Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on the recognition of professional qualifications
Date: 2005-01-06
Institutions: European Commission
Subjects: EU employment policy, approximation of laws, education policy, free movement of workers, recognition of vocational training qualifications

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 6.1.2005 
COM(2004) 853 final 

2002/0061 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on the recognition of professional qualifications 

EN 

   EN 

 
 
 
  
 
 
2002/0061 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on the recognition of professional qualifications 

1 - 

BACKGROUND 

Proposal transmitted to the European Parliament and the Council 
(document COM(2002)119 final – 2002/0061(COD) on: 

7 March 2002. 

European Economic and Social Committee opinion delivered on: 

18 September 2002. 

Parliament opinion (first reading) delivered on: 

11 February 2004. 

Amended proposal transmitted on: 

Common position adopted on: 

20 April 2004. 

22 December 2004. 

2 - 

AIM OF THE COMMISSION PROPOSAL 

Consolidation of the existing directives, facilitation of the provision of services, simplification 
of the existing rules and improved information and advice for citizens. 

3 - 

3.1 

COMMENTS ON THE COMMON POSITION 

General comments 

The Commission was able to support the political agreement of the Council of 18 May 2004, 
which essentially retains the Commission proposal as amended by the amended proposal. The 
political agreement has been incorporated into the common position adopted on 23.12.2004. 

The  amendments  made  by  the  common  position  concern  in  particular  the  provision  of 
services,  the  formal  reorganisation  of  the  levels  of  professional  qualification  underlying  the 
general  regime  and  the  reintroduction  of  provisions  from  the  acquis  communautaire  which 
were not included in the Commission proposal. 

EN 

2 

   EN 

 
 
 
3.2 

Amendments by the Parliament incorporated into the common position 

3.2.1 

Amendments integrated into the amended proposal and the common position 

Recital  (36)  –  Amendment  31:  exclusion  from  the  scope  of  the  Directive  of  activities  of 
professions which are directly and specifically connected, even occasionally, with the exercise 
of official authority. The text stating that the Directive is without prejudice to the application 
of Article 39(4) and Article 45 of the Treaty has been deleted, since this Recital cannot affect 
the conditions of application of the Treaty as defined by the Court. This Directive therefore 
remains applicable if a Member State does not reserve to its nationals under Article 39(4) of 
the Treaty access to activities carried out in the exercise of official authority. 

Recital (37), Articles 2 and 5 – Amendment 55: exclusion of the profession of auditor from the 
scope of Title II of the proposed Directive on the freedom to provide services. The common 
position  refers  explicitly  to  the  profession  of  auditor  in  Recital  (37)  and  states,  in  broader 
terms,  that  the  Directive  is  without  prejudice  to  the  application  of  specific  provisions  in 
Community law directly linked with the recognition of professional qualifications. 

Article 4 – Amendments 39, 141 and 189: migrant professionals are made subject to the same 
conditions for exercising a profession as the nationals of the host Member State. 

Articles 5, 6 and 7 – Amendment 87: the common position is close to the existing system with 
regard to the provision of services by doctors, thus tallying in substance with Amendment 87.  

Article 9 – Amendment 53: obligation on the service-provider to provide the recipient of the 
service  with  proof  that  he  is  insured  for  professional  liability.  Otherwise,  the  obligations  to 
provide the recipient of the service with information have been relaxed; this is consistent with 
the  strengthening  of  the  control  exercised  directly  by  the  host  Member  State  on  the 
service-provider. 

Article 11 – Amendments 192, 193, 216 and 217: the text of the amended proposal has been 
incorporated to a large extent with regard to the definition of the levels of qualification. The 
common position stipulates in Article 11(4b) that the types of training with a special structure 
which are listed in Annex II refer only to the cases in which the profession is regulated in the 
Member State concerned, which is a proper reflection of the acquis. The other differences are 
purely  editorial:  the  fifth  level  has  been  transferred  to  Article  13(3),  and  the  definition  of 
regulated training has been moved to Article 3(1d).  

