaring. The profession of
Physiotherapist is most probably the profession which moves most under the General
System as a whole; this explains the high number of recognition requests granted by
Germany under Directive 92/51/EEC which is the only Member State to regulate it
under the latter Directive.

The high number of specialist nurses moving between Austria, Spain, Germany,
France, Luxembourg and the UK and child-care workers moving to Austria and Italy
is explained by the fact that a lot of specialist nurses and child-care workers exist in
these countries. The statistics from France produce the new element of the migration
of opticians. The Commission is examining in detail the regulation of professions in
the IT sector which should lead to an explanation as to why the UK has recognised

13

5.

41.

C.

42.

43.

44.

45.

so many Engineering Technicians. The quantity of Dental Hygienists moving to the
UK also will be the subject of further examination.

Conclusion

An overview of the various independent or combined reasons for migration appear to
be : the existence of professionals in the same category in one or more Member
States and an equivalent corresponding level of qualification under the Directive -
Diploma, Certificate, Attestation of Competence, etc - (e.g. specialist nurses moving
between Austria, Spain, Germany, France, Luxembourg and the UK) : the high
quantity of seafaring professionals existing in Sweden, UK, Greece and Norway, a
possible explanation for the high number of seafarers moving from these countries
mainly to Norway : and both geographical proximity and cultural similarity (e.g.
Dutch physiotherapists,
licensed boat masters and speech therapists moving to
Germany : British Aircraft Maintenance Engineers moving to Ireland : Belgian
dispensing opticians moving to France : and French and Spanish Dental Technicians
moving to Portugal).

Statistics

This section includes some additional statistical information concerning recognition
decisions granted under the whole of the General System.

All inclusive, from 1993-98 the total number of recognition requests granted under
both General System Directives was 23,224. An analysis of the period 1993-96
showed that of the 12,59510 requests granted, compensation measures were applied in
1,954 cases, or 15.5%. Of this 15.5%, 63% were adaptation periods and 37% aptitude
tests. If we break down the 15.5%, the relative percentages are as follows: aptitude
tests were used in 5.6% of all cases of recognition granted under the General System
and adaptation periods in 9.8% of such cases. On the other hand, some 1,781
negative decisions were also taken, which amounts to a 12% failure rate, at least on
first attempt. Some 7.13% of those refused recognition had undergone compensation
measures of which some 95% were aptitude tests. In other words, 6.7% of negative
decisions happened after the migrant had undergone an aptitude test and 0.3% after
the adaptation period 14.47% of all recognition decisions taken, positive and
negative, were the result of the application of compensation measures.

information so far available on the application of

It is not necessarily possible or appropriate to try to draw specific conclusions from
the acquis
the statistical
communautaire in the area of the General System on the recognition of professional
qualifications. The information and analysis provided in this report may be found
useful for the purposes of further reflection and discussion on the operation of the
acquis. Nevertheless, it may be possible to conclude in very general terms that the
statistics so far available tend to confirm what could be expected from the nature of
the different kinds of Community legislation applied in this area.

Volumes of migration may not be critical to an evaluation of the General System
directives either; partly because they have been in application for a shorter period
and so understanding of their availability and application may still be growing.
Individuals, in whatever professional walk of life can justifiably expect support from

10

This is the most complete figure available.

14

V.

46.

47.

48.

Community law for the facilitation of migration within the European Union.
However, high levels of existing migration can also already be taken to show the
very success of the General System directives.

COMMENTS ON THE INDIVIDUAL ARTICLES

Directive 92/51/EEC refers to the former Articles 49 (now renumbered 40), 57(1)
(now 47(1)) and 66 (now 55) of the Treaty, following the Amsterdam amendments. It
therefore applies to employees, establishment and the provision of services.

The preamble explains the main provisions of the Directive. The main recitals are
quoted in this report in conjunction with the provisions to which they refer.

The definitions used in the Directive are set out in Article 1. Article 2 explains its
scope, particularly where this differs from that of other Directives. Next come the
principal mechanisms for recognition on the basis of the level of training required in
the host Member State: the Diploma (Articles 3 to 5) or the Certificate (Articles 6
and 7), including the compensatory measures which may be demanded in the event
of substantial differences between training levels (Articles 4, 5 and 7). Articles 8 and
training. Horizontal
9 provide for simplified mechanisms for other
provisions cover the recognition of proofs of good character, repute etc. (Article 10),
the use of professional qualifications and titles (Article 11) and guaranteed
procedures for applying for recognition (Article 12). The co-ordinating group set up
by the first Directive on the General System is made responsible for this Directive
(Article 13). Article 14 provides for an exemption procedure from the choice
between an adaptation period and an aptitude test, and Article 15 for a procedure for
amending Annexes C and D. The remaining Articles refer to with the reports to be
provided by the Member States (Article 16) and by the Commission (Article 18) and
the implementation of the Directive (Article 17).

types of

A. ARTICLE 1

49.

Article 1 defines a number of concepts essential to proper understanding of the
Directive.

ARTICLE 1(a)

50.

51.

52.

This provision defines the Diploma as the result of a post-secondary course lasting at
least a year (but less than the three years required for a diploma as defined in
Directive 89/48). The course is deemed to be higher education by virtue of requiring
the same admission qualifications as a university or higher education course. Article
1(a) also includes in the definition any education or training course listed in Annex C
(see comments on Article 15).

As in Directive 89/48,
authority, and it must show that
required to take up or pursue a regulated profession in that Member State.

the Diploma must have been awarded by a competent
the holder has the professional qualifications

Like the corresponding text of Directive 89/48, it covers third-country diplomas
under certain conditions, and includes those issued in recognition of courses outside

15

53.

54.

55.

56.

57.

the Community at teaching establishments which provide education and training in
accordance with the law, regulations or administrative provisions of a Member State.

Also like Directive 89/48, the Directive recognises alternative education and training,
provided that it is recognised by a competent authority in the same Member State as
being of equivalent level and confers the same rights to take up or pursue a regulated
profession. Such alternative paths may be courses parallel to the main training course
or to former courses.

ARTICLE 1(b)

The Certificate covers post-secondary professional
training which may be either technical or professional.

training and secondary-level

This post-secondary training may take the form of a formal course, or on-the-job or
is compulsory if the secondary
in-service training, or a probationary period. It
education is general, but optional for the purposes of the certificate if the secondary
education is technical or vocational. The training may be in a teaching establishment
or in an enterprise, or alternately in both.

Like the Diploma, the Certificate must be awarded by a competent authority, and
must entitle the holder to take up or pursue an activity which is regulated in the
Member State concerned.

If a Member State recognises training acquired in a country outside the European
Economic Area which was not provided in an establishment teaching in accordance
with that Member State's rules, two years' professional experience are required in the
Member State before the General System can be invoked to give rights of recognition
in other Member States (as against three years for diplomas).

58.

Alternative training is recognised in the same way as diplomas.

ARTICLE 1(c)

59.

60.

This paragraph defines the attestation of competence as certifying training which
gives rise neither to a diploma under either Directive, nor to a certificate. It is thus a
very short course. An attestation can also be awarded following an authority's
assessment of an applicant's personal qualities, aptitudes or knowledge, without
proof of any prior education or training.

During the adoption of the Directive, the Commission undertook to pay particular
attention, when conducting the review of the functioning of the Directive as foreseen
in its Article 18 and in the light of any problems which might have arisen in practice,
to the fact that “an attestation of competence” was less substantial than a certificate
given the concern expressed regarding the distinction between the two concepts. The
Commission is not, however, to this date aware of any particular problems arising.

16

61.

62.

63.

64.

65.

66.

67.

68.

ARTICLE 1(g)

In some Member States there are relatively few regulated professions, but training
for professions which are not regulated may be specifically geared to the pursuit of
that profession, with the structure and level of training being monitored or approved
by the authorities.

This regulated training gives guarantees equivalent to those provided in connection
with a regulated profession, and the migrant is thus not required to demonstrate
professional experience when the activity is not regulated in the Member State of
origin (see Articles 3, 5 and 6).

Annex D (see below) lists regulated training deemed equivalent
diploma. Other regulated training, e.g. of certificate level, is possible.

in level to the

ARTICLE 1(d), (e), (f), (h), (i) and (j)

The definitions of host Member State, regulated profession, regulated professional
activity, professional experience, adaptation period and aptitude test are substantially
those of Directive 89/48. No list of regulated professional activities is annexed,
however, since many more activities are involved than with Directive 89/48.

No particular comments are needed on these definitions compared with those of
Directive 89/4811.

B. ARTICLE 2 (and Annexes A and B)

Article 2 begins by stating that the Directive applies to any national of a Member
State wishing to pursue a profession in a self-employed capacity or as an employee.

According to the second paragraph of Article 2, the Directive does not cover
professions which are the subject of a specific Directive establishing arrangements
for the mutual recognition of diplomas by Member States, i.e. nurses, doctors,
midwives, pharmacists, veterinary surgeons, dentists and architects, and professions
in the transport sector (cf. Section VI E "Transport"), nor does it apply to activities
covered by a Directive listed in Annex A concerning transitional measures, freedom
of establishment and freedom to provide services.

Following this second exclusion,
the Commission suggested a mechanism for
recognising the diplomas for professions in its proposal for a third Directive on the
General System, which was approved by the European Parliament (second reading)
on 7 May 1999 and by the Council on 11th May 1999. This Directive, signed on 7
June, is to be implemented within two years of its publication in the Official Journal
before 31st July 2001. The mechanism is similar to the General System, but differs in
two respects. First, it is simpler, particularly because there is only one level of
training;
the professions covered show fewer differences in terms of training.
Secondly, the choice between aptitude test and adaptation period, where there is a

11

Document COM(96) 46 final, 15 February 1996. If a profession is not regulated under Directives
89/48/EEC and 92/51/EEC, the host Member State still has Treaty obligations in the field of the
recognition of professional qualifications (cf. Bobadilla case law n° 234/97of 8.7.1999).

17

substantial difference between training courses, falls to the host Member State if the
migrant wishes, in a self-employed capacity or as a manager of an undertaking, to
exercise an activity requiring the knowledge and application of national rules. This
second difference stems from the agreement finally reached by Parliament and the
Council under the conciliation procedure provided for in Article 189b (now 251) of
the EC Treaty.

The third paragraph of Annex B extends certain Directives mentioned above to
employed persons.

This extension fills a gap which did not exist in the other Directives on mutual
recognition, since the first Directives dealt only with establishment and provision of
services as part of the Council's general programmes for eliminating restrictions on
the freedom of establishment and the freedom to provide services. The subsequent
Directives included the pursuit as an employed person of the activities in question.

As far as the Commission is aware, the application of these Directives to employed
persons, even in a capacity other than that of manager of an undertaking, has not
given rise to any particular problems.

C. ARTICLE 3

This Article lays down the principles of recognition when the host Member State
requires the possession of a diploma as defined in either Directive 92/51/EEC or
Directive 89/48/EEC.

The difference between the diplomas of the two Directives lies in the level of the
training. In principle, the newer Directive's definition embraces university training of
at least one year (but less than three).

There are several approaches, depending on whether the profession is regulated in
the Member State of origin and, if not, whether the training is regulated.

(a) If the profession is regulated in the Member State of origin and the applicant
holds a diploma of either type (89/48/EEC or 92/51/EEC), the diploma should in
principle be recognised by the host Member State (with any necessary compensatory
measures — see Article 4).

(b) If the profession is not regulated in the Member State of origin but the applicant
nevertheless holds one or more training qualifications12 at the 92/51/EEC diploma
level, this qualification must as a matter of principle be recognised by the host
Member State, provided that the holder has exercised the profession concerned for at
least two of the preceding ten years, without prejudice to any compensatory measures
(see Article 4).

The two years’ experience cannot be required, however, if the training is regulated in
the Member State of origin. Regulated education and training are defined in Article
1, which requires them to be specifically geared to the pursuit of a given profession

If the training is parallel to a normal or former training course, it may be recognised on the same basis
as normal training if the conditions set out in the penultimate paragraph of this Article are met.

18

69.

70.

71.

72.

73.

74.

75.

76.

77.

12

78.

79.

80.

81.

82.

13

and for their structure and level to be determined by the laws, regulations or
administrative provisions of the Member State concerned.

The guarantee offered by the legislation of the Member State of origin to the host
Member State is replaced, as it were, by a minimum degree of experience of the
profession or by the official status of the training obtained.

There is no recognition mechanism for Directive 92/51 diplomas when access to the
profession in question is contingent on holding a Directive 89/48 diploma, one of the
conditions for the award of which is success in a course of post-secondary studies
lasting more than four years. The gap between the two types of training would then
be more than three years. In this case the migrant may invoke the “Vlassopoulou”13
case law to obtain recognition of her or his qualifications.

D. ARTICLE 4

Article 4 provides for measures which may be imposed on the migrant to compensate
for any shortfall in her or his training compared with that required in the host
Member State under Article 3. Three measures are provided for according to the type
of serious shortfall: (a) if it concerns the duration of training, the compensatory
measure is professional experience; (b) if it concerns the content and possibly the
scope of the training, the compensatory measure is the adaptation period or the
aptitude test.

Professional experience may be required if the duration of the migrant's

(a)
training was a year or more less than that required in the host Member State.

The experience which the migrant must prove must not be more than twice the
shortfall in training time. In certain cases where the shortfall in training time in fact
corresponds to professional practice, the host Member State's requirement must not
exceed the equivalent time. In no case may the period exceed four years. Moreover,
if the host Member State requires a diploma awarded on the basis of one of the
training courses listed in Annex C, it is not entitled to require an applicant with an
89/48 or 92/51 diploma to have experience, since the training courses listed in Annex
C have very specific durations which are difficult to compare with those of the
diplomas “proper” covered by these two Directives, even though they are equivalent
to 92/51 diplomas.

In the judgement handed down in Case C-340/89, the Court of Justice derives from Article 52 (now 43)
of the EC Treaty on freedom of establishment the obligation for the host Member State to “take into
consideration the diplomas, certificates and other evidence of qualifications which the person
concerned has acquired in order to exercise the same profession in another Member State by making a
comparison between the specialised knowledge and abilities certified by those diplomas and the
knowledge and qualifications required by the national rules” (point 16). Only if the diplomas
correspond no more than partially is the Member State in question entitled to require the person
concerned to show that he/she has acquired the knowledge and qualifications which are lacking (point
19). It must also take into consideration the professional experience acquired in the Member State of
origin or in the host Member State (point 21). The examination procedure must be accompanied by
guarantees: any decision taken must be capable of being made the subject of judicial proceedings in
which its legality under Community law can be reviewed and the person concerned must be able to
ascertain the reasons for the decision taken in his/her regard (point 22). This judgement was followed
by consistent case-law which has embraced salaried practice (cf. the judgement in Case 234/97,
“Bobadilla”).

19

83.

84.

85.

86.

87.

88.

89.

90.

91.

92.

14

(b) An adaptation period or aptitude test may be required if:

the training received by the migrant was substantially different from the training
required in the host Member State or

the regulated profession in the host Member State comprises one or more regulated
professional activities which do not exist in the regulated profession in the Member
State of origin which are subject to specific training which is not substantially
covered by that of the migrant.

The Directive limits the adaptation period to not more than three years.

The applicant may choose between the adaptation period and the aptitude test. The
choice falls to the national authorities in three cases only:

• when practice of the profession concerned requires “a precise knowledge of
national law”, and the provision of advice and/or assistance concerning national
law is an “essential and constant” feature of the professional activity;

• when the host Member State has obtained an exemption under Article 14 on the

migrant's right to choose (see below);

• when the host Member State requires a diploma in respect of a three-year course

and the migrant has only a diploma in respect of a one-year course or less14.

The adaptation period and the aptitude test are defined in Article 1(i) and (j).

Only one of these three compensatory measures may be demanded of the migrant
(Article 4(2).

E. ARTICLE 5

Article 5 considers the case where the host Member State requires a Directive 92/51
diploma, whereas the applicant has only a certificate.

Here, the host Member State must recognise the certificate prescribed in another
Member State for entry to a regulated profession. It may, however, require the
migrant to undergo an adaptation period of not more than three years or to take an
aptitude test. This requirement is not subject to proof of a shortfall between the
migrant’s training and that required of nationals; such a shortfall is assumed by virtue
of the difference in level between the diploma required and the certificate held. The
migrant may choose between the two compensatory measures unless an exemption
has been granted according to the procedure laid down in Article 14.

