CELEX: 51988PC0700
Language: en
Date: 1988-11-25
Title: REEXAMINED PROPOSAL FOR A COUNCIL DIRECTIVE on a general system for the recognition of higher-education diplomas awarded on completion of professional training of at least 3 years' duration (presented by the Commission pursuant to Article 149.2(d) of the EEC Treaty)

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 ---pagebreak--- COMMISSION OF THE EUROPEAN COMMUNITIES
                                                COM(88 ) 700 final - SYN 41
                                                Brussels , 25 November 1988
                      REEXAMINED PROPOSAL FOR A
                           COUNCIL DIRECTIVE
              on a general system for the recognition
              of higher-education diplomas awarded on
             completion of professional training of at
                        least 3 years’ duration
        ( presented by the Commission pursuant to Article 149.2(d )
                             of the EEC Treaty )
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                                                                     ÔSrn     fi
                              EX PLANATORY MEMORANDUM
A proposal for a directive on a general system for the
recognition of higher education diplomas based on Articles 49 ,
57(l ) and 66 of the EEC Treaty was presented to the Council on
9 July 1985 * . Following the Opinions of the European Parliament
and    of     the   Economic      and   Social    Committee ,    the  Commission
presented an amended proposal on 7 May 1986 ^.
The Council , with the unanimous agreement of the Member States
and the Commission , adopted a common position on this amended
proposal ^      on   30 June 1988 .     The    European Parliament      proposed
three     amendments      to   this   common    position   in   accordance   with
Article 149(2)(c ) of the EEC Treaty on 26 October 19d8 .
In    accordance with Article           149(2)(d )   the   present   re-examined
proposal accepts these three amendments and at the same time
accepts the suggestions for textual clarification made in the
recommendation         of    the   Legal     Affairs   and    Citizens’    Rights
Committee of the European Parliament ^, unanimously adopted on
18 October 1988 .
The modifications made by the Commission to the proposal on the
basis of which the Council adopted its Common position are as
foil ows    :
   i)   as requested by the European Parliament , a new recital , 6A ,
        emphasizes why it was necessary to adopt a broad definition
        for the concept of regulated professional activity in
        Article 1(d ),       covering the various forms of professional
        organisation existing in the Member States and justifying
        the inclusion in the scope of the directive of certain
        private associations .
 ii )   The first       sentence of Article 1 a ) has been changed in
        accordance with a request from the Legal Affairs and
        Citizens’ Rights Committee of the European Parliament . This
        modification is intended to avoid the illogical use of the
         term ’’diploma” ,        taken alone , within the very clause
        defining the concept of diploma .
1 OJ no C 217 of 8 August 1985 .
2 OJ no C 143 of 10 June 1986 .
3 Council document 7533 / 88 of 7 July 1988 .
4 Document of the European Parliament P.E. 124.317 fin . of
   19 October      1988
 ---pagebreak---                                     2
iii ) Article 3 ( b ) has been modified to comply with the request
      of the Legal Affairs and Citizens' Rights Committee of the
      European Parliament according to which it should be clear
      f r om the   text of the Directive that
                 " qualifications acquired in a third country which
                 may be covered by the general system are those
                 recognized by a Member State of the Community as
                 entitling    the  holder    to   pursue   a   regulated
                 professional activity on its territory.”
      In other words      the European Parliament     is asking that  in
      cases where Article 3 ( b ) applies , the education            and
      training must have been acquired in the Community .
      The drafting used in the re-examined proposal deletes the
      reference back to Article 1(a ) in Article 3(b ) which gave
      rise     to     the  uncertainty   and    replaces    it  by   the
      incorporation into the text of Article 3 ( b ) of the two
      indents       in question ,  the   second    indent having been
      completed by the addition , after " establishment of similar
      level” , of the words " of a Member State” .
iv )  As requested by the European Parliament , the new version of
      the last sub-paragraph of Article 4 ( 1 ) ( b ) is intended to
      limit the exception to the principle of the migrant’s right
      to choose between the aptitude test and the adaptation
      period . The exception which allows Member States to impose
      either the one or the other form of compensation , applies
      only to legal professions in the strictest sense .
v)    As requested by the European Parliament , the last sentence
      of Article 7 ( 3 ), second sub-paragraph , has been deleted .