Article  15  and  Recital  (13)  –  Amendments  12,  68,  70  and  185:  the  common  position 
incorporates  in  substance  the  amended  proposal,  stating  that  Article  15  does  not  affect  the 
competence  of  Member  States  in  regulating  the  professions  and  organising  education  and 
professional training systems. The common position also incorporates the amended proposal 
with regard to the representativeness of professional associations and organisations which are 
competent to submit common platforms (the common position refers to representativeness at 
national and European level). 

Articles 17 and 18 – Amendment 207: the common position has integrated for a reduced list of 
activities the Amendment aimed at increasing the duration of professional experience required 
for automatic recognition from five to six years. 

EN 

3 

   EN 

 
Article 22 - Amendments 81, 86, 94, 101, 159 and 160: for all professions with coordinated 
training,  part-time  training  is  authorised  without  being  considered  exceptional  and  on  the 
basis  of  simple  and  uniform  wording.  The  role  of  continuing  training  is  recognised  for  the 
same  professions.  The  content  of  the  amended  proposal  on  these  two  points  has  been 
incorporated. 

Articles 21, 24, 31, 34, 38, 40, 44, 46 and 47 - Amendments 80, 88, 90, 93, 95, 97, 154 and 
161: the text of the amended proposal has been incorporated and the lists of knowledge and 
skills  for  professions  that  have  coordinated  minimum  training  conditions  have  been 
transferred from the annexes to the body of the Directive without any major changes.  

Articles 42 and 45 – Amendments 96 and 162: the amended proposal has been incorporated 
and  the  lists  of  professional  activities  for  midwives  and  pharmacists  have  been  transferred 
from the annexes to the body of the Directive without substantive changes.  

Article  50  –  Amendments  8,  62  and  63:  the  common  position  goes  beyond  the  amended 
proposal insofar as it allows the host Member State to carry out certain checks with the home 
Member  State  to  prevent  fraud  for  training  carried  out  under  a  franchise  agreement.  As  a 
result, the common position recognises that training qualifications acquired under a franchise 
agreement are, as a matter of principle, covered by the Directive. 

Article 56 - Amendments 32, 89 and 110: the common position incorporates the approach of 
the amended proposal and stresses the importance of the exchange of information between the 
competent  authorities,  particularly 
in  cases  of  specific  serious  circumstances  with 
consequences for the practice of the professional activities concerned. This provision is under 
the  title  on  administrative  cooperation,  and  is  therefore  applicable  in  the  context  of 
establishment and the provision of services.  

Recital (28) – Amendment 26: the amended proposal incorporates Amendment 26 with regard 
to  the  transparency  of  the  network  of  contact  points  and  clarifies  the  role  of  contact  points. 
This  has  been  adopted  by  the  common  position,  which  also  states  that  the  designation  of  a 
single contact point does not prevent Member States from setting up several offices.  

Commission statement on the creation and operation of a group of experts – Amendment 181: 
in its statement annexed to the common position (see below), the Commission undertakes to 
set up a group of experts and clarifies the role of professional associations within a flexible 
consultation mechanism.  

3.2.2 

Amendments  incorporated  into  the  amended  proposal,  but  not  taken  over  in  the 
common position 

Article 2 – Amendment 34: the common position does not expressly state that the fact that a 
Member  State  recognises  under  its  national  rules  a  qualification  acquired  in  a  third  country 
does  not  mean  that  the  beneficiary  of  that  recognition  can  by  extension  perform  the 
professional activity in question in another Member State; however, this is acceptable insofar 
as this lack of extension is clearly indicated in Article 3(3) of the proposed Directive.  