If the profession is not regulated in the Member State of origin but the applicant
holds one or more qualifications of certificate level, his/her training must as a matter
of principle be recognised by the host Member State, provided that the applicant has
exercised the profession for at least two of the preceding ten years. The host Member

There is no recognition procedure when the migrant has this qualification and the host Member State
requires a level exceeding four years of higher education. The Vlassopoulou case law applies in this
event.

20

State is not entitled to require the two years’ experience if the training is regulated in
the Member State of origin. Regulated training is defined in Article 1(g).

93.

All this is without prejudice to any compensatory measures taken under the terms set
out above.

F. ARTICLE 6

94.

95.

Article 6 lays down the principle of recognition when the host Member State requires
a certificate before a profession may be pursued.

Access to a regulated profession cannot be refused on the grounds of lack of
qualifications if:

96.

(a)

the applicant holds either the diploma or the certificate prescribed by another
Member State for access to this profession;

97.

(b)

unless the profession is regulated in the Member State of origin, the applicant
has had two years of professional experience during the preceding ten years,
and holds one or more training qualifications15 of diploma or certificate level.
Such experience cannot be required if the training is regulated;

98.

(c)

the applicant holds no diploma, certificate or other evidence of education and
training but has exercised the profession for three consecutive years of the
preceding ten-year period. This mechanism gives a migrant who has been
unable to find training suited to his or her situation access to a regulated
profession at certificate level on the strength of professional experience. One
example might be a pruner who has gained expertise while working in the
sector.

G. ARTICLE 7

99.

Article 7 sets out
compensatory measures when it requires a certificate for the pursuit of a profession.

the cases in which the host Member State may impose

100.

It distinguishes between two hypothetical cases:

101.

(a)

the migrant holds a diploma, certificate or other evidence of education and
training16:

102.

103.

-

-

the Member State must show that there is a substantial difference between
training courses or differences in the fields of activity characterised by specific
education and training relating to matters which are substantially different,

the migrant

but
is entitled to choose between an adaptation period (not
exceeding two years) and an aptitude test (unless the Member State obtains an
exemption under Article 14);

15

16

If the training is parallel to normal or former training, it may be recognised as equivalent to normal
training if the conditions laid down in the last indent of this Article are met.
Cases covered by Article 6(a) and (b).

21

104.

(b)

the migrant does not hold any diploma, certificate or other evidence of
education and training17:

105.

106.

-

-

the Member State need not show that there are differences as outlined above
(since the absence of qualifications suggests that there are such differences),

and the Member State is entitled to choose between an adaptation period (not
exceeding two years) and an aptitude test (without having to obtain an
exemption under Article 14).

107.

108.

109.

H. ARTICLE 8

the Directive's principal

Since the attestation of competence covers very short courses or an appreciation of
personal qualities, aptitudes, or knowledge without proof of prior education and
training (see definition in Article 1(c)),
recognition
mechanism would be too cumbersome. If the host Member State requires an
attestation of competence, it must recognise, without proof of qualifications, the
attestation of competence required in another Member State for the taking up or
pursuit of the same profession. Failing this, it must accept the qualifications of which
the applicant provides proof, if they give guarantees, particularly in the matter of
health, safety, environmental protection and consumer protection, equivalent to those
it requires. These qualifications may also be personal qualities, knowledge or
aptitudes obtained outside a training course.

In short, the attestation of competence exists for two purposes: as evidence of a very
short course not connected with the preceding secondary education or, in the case of
certain activities which nevertheless require some specific knowledge, of an
examination at a modest level.

There is thus no question of compensatory mechanisms. The Directive allows only
two outcomes: recognition if the conditions set out in the Directive are met, or non-
recognition. There is no other possibility. But the logic of the text in its context
requires that Member States should set up a mechanism which is more favourable to
the applicant than simple refusal to recognise. If the conditions of the Directive are
manifestly not met, it would seem logical and in the spirit of the Directive's aims for
the Member State to be able to provide gateways (examination, further training, etc.)
to allow the migrant access to the profession in that Member State. This can only be
beneficial to freedom of movement. Moreover, the Vlassopoulou case law obliges
each Member State to take into consideration the diplomas of other Member States
held by Community nationals, even when no provision of a Directive is applicable.
The national authorities are required to examine how far the knowledge and
qualifications attested by the applicant's diploma from his/her country of origin
correspond to those required by the regulations of the host Member State.

110.

This problem has been raised18 in the Co-ordinators’ Group set up under the
Directives. The Commission and most Member States believe that, if a migrant
complies with only part of the provisions of the host Member State, his or her

17

18

Cases covered by Article 6(c).
At the meeting held on 10 and 11 April 1995.

22

qualifications must nevertheless be taken into consideration under the case law of the
Court of Justice.

I. ARTICLE 9

111. When the host Member State requires evidence of general education at primary or
is not entitled to refuse formal qualifications of the

secondary school level,
corresponding level awarded by a competent authority in another Member State.

it

112.

113.

114.

115.

116.

J. ARTICLE 10

This Article deals with the production of proof that persons are of good character,
financially sound, and in good physical and mental health. These provisions are
taken from earlier Directives concerning the free movement of persons such as
traders or certain health professionals.

The application of these provisions has given rise to certain questions, particularly in
the case of Directive 89/48. They are, however, applicable mutatis mutandis to
Directive 92/51.

in connection with the award of "qualified teacher status",

For example,
the
Commission has been consulted by the competent British authorities on the
possibility of requiring candidates from other Member States to produce an official
document attesting that they are of good character and repute and have not been
convicted of any offence against children. This goes beyond what is provided for in
the Directives.

The question is therefore whether more rigorous conditions than those provided for
in the Directives may legitimately be laid down, and whether applicants producing
the declaration on oath provided for in the Directives, but not an official document
attesting that they are of good character and have not been convicted of any offence
against children, can be refused access to the teaching profession. The competent
national authorities think that, in the case of teachers, a simple declaration on oath as
provided for in the second paragraph of Article 6 of Directive 89/48 and the second
paragraph of Article 10 of Directive 92/51/EEC, is not a sufficient guarantee that
people who might be harmful to children, such as paedophiles, may not obtain
"qualified teacher status".

The Commission considers it disproportionate to conclude, on the basis of a literal
reading of the Directives, that since they do not provide for any exemption from the
obligation to accept a declaration on oath, the host Member State must accept a
declaration of this kind in the case of persons whose professional activity involves
direct daily contact with children. Protecting children against paedophiles can be
regarded as a compelling reason of general interest justifying a restriction on the
freedoms of movement enshrined in the Treaty. Requiring an official certificate
(extract from police records or similar document drawn up by a competent authority)
would seem an appropriate way of achieving a legitimate aim without going beyond
what is strictly necessary.

117.

Another example arises from a complaint against a host Member State on the
grounds that, for access to and pursuit of the profession of frogman, a certificate

23

118.

119.

120.

121.

which can be issued only by medical practitioners approved by the local competent
authorities is required.

In order to assess the acceptability within the meaning of Directives 89/48 and 92/51
of the system whereby the authorities in the host Member State approve medical
practitioners, the system must be examined case by case in the light of criteria
established by the case law19 of the Court of Justice (general
interest, non-
discrimination, proportionality). The following general principles may be put
forward:

-

-

-

when a Member State requests a medical certificate signed and endorsed by an
accredited medical practitioner, it must be in the general interest i.e. required
for fulfilling certain health requirements in the host Member State for the
exercise of given professions, such as those relating to passenger transport;

it would not be acceptable to restrict the opportunity to obtain approval to
national medical practitioners alone, since this would certainly render access to
a profession on the territory of the host Member State more difficult in practice
for nationals of other Member States than for its own nationals;

the proportionality principle implies that the host Member State should seek
the least restrictive means of ensuring a high level of health protection. The
following conclusions may be drawn from this:

122.

(1)

If an approval system offering equivalent guarantees also exists in the Member
State of origin, the host Member State is not entitled to refuse the certificate
issued in the country of origin.

123.

(2)

If the Member State of origin does not require a document of the same type as
that required in the host Member State, i.e. if the certificate required is not
issued by an approved medical practitioner or if no certificate is required, the
second paragraph of Article 6(2) and Article 10(2) of Directives 89/48 and
92/51 respectively applies. The host Member State may then demand an
attestation issued by an authority in the Member State of origin which is more
than a simple certificate issued by an unapproved medical practitioner, even if
the authority issuing the attestation is not itself approved. Moreover, Directive
89/391 does not explicitly provide for the approval of medical practitioners in
order to guarantee the health monitoring referred to in its Article 14.

124.

(3) Lastly, only if the authorities of the Member State of origin fail to issue an
attestation within the meaning of the above-mentioned provisions is the host
Member State entitled to require the migrant to produce a medical certificate
issued by a practitioner approved by that Member State.

125.

(4)

It is worth adding that, to avoid placing excessive restrictions on the free
movement of professionals, the entitlement of the host Member State to draw
in any event, be
up a list of approved medical practitioners should,
justify the specific health
accompanied by two obligations: first,

it must

19

Without prejudice to Directive 89/391/EEC which in substance permits Member States to impose more
severe requirements in matters of health with the aim of protecting the safety and health of workers at
the workplace. The impact of this Directive is under examination.

24

126.

127.

128.

129.

130.

requirements making such a network of approved practitioners necessary, and
it must secondly inform the migrant of the various means by which he/she can
meet these requirements (approved medical practitioner in the Member State of
origin, attestation from the authorities of the Member State of origin or, failing
these, approved medical practitioner in the host Member State).

K. ARTICLE 11

the competent authorities of the host Member State must
Under this Article,
recognise the right of nationals of other Member States who fulfil the conditions for
taking up and pursuing a regulated profession to use the corresponding professional
title in the host Member State.

The same applies to the right to use an attestation of competence, but the host
Member State may require this qualification to be accompanied by details of its
origin, so as to avoid confusion with qualifications awarded on its territory.

If the profession is regulated in the host Member State by an association or
organisation, migrants may use its professional title only if they can prove that they
are members. If the association or organisation restricts membership to certain
qualifications, it must comply with the provisions of the Directive, particularly those
laid down in Articles 3, 4 and 5 (recognition of diplomas, certificates or professional
titles).

L. ARTICLE 12

This Article deals with the proof of qualifications the applicant must provide, and
certain procedural points.

First, it is up to the applicant to prove what qualifications he/she holds. However, the
host Member State must accept as evidence documents issued by competent
authorities in the Member States. In other words, the host Member State may not be
unreasonable in the evidence it demands. The Commission has therefore, in close co-
operation with the Member States, compiled a “Code of Conduct” on administrative
formalities which embodies a consensus by the Co-ordinators’ Group on the question
(see below). The Commission considers that it can be of great practical help to the
migrant for the authorities of the Member State of origin to issue a document
attesting his qualifications in terms of the Directive (89/48 diploma, 92/51 diploma,
certificate or attestation of competence). Nevertheless, the host Member State is not,
as a matter of principle, entitled to demand an attestation from the Member State of
origin to certify the possession of a diploma as defined by the Directive or the
authorisation to pursue the profession in the country of origin (see Code, point 3Cb).

131.

The procedure for examining applications must be completed within four months of
the presentation of the full set of documents. It must be endorsed by a reasoned
decision. This decision, or its absence, must be subject to appeal under national law.

25

M. ARTICLE 13

132.

133.

134.

This Article requires Member States to designate the competent authorities to receive
applications and take recognition decisions under the Directive and to communicate
this information to each other and to the Commission.

It also requires each Member State to appoint a co-ordinator, above all to promote
the uniform application of the Directive. These Co-ordinators become members of
the Co-ordinators’ Group set up under Directive 89/48. The tasks of the Co-
ordinators’ Group (cid:190)
to foster the implementation of that Directive and assemble all
information relevant to its application (cid:190)

are also extended to this Directive.

There is an obligation for Member States to provide information on the recognition
of qualifications and related issues using existing information networks and
professional associations and organisations, where appropriate. The Commission is
responsible for
in co-ordination and
communication measures.

initiating any necessary developments

135.

The work done by the Co-ordinators’ Group is described in Part VII below.

N. ARTICLE 14:

1. General

136.

137.

138.

139.

140.

If a Member State proposes not to grant applicants the right to choose between an
adaptation period and an aptitude test, it is required immediately to communicate to
the Commission the corresponding draft provision. It shall at the same time notify
the Commission of the grounds which make the enactment of such a provision
necessary.

The Commission shall immediately notify the other Member States of any draft
which it has received; it may also consult the Co-ordinators’ Group.

The Member State may adopt the provision only if the Commission has not taken a
decision to the contrary within three months. It may also submit its observations on
the draft.

The definitive text is communicated by the Member State concerned at the request of
a Member State or of the Commission.

In connection with the application of Directive 92/51/EEC, the Commission has
received three applications for exemptions under Article 14. In one case the Article
was deemed not to apply, but in the others the Commission's responses were partly
favourable. These applications came from France, the United Kingdom and Austria.

2. France: sports instructors

141.

On 17 June 1996, France applied for an exemption under Article 14 of Directive
92/51/EEC for the supervision of certain sporting activities. France's application
concerned the profession of sports instructor and asked for permission to make an

26

142.

143.

144.

145.

146.

exception to the principle of the applicant's freedom of choice in the case of certain
sporting activities. The French authorities wanted to be able to impose an aptitude
test on the applicant
if the diplomas awarded in other Member States were
substantially different from the qualifications required in France.

The French authorities accompanied their application to the Commission with a draft
decree which concerns only the establishment of instructors etc. who are qualified in
another Member State. This was because, in relation to the temporary provision of
services, an infringement procedure opened by the Commission had already been
concluded by the grant to France of a permanent exemption, based on a separate
piece of French legislation and the relevant Articles of the Treaty rather than on
Directive 92/51/EEC, for the same professions. Although intended to transpose the
Community law applicable in this field, this draft decree on establishment still
maintains special rules for five sporting activities, for which "the Minister for Sport
may stipulate the aptitude test". According to the text submitted to the Commission,
this aptitude test could be stipulated for ski instructors, mountain guides, diving
instructors, parachute instructors and potholing instructors. The French authorities
stressed that this application, drawn up pursuant to Article 14, did not call into
question the principle of mutual trust but "tended rather to affirm it in the case of
activities where objectives of general interest such as safety were at stake." It
therefore concerned only "dangerous sports". In the view of the French authorities,
this application was justified by the dangerous nature of the activities in question.

In accordance with Article 14 of Directive 92/51/EEC, the application was submitted
to the Member States. It was sent to all the Co-ordinators of the General System for
the recognition of diplomas, who stated their views at
the meeting of the Co-
ordinators' Group held on 8 July 1996.

After examining France's application, the Commission thought that the absence of
freedom of choice might be justified in this case, provided of course that the Member
State shows in each case that the compensatory measure is justified by a substantial
difference between the material covered by the migrant’s training and the
qualification required, taking into consideration the professional experience of the
person concerned. The dangerous nature of the activities and the concern for the
safety of those involved were arguments against freedom of choice and in favour of
an obligation to take an aptitude test in the specific cases mentioned by France in its
application and in accordance with Directive 92/51/EEC.

In its decision, adopted on 9 January 1997, the Commission granted an exemption for
a trial period to end on 30 September 1999. Before making a final pronouncement on
this exemption, it wanted to evaluate the practical problems it would entail. It also
wanted to enable France to determine whether or not these aptitude tests were in fact
the best way of achieving the objective. Finally, it wanted all the parties concerned to
make any comments they might have before taking a final decision.

The Commission asked France to submit an evaluation report by 30 April 1999 and,
if it wished, to submit a new application for an exemption by 30 June 1999. The
Commission also decided to ask the other Member States and all
the parties
concerned to state their views and submit their observations. The Commission itself
was also to produce a report.

27

147.

148.

149.

150.

151.

152.

France submitted its evaluation report on 12 May 1999 and requested a permanent
exemption for these five professions. After asking for and obtaining additional
information, the Commission decided on 14 July 1999 to extend the exemption for
one year for ski instructors, but under strict conditions, and for diving instructors and
parachute instructors, and for an unlimited period for mountain guides and potholing
instructors.