Articles 4 and 52 – Amendments 112 and 139: the common position has deleted the reference 
to  the  possibility  for  the  host  Member  State  to  include,  in  the  event  of  partial  access  to  the 
profession,  a  suitable  reference  in  the  professional  title.  This  is  the  result  of  the  deletion  of 
Article 4(3) which addressed partial access to the profession as defined on the territory of the 

EN 

4 

   EN 

 
host  Member  State.  This  is  acceptable  to  the  Commission  insofar  as  case-law  provides 
adequate guarantees for migrants in this respect (“Säger” judgment, 25.7.91 – Case C-76/90).  

Recital (7b) of the amended proposal – Amendments 9 and 58: the common position does not 
follow  Recital  (7b)  of  the  amended  proposal,  stipulating  that  a  migrant  may  not  use  the 
recognition  of  his  professional  qualifications  by  a  host  Member  State  to  obtain  in  his  home 
State different rights to those resulting from professional qualifications acquired in that State, 
without having obtained additional qualifications in the host State. However, this practice has 
always  been  considered 
the  recognition  of 
qualifications (see in particular the Commission’s answer to written question No 512/03 from 
Mr Zappalà). 

impermissible  under 

the  directives  on 

Article  14  –  Amendment  151:  the  common  position  does  not  follow  the  amended  proposal 
with regard to the rules on the procedure for derogation from the requirement that the migrant 
be given a choice between an adaptation period and an aptitude test. However, the common 
position  (re)introduces  an  automatic  derogation  from  the  requirement  that  the  migrant  be 
given a choice in certain cases. This is acceptable for the Commission insofar as it does not 
represent a step backwards in terms of the acquis communautaire. 

Article  21(1)  –  Amendments  152  and  153:  this  amendment  introduced  by  the  amended 
proposal  was  intended  to  clarify  the  text,  and  has  not  made  any  fundamental  change  to  the 
principle of automatic recognition set out in Article 21.  

Article  56  –  Amendments  52,  116 and  117:  the  common  position  does  not  adopt  the  term 
“competent  bodies”  as  a  substitute  for  “competent  authorities”  in  the  amended  proposal. 
However,  the  designation  of  authorities/bodies  vested  with  authority  with  regard  to  the 
recognition of professional qualifications is a matter of internal organisation for each Member 
State and the designation of bodies which are not authorities is not therefore excluded.  

Recital  (32)  –  Amendment  29:  the  amended  proposal  specifies  that  administrative  failings 
attributable to a Member State do not justify deferment of the transposition of the Directive 
into national law. Although this Recital is not included in the common position, it reiterates a 
principle established by the Court and applicable in any event.  

3.2.3 

Points of divergence between the amended proposal and the common position 

Recital (5) and article 5 – Amendments 4 and 45: Amendments 4 and 45 deleted the reference 
to a presumption based on a 16-week period to distinguish between the provision of services 
and establishment. The common position has incorporated the Parliament’s amendments and 
deleted the reference to a presumption based on the time criterion of sixteen weeks. 

Article  6  and  Recital  (8)  –  Amendments  5,  141,  143  and  189:  the  common  position  is  in 
keeping with Amendments 5, 141 and 189, since it enables the Member States to require pro 
forma registration for all regulated professions in order to facilitate the application of the rules 
of  conduct  applying  on  their  territory,  as  set  out  in  Recital  (8)  and  Article  5(3).  This  is 
acceptable insofar as the common position states that it is the responsibility of the competent 
authority of the host Member State to send a copy of the service provider’s declaration to the 
professional body, thus preventing any additional administrative burden on the provider. 