3. Austria: mountain professions

In a letter of 15 July 1998, Austria applied for an exemption under Article 14 of
Directive 92/51/EEC for the supervision of certain sporting activities. This letter was
accompanied by two draft regulations and an account of the motives. The application
concerned eight sporting professions (ski instructors, trainee ski instructors, graduate
ski instructors, ski guides, cross-country ski instructors, trainee cross-country ski
instructors, mountain guides and trainee mountain guides), for which it wanted to be
able to depart from the principle of freedom of choice for the applicant. The Austrian
authorities wanted to be able to impose an aptitude test if the diplomas awarded in
other Member States were substantially different from the qualifications required in
Austria.

The Austrian authorities stressed that their request pursuant to Article 14, exclusively
concerned activities involving risks. In the view of the Austrian authorities, this
application was justified on the basis of the dangerous nature of the sporting
activities in question.

In accordance with Article 14 of Directive 92/51, the application was submitted to
the Member States. It was sent on 11 August 1998 to all the Co-ordinators of the
General System for the recognition of diplomas, who received supplementary
information at the meeting of the Co-ordinators' Group held on 19 November 1998.
Additional
information and guarantees were then requested and obtained from
Austria. On the basis of these, the Commission decided on 14 July 1999 to grant an
exemption for one year, in parallel with the decision taken by France on the same
day.

4. United Kingdom: seafaring professions

On 20 February 1998, the Commission received an application from the United
Kingdom authorities for an exemption to Article 10 of Directive 89/48 and Article 14
of Directive 92/51, concerning merchant navy and fishing vessel deck and engineer
officers. The British authorities wanted to be able to depart from the principle of free
choice by the migrant if a "compensatory measure" (adaptation period or aptitude
test) could be stipulated. In the interests of safety, the British authorities wanted to be
able to stipulate a test whenever there appeared to be a "substantial shortfall" in
knowledge of the language.

On careful examination of this application and its professional context, it appeared
that the problem raised by the British authorities fell outside the scope of these
Directives, since such language requirements did not form part of the education or
training which might give rise to compensatory measures. A letter to this effect was
sent to the British authorities on 7 May 1998.

28

153.

154.

155.

156.

5. Conclusions:

All of the information presently available to the Commission has indicated that the
principal issue of concern to interested parties in connection with the exemptions so
far granted is that of ski instructor recognition. While the real underlying issue
appears to centre on differing views as to the level of qualification objectively
appropriate for ski instructor recognition – and, therefore, also as to the relevance
and substantial character of any differences between existing national qualifications -
the debate so far has largely focussed on the application of the Article 14
exemptions. This has been the case despite the fact that these exemptions in no way
affect the level of qualification required, but rather concern the type of compensation
measures which can be applied in cases of substantial differences in qualifications.

it

is clear that

the same time,

At
the way in which a recognition system is
administered can be as important as the underlying law in terms of the conditions
applied to market access. In this respect, the degree of clear objectivity involved in
all aspects of a recognition process, the manner in which the process of recognition is
administered, the reality of the appreciation given to the abilities and experience of
each candidate and the degree of explanation given of decisions taken, all constitute
elements which contribute to the reasonable character of a recognition procedure and
the level of its acceptability to those subject to it. These factors clearly obtain even
more importance when the rights normally accorded to migrants are the subject of an
exceptional restriction, such as is the case under an Article 14 exemption.

this background,

the Commission has decided to grant

Against
temporary
exemptions for Austria and France up to 31 July 2000 when it is intended that final
decisions, of permanent application, will be taken. It
is the intention of the
Commission services to use the period of the temporary exemptions to ensure the
maximum exchange of information and views between the Member States and
interested parties. This process will be directed to the collection and assessment of all
relevant information and the discussion of issues in order to prepare for the final
decisions to be taken by the Commission and to try to obtain a level of common
understanding and agreement which will provide a stable and permanent basis for the
future. The process will cover both the exemption issue and all other substantive and
procedural issues relevant to ski instructor recognition.

At the same time, the procedure and timeframe for the taking of decisions on
exemptions under Article 14 has been shown by experience to be very short,
particularly in view of the consultations with the Member States which the
Commission values greatly. On more than one occasion, the actual three month
period between submission of a Member State application and the decision of the
Commission has been exceeded because a request for additional information has
been required, given that the time period in question is deemed to flow only from the
moment when the Commission has all necessary information at its disposal. In the
light of experience so far it seems likely that any future applications for exemptions,
including in particular any raising important, wide-ranging, complex or very
technical questions, could require more than the three month period from the date of
submission of the application to that of the adoption of the Commission decision.
Consultation and examination of all relevant views and information may justify the
in any particular case, entailing a
Commission taking a preliminary decision,
negative decision of temporary duration being taken, if only to allow more time for a

29

157.

158.

159.

160.

fuller consideration of the issues, albeit within a set timetable within which a final
decision would be taken.

it

It is also evident that the Commission has had recourse to the grant of exemptions on
a temporary basis and subject to conditions. While it is clearly preferable that final
and permanent decisions be taken on applications, for reasons of legal stability and
certainty,
is not possible to rule out continuing recourse to temporary and
conditional decisions. One major benefit of such decisions is that they allow for a
probation period in which the actual effects of the exemption can be registered and
the views of those most directly concerned taken into account before any final
decision is taken. In view of the general case law of the Court of Justice on the
restrictive interpretation of exemptions from general rules of Community law, 20 it
still seems appropriate that these kinds of checks and balances continue to be capable
of being applied to requests for exemptions under this Directive.

O.

ARTICLE 15 and Annexes C and D

1. Ratio legis

Certain types of education and training not covered by the definition of "diploma"
within the meaning of Article 1, first paragraph, a), second indent, i) of Directive
92/51/EEC nevertheless lead to a comparable level of professional competency and
prepare people for similar responsibilities and activities21 (cid:190)
for example, training as
a physiotherapist in Germany or children's nurse in Luxembourg. Because of their
wide diversity, Directive 92/51/EEC provides for the same treatment as diplomas by
listing them (cf. Recital 15) in Annex C. Certain types of regulated education and
training have also been given diploma status by inclusion in the list in Annex D.

This provides a link in the host Member State with diplomas covered by Directive
89/48 (awarded on completion of professional education and training of three or four
years' duration) and, if a diploma within the meaning of Directive 92/51/EEC is
needed, limits the requirement for compensatory measures to the case of substantial
differences between types of education and training.

2. Updating procedures

The procedure for amending these annexes is described in Article 1522. It involves
verifying whether the qualification resulting from education and training courses
forming the subject of a reasoned request by a Member State confers on the holder a
level of professional education or training comparable to a diploma within the
meaning of Directive 92/51/EEC (duration of one year, after the secondary level
required for admission to university or higher education) and a similar level of
responsibility and activity.

20

21

22

See for example the Gebhardt case law C55/94 of 30.11.95.
As set out in recitals 15 and 16 of the Directive.
This procedure will have to be changed in order to adapt it to the new Council general Decision
n°1999/468/EC of 28 June 1999 laying down the procedure for the exercise of powers conferred on the
Commission. (OJ L 184 of 17 July 1999, p.23ff.)

30

3. Amendments through the Treaty of Accession with Austria, Finland and Sweden

161.

162.

According to Article 29 of the Treaty of Accession of 24 June 1994 numerous
education and training courses were added to Annexes C, effective as of 1 January
1995. This amendment concerned only Austrian professions.

Under the heading “health-related and childcare training courses” this related to
contact
lens opticians, pedicurists, acoustic-aid technicians, druggists, masseurs,
kindergarten workers and childcare workers. In the sector “Master craftsmen” the
professions of surgical truss maker, corset maker, optician, orthopaedic shoemaker,
orthopaedic technician, dental
technician, gardener and furthermore 14 master
craftsman courses were added. In the “technical sector” the following training
courses were included: forester, technical consulting, labour leasing, employment
agent, investment adviser, private investigator, security guard, real estate agent, real
estate manager, advertising and promotion agency, building project organiser, debt-
collecting institute, insurance consultant, master builder or wood builder/planning
and technical calculation.

4. Implementing Directives

163.

The Commission has received numerous requests for amendments to the lists set out
in Annexes C and D. Having examined these requests (together with the committee23
established in Article 15), three Commission Directives have been adopted so far.

164.

165.

96.

a) Commission Directive 94/38/EC of 26 July 1994

Several health-related training courses in Germany were added to Annex C: medical
laboratory technician, medical X-ray technician, medical functional diagnostics
technician, veterinary technician, dietician, pharmacy technician, psychiatric nurse
and speech therapist. Italian training courses for accountants, accountancy experts
and consulente del lavoro were deleted.

Annex D was supplemented by a section on certain German specialist school courses
preparatory to the professions of technical assistant, commercial assistant, State-
certified respiration and elocution instructor, State-certified technician, business
economist, designer, family assistant and several social professions under specified
conditions.

b) Commission Directive 95/43/EC of 20 July 1995

166. This Directive is based on requests from the Netherlands and Austria. The new
provisions in Annex C are based on requests from the Netherlands referring to
courses for veterinary assistants, and several professions in the sea transport sector
(first mate, coaster engineer and VTS official). To Annex D training courses in
Dutch colleges for intermediate vocational training and in the apprenticeship system
were added as well as training courses in Austrian higher vocational schools, higher
education establishments for agriculture and forestry, master schools, master classes

23

The work of this committee has often been prepared by discussions within the Co-ordinators’ Group
(see Part VII of this report referring to the Group).

31

167.

168.

169.

170.

and building craftsmen schools. For all these training courses specific conditions
were set up.

Together with the numerous amendments caused by the accession of the Republic of
Austria the contents of the Annexes would have become unclear. With the new
Directive, therefore the amended lists of courses were published in a consolidated
version.

c) Commission Directive 97/38/EC of 20 June 1997

Several professions in the list of the United Kingdom courses accredited as National
Vocational Qualifications or Scottish Vocational Qualifications were deleted,
because they are now covered by Directive 89/48/EEC (medical laboratory scientific
officer) or are no longer regulated (probation officer, prosthetist).

d) Commission Directive 99/ / of ............. 1999

A draft Directive has been unanimously approved by the Committee of
Representatives of Member States formed pursuant to Article 15 (3). This draft
Directive responds to reasoned requests from Austria and the United Kingdom
concerning the following issues:

Certain certificates of technical competence in waste management in the UK shall be
added to Annex C, as well as special training for psychiatric nurses and paediatric
nurses in Austria. On the other hand, the professions in the UK “approved social
worker – mental health” and “trade mark agent” shall be deleted. Furthermore, the
wording of Annex C and D regarding “National/Scottish Vocational Qualifications”
in the UK shall be adapted to the terminology presently used in the relevant national
law. The Commission early in the year 2000 could possibly adopt the Directive.

171.

Owing to new amendments to national legislation, further Directives will probably
have to be drawn up in the future.

5. Conclusions

172.

Experience24 has shown that this procedure is cumbersome and complex, and is
becoming increasingly difficult to implement as the list grows. The question is
therefore whether it would be useful to find an alternative approach — for example,
replacing this procedure and these lists with one general definition25 giving these
types of education and training the same status as those leading to a diploma within
the meaning of Directive 92/51/EEC.

173.

Such a solution is being studied by the Commission services. This general definition,
to be included under that of the diploma, would be a reminder that the professional

24

25

See in particular the criticisms in Annex I from Belgium, Denmark and Finland, which wished to see
the system changed.
The Netherlands Co-ordinator has suggested a general formulation or a procedure by which the migrant
or the competent authority would attest that his education or training met the criteria set out in the
Directive.

32

level of the course should be comparable to that of the course of studies defined as a
diploma course; in addition it would set out that the course served as a preparation
for a level of responsibilities and tasks to be stated by the authorities of the Member
State of origin in a supplementary attestation. A migrant claiming the rights of
recognition on this basis could be required to produce a certificate from a competent
authority confirming the status of the course in question and providing information
enabling the host Member State to know where to obtain any further information
required.

174.

Annexes C and D would then be deleted, with a clause safeguarding the acquired
rights of the holders of the qualifications listed in those Annexes.

P. ARTICLE 16

175.

Article 16 is the first Article of Chapter XI of the Directive containing the
concluding provisions of general application. It provides for the Member States to
report to the Commission every two years on the application of the Directive. These
reports are to include any general remarks, statistical summaries of decisions taken
and a description of the main problems of application which have arisen.

176.

For the latest statistical information resulting from this reporting process see Part
IV.B.

Q.

ARTICLE 17

177.

This Article lays down a maximum period of two years for transposing26 the
Directive.

R. ARTICLE 18

178.

179.

As well as providing for this report, this Article adds that: "After conducting all
necessary consultations, the Commission shall present its conclusions as to any
changes which need to be made to this Directive. At the same time the Commission
shall, where appropriate, submit proposals for improving the existing rules in the
interest of facilitating freedom of movement, right of establishment and freedom to
provide services".

This report already includes suggestions for some changes to the Annex C and D
qualifications and their up dating and possibilities of the introduction of further
flexibility in relation to the cross-frontier provision of services. The question of any
proposals for the improvement of the existing rules also, however, gives rise to wider
considerations having some relevance also to Directive 89/48/EEC.

180.

No comments.

S. ARTICLE 19

26

Implementation was dealt with above in Part IV.A.

33

VI.

A.

181.

182.

183.

184.

185.

186.

187.

188.

COMMENTS ON INDIVIDUAL PROFESSIONS

Public service

The public service is traditionally a very important professional sector in terms of
freedom of movement. The Commission is often approached on this matter, either
through letters from members of the public or in connection with complaints or
requests. For some years now, therefore, there have been a number of infringement
procedures on questions of recognition of diplomas, involving several Member States
in several professional sectors covered by both Directive 89/48/EEC and Directive
92/51/EEC (teachers,
translators, hospital administrators, aircrew and mariners,
general government administration, etc.), at both national and local levels. Under
these procedures, some Member States have raised basic problems that have led to
very careful examination on the part of the Commission, under three main headings:

-

-

-

the basic principle of the application of the General System for the recognition
of diplomas (Directives 89/48 and 92/51) to the public service;

the question of the application of the General System to the entire public
service or to only those professions or activities requiring specific professional
training;

competitions.

According to recital 8 of Directive 92/51, "the complementary General System is
entirely without prejudice to the application of Article 48(4) and Article 55 of the
Treaty". There are no further direct or indirect references to the public service.
Moreover, Articles 48(4) (now 39) and 55 (now 45) refer only to nationality.

The Commission has always taken the view that the public service is not excluded a
priori from the scope of the Directives: the mere fact that a profession is exercised in
the public service does not place it outside the scope of the Directive. The Court of
Justice has pointed out that public bodies are bound to comply with Directives
89/48/EEC and 92/51/EEC27. However, this does not mean that the General System
applies to the entire public service. This question is closely related to those of the
definition of a diploma, regulated profession and professional qualification.

the holder

According to the definition of the diploma,
is required to have
successfully completed a course of study or training of a certain duration. The holder
must also have all the professional qualifications (diploma or set of diplomas or
certificate) required for the taking up or pursuit of a regulated profession in the
Member State of origin. This final criterion must be understood as referring only to
the qualifications obtained after receiving training geared to the pursuit of a specific
profession.

Compensatory mechanisms (aptitude test, adaptation period) are not appropriate if
there are several very different routes to a profession which itself is general in nature
(for example, general competition open to holders of various types of diploma). On
the other hand, if such a variety of expertise is accepted for the public service activity
the presence or absence of more specific elements of individual
in question,

27

Point 12 of the judgement handed down on 8 July 1999 in Case 234/97, Bobadilla.

34

189.

190.

191.

192

193.

194.

professional qualifications would appear less relevant and thereby compensation
measures less relevant. Absent a fundamental difference in the nature or level of the
professional qualification concerned,
the principle of mutual confidence should
apply. On the other hand, where compensatory mechanisms would be applied to
make up a difference in the overall level of qualification, such measures seem not
easily to fit public service recruitment methods. The Commission intends to continue
to examine possible solutions.

Three questions arise concerning the use of competitions for professional recognition
in relation to public service work. How should competitions be considered? Are the
professions accessible by competition regulated professions within the meaning of
the Directive? How should the concept of a fully-qualified person be defined in
connection with a profession to which recruitment is by means of a competition?

The Commission's view, which it has frequently expressed in several replies to
written and oral parliamentary questions and requests regarding the principle of
competitions and within the framework of infringement proceedings, is that each
Member State remains free to lay down its own recruitment procedures providing
diplomas awarded in other Member States are recognised in accordance with
like other recruitment methods, (CV, interview,
Community law. Competitions,
examinations, etc.) are only one procedure for access to a profession. If, therefore,
nothing prevents a Member State from using competitions to recruit its civil servants,
it must, if a regulated profession within the meaning of Directive 92/51/EEC is
concerned, allow holders of diplomas awarded by other Member States to apply,
provided the diploma in question qualifies them to take up that profession in the
Member State in which it was awarded. This also means that a person from another
Member State who is qualified for the profession must accept
the competition
procedure, since the right he enjoys under the Directive is to have access to the
profession in question on the same terms as nationals.

Are the professional activities to which access is by means of a public competition
open to the holders of certain diplomas regulated professions within the meaning of
Directive 92/51/EEC?

Article 1(f) of Directive 92/51/EEC defines a regulated professional activity as “a
professional activity the taking up or pursuit of which, or one of its modes of pursuit
in a Member State, is subject, directly or indirectly, by virtue of laws, regulations or
administrative provisions, to the possession of evidence of education and training or
an attestation of competence”. The Directives can therefore be regarded as applying
in the case of competitions admission to which is subject
to having a specific
professional qualification leading to the pursuit of the profession in question.

The mechanisms set out in the Directive are, after all, based on the principle of
professional activities being the same in the host Member State and the Member
State of origin. Migrants must hold the diploma required for carrying out the same
profession in the Member State of origin.

In relation to a more general public service activity than the more specific
professional qualifications required to accede to that public service work, it is still
true that a recognition process could take place in the context of the specific
professional concerned, with perhaps even more flexible application of the principle
of mutual confidence due to the fact that the qualifications required relate more to the

35

195.

general
level of professional activity required than the particular elements of
knowledge relevant to each specific profession. Grading within the public service
and other means could be used to take account of some of the differences in the
relevant professional qualifications in the absence of sufficient justification for a
refusal. This kind of analysis would need to be further tested before final conclusions
could be drawn.

Finally, in order to be able to take advantage of the “General System” Directives,
persons must be fully qualified in their Member State of origin, which poses certain
problems if a competition is followed by a course of professional training. In this
case, persons could not be regarded as fully qualified in their Member State of origin
unless they a) held a diploma giving them admission to the competition, b) passed
the competition and c) had completed the course of professional training, which
might, depending on the professional or national context, be regarded as either
forming part of the training and hence of the diploma, or as subsequent to the
acquisition of the diploma). This rule puts holders of diplomas awarded by countries
where competitions are followed by professional training at a disadvantage, since
only if they have passed the competition (and hence followed the subsequent
professional training) can they be regarded as “finished products”. Failing this, they
may be unable to take advantage of the Directives, which often means that a
qualification from a French university, for example, may not constitute a diploma
within the meaning of the Directives for the purposes of recruitment to the public
service (France has a strong tradition of competitions followed by training). On the
other hand, fully qualified professionals e.g. teachers from other Member States,
seeking recognition in France also suffer the disadvantages of having to undergo the
final (competition) stage of the French professional qualification.

196.

This places a very large number of applications for recognition with a view to taking
a competition outside the scope of the Directive. The Commission is examining this
question.

B.

Teachers

197.

198.

199.

200.

Most countries make access to the pre-school “teaching” profession subject to an
89/48 diploma, the exceptions being Spain, Germany,Austria and Liechtenstein,
where a 92/51 diploma is required for the status of educador infantil, Erzieher, and
Kindergärtner respectively. The Commission has not detected any specific problems
with the application of Directive 92/51/EEC in this sector.

Access to the primary-teaching profession is subject to an 89/48 diploma in all
Member States, except Italy and Liechtenstein.

For secondary education, all the Member States require a 89/48 diploma, except in
Luxembourg and Greece, where certain teaching posts require a 92/51 diploma.

However, there have been problems in this area with the interpretation of Directive
92/51/EEC. The Commission has received complaints from teachers with 92/51

36

201.

202.

203.

204.

205.

206.

diplomas28 — this type of training used to exist in certain countries — who have
been refused recognition.

Article 3 of Directive 92/51/EEC provides for a system for linking the two
Directives: the host Member State must recognise 89/48 diplomas if it requires only
92/51-level training for the profession in question. Conversely, it must in principle
recognise 92/51 diplomas, even if it requires a 89/48 diploma for the profession in
question.

The Directive provides for an exception to this link: the host Member State is not
obliged to apply this equivalence principle if access to the profession is subject to the
possession of a "diploma as defined in Directive 89/48, one of the conditions for the
issue of which shall be the completion of a post-secondary course of more than four
years duration".

It was on the basis of this exception that 92/51 diplomas held by several teachers
have been refused recognition.

The Commission thinks that the equivalence principle is applicable in such cases,
since the Directive does not provide for exemption when access to the profession is
subject to the possession of a diploma awarded on completion of general training of
more than four years' duration. For the exception to apply, the diploma required
would have to be one as defined in Directive 89/4829, one of the conditions for the
issue of which is the completion of a post-secondary course of more than four years'
duration. For the purpose of applying the equivalence principle,
the
decisive element is the duration of the course, irrespective of the duration of any
profession training required over and above the course.

therefore,

Teachers with 92/51 diplomas are, in general, holders of "old" diplomas, awarded at
a time when training in their country of origin lasted two years. Nowadays, teacher
training is, in general, covered by Directive 89/48 in all the Member States. The
problem with the application of the equivalence principle is a hangover from this
former period that affects very few teachers. Concerning as it does holders of "old"
diplomas,
in question usually have considerable professional
experience.

the migrants

It should be borne in mind that, even if the Directives are not applicable, the Member
States are still obliged, under Article 48 of the Treaty,
to guarantee the free
movement of workers within the Community (cf. Aranitis judgement). It should not
be forgotten that these are people who have all the qualifications required in their
country of origin and who are holders of a 92/51 diploma rather than a 89/48 diploma
simply because that is what was available at the time.

207.

It would seem difficult, therefore, to justify refusing recognition in the light of the
Community legislation applicable to freedom of movement.

28

29

It should be noted that this refers to teachers with 92/51 diplomas, and not those holding diplomas for a
two-year course deemed equivalent to an 89/48 diploma, which eventuality is covered directly by
Directive 89/48/EEC. For this, refer to the 1996 report on the implementation of Directive 89/48/EEC,
Doc. COM(46) final of 15 February 1996, p. 10
Diplomas as defined in Directive 89/48 are awarded on completion of a course of study of at least three
years' duration, possibly followed by a course of profession training required in addition to the course
of study (cf. Art. 1a) of Directive 89/48)

37

C.

Social professions

208.

209.

210.

211.

212.

D.

1.

213.

214.

According to the information available to the Commission’s departments,
the
profession of social worker is subject – in the countries where it is regulated – to the
possession of an 89/48 diploma. In certain countries where the profession is not
regulated there are two-year post-secondary courses for social workers.

The statistics show that the migratory flows of social workers between the Member
States are not very large (except in France, where according to the statistics for
1995/96 the recognition applications submitted for pursuing this profession
amounted to 127) and do not pose any particular problems.

There are certain situations, however, which are not covered by the provisions of the
Directives on the General System of recognition. In Finland and Portugal, access to
the profession of social worker is subject to the possession of a diploma awarded on
completion of a 5-year course. Consequently, in the case of migrants from countries
where training is of the 92/51 level, the authorities of these two countries can
legitimately invoke an exception to the equivalence arrangements and the migrants
would thus be excluded from the system.

However, according to the information provided by the Member States concerned,
this discrepancy between training arrangements is not in practice likely to impede the
free movement of the professionals concerned. In Finland the applications received
were all granted, including the one that was submitted by the holder of a 92/51 level
diploma.

In addition, the International Federation of Social Workers (IFSW) has informed the
Commission of its plans to set up a register of social workers and to create a
“European social workers’ qualification" on similar
lines to that created by
engineers, which should further facilitate free movement of these professionals. The
professionals concerned have in fact advised the Commission of the divergences
which exist between Member States as regards training of social workers (content,
length and level) and have stressed that some convergence in training would be
desirable in order to enhance the mobility of social workers within the European
Union.

Health-related professions

General considerations

A large portion of the professions in the health-related sector come under Directive
89/48, but others come under Directive 92/51, while in some cases the profession
may come under the first Directive or the second, depending on the Member State
concerned. One example of this is the profession of physiotherapist, which comes
under Directive 89/48 for most Member States but
is covered by Annex C to
Directive 92/51/EEC for Germany, since the level of training is different.

A Conference was held in September 1999 in order to further examine the current
position concerning the migration of physiotherapists within the EU. This
Conference confirmed a certain progress being achieved through bilateral discussions
between Member States and otherwise in this area. A significant result of this
Conference was the unanimous agreement between all representatives of the
profession on the fact that they all exercise the same profession in the different

38

215.

2.

a)

216.

217.

218.

b)

219.

220.

Member States of the EU. Further work has also been scheduled by the European
the World Confederation for Physical Therapy concerning the
Region of
compensation measures applied by Member States to migrating physiotherapists to
further clarify continuing obstacles to free movement.

The figures collected by the Member States, together with the information obtained
by the Commission, show that the Directive has made it possible to recognise a large
number of diplomas for a number of professions in the health sector, even though
there have been found to be problems or limitations in the application of the
Directives, as is explained in detail below.

Limitations on the recognition of diplomas

Activities reserved for certain professions

For a number of professions, the recognition of diplomas in a particular Member
State is not possible because the activity is reserved for a different category of
professionals.

The sector of non-traditional medicine is one where these problems arise. An activity
such as that of chiropractor is a specific profession in certain Member States, while
in others activities related to the “art of healing” are strictly reserved for medical
practitioners, in which case the professionals concerned cannot migrate. Migration is
possible only to a Member State where non-medical practitioners are authorised to
practice the profession. That this situation is in conformity with Community law was
confirmed by the Court of Justice in the Bouchoucha case30. The same problem can
arise for other activities as well.

Although the profession of psychotherapist
is covered almost exclusively by
Directive 89/48, it poses a similar problem in that the regulations differ from one
Member State to another and prevent persons trained in certain Member States from
practising in certain others, since the professions authorised to pursue the activity are
different (activities in the psychotherapy domain are very often restricted to medical
practitioners and/or psychologists).

Professions which may appear similar in two Member States but have different fields
of activity

A profession can have the same title in certain Member States but a different content.
In this case the Directive can be applied if at least part of the field of activity is the
same. Otherwise the Directive will not be applicable, since it bases professional
recognition on the identity of the profession.

The question of the scope of practice allowed and the level of responsibility required
for the exercise of the professions of physiotherapist and radiographer are due to be
examined on the basis of questionnaires which have been sent to Member States in
order to clarify the present position and provide the information necessary for a full
analysis of the current situation to be undertaken. This information, once collected,
will be circulated to the Co-ordinators’ Group with a view to further discussion, if
appropriate.

30

Judgement of 3 October 1990 in case C-61/89, ECR p.3564.

39

c)

Professions with different levels

221.

222.

223.

For certain activities, there may be various levels of competence corresponding to
different types of training. For example, alongside the training of physiotherapists
there are shorter courses for the profession of assistant physiotherapist or exclusively
for masseurs. The difference is even clearer for the professions of pharmacist and
pharmaceutical assistant
in the Member States. The recognition of professional
qualifications is conditional on equivalence between the professions and is not meant
to make it possible to pursue an activity completely different from that for which one
was trained.

In certain cases the second Directive has revealed fundamental differences in the
training given in the Member States. For certain professions, sometimes non-
regulated ones, training in certain Member States has been found to amount to a few
hundred hours, whereas in other Member States it lasts several years.

In such cases the mechanism provided for in the General System is generally as
follows: when in the host Member State the profession comes under Directive
89/48/EEC, the Directive applies only if the qualification held by the migrant is of
"diploma" level within the meaning of Directive 92/51/EEC or is regarded as
equivalent by virtue of its inclusion in Annex C to Directive 92/51/EEC. For lesser
forms of training in the Member State of origin, such as those at certificate level, it is
not the General System which applies if the host Member State requires the 89/48
diploma level, but the case law of the Court of Justice. On the other hand, where
training in the host Member State is at diploma level under 92/51 or lower, the
Directive will have to apply in most cases, even when courses are at a much lower
level (see the comment above on Articles 5 to 7).

d)

Limitations relating to the existence of other Directives (case of specialist nurses)

224.

225.

The specific Directives for the nursing profession (77/452/EEC and 77/453/EEC)
regulate the question of the recognition of diplomas, but this recognition is restricted
to the general nursing sector. However, the Directives on the General System
exclude from their scope professions for which there is a specific Directive.
Consequently, if the Member State recognises only the profession of general nurse,
migrants with specialist nursing diplomas can take advantage neither of the
Directives on the General System nor of the nursing Directives. They can, however,
invoke the provisions of the Treaty as interpreted by the Court in the Heylens and
Vlassopoulou judgements.

This question had already been raised in the discussion of Article 2 in point (iii) of
the report based on Article 13 of Directive 89/48/EEC. The Commission proposed to
the
solve the problem by making such cases subject
provisions inserted to this effect into the proposal for a “third” Directive were
transferred by the Council into the proposal for a Directive known as SLIM (Simpler
Legislation in the Internal Market).

to the General System;

3.

a)

Problems encountered

Non-implementation

226.

i)

A major general problem has concerned Greece, which by August 1998 had
not yet implemented Directive 92/51/EEC because the competent authorities

40

refused to apply it. In the Commission’s opinion, the authorities are obliged to
apply the Directive even if it has not been formally implemented into national
law. This issue affects a number of professions, including physiotherapists with
diplomas awarded to Greek nationals in Germany. The information supplied by
the Greek authorities states that national commissions began examining the
individual cases in January 1999. This follows on from the major delays in
implementation of Directive 89/48/EEC in Greece, currently the subject of
legal proceedings relating to fines and continuing evidence of non-application
of the implementing measures.

227.

ii)

The delay in the implementation of Directive 92/51/EEC in Belgium has had
little effect, since the competent Belgian authorities have applied the principles
of the Directive even without implementation.

228.

iii)

For France, implementation of Directive 92/51/EEC has not been completed
for the profession of pharmaceutical assistant. However, France has recently
adopted a Decree implementing the Directive for this profession. In order for
implementation to be complete, an implementing law still has to be adopted.
Cases have been notified to the Commission in connection with migration from
Belgium to France. This case is still being examined.

229.

iv)

Portugal has not fully implemented Directive 92/51/EEC for the profession of
pharmaceutical assistant and for other health-related professions. This situation
was brought to light by specific cases. The matter is still in hand.

b)

Faulty application

230.

i)

The bridging mechanism (“passerelle”) provided for in Directive 92/51/EEC

231.

232.

233.

234.

The entry into force of the second Directive made it possible to resolve a number of
cases involving the courses listed in Annex C and certain professions for which the
level did not correspond to that given in the first Directive.

Nonetheless, the second Directive had a rather difficult start, in that the application
of the bridging mechanism provided for in the Directive for the courses in Annex C
was not readily accepted by some Member States. There are still problems with these
mechanisms, and these are pointed out from time to time with regard to individual
cases or for a particular profession.

A case in point
is the profession of optician in a Member State in which the
professional association is ignoring the bridging mechanism and refuses to respect
the recognition decision adopted by the competent authority on the grounds that
migrants hold diplomas within the meaning of Directive 92/51/EEC, whereas access
to the profession is subject
to the possession of a diploma under Directive
89/48/EEC.

ii)

Deadlines

On several occasions individual cases have been brought before the Commission
services where the deadlines provided for in Article 12(2) of Directive 92/51/EEC
for the taking of recognition decisions have not been met. Many of these cases are
out of late implementation of the second Directive. In general, this situation has since
frequent cases relate to situations where migrants have
improved. The most

41

235.

236.

237.

238.

239.

4.

a)

240.

qualifications dating back to a time since when the qualification in question has
changed and on which it is difficult for the competent authority to give a ruling.

iii) Compensatory measures

Migrants sometimes consider the compensatory measures required for obtaining
recognition of their diplomas to be exaggerated. The existence of substantial
differences in the content of courses is often a factual matter which the migrant can
contest under national law. The Commission services have not yet heard of any cases
in which a ruling has been given by a judicial authority on compensatory measures.