Articles  7  and  8  and  Recital  (7)  –  Amendments  5,  6,  50,  136,  145  and  146:  the  common 
position  is  in  keeping  with  the  wishes  of  the  European  Parliament  that  the  availability  of 

EN 

5 

   EN 

 
information for the host Member State be guaranteed and, in line with Amendment 5, states 
that  the  declaration  must  be  addressed  by  the  service  provider  directly  to  the  competent 
authority of the host Member State for all regulated professions. This initial declaration must 
be  accompanied  by  a  certain  number  of  documents  and  updated  annually  in  a  simpler  form 
(only the proof of professional insurance must also be renewed annually). The administrative 
cooperation set out in Article 8 is limited, according to the common position, to enabling the 
host  Member  State  to  check  whether  the  information  it  has  is  precise.  The  declaration  in 
advance referred to in Article 7(1) and (2) of the common position does not have the effect of 
postponing performance of the services, which, in substance, is in keeping with Amendments 
146 and 50. 

to 

reference 

introduced  a 

the  proof  of  professional 
Amendments  6  and  136 
qualifications/skills  of  the  service  provider.  The  common  position  is  in  keeping  with  these 
Amendments, providing in Article 7(4) the host Member State with the possibility of carrying 
out  an  ex  ante  check  of  the  service  provider’s  professional  qualifications,  but  only  for 
professions  with  implications  for  public  health  or  safety  that  do  not  have  coordinated 
minimum training conditions and only insofar as this check is in proportion to the objective of 
preventing serious damage to the health or safety of the recipient of the service due to a lack 
of professional qualifications. 

The option for the host Member State of exercising control over the services provided on its 
territory is acceptable to the Commission insofar as there is provision in a Recital (and in a 
statement by the Commission appended to the Council minutes, see annex) for the periodical 
review  of  the  need  for  such  a  control  in  the  light  of  the  progress  made  in  administrative 
cooperation. 

Article  21  –  Amendments  75  and  77:  in  Article  21(7)  the  common  position  introduces 
notification to the Commission and to the other Member States for diplomas of architects. In 
an attached statement, the Commission undertakes that where there is doubt as to whether a 
diploma of architects meets the training conditions of Article 46 of the Directive to submit it 
to the group of experts that it will set up in order to obtain the necessary expertise to withdraw 
its  publication  where  necessary.  This  solution  is  acceptable  insofar  as  it  is  closer  to  the 
guarantees of established law with regard to the publication of diplomas for professions which 
have coordinated minimum training conditions.  

Articles 21, 26, 35 and 37 and Recital (17) – Amendments 16, 134, 135, 156, 158 and 179, 
and  also  Amendments  127,  132,  133,  178rev/2,  and  215:  the  common  position  sets  out  in 
Recital (17) and Articles 21(1) and 26 the principle of automatic recognition for medical and 
dental  specialisations  common  to  2/5  of  the  Member  States.  Article  35  therefore  takes  over 
the existing coordinated minimum training conditions for specialist dental practitioners, and 
the  acquired  rights  referred  to  in  Article  37  are  adjusted.  The  related  annexes  are  amended 
only insofar as they incorporate existing law as updated since the adoption of the proposal by 
the Commission. This approach is acceptable since automatic recognition is extended without 
affecting the simplification of the system. 

Article 21 - Amendments 18, 104, 162 and 163: the common position reintroduces, in Article 
21(4), a derogation from the automatic recognition of evidence of training as a pharmacist in 
cases where a new pharmacy is being established. The Commission can accept this provision 
since it already exists in current legislation. 

EN 

6 

   EN 

 
Article 53 – Amendment 114: the common position, in deleting the references in the amended 
proposal to the role of the Member States with regard to knowledge of languages and to the 
express ruling out of systematic examination of such knowledge, tallies with the position of 
the Parliament. The Commission can accept this, insofar as the provision must in all events be 
interpreted in the light of case-law. 

Article  55  –  Amendment  115:  the  common  position  adopts  existing  legislation  and  limits  to 
the  professions  of  doctor  and  dental  practitioner  the  obligation  of  Member  States  not  to 
require  migrants  to  complete  a  preparatory  period  of  in-service  training  and/or  a  period  of 
professional experience in order to be approved by a health insurance fund. The Commission 
can accept this approach insofar as the provision concerned adopts the legislation in force. 