Following discussions, an agreement has been concluded between Germany and
Austria and they are continuing between the Netherlands and the United Kingdom
with a view to facilitating the migration of physiotherapists.

iv) Administrative formalities

The Code of Conduct (see Part VII B below) has made it possible to define, through
the experience gained by the Commission and the Member States, which practices
are preferable, which are acceptable and which are not. Adoption of thisCode makes
it possible for Member States to review their own practices and now that the Code
has been published, for migrants to claim good practice in the administration of their
applications.

Questions have been raised about certain measures in a Member State, such as the
compulsory consultation of the NARIC centre in the host country, or the fact that a
migrant is summoned to a preliminary interview, outside the framework of the
compensatory measures, for which he or she has to pay a fee, to which the migrant
has to add the cost of a travel ticket and accommodation which can be particularly
expensive if he or she is not yet living in this Member State. Ways of guaranteeing
the full processing of recognition applications, while guaranteeing the rights and
interests of the migrant are in view. The question of administrative formalities could
continue to be one of the main issues which the Co-ordinators’ Group will continue
to be called upon to consider, in order to arrive at a better degree of transparency and
to ensure that the system operates efficiently.

v)

Professional recognition of diplomas rather than academic recognition

One grievance frequently held against certain Member States is that the procedure
followed for granting professional recognition under
the General System by
comparing courses is too academic and is thus contrary to both the letter and the
spirit of the Directive. This question arises in a number of individual cases. Such
issues can only be dealt with in their context and in the light of a full analysis of the
issues at stake. This forms part of the on-going work of the Commission and the Co-
ordinators’ Group.

Conclusions

Interdependence between Member States

The changes taking place in certain Member States regarding the level of training
and/or the regulation of professions have repercussions on the other Member States,
particularly noticeable in the health-related professions. Some Member States which

42

241.

242.

243.

did not regulate certain activities have started to regulate them, and there have been
developments in the level of training; examples of this are the professions of
dietician and chiropodist.

In addition, certain Member States have raised the question of possible "evasion" by
their citizens who go to other EU Member States for training and then return to their
country of origin. This practice affects the numerus clausus and health-care
management. It has concerned in the main countries sharing the same language and
large migratory flows, such as France and Belgium or Austria and Germany: it also
concerns Greece and Germany for Greek nationals holding German diplomas.

The answer to this given by the Commission’s departments is that the rules of the
Treaty permit access to training in another Member State and that a citizen who has
obtained a diploma in another Member State must be protected by the rules laid
down in the Directives with regard to the recognition of diplomas. The General
System reinforces the right of a European national to acquire occupational skills
wherever he or she wishes (recital 20 of Directive 92/51/EEC).

In addition there are some indications that some Member States which have
traditionally or are currently applying a non-regulatory or de-regulatory approach to
many professions find this approach challenged by the problems which “their”
professionals then face in trying to migrate to Member States with more regulation in
contrast with the relative ease of access which others have to their relatively
unregulated markets. Such an imbalance could lead to a tendency towards competing
regulation in the sense of Member States trying to balance conditions of free
movement to and from their jurisdictions by matching levels of others’ regulations.
This would be an unattractive tendency were it to materialise. The Commission
presently has only anecdotal evidence of the possible existence of such perceptions
existing within competent authorities of Member States. The national Co-ordinators
are in the best position to be aware of the existence and prevalence of such
perceptions and their significance and the Commission would always be open to
discussion in the Group or bilaterally.

b)

The special nature of health-care professionals

244.

The migration of health-care professionals, whether for personal (often family)
reasons or to seek work in a country where the labour market may be more
favourable,
is an interesting indicator in terms of demographics, the variety of
professions involved and the size of the health sector.

E.

Transport professions

245.

246.

Some professions in the transport sector are not covered by the General System for
the recognition of diplomas because they are already covered by a specific Directive
(cf. Article 2 of Directive 92/51/EEC). However, the professional sector for which
the largest number of diplomas have been recognised for the period 1995-98
inclusive is that of maritime transport, where there has been significant free
movement amongst the Northern European countries.

Two examples are Council Directive 91/670/EEC of 16 December 1991 on mutual
acceptance of personnel licences for the exercise of functions in civil aviation, and
Council Directive 96/26/EC of 29 April 1996 on admission to the occupation of road
haulage operator and road passenger transport operator and mutual recognition of

43

247.

248.

249.

diplomas, certificates and other evidence of formal qualifications intended to
facilitate for these operators the right to freedom of establishment in national and
international transport operations.

These Directives have as their legal basis the Articles on transport policy (i.e.
Articles 71 [ex 75] and 80 [ex 84] of the EC Treaty.

Council Directive 94/58/EEC of 22 November 1994 on the minimum level of
training of seafarers is an exception. While based on Article 80 (ex 84) (2) of the
it states that “mutual recognition among Member States of certificates
Treaty,
referred to in Article 3 held by seafarers who are not nationals of Member States
shall also be subject to the provisions of Directives 89/48 and 92/51".

A case has also arisen concerning recognition of the qualifications of an inland
waterways pilot for which the full qualification includes the element of a period of
supervised practice. However, the practice in question has as its essential purpose the
acquisition of knowledge of local waterway conditions. This element of qualification
in the Member State of qualification has no relevance therefore to anyone wishing
immediately to be recognised in another Member State. However, the rules on
mutual recognition within the EU are essentially not designed to guarantee what
might be termed a “short cut” to immediate recognition in another Member State. In
each case, the migrant has to be fully qualified in his home Member State even if
specific knowledge is required to pursue the same profession in the host Member
State. This specific knowledge has then to be acquired through compensation
measures under Directives 89/48/EEC and 92/51/EEC. In these circumstances,
therefore, those wishing to qualify so as to be able immediately to take up work in a
specific Member State are best advised to verify as early as possible the most direct
route to such qualifications which would mainly be through the completion of their
qualifications in the Member State where they wish to practise.

F.

Professions in the tourism sector

250.

A distinction must be made between couriers/tour escorts and tourist guides.

1.

Couriers/tour escorts

251.

Couriers/tour escorts are not covered by Directive 92/51/EEC, because this excludes
from its scope (in the second paragraph of Article 2) the Directive which does cover
them, i.e. Directive 75/368/EEC of 16 June 197531. This Directive provides for
transitional measures, in the absence of mutual recognition of diplomas32, consisting
of the allowance, “as sufficient qualification for taking up the activities in question
in host Member States which have rules governing the taking up of such activities,
the fact that the activity has been pursued in the Member State whence the foreign
national comes for a reasonable and sufficiently recent period of time to ensure that
the person concerned possesses professional knowledge equivalent to that required
of the host Member State's own nationals”.

252.

This Directive explicitly excludes “tourist guides” from its scope.

31

32

OJ L 167 of 30.06.75, p.22
This recognition is now laid down in Directive 99/42 (see comments on the second paragraph of Article 2).

44

253.

254.

255.

256.

257.

258.

259.

2.

a)

260.

Under the terms of this Directive, the host Member State must allow a Community
national who can produce a certificate from a competent authority in his Member
State of origin, justifying at least two years of experience in the country of origin, to
exercise the occupation of escort on its territory.

In theory, the provisions of Directive 75/368 apply both to establishment and to the
provision of services. However, case law has it that a Member State may not make
the provision of services in its territory subject to compliance with all the conditions
required for establishment, and thereby deprive of all practical effectiveness the
provisions of the Treaty whose object
is to guarantee the freedom to provide
services33.

Consequently, in the case of the provision of services, the terms of the Directive
(particularly the requirement
to produce a certificate of experience) must be
interpreted with the requisite flexibility, taking account of the temporary nature of
the service and without forgetting that the aim of this Directive is precisely to
encourage the effective exercise of the freedom to provide services.

The authorities of the host country can require couriers/tour escorts to submit a
certificate attesting two years' experience in the country of origin, in accordance with
Directive 75/368. Nevertheless, this requirement may induce effects contrary to its
objective, i.e. that of facilitating the freedom to provide services, and so conflict with
Article 49 (ex 59) of the Treaty.

It is in fact difficult for couriers/tour escorts to gain professional experience “in the
country of origin”, which is only where the holiday starts and ends. A travel courier
who accompanies tours only within her or his country of origin and is thus able to
gain the necessary experience before working in another Member State is a rare
being.

Consequently, the Commission considers that couriers/tour escorts from another
Member State have, under Article 59, the right to provide their services (the actual
tasks of a travel courier) freely in another Member State. If the courier does not make
the return journey with the tourists (again a rare occurrence), but remains in the host
country after the tour, he/she is subject to the rules on establishment.

The Commission has drawn the attention of the national authorities to the question.
Various contacts have taken place in particular with the Italian authorities, which
have agreed not to require the certificate of experience required under Directive
75/368/EEC in the case of the temporary provision of services.

Tourist guides

Introduction

The “General System” Directives apply to tourist guides in the countries where the
profession is regulated.

33

Cf. in particular the judgement of 25 July 1991 Säger v Dennemeyer C-760/90 ECR p. I-4221

45

261.

262.

263.

264.

265.

The profession is not regulated in Denmark, Germany, Ireland, the Netherlands,
Finland, Sweden, Norway or the United Kingdom, but it is regulated in Austria,
Belgium, Greece, France, Italy, Luxembourg (city), Portugal and Spain.

In most Member States where the profession is not regulated, there are training
courses for tourist guides which are not compulsory for the pursuit of the profession.
In Germany, for example, Chambers of Commerce and Industry issue a tourist guide
certificate. In the United Kingdom there are boards which issue a membership card
and an identification ("blue badge") following training to the level of Directive
92/51/EEC.

In Member States where the profession is regulated, access to it is restricted to
persons who have successfully completed the requisite training and been awarded the
necessary qualification.

In Greece, this is a three-year course classed as non-university higher education and
thus falls within Directive 89/48. In Italy, Spain, Luxembourg city and Austria, the
profession of tourist guide is subject to possession of Directive 92/51 qualifications.

In France, tourist guide training is structured in three levels: regional interpreter-
lecturer (89/48
guide (92/51 Diploma); national
Diploma). In Portugal, training is at two levels: regional interpreter-guide (92/51
Certificate) and national interpreter-guide (89/48 Diploma).

interpreter-guide and national

b)

Tourist-guide case law

266.

267.

268.

The Court of Justice has found that four countries (cid:190)
Spain.34 (cid:190)

have obstructed the freedom to provide tourist guide services.

Italy, France, Greece and

The Court of Justice considered that these countries failed to fulfil their obligations
under Article 59 (now 49) of the Treaty, by making the provision of services by
tourist guides accompanying a group of tourists from another Member State, in
relation to guided tours of places other than museums and historical monuments
where a specialist guide is required, subject to the possession of a licence issued after
the acquisition of a specific qualification obtained by success in an examination.

The Court also held that Articles 48 (now 39) and 52 (now 43) of the Treaty require
the host Member State to establish a procedure for
the examination of the
qualifications acquired by a Community citizen who holds a diploma as a tourist
guide issued in another Member State and the assessment of that diploma with the
qualification required in the host Member State.

c)

Establishment and services

269.

In the “tourist guide” judgements, the Court has observed that a Member State may
not make the provision of services in its territory subject to compliance with all of
the conditions required for establishment, and thereby deprive of all practical
effectiveness the provisions of the Treaty whose object is to guarantee the freedom to
provide services. Consequently, a Member State cannot require guides from another

34

Cases C-180/89 Commission v Italy, C-154/89 Commission v France;. and C-198/89 Commission v
Greece [1991] ECR I-691 et seq. and Case C-375/92 Commission v Spain [1994] ECR I-923

46

270.

271.

272.

Member State to undergo national training to obtain a national licence or permit.
Similarly, to require that they obtain recognition of their qualifications in accordance
with the General System Directives is not normally justified.

The judgements of the Court refer to a situation in which the guide travels with the
in that group they move
tourists and accompanies them in a closed group;
temporarily from the Member State of establishment to the Member State to be
visited, in as far as the service consists of guiding the tourists in places other than the
museums and historical monuments best visited only with a specialist professional
guide.

In contrast, the tourist guide who is established in the host country to welcome
tourists regularly on their arrival and guide them during their tour, but remains in the
host country after their return to their Member State of origin, can be subject to the
host Member State's requirements as regards professional qualifications. In this case,
the host Member State must implement the recognition mechanisms set out in the
General System Directives.

The statistics show that there were very few applications for recognition in this
profession. According to the figures covering the period 1995/96 sent by the Member
States, Portugal is the only country to have received requests for recognition (three,
including two from Germany and one from Spain). All three were approved after
success in the aptitude test.

3.

Delimitation of the fields of activity of couriers/tour escorts and tourist

273.

274.

275.

276.

277.

The Commission has observed that freedom of movement problems very often
originate in confusion between two different but complementary professions: tourist
guides and couriers/tour escorts.

The Commission has already pointed out, both during the debates on this subject and
in the numerous written contacts with the professionals concerned and with the
Member States, that it has no powers to define the field of activity of professions or
to decide on the tasks corresponding to each profession.

It must be stressed that the Communication on the comparability of vocational
training qualifications between Member States in the tourism sector35 makes it very
clear in the section on couriers/tour escorts that "this skilled worker must not be
confused with a tourist guide".

Mention should also be made of the Commission's answer to Written Questions E-
2615/96 from Mr Kellet-Bowman36 and E-0797/98 from Mrs Daskalaki37.

Numerous technical meetings have taken place between Commission representatives
and the professional associations concerned: the International Association of Tour
Managers,
the European Federation of Tour Guides, and the European Tour
Operators’ Association.

35

36

37

OJ C 320, 7 December 1992
OJ C 72, 7 March 1997, p.65
OJ C 323, 21 October 1998, p.75

47

278.

279.

280.

281.

282.

In May 1997 the Commission adopted a working paper on the question of tourist
guides (SEC (97) 837 final). The professional associations concerned were consulted
before and after the adoption of this working paper, and in particular on demarcation
of fields of activity between the various professions. Their views appear in full in the
annex to the working paper.

The question of tourist guides has also been debated in Parliament. For example,
Parliament's Committee on Petitions examined and rejected a petition in which a
travel courier from a Member State met obstacles to exercising tasks involving the
profession of tourist guide in another Member State — in this case this involved
providing a commentary to the courier's group of tourists inside the Florence
Baptistry.

At present, the Commission is not aware of any evidence that there are, generally
within the European Union, obstacles to the free provision by couriers/tour escorts of
courier services.

The desire of certain professional associations, not so much to ensure the freedom of
couriers/tour escorts to provide courier services, on which the Commission has taken
action (following its intervention the certificate of two years' experience provided for
by Directive 75/368 is no longer required of couriers/tour escorts), but rather to gain
access to a different profession, is a matter which clearly goes beyond the guarantees
provided by current Community law.

The Commission is also ensuring that the Member States condemned by the Court of
Justice in its tourist guide judgements adapt their national legislation in accordance
with the judgement of the Court. Various infringement procedures under Article 171
of the Treaty are in hand.

4.

Conclusions

283.

284.

285.

The tourist guide who wishes to be established in the host country, to welcome
tourists regularly on their arrival and guide them during their tour, and remain in the
host country after the tourists' return to their Member State of origin (which is in
practice the most usual situation, since it is normally the courier who accompanies
the group and makes the return trip with it), can be subject to the host Member
State's requirements as regards professional qualifications. In this case, the host
Member State must implement the recognition mechanisms set out in the General
System Directives.

Similarly, the guide can be subject to national qualification requirements when, even
within the framework of a restricted tour, he or she wishes to guide tourists in the
museums and historical monuments covered by the exception referred to earlier.

In these two situations, a guide from another Member State may be required to
possess the professional qualifications required in the host country, either through the
recognition of qualifications acquired in another Member State, in accordance with
the General System Directives, or by having followed national training and obtained
the necessary qualification.

286.

As regards the scope to be given to this exception, the Commission considers that too
broad an interpretation, covering virtually all museums and historical monuments,
would in effect render the Court's judgements meaningless. On the other hand, too

48

287.

288.

289.

290.

291.

292.

293.

restrictive an interpretation would not take adequate account of the general interest
inherent in exploitation of the historical heritage, recognised by the Court of Justice
as justifying the exception in question. It therefore seems appropriate to interpret this
exception from the point of view of proportionality.

In addition, the legal arguments cannot mask the economic or commercial issues
facing the tour operators of the countries which are seen as "exporters" of tourists.
The trends in tourist demand reveal an increasing interest in tourist products with
cultural content, built around an interpretation of the cultural heritage of the countries
being visited, and this is traditionally the role of the tourist guides in the host
countries.

Tourist guides cost money (figures ranging from 1% to 3% of the costs of a tour
were advanced by various sources), which certain tour operators might be tempted to
seek to reduce or even eliminate, for example by having couriers/tour escorts assume
tasks otherwise performed by guides.

The Commission has initiated several
implementation of the “tourist guide” judgements.

infringement procedures relating to the

In addition, it has always maintained contacts with the Member States and the
professional associations concerned in order to find practical solutions to the
problems involved in the free movement of tourist trade professionals. However, the
issue appears to continue to be seen by some in more ‘black’ and ‘white’ terms.

On the one hand, it is important that the countries condemned by the Court of Justice
undertake in the long term the necessary legislative work in order to adapt their
legislation to Article 49 (ex 59) of the Treaty as interpreted by the Court. Although
certain infringement procedures under Article 228 (ex 171) of the Treaty have been
dropped following the adoption of the national legislation in the country concerned,
in other cases infringement procedures are still in hand pending final adoption of
legislation.

Moreover, the various professional sectors concerned must be aware of the fact that
the freedom of movement guaranteed by the Treaty has as a corollary the obligation
on Member States to recognise the qualifications acquired in another Member State.
This does not, however, mean that for the host Member State there is an obligation to
recognise despite the absence of qualifications.

A review of the cases, and the contacts established with the professional associations
concerned and the Member States, suggest
the problems about which the
Commission was approached are not insurmountable from the technical point of
view. Solving them depends rather on the will of the main players to accept solutions
aiming to reconcile the principle of the freedom to provide services with the right of
Member States the possibility to restrict certain professions to persons having the
appropriate professional qualifications.

that

G.

Sports professions

294.

The relationships between sport and mechanisms for recognising diplomas are
complex, since the approaches to the sports professions differ widely from one
country to another. In certain Member States,
they are highly regulated and
structured professions, and persons who do not hold certain qualifications are not

49

295.

296.

allowed to practise them. In other countries sport is more of a leisure activity which
by its nature is run by amateurs. In these countries the idea of “professionalising” this
work is still not at all widespread. There are also intermediate situations, where only
the “high-risk" activities which could be classified as dangerous are regulated.

The authority to award a diploma also varies considerably from one Member State to
another. Certain diplomas are awarded by the State while others are granted by sports
federations. Certain diplomas are intended for professionals whereas the purpose of
others is to allow the running of sports activities on an amateur basis (even in the
latter case diplomas may sometimes be compulsory). This variety of situations
naturally complicates the recognition mechanisms, since under the General System
the more similar the professions are, the more the levels will be equivalent and the
easier the recognition of diplomas will be. In the world of sport, however, we find
extreme diversity, and the necessary equivalence between different systems are all
the more complicated to set up.

However, no specific measure has been adopted in the field of sports professions. A
request was made in 1994 by a European mountain guide association. The
Commission replied that the General System would have to be proved inadequate
the measures to be put forward would have to meet with sufficient
and that
consensus from professionals in all Member States and between Member States in
terms of their principles and primary content. The association had adopted a platform
of conditions for access to and exercise of the profession, which had been approved
by associations in four Member States. It should also be mentioned that, outside the
scope of Community action, certain organisations are working on the wider
harmonisation of qualifications in sport. The work of the REISS (Réseau Européen
des Instituts chargés des Sciences du Sport) is a good example of this.

1.

Free movement of workers and the freedom of establishment

297.

As far as workers and the freedom of establishment are concerned, the application of
the General System to sport does not present any particular difficulties, at least in
principle. It is true that there are problems with the implementation of the Directives
or the proper application of Community law, and some time ago proceedings were
brought against the sports legislation of a Member State, but the situation is not
fundamentally different from that in other professions.

2.

Provision of services

298.

The free movement of services poses particular problems with regard to sport. First
of all it is important to stress that the volume involved seems to be relatively great. It
is increasingly common for groups to go abroad for short periods (holidays, sports
courses, training) accompanied by group leaders with sports qualifications. Short
stays of this type can be for young people in connection with holiday trips (for
example "colonies de vacances", holiday camps or activity centres). They can be for
adults in the case of trips for skiing, windsurfing, horse-riding etc. They can also be
for people undergoing training. Danish ski instructors going for short stays in the
Austrian Alps as part of their training are a good example. These groups often have
their own leaders, who are qualified in the country of origin. It should be added that a
number of sporting activities are by nature seasonal. It is fairly normal practice for
the same person to be a ski instructor in winter and supervise other open-air activities

50

in summer. This raises questions as to the demarcation between establishment and
service provision for those operating between Member States.

VII.

THE COORDINATORS’ GROUP

A.

Meetings and reports

299.

300.

301.

As with the first General System Directive, Directive 92/51/EEC required each
Member State to designate a person responsible for the co-ordination of the
authorities which had also to be designated within each Member State to receive
applications under the Directive and take decisions on them (Article 13). Article 13.2
provides that these Co-ordinators shall have membership of the Directive 89/48 co-
ordinating group and that that the responsibilities of that group were expanded to
include the functions of facilitating the implementation of Directive 92/51/EEC and
collection of information.

As a result and following the adoption and entry into force of the Directive, a number
of issues concerning this Directive have been included on the agenda of the meetings
of the Group of Co-ordinators. These included some general reporting and discussion
on implementation of the Directive.

Among the more general discussions was one in mid-1993 concerning the
amendments required to Annex C of the Directive in order for its application to be
extended to the non Member States which are parties to the European Economic
Area. On several other occasions, proposals from Member States for the amendment
of Annexes C and D to the Directive, either for the inclusion or for the exclusion of
certain existing or new professions, or new forms of training or certificates, or
concerning the movement of a profession in a Member State from certificate to
diploma level, were discussed. These included cases of professions having moved
from Directive 92/51/EEC to Directive 89/48, or having become unregulated or
having become regulated. The Italian ‘ragionere’ and ‘consulente del lavoro’; the
German ‘Masseur und medizinischer Bademeister’, ‘pharmazeutisch-technischer
Assistent’, ‘podologues’, ‘logopedes’ and certain commercial, industrial and crafts
the Danish
activities which include a teaching element exercised in schools;
‘apotekhassistent’ and ‘fodterapeuterhovervet’; United Kingdom medical laboratory
scientific officer, trademark agent, prosthetist and probation officer are but some
examples. In particular a report was produced on the level of education and training
leading to the exercise in the Member States of the professions of pharmaceutical
assistant in Germany and chiropodist in Germany and Denmark. This was done with
a view to an assessment of the compatibility of the activities and responsibilities
involved with a view to the possible inclusion of these professions under Annex C of
the Directive. This also produced some discussion under the committee procedure38
under the Directive.

302.

Other individual professions were also specifically discussed, as were the various
levels of qualification and activity within the profession of social worker. The
question of national requirements concerning the recognition of medical certificates
from different Member States with respect to the seafaring profession was also
discussed in the context of relevant international treaty provisions. Questionnaires

38

See the results under comments on Article 15.

51

are currently in the process of being issued on the professions of radiographers and
physiotherapists with a view to the subsequent discussion of the information to be
provided in the Co-ordinators’ Group.

A number of discussions dealt with aspects common to the application of the first
and second Directives, such as the development of the Code of Conduct for Member
States’ administrative authorities responsible for recognition decisions. Also, over a
period spanning the first few years of operation of the Directive, work continued on
compiling a table of regulated professions containing a consolidated list of regulated
and non-regulated professions in the Member States,
incorporating individual
national lists and professions mentioned in statistical reports, including the definition
of the professions falling under Directive 92/51. The first report of the Signpost
Service on the enquiries and questions received in 1997–98 from individuals through
free-phone and web site contacts in the Member States has also been circulated
within the Group and is being analysed and commented on.

On several occasions, representatives of the Central and Eastern European Countries
have taken part in meetings of the Co-ordinators’ Group concerning the activities in
these countries relating to their prospective accession to the European Union. This
participation was put forward in the Commission White Paper on the preparation of
the associated countries of Central and Eastern Europe for integration into the
internal market of the Union.

The Co-ordinators’ Group has also been used for the communication of information
on activities at national and Community level relevant
to the recognition of
professional qualifications. Member States have reported on current developments
within their territories and, for example, the Commission has recently presented the
proposals for a European Parliament and Council Directive on certain legal aspects
of electronic commerce in the internal market and two other linked proposals for
Directives concerning the ability of independent or employed non Member State
nationals to move between Member States in order to be able to provide cross-
frontier services within the EU. There have also been regular presentations of the
activities of the Commission and Community programmes in the field of education,
training and research. Other items, such as the work being done in the field of the
to the initiative for Simpler
recognition of professional qualifications pursuant
Legislation in the Single Market (SLIM) and the UNESCO/Council of Europe
Convention on higher education diplomas in the European region, have also been
included as information items. The Co-ordinators have also been informed about the
work on the three proposals for Directives: establishment of lawyers (1998/5), the
“third Directive on the General System” (1999/42), and the “SLIM” Directive
(COM(97) 638).

The Co-ordinators’ Group also continues to play a role in the collection of
information on the implementation of the two General System Directives and
statistics on the operation of the General System Directives within their territories.

Code of Conduct approved by the Group of Co-ordinators for the General
System of recognition of diplomas.

Pursuant to Directives 89/48/EEC and 92/51/EEC, a basic principle now applies.
Any professional who is qualified to pursue a profession in one Member State has a
right to the recognition of his or her diploma to gain entry to the same profession in

303.

304.

305.

306.

B.

307.

52

another Member State. However, implementing this principle requires a number of
administrative formalities to be completed by the applicant and the authorities
responsible for treating his application. These formalities, while they are essential for
the proper operation of the General System, must not constitute disguised ways of
impeding the migrant’s right
to freedom of movement. These administrative
formalities are mentioned in Article 8 of Directive 89/48 and Article 12 of Directive
92/51.

308.

Article 12 of Directive 92/51/EEC lays down that:

309.

“1. The host Member State shall accept as means of proof that the conditions laid
down in Articles 3 to 9 are satisfied the documents issued by the competent
authorities in the Member States, which the person concerned shall submit in
support of his application to pursue the profession concerned.

310.

2.

The procedure for examining an application to pursue a regulated profession
shall be completed as soon as possible and the outcome communicated in a
reasoned decision of the competent authority in the host Member State not
later than four months after presentation of all the documents relating to the
person concerned. A remedy shall be available against this decision or the
absence thereof, before a court or tribunal in accordance with the provisions
of national law.”

311.

312.

313.

However, by their nature the Directives can only make general provision for the
implementation of these administrative formalities. In detail, the way these rules are
put into practice has been found to vary greatly from one Member State to another, to
the extent that there is sometimes a danger of slowing the recognition mechanisms.
This is why the Commission services thought it worthwhile to bring this question
before the “General System” Co-ordinators in order to arrive at a more precise
definition of the applicable rules. This meant
initially exchanging views on the
various practices, with a view to arriving in a second phase at a consensus in this
field.

Following these exchanges of views, a document on the national administrative
formalities in connection with Directives 89/48 and 92/51 was drawn up by the
Commission services. The purpose was to try to ensure the compatibility of these
administrative formalities with the right to recognition pursuant to the Directives
which the migrant can claim.

The Commission’s document was discussed in the Co-ordinators’ Group, amended
on a number of points and finally adopted on 18 June 1998. It sets out in detail the
desirable, acceptable and unacceptable practices in the following 14 areas:
information to be given to the departing migrant by the contact point or a competent
authority in the Member State of origin, information to be given to the arriving
migrant by the contact point or another competent authority in the host Member
State, documents which the migrant may be required to supply to the competent
authority in the host Member State, the form of the documents required from the
migrant by the competent authority in the host Member State,
translations
(information to be provided by the competent authority in the Member State of
origin), translations required by the host Member State, fees to be paid by the
migrant in the host Member State, aptitude tests in the host Member State, adaptation
period in the host Member State, compilation of files (time limits), incomplete files,

53

314.

315.

rules on reasoned decisions and appeals, professional organisations and co-
ordination.

This document has now become the "Code of conduct approved by the Co-
ordinators’ Group for the General System for the recognition of diplomas". The
consensus which emerged on this Code may make it possible to remove a number of
administrative obstacles which hitherto stood in the way of migrants. It can be of use
to the national authorities responsible for examining recognition applications and to
migrants.

The document is of course not exhaustive. New questions will probably arise as time
goes on, which will make it necessary to update the document. It is based, moreover,
it can by nature only be for information
on the Directives, which means that
purposes. The reference texts continue, of course to be the Directives and the case
law of the Court. Nonetheless, the document could prove to be of considerable use in
the future.

316.

The Code has now been published with the agreement of the Co-ordinators.

C.

Administrative co-operation between Member States

317.

318.

319.

The Co-ordinators' Group was initially established under Directive 89/48/EEC,
largely in order to facilitate the implementation of the Directive. Its activities have
since been extended to Directive 92/51/EEC and will also apply to Directive
99/42/EC (OJ L 201, 31 July 1999, page 77). The role ascribed to the Co-ordinators
is similar under all three directives. Article 13.3 of Directive 92/51 states that: “The
Member States shall take measures to provide the necessary information on the
recognition of diplomas and certificates and on other conditions governing the
taking up of the regulated professions within the framework of this Directive. The
Commission shall take the necessary initiatives to ensure the development and co-
ordination of the communication of the necessary information”.

More generally and more recently, the Commission sent a Communication to the
Council and the European Parliament concerning “Mutual recognition in the context
of the follow-up to the Action Plan for the Single Market” (COM(1999)299 final).
The aim of this Communication is to point out the fundamental importance of the
principle of mutual recognition for the Single Market, to examine problems in its
application, analyse the causes and make proposals for improving its operation (see
extracts in Annex 2).

In this context, the Commission has launched a discussion in the Co-ordinators'
Group on how to improve communication and co-operation amongst
the Co-
ordinators in order to facilitate recognition decisions and find quick and pragmatic
solutions to problems. Particularly where competent authorities in a Member State
have to take decisions on the basis of mutual
recognition of professional
qualifications gained in another Member State, further contacts via Co-ordinators are
likely to foster well-founded decision-making on individual cases. It is, after all, the
competent authorities in the 'home' and 'host' Member States which hold all the
information relevant to the assessment of the migrant seeking recognition. A number
of ideas have been suggested to launch the discussion on the practicalities of
communications between Co-ordinators, the value of including available information
on professional qualifications in a jointly-accessible database and the introduction of

54

a procedure for exchanging information and views between 'home' and 'host' Member
States on particular cases.

VIII.

LANGUAGE REQUIREMENTS

320.

321.

A certain knowledge of the language of the host country may be essential for the
pursuit of a profession. However, language requirements must not affect the basic
freedoms guaranteed by the Treaty,
for workers
i.e.
(Article 39 [ex 48]), freedom of establishment (Article 43 [ex 52]) and freedom to
provide services (Article 49 [ex 59]). Requirements of this kind should therefore not
be out of proportion with the objective, and the procedures for their application
should not involve discrimination against nationals of other Member States.

freedom of movement

For salaried employees, Article 3 of Council Regulation No 1612/68 on freedom of
movement for workers within the Community explicitly admits “conditions relating
to linguistic knowledge required by reason of the nature of the post to be filled”.
Language requirements must be necessary39, however, and be imposed in a
proportionate manner.

322. Where establishment is concerned, a request for a preliminary ruling40 is currently

before the Court of Justice.

323.

324.

325.

Knowledge of languages may not, as a matter of principle, be the subject of
compensatory measures, since it is not on the restricted list of situations in which
such measures may be required (see Article 4(1)(b). Including it would also be
unjustified on the grounds that any adaptation period or test would take place in the
language of the host country. There is a fortiori no justification for an exemption
from the migrant’s choice between test and adaptation period in the case of language
knowledge.

An exception may, however, be justified where language knowledge forms an
essential part of training, as in the case of language teachers41.