3.3 

New provisions 

3.3.1 

Provisions which were not the subject of amendment and which were reformulated in 
the common position, or which are an extension of the provisions already set out in 
the initial proposal 

Article 10: the common position clarifies the Commission proposal with regard to the cases of 
subsidiary  application  of  the  general  regime  of  recognition,  listing  the  specific  situations 
concerned which are currently governed  either  by  ad  hoc  rules, provisions of  the Treaty, or 
the  general  system  of  recognition.  This  clarification  does  not  involve  any  substantive 
amendment.  

Article  15:  the  common  position  clarifies  the  concept  of  common  platforms  and  the  way  in 
which the substantial differences to be overcome are identified. It also expands the possibility 
of submitting common platforms to the Member States. These clarifications follow the spirit 
of  the  proposed  Directive,  the  aim  of  which  was  to  make  the  recognition  procedure  more 
automatic, since the platform provides a guarantee that applicants who have met the criteria 
set  up  in  this  way  are  compensated  in  advance  for  any  substantial  differences  between  the 
training  completed  and  the  training  requirements  of  the  host  Member  State.  The  common 
position also adds a new paragraph 6 to Article 15, requiring the Commission to submit to the 
European  Parliament  and  the  Council  a  report  on  the  operation  of  this  Article  and,  if 
necessary, appropriate proposals for amending this Article. 

Articles  20,  25  and  26:  the  common  position  lays  down,  in  Articles  20  and  25(5)  and  the 
second subparagraph of Article 26, a framework for the delegation of powers with a view to 
the amendment of Annexes IV and V, point 5.1.4.  

Article 51: the common position reintroduces in Article 51(2) the four-month period given to 
the host Member State for recognition in the case of professions that do not have coordinated 
minimum training conditions.  

3.3.2  New substantive provisions 

Article 3: the common position is in line with the acquis when it reintroduces in Article 3(1) 
and  (2)  a  number  of  definitions  which  are  already  in  existing  directives.  The  definition  of 
“regulated profession” is transferred from Article 11 to Article 3(1). 

Articles  11  and  13:  although  the  Commission  had  proposed  that  Annexes  II  and  III 
(corresponding to the current Annexes C and D of Directive 92/51/EEC) should be indicative, 

EN 

7 

   EN 

 
the common position introduces in Article 11(4b) and the third subparagraph of Article 13(2) 
in  line  with  the  acquis  a  comitology  procedure  in  accordance  with  Council  Decision 
1999/468/EC. The Commission feels that until the Directive is adopted the amendments to the 
annexes should follow the specific procedures currently in force.  

Article  14:  the  common  position  reintroduces  in  Article  14(3)  some  elements  of  the  acquis 
(automatic derogation from the migrant’s choice for professions requiring precise knowledge 
of  national  law  and  in  which  the  provision  of  advice  and/or  legal  assistance  constitutes  an 
essential  aspect;  special  system  of  automatic  derogation  for  activities  covered  by  Directive 
1999/42/EC), and the possibility of automatic derogation from the migrant’s choice for cases 
not currently covered by the general system of recognition and which, by virtue of Article 10 
of the proposal, will in future be covered by the general regime. 

Articles 23, 33, 37, 39, 43 and 49: the common position introduces the provisions relating to 
acquired  rights  of  the  Accession  Treaty  of  Cyprus,  Estonia,  Hungary,  Latvia,  Lithuania, 
Malta, Poland, the Czech Republic, Slovakia and Slovenia.  

Articles  33  and  43:  Poland  has  adopted  national  legislation  enabling  nurses  responsible  for 
general  care  and  midwives  whose  training  does  not  meet  minimum  training  conditions  to 
upgrade  their  training  level  through  supplementary  training.  The  common  position  adds 
derogations  resulting  in  acquired  rights  to  ensure  automatic  recognition  for  members  of  the 
profession who have completed this supplementary training.  

Article 45: the common position reintroduces in Article 45(4) the derogation currently applied 
to Luxembourg with regard to the recognition of professional experience acquired in another 
Member State for the purposes of granting a State concession to operate a pharmacy open to 
the public.  

Article 59: in Article 59(2) the common position stipulates that the Commission will draw up 
a report on the implementation of this Directive every five years.  

4 - 

CONCLUSIONS 

The Commission takes the view that the common position reflects overall the key elements of 
its  initial  proposal  and  of  the  amendments  of  the  European  Parliament  as  set  out  in  its 
amended proposal. With regard to the provision of services, the Commission regrets that the 
common  position  does  not  further  facilitate  the  conditions  imposed  on  the  service  provider, 
but accepts the principle of control by the host Member State. The Commission finds that in 
view  of  the  current  level  of  administrative  cooperation  between  the  Member  States,  the 
common  position  strikes  an  acceptable  balance  between  making  the  provision  of  services 
easier and enabling the host Member State to verify the services provided on its territory. The 
Commission  therefore  supports  the  common  position  adopted  by  the  Council  by  qualified 
majority. 

EN 

8 

   EN 

 
Annex 

Statement by the Commission on the freedom to provide services 

The  Commission  considers  that  the  need  for  specific  requirements  for  the  provision  of 
services by qualified professionals, including the notification of a declaration to the Member 
state  where  the  service  is  to  be  provided,  as  agreed  by  the  Council,  shall  be  reviewed 
periodically  in  the  light  of  the  progress  made  in  establishing  a  Community  framework  for 
administrative  cooperation  between  Member  States.  Furthermore  this  agreement  should  not 
detract  from  efforts  to  realise  the  significant  potential  of  the  internal  market  in  services  for 
improving the EU's competitiveness.  

Commission Statement on the creation and the operation of an Expert Group,  
in particular in the context of Articles 58, 15 and 21(7) 

The Commission intends to create an Expert Group, the role of which should be to provide 
information  and  advise  the  Commission  on  all  issues  relevant  to  the  operation  of  the 
Directive. In particular, it is envisaged that the Group should have the opportunity to discuss 
matters which are under consideration by the Commission concerning the exercise of powers 
delegated  to  it  by  the  Community  legislator  before  any  proposal  for  action  is  made  to  the 
Committee created under the Directive. 

The Expert Group should comprise members appointed by the Commission from competent 
authorities  in  the  Member  States,  without  prejudice  to  the  possibility  for  the  experts  where 
appropriate  to  be  accompanied  by  other  participants  with  a  particular  expertise  on  specific 
issues on the agenda. 

The  Expert  Group  should  be  the  framework  for  a  flexible,  modern  method  of  consultation 
with European representative bodies of professional associations and educational institutions, 
in  particular  with  respect  to  the  professions  subject  to  minimum  co-ordination  of  training 
leading  to  automatic  recognition  of  titles.  Where  suggestions  for  action,  communicated  by 
interested  parties,  appear  on  the  agenda  of  a  meeting,  representatives  of  these  interested 
parties may be invited to present the suggestions made and to answer questions. 

The  Expert  Group  will  also  be  consulted  on  the  common  platforms  submitted  to  the 
Commission in accordance with article 15(2) of the Directive with the purposes of obtaining 
the views of the experts from those Member States which do regulate the profession subject 
matter of the platform. 

If  a  Member  State  has  serious  doubts  as  to  whether  an  evidence  of  formal  qualification  of 
architect, published in accordance with Article 21(7) of the Directive, meets the criteria laid 
down  in  Article  46  of  the  Directive,  the  Commission  intends  to  bring  the  matter  before  the 
Expert Group. The Expert Group will provide the Commission with the expertise necessary 
for the Commission to withdraw if appropriate the relevant evidence of formal qualification of 
architect. 

EN 

9 

   EN