In cases where a language test is justified on legitimate grounds, both the test and
is administered must nevertheless be
above all
proportionate to the objective sought. The level of a prior test must not exceed the
level objectively necessary for the pursuit of the profession in question.

the conditions under which it

IX.

TEMPORARY PROVISION OF SERVICES

326.

The legal basis of the General System Directives is Articles 40 (ex 49), 47(1) (ex
57(1)) and 55 (ex 66) of the EC Treaty. They consequently apply to pursuit of
professions both as an independent worker and an employee, and in the latter case

39

40

41

e.g. for safety reasons, as in Article 8 of Council Directive 94/58/EC on the minimum level of training
for seafarers, which lays down criteria for the language skills of crews of passenger vessels - OJ L
319/1994, p. 28.
Case 424/97 (“Haïm II”). The submissions were made by the Advocate-General on 19 May 1999.
Cf. the judgement of 28 November 1989 in Case C-379/87, Groener v Minister for Education and the
City of Dublin , [1989] ECR 3967, on paid employment in teaching. This case was, however, based on
the public interest of a national cultural policy: the preservation of the Gaelic language.

55

327.

328.

329.

330.

331.

332.

333.

they apply to both establishment and the provision of services. In practice, the
to the "sectoral" directives on diploma
General System Directives,
recognition, contain no special provisions applicable to the provision of services and
are different from those applicable to establishment and employment.

in contrast

In theory, therefore, Directive 92/51/EEC applies as much to persons established (or
wishing to become established) in the host Member State with a view to pursuing
their profession as to those who, whilst they remain established in another Member
State, wish to provide services in the host Member State.

First, it should be noted that in the case of provision of services, the recognition of
diplomas is governed by both the General System Directives. This question does not
arise exclusively under Directive 92/51. Throughout this section, therefore, reference
is made to "the General System" and "the Directives".

Experience has shown that the recognition mechanisms set up under Directives
89/48/EEC and 92/51/EEC are not always ideally suited to the provision of services;
some potentially problematic elements include: the requirement for the migrant to
produce an application for recognition of the diploma in the correct form; the four-
month period for examination of the application; and the possibility for the host
Member State to require an aptitude test, an adaptation period or additional
professional experience, etc. The question has arisen notably in the tourism sector
(see “Tourist professions” above) and in sport (see “Sports professions” above).

It is possible, for example, that in certain cases the length of the adaptation period
might be disproportionate to the expected duration of the provision of services. In the
same way, the aptitude tests are as a rule organised a number of times each year, and
the first available test date may be too late, so preventing the services from being
provided.

A rigid application of the General System would, for example, require a German
table-tennis coach accompanying a group of young people on a three-day visit to
France to begin the procedure months in advance in order to supervise his group on
French territory. Similarly, the children of an Italian riding club wishing to cross the
frontier into Austria for a few hours with their instructor would have to prepare their
ride months in advance. In such cases, the solutions offered by the General System
seem to stand in the way of the free movement of the professionals concerned.

The recognition mechanisms laid down by the Directives, and particularly the
compensation measures as designed, can in practice be an obstacle to the provision
of services. The Commission consequently considers that in the case of the provision
of services, the Directives must be interpreted in the light of the nature of the activity
in question and its temporary nature.

The notion of applying more flexible rules to the provision of services is based on
case law of the Court of Justice of the European Communities, which has ruled that
Article 49 (ex 59) of the Treaty requires not only the elimination of all discrimination
vis-à-vis the provider of services on the ground of his nationality, but also the
abolition of any restriction, even if it applies without distinction to national providers
of services and to those of other Member States, when it is liable to prohibit or
otherwise impede the activities of a provider of services established in another
Member State where he lawfully provides similar services.

56

334.

In the case of Säger v Dennemeyer42 the Court remarked that: “A Member State may
not make the provision of services in its territory subject to compliance with all the
conditions required for establishment, and thereby deprive of all practical
effectiveness the provisions of the Treaty whose object is, precisely, to guarantee the
freedom to provide services".

335.

Consequently, if the migrant is established in the host Member State, he is subject to
the recognition procedures of the General System Directives, but in the case of the
provision of services, there should be a more flexible recognition mechanism.

336.

One important question thus concerns the boundary between provision of services
and establishment.

337. Within the meaning of the Treaty (Article 50 [ex 60]), “services” are those normally
provided for remuneration,
insofar as they are not governed by the provisions
relating to freedom of movement for goods, capital and persons. The provisions of
the Treaty relating to services are therefore subsidiary to those of the chapter on the
right of establishment, and are applicable only when the provisions relating to
establishment do not apply43.

338.

339.

340.

In the Court's opinion, "establishment" is a broad concept allowing a Community
national to participate, on a stable and continuous basis, in the economic life of the
host Member State. An activity carried out on a permanent basis or, in any event,
without a foreseeable limit to its duration, does not fall within the rules on the
provision of services44.

As to the activity's temporary or permanent nature (or at least
its stability and
continuity), the Court has ruled that its temporary nature “has to be determined in the
light, not only of
its
regularity, periodicity or continuity"45. No precise rules have yet been established on
this, and each case must be assessed on its merits to decide whether or not, despite its
a priori temporary nature, it should be treated as one of establishment.

the service, but also of

the provision of

the duration of

Account also has to be taken of cases where, although the service provider is
established in the Member State of origin and not in the host Member State, his
situation may still be governed by the rules on the right of establishment. However,
the opinion of Advocate-General P. Léger on the same case introduced further
reference material. “Consequently”, he writes under point 87, “there is a range of
to be distinguished from
indicia which enables
establishment”. “The location of the lawyer's main centre of activity,” he continues
in point 88, “the place where he has his principal residence, the size of his turnover
in the various Member States in which he carries out his activity, the amount of time
spent in each of those States and the place at which he is entered on the Bar rolls
will each afford evidence for the purpose of determining the nature of his activity in
each of the Member States considered”. These considerations are, of course, mutatis
mutandis applicable to other professions.

the provision of

services

42

43

44

45

Judgement of 27 July 1991 in Case C-76/90 Säger v Dennemeyer, [1991] ECR I-4007
Judgement of 30 November 1995 in Case C-55/94 Gebhard v Milan Bar Council; [1995] ECR I-4165
Judgement of 5 October 1988 in Case 196/87 Steymann v Staatsecretaris van Justitie; [1988] ECR 6159
cf. Gebhard and Case C-3/95 Reisebüro Broede v Sandker, [1996] ECR I-6511

57

341.

342.

343.

344.

345.

It should also be borne in mind that there are situations in which, even if the
interested person is formally established in the Member State of origin and not in the
host Member State, he/she is subject to the right of establishment. The Court has
recognised that the rules on provision of services cannot be used to avoid complying
with the rules on establishment, noting that "a Member State cannot be denied the
right to take measures to prevent the exercise by a person providing services, whose
activity is entirely or principally directed towards its territory, of
the freedom
guaranteed by Article 49 (ex 59) for the purpose of avoiding the professional rules of
conduct which would be applicable to him if he were established within that State.
Such a situation may be subject to judicial control under the provisions of the
chapter relating to the right of establishment and not of that on the provision of
services".

Even if the service provider is formally established in another Member State,
therefore, he/she may fall within the establishment rules if his/her professional
activity is entirely or principally directed towards the territory of the host Member
State.

At the same time, the Commission's recent proposal for a directive on certain legal
aspects of electronic commerce in the internal market (COM(1998) 586 final of
18.11.1998 – OJ C 30 of 5.2.99, amended on 1 September 1999; COM(1999) 427; n°
98/0325) provides in its Article 3 that Member States must ensure that Information
Society services provided from its territory comply with its national provisions and
may not restrict the freedom to provide such services from other Member States. In
the Explanatory Memorandum to the proposal, under the heading 'Necessity of a
Legal Framework for the Internal Market' and sub-heading 'Lack of clarity in the
existing legal framework', it is stated that:

"Differences in certain legal provisions applicable to Information Society services in
different Member States can result in a situation where, as an exception to the
principle of free movement and subject to conformity with the case law of the Court
of Justice one Member State may make the provision of a service from another
Member State conditional on supervisory measures or the application of its own
legislation. In practice this means that a service provider wishing to offer a service
throughout the internal market must, in addition to the compliance with the rules of
the country in which he is established, ensure that the service is compatible with the
law of the other 14 Member States.

A significant lack of legal certainty characterises the current legal framework. This
legal uncertainty arises over the lawfulness of measures taken by one Member State
concerning services provided by providers established in another Member State (are
they justified in relation to the principle of the freedom to provide services or of
secondary Community law applying that principle?). Legal uncertainty also arises in
determining the requirements to be met by Information Society services (to what
extent does a particular rule apply to such services?). Cases which have already
been decided diverge, indicating that there is a serious lack of legal certainty whose
adverse effects are strongly amplified in a cross-border situation."

346.

Furthermore, it can be said that although there are some characteristics particular to
Information Society services, such as potential lack of certainty of the location of the
service provider, much of this reasoning can also apply to the same kind of services,
and professional services, provided by such means as fax, telephone, mail or through

58

347.

348.

349.

cross-border movement of the service provider or service receiver. A large measure
of the legal uncertainty identified in the context of the electronic commerce proposal
is of wider relevance in evolving market and technological circumstances when the
interests of the economy and individual service providers and service receivers are to
avoid uncertainty, duplicatory or onerous additional procedures and to benefit from
increased competition and opportunity.

In all events it must be remembered that, in accordance with consistent case law46the
freedom to provide services can be restricted only if four conditions are met: the
measure must be applied in a non-discriminatory manner; it must be justified by
compelling reasons of general interest; it must be capable of guaranteeing that the
aim being sought will be achieved, and it must not go beyond what is needed to
achieve that aim. In addition, the general interest in question must not already be
protected by the rules to which the service provider is subject in the Member State of
establishment. This is not the case when, because the profession is not regulated, the
service provider is not subject to any rules in the Member State of establishment.

This case law remains to be applied, also taking into consideration the case law on
the legitimacy of requirements for professional qualifications for certain activities in
the interests of service recipients. The Dennemeyer judgement states that, “neither
the nature of a service such as that at issue nor the consequences of a default on the
part of the person providing the service justifies reserving the provision of that
service .. ” (point 20). Here the matter in question was that of monitoring the renewal
the Commission
of patents. For the same reason of simplicity of the activity,
considers the General System to be inapplicable to tax advice47. The Dennemeyer
judgement does, a contrario, admit
the requirement of qualifications for other
activities. The requirement of qualification rules etc. for a provision of services is
also admitted in particular by the Reisebüro Broede judgement on recovery of debts,
an activity restricted to lawyers in the Member State concerned.

A further example was the decision of the Commission taken in 1996 to close an
infringement procedure opened against France for non-implementation of Directive
92/51 in the field of certain sports/leisure instruction activities including ski
instruction. In taking this decision, the Commission relied on the fact that
the
provisions of the Directive, for example concerning the four-month period in which
action has to be taken on a demand for recognition, were too restrictive to apply in
relation to the temporary provision of services. Resort was therefore had to the
general rules of the Treaty in order to justify the acceptance of legislation being
introduced in France by which the French authorities would only apply aptitude tests
to foreign ski instructors wishing to provide their services in France on a temporary
basis where substantial differences exist between the qualifications of the foreign
instructor and those required in France.

350.

For the sake of legal certainty for migrant professionals and the competent
authorities, it seems appropriate to consider amending the Directives to provide for a
mechanism to facilitate service provision by at least making the procedure prescribed
by the General System more flexible, while enabling the host Member State to
safeguard its legitimate requirements for qualifications.

46

47

See in particular the Reisebüro Broede judgement in Case C-3/95, point 28.
Press release reference : IP/96/598 of 4.7.1996

59

351.

352.

353.

The sectoral Directives on diploma recognition48 provide for the declaration to be
made to the competent authority. The declaration is usually to be made prior to the
provision of services, but may in urgent cases be made as soon as possible after the
services have been provided.

Nevertheless, these Directives organise the co-ordination of training49, which the
General System does not. How then is any substantial shortfall in the training of the
service provider from the point of view of the legitimate interests of the host Member
State to be made up? The time taken to react to the application (cid:190)
consisting merely
of a declaration accompanied by information on the training received (cid:190)
could be
reduced to a month, for example, and the aptitude test only could be used as the
compensatory measure,
the adaptation period being by nature
incompatible with the need to provide services. Professional experience must, of
course, be taken into consideration in reducing or even eliminating the compensatory
measure.

the length of

Furthermore, there appears to be a clear difference between the situation where the
service provider is clearly established in one Member State and provides services
from that Member State directly, but at a distance, by some means of communication
to service receivers in other Member States or where the service provider travels with
those to whom he provides his services to another Member State in order to provide
his services temporarily in that other Member State, and the situation where the
service provider either temporarily operates out of another Member State or moves to
another Member State to provide services to service recipients in that Member State
with whom all contacts take place in that other Member State. In the first set of
circumstances the service provider and the service recipients, and the relations
between them, would appear to have a clear and sometimes closer connection with
the legal system from which the service provider is operating. In other cases the
service provider may be under the control of a locally established operator or the
recipient of the service may be clearly informed and take into account the status and
different qualifications of the service provider and be ready to accept the provision of
service on that basis. In these circumstances, and subject to specific provisions
relating to local insurance cover, etc., it would seem more appropriate for the service
provider to be entitled to carry out his activities subject to the law of the Member
State of his establishment. Consideration could therefore be given to the possibility
and scope of a proposal for a Directive permitting services to be provided on the
strength of the provider’s home-country professional title, along similar lines to the
Directive on electronic commerce.

To conclude :

354.

(i)

The General System does not apply if the requirement for qualifications is not
justified.

355.

(ii)

If the requirement is justified, more flexible procedures should be put in place,
the Treaty taking precedence over the Directives until these are simplified.

48

49

e.g in Article 17(3) of Directive 93/16 on the free movement of doctors (OJ L 165 of 7th July 1993).
or the acceptance of the conformity of new diplomas with new qualitative and quantitative training
criteria for architects

60

(iii) Modifications to the Directive and/or a specific directive on services are being

considered as explained at points 350 and 353.

X.

CONCLUSIONS

356.

357.

In view of the innovative and complex nature of the Directive, it is too early to draw
extensive conclusions about its effects on the basis of the first five years. The
following can, however, be said at this point : it has enabled many citizens to pursue
their professional activities in other Member States, but it has also revealed the need
to simplify certain procedures and enhance administrative co-operation.

The Directive appears to be too cumbersome in terms of the application of its
procedures for recognising qualifications and training in connection with the
provision of services and its procedure for reassessing certain types of training50 (by
amending Annexes C and D). On this last point, it is suggested that the existing
procedure be replaced by a definition making such training equivalent to the diploma
under certain conditions. To facilitate the provision of services, it would be desirable
for the sake of legal certainty to provide for an appropriate mechanism; this is not
easy to formulate, however, since speed must be combined with certainty that there is
no substantial shortfall in the training. To launch the debate and without claiming to
be exhaustive,
responding to
applications and the range of compensatory measures be reduced. More generally,
consideration could be given to extending, for certain professional activities, the
range of services which may be rendered under one’s home-country professional
title, taking as an example the proposal for a Directive on electronic commerce.

the Commission suggests that

the deadline for

358.

Administrative co-operation has enabled a code of conduct on formalities to be
drawn up. We hope that this will be extended by enhanced co-operation between
Member States, along the lines of the communication adopted by the Commission on
16 June 1999 on facilitating and improving the application of the mutual recognition
principle in the single market. Moreover, the proposal for a “SLIM” Directive,
currently before the Council, comprises measures intended to strengthen the role of
the Co-ordinators’ Group.

50

It should in any event be amended in order to adapt it to the new Council general Decision of 28 June
1999,
the exercise of implementing powers conferred on the
Commission.

laying down the procedures for

61

ANNEX I

I.

OBSERVATIONS BY MEMBER STATES

359.

360.

361.

The following contributions were compiled from written communications to the
Commission. They agree closely on two aspects:

-

-

the need to simplify the Directive;

the need for changes to the system of annexes C and D.

362.

The following national contributions were received.

A.

Belgium

363.

Belgium is particularly concerned at how often the procedure laid down in Article 15
of Directive 92/51/EEC for amending Annexes C and D is used. Amendments to
these annexes, some of them relatively minor, are made by means of Directives,
which inevitably means that the Member States are obliged to incorporate them into
national law (even though the new Directive may already itself be partly out of date).
Belgium therefore thinks that other channels should be explored and other legal
solutions found for taking account of amendments reported by the Member States in
the field of professions. The Annexes C and D system needs to be simplified.

364.

Belgium has also pointed out that it has not yet taken advantage of the possibilities
offered by the system involving Annexes C and D to Directive 92/51/EEC. No
Member States have therefore had to incorporate a list of training or education
provided in Belgium into their national legislation.

B.

Denmark

365.

Denmark wished to make a major contribution to the Report on Directive 92/51. The
essential points made by the Danish authorities were as follows.

1)

Complicated regulations

366.

All the Danish authorities which have played a role in implementing the second
Directive, either as competent authority or as co-ordinator, consider the text too
complicated. Its complexity means that they often have difficulty getting a general
overview of the procedures to be followed, and indeed in providing clear and concise
information to members of the public wishing to benefit from the General System.
This applies equally to Community or EEA citizens wishing to pursue a regulated
profession in Denmark, and to Danish citizens wishing to pursue their profession
elsewhere in the Community or the EEA.

367.

The complexity of the text has been felt particularly in two areas.

368.

The first of these is the many levels of training, their hierarchy, the relationships
between levels and the rights associated with each. This category of problems also
includes the structure and significance of Annexes C and D — the "gateways". A
specific problem also arises with the training referred to in Article 8 of the Directive,
which appears not to have been taken into account in the review of regulated

62

professions in the Member States recently completed by the Commission. In the case
of Denmark, a number of professions are concerned, notably in the seafaring sector.

369.

370.

Secondly, the system for amending Annexes C and D is too complex. For example,
Denmark requested the inclusion of chiropodists (fodterapeuter) and pharmacy
assistants (apoteksassistenter) in Appendix C. The processing of the request, in
particular an enquiry by experts, was so lengthy that by the time the Commission
decision had been reached, in 1997 — negative, in the event —the legal basis for the
training of chiropodists had been changed, and inclusion in Annex C was no longer
necessary. In any case, the Commission decision took no account of the changed law.

Denmark's view is therefore that the rules could usefully be simplified by setting out
clearly and simply the hierarchical relationships between the levels of training and, if
it
the gateways. The Danish authorities would also
recommend consolidating the two Directives to create a single hierarchy and
eliminate duplicated provisions.

then remains necessary,

2)

The General System

371.

This is another problem Denmark believes should be discussed. Denmark's view is
that as a whole, these rules govern freedom of movement of labour, the right of
establishment and the freedom to provide services, and that the stress should be
placed on the right to pursue the profession. In practice, this involves, on the one
hand, national rules, and whether the requirements they lay down are reasonable
(they should, naturally, comply with the general Community principles of non-
discrimination and proportionality), and on the other, the applicant's professional
competence, meaning both training and experience. The problem in fact arises
increasingly at the practical level.

372. Within the Co-ordinators' Group the problem can be seen in particular in the issues
raised for discussion or which are the subject of requests for information, e.g.
ongoing information on Socrates and other training programmes (in the strict sense),
and in the presentation of miscellaneous training programmes and establishments
such as the European certificate in psychotherapy. Such issues, which are also highly
specific to the professions concerned, could in Denmark's view usefully be examined
within the NARIC (National Academic Recognition Information Centre) Group. If
NARIC was used in accordance with the Directives,
it would be able to play
precisely this role of training expert, with the Co-ordinator as the general expert in
training, and the competent authorities the experts in specific professional domains.

373.

3)

a)

374.

As to specific cases, Denmark would like to stress the problems encountered by
Danish ski instructors in the Alpine regions. In this case, too much importance seems
to have been given to the question of training, and not enough to professionalism.

Specific comments

France : sports instructor

The Commission accepted France's application under Article 14 for an exemption in
respect of sports instructors in a number of sports disciplines. France was thus
authorised to require an aptitude test for applicants wishing to have their instructor's
diploma recognised before establishment
the training differed
significantly from the training required there.

in France,

if

63

375.

376.

377.

378.

379.

380.

381.

The Commission's decision relates only to establishment, but
the provision of
services by sports instructors falls within the rules of Decree 96/1011 of 25
November 1996. The Decree also prescribes an aptitude test; the principle is thus
being ignored that the choice between aptitude test and adaptation period lies with
the applicant. For this reason Denmark wishes to draw attention to the fact that
France is imposing an aptitude test for both establishment and the provision of
services. It should also be noted that an aptitude test can only be demanded when
there are fundamental differences between the candidate's level of competence and
that required in the host Member State.

The fundamental issue is the applicant's qualifications as a whole, and not the content
of his training. As a consequence, what must be taken into account in evaluating
whether the applicant should undergo an aptitude test is his competence at the
moment of the application. It should not therefore be possible to demand an aptitude
test of all applicants from one or more countries without having first established the
skills of each one individually.

In Denmark's view, the French rules have been a source of serious difficulties for
foreign ski instructors wishing to pursue their profession in France as providers of
services. Every Danish ski instructor who has applied to France has been required to
take an aptitude test, regardless of the level of skill he had attained on completion of
training as a ski instructor.

As to the content of the aptitude test, the Commission Decision of 9 January 1997
states that national measures liable to hinder or make less attractive the exercise of
fundamental freedoms guaranteed by the Treaty must be applied in a non-
discriminatory manner; must be justified by imperative requirements in the general
interest; must be suitable for securing the attainment of the objective which they
pursue; and must not go beyond what is necessary to attain it.

Denmark recognises fully that the profession of ski instructor entails risks which
justify verifying that the applicant does indeed possess the safety skills needed to
ensure that suitable instruction is provided. In the same logic, Denmark also agrees
that, if an applicant is to be evaluated, account must be taken of his skills e.g. in
avalanche risk, searching for missing persons, language skills, etc.

Denmark believes that experience has shown that there is a considerable risk that
exemptions, when implemented, will go beyond what is necessary to attain the
objective being sought.

in order to ensure that

Denmark therefore wishes to observe that systems of exemption should be avoided
whenever possible,
the general principles of mutual
recognition should also apply in the sports sector. This means that the host Member
State should a priori recognise a candidate's purely technical training qualifications
from another Member State and therefore abstain from testing those technical
qualifications.

b)

Austria : ski instructors and mountain guides

382.

In a note dated 15 July 1998, Austria also requested an exemption under Article 14 in
respect of ski instructors and mountain guides, authorising an aptitude test for
applicants wishing to have their instructor's diploma recognised before establishment
in Austria, if the training differed significantly from the training required there.

64

383.

384.

Denmark responded rapidly that it could not support Austria's request, considering
that the increasing number of requests from Alpine countries might well be a sign of
a regrettable tendency which could in the end deprive instructors from non-Alpine
countries of the possibility of pursuing their profession in the Alps.

Denmark's view was thus that the Commission should refrain from recognising any
new request under Article 14 until such time as the French exemption had been
evaluated.

c)

Professions in the sports sector

385.

386.

387.

The Commission has noted very significant disparities between Member States
relating to the framework in which sports professions are practised. In some Member
States these professions must be recognised by the State, whilst in others the state
relies on various organisations to train and approve sports instructors.

Denmark feels that this situation should not be allowed to stand in the way of
applying the general principles of mutual recognition in these professions, and also
that those principles should be applied without the prior requirement of a detailed
scrutiny of each course.

In practice, by accepting such detailed comparisons, the Community will deviate
from the rules on mutual recognition of skills and the logical conclusion of such a
process would be for the Commission to propose full harmonisation of training, to
which Denmark is totally opposed. Denmark sees no reason to abandon the principle
of mutual recognition simply because there are problems with the professional
competence of sports instructors, such as ski instructors.

C

Netherlands

388.

The Netherlands' state that in their view, one of the main aims of the General System
is, the mutual
Directives has been frequently observed in the Netherlands, that
recognition of diplomas. In the Netherlands, diplomas for seafarers (certificates of
competence) from other EU Member States are treated in the same way as Dutch
diplomas meaning that they are automatically recognised. This means that hardly any
applications have been made under the Directives and no records kept on those EU
citizens working on Dutch ships.

The Dutch Co-ordinator would like to know whether any trends can be discerned in
the other Member States, either in terms of a more hands-off approach or in the day-
to-day application of the General System, which can, in turn, lead to deregulation for
some regulated professions. They reiterate that if indeed such a trend is taking place
in the other Member States, it would be worthwhile finding out whether these
changes have brought about the desired relaxation of the rules, and/or whether they
have led or could lead to the abolition of regulations for certain professions.

D

Austria

389.

390.

In Austria, many professions are covered by Directive 92/51/EEC but the application
of this Directive does not present any particular problems.

However, Austria regrets the difficulties encountered by certain of its nationals in
obtaining recognition for their diplomas. The authorities in the host countries have

65

apparently sometimes made questionable claims regarding substantial differences.
Bilateral discussions with the authorities of the countries concerned are still under
way with a view to solving these problems.

391.

In the interests of the smooth running of the General System, Austria calls for
improvement of the equivalence mechanism for diplomas within the meaning of the
two "General System" Directives, and in particular for an amendment to Article 3(b)
of Directive 92/51/EEC.

E

Portugal

392.

393.

Portugal has implemented Directive 92/51/EEC by means of Decree-Law No 242/96
of 18 December 1996. It lists around forty regulated professions, for which five
competent authorities under
these
professions require a certificate or attestation of competence within the meaning of
Directive 92/51/EEC, the health sector being an exception, requiring diploma-level
training within the meaning of the Directive.

four Ministries are responsible. Most of

The vast majority of applicants encounter no problems with recognition and are
therefore not subject to any compensatory measures. When problems do arise, it
must be stressed that the competent authorities are still finding their feet with the
application of the Directive and this may mean some difficulties in organising
recognition procedures and compensatory measures. The regulated professions sector
is also in a constant state of flux and the list of regulated professions in Portugal
needs regular updating, particularly as new professional profiles are being certified
or regulated with the introduction of the "SNCP" (National System of Professional
Certification).

F

United Kingdom

394.

The United Kingdom has drawn attention to a number of points.

395.

396.

397.

398.

This
is a complex and diverse Directive which has encountered lengthy
implementation periods and as a result Member States are only now getting to grips
with it.

Professions may differ widely from one Member State to another as regards the
level, the conditions of access, the fields of activity, the definition, etc. The idea of
professions being the same everywhere is central to the "General System", which
means that the expectations of migrants as regards the recognition of a diploma for
access to a profession that is not identical, is not regulated or does not exist in
another Member State may not always be realised.

As a consequence, a lack of identity between professions may result in the need for
compensation measures. In the majority of cases migrants recognise this need and are
more than willing to make up any substantial differences.

The concept of substantial difference has given rise to difficulties. Defining what is
substantial or what is not is by no means a straightforward matter (the health-care
professions and ski instructors are cases in point). The equivalence mechanisms for
diplomas awarded on completion of three years of post-secondary education and
those awarded on completion of
two years of post-secondary education are
sometimes difficult to apply (e.g. in the health-care professions). The point at issue is

66

that the extra year of study makes it possible to go into subjects in greater depth and
that UK health-care professions are structured in such a way as to require this greater
depth of knowledge as a prerequisite for safe practice.

G

Finland

399.

400.

401.

402.

In Finland the regulated professions covered by Directive 92/51/EEC tend to be
found in the health sector, in shipping and in rescue services. In the public service,
situations covered by the Directive can be found in municipal administrations.

The competent authorities in Finland have generally found the Directive very
difficult to apply. This is particularly because of the diversity of national education,
training and professional structures. For the man in the street, the Directive is
difficult both to read and to use.

Finland believes that the system could be generally improved by a change to the
system of annexes, and by simplifying the procedure for recognising diplomas.

In the view of the Finnish authorities, the priority would be to abandon the system of
annexes. The fact is that the frequent changes in domestic regulations in Member
States generate an equal number of amendments to the annexes. This means a
substantial volume of work for both the Commission and the Member States. For this
reason Finland believes that
the system of annexes should be replaced by an
arrangement which does not need constant amendment.

H

Liechtenstein

403.

Liechtenstein does not have any particular problems with the application of Directive
92/51. Awareness of the status of the EFTA Member States and diplomas issued in
the EFTA countries could, however, be improved in the Member States (and
particularly among local authorities).

I

Germany

404.

405.

In Germany, several professions fall under Directive 92/51/EEC. As far as the
application of the directive is concerned, no major difficulties have arisen, except for
teachers. These difficulties could be solved, by and large, over the course of time.

The explanations by the Commission concerning the recognition of teachers’
diplomas in cases where the migrant holds a diploma in the sense of directive
92/51/EEC, and the host Member State requires a diploma in the sense of Directive
89/48/EEC, are not very transparent : on the one hand, the bridging mechanism from
directive 92/51 to directive 89/48 and its limitations are explained concerning the
limitations with reference to the text of the directive (paragraphs 201 and 202); on
the other hand, reference is made for specific cases, in paragraph 203 to a position
that may not be followed.

As far as the training of teachers in Germany is concerned, it should be stated that the
length of post-secondary training is more than four years, which excludes the
bridging mechanism of Article 3, final paragraph, of Directive 92/51/EEC.

67

ANNEX II

Communication to the Council and the European Parliament concerning
"Mutual recognition in the context of the follow-up to the Action Plan for the
..). To quote from this
Single Market" (COM(1999)299 final
Communication :

- OJ ..

..

406.

407.

"The application of mutual recognition is fully consistent with the Single Market
philosophy according to which the rules of the Member State of origin normally
prevail. The application of this principle is also consonant with the idea of a dynamic
approach to the application of subsidiarity; by avoiding the systematic creation of
detailed rules at Community level, mutual recognition ensures greater observance of
local, regional and national traditions and makes it possible to maintain the diversity
of products and services which come onto the markets. It is thus a pragmatic and
powerful tool for economic integration. [page 4]

In the regulated professions the difficulties experienced with the application of the
principle of mutual recognition of diplomas affect individuals more than businesses.
Although the indicators show that mutual recognition has had a positive effect in this
area, there are still very many individual complaints, as the report by the Citizens
Signpost Service carried out for the Commission In February 1999 shows. The main
sticking point is that the equivalent of training acquired has to be assessed in each
individual case. [page 6]

408.

According to the analysis carried out by the Commission, there is a need to improve
and reinforce the knowledge of economic operators and the competent authorities of
the Member States regarding the principle of mutual recognition. [page 7]

PROPOSED APPROACHES

Credible monitoring of the application of mutual recognition

409.

In order to assess the progress made in the application of mutual recognition and to
have statistics which are both reliable and more complete than at present, the
Commission will prepare, every two years, an evaluation report which will be
forwarded to the Council and the European Parliament ….

Measures aimed at citizens and economic operators

Action by the Commission

410.

The Commission has committed itself to facilitating dialogue with citizens and
businesses. Numerous initiatives have been taken in this area: work under the Action
Plan for the Single Market of June 1997 has led to the setting up of "contact points"
in each Member State, the Dialogue with Citizens and Businesses was launched in
June 1998 and an Internet site for businesses was opened at the beginning of 1999 …

68

411.

412.

413.

414.

Improve information and economic analysis

The Commission stresses that mutual recognition requires a major effort on the
ground: one of the areas in which the investment of such an effort is essential is the
area of information. …. [page 8]

Render mechanisms for dealing with problems more effective

The Commission's biennial report on the application of mutual recognition will allow
a more accurate assessment to be made of the need for a new harmonisation initiative
or further harmonisation in specific areas in compliance with the subsidiarity
principle. Harmonisation must be applied when it
is considered necessary, for
example, when every effort to apply mutual recognition has failed and whenever
Community intervention provides added value ….[page 10]

Action by Member States

It is the Member States who have primary responsibility for the application of this
principle and the Commission is in favour of a genuine partnership becoming
established between itself and the Member States to improve the functioning of
mutual recognition.

More systematic use of the "contact points" set up for all areas of the Single Market
as part of the implementation of the 1997 Action Plan and of Decision 3052/95
should henceforth be encouraged by all Member States. In the regulated professions,
national co-ordinators were instituted under the General System directives. They play
a similar role to that of Single Market contact points and this role must be
strengthened. …" [page 12].

Done at Brussels,

For the Council
The President

69