      This sentence gave the unfortunate and incorrect impression
      that no judicial remedy was available against the decision
      of the private organisations referred to in Article 1 ( d ).
 ---pagebreak---                             3
Common position                     Re-examined proposal
                     Title unchanged
                   Citations unchanged
              First six recitals unchanged
                              Recital 6A ( new)
                             Whereas the term ’regulated
                              professional activity’ should
                              be defined so as     to take ac ¬
                              count of differing national
                              sociological situations ;
                             whereas     the term should   cover
                              not only professional activi ¬
                              ties   access  to which  is  sub ¬
                              ject , in a Memb er State , to
                              the possession of a diploma ,
                              but also professional activi ¬
                              ties , access to which is un ¬
                              restricted when they are
                              practised under a profession ¬
                              al   title reserved for the
                              holders of certain qualific -
                              at i on8 ;
                              whereas the professional as ¬
                              sociations and organizations
                              which confer    such  titles  on
                              their members and are recog ¬
                              nized by the public authori ¬
                              ties cannot    invoke their
                              private status to avoid ap ¬
                              plication of the system ;
       Seventh to thirteenth recitals unchanged .
 ---pagebreak---                                         4
       Common position                       Re-examined proposal
           Article     1                          Article  1
For the purposes of this                For the purposes of this
Directive the following                 Directive the following
definitions shall apply :               definitions shall apply :
( a ) diploma : any diploma , cer ¬     ( a ) diploma : any diploma , cer ¬
      tificate or other evidence              tificate or other evidence
      of formal qualifications                of formal qualifications
      or any set of such diplo ¬              or any set of such diplo ¬
      ma s , certificates or other            ma s , certificates or other
      evidence :                              evidence ;
    - which has been awarded by             - which has been awarded by
      a competent authority in a              a competent authority in a
      Member State , designated               Member State , designated
      in accordance with        its own       in accordance with      its  own
      laws , regulations or admi ¬            laws , regulations or admi ¬
      nistrative provisions ;                 nistrative provisions ;
    - wh i c h s h ows   that the hol ¬     - which shows    that   the hol ¬
      der has successfully com¬               der has successfully com¬
      pleted a pos t - s e condary            pleted a pos t - s e condary
      course of at        least 3             course of at least 3
      years' duration , or of an              years’ duration , or of an
      equivalent duration part -              equivalent duration part -
      time , at a university or               time , at a university or
      establis hme nt of higher               establishment of higher
      education or another esta ¬             education or another esta ¬
      blishment of similar level              blishment of similar level
      and , where appropriate ,               and , where appropriate ,
      that he has successfully                that he has successfully
      compl eted the professional             completed the professional
      training required in addi ¬             training required in addi ¬
      tion to the pos t - s econdary          tion to the pos t - s econdary
      course ,     and                        course , and
    - which shows        that the hol ¬     - which shows    that   the hol ¬
      der has the professional                der has the professional
      qualifications required                 qualifications required
      for the taking up or pur ¬              for the taking up or pur ¬
      suit of a regulated pro ¬               suit of a regulated pro ¬
      fession      in that Member             fession in that Member
      State ,                                 State ,
 ---pagebreak---                                       5
          Common position                    Re-examined proposai
provided that the education           provided that the education
and training attested by the          and training attested by the
d i p 1 oma , certificate or other    diploma , certificate or other
evidence of formal qualific ¬         evidence of formal qualific ¬
ations we re received ma inly in      ations were received mainly in
the Community , or the holder         the Community , or that its
of the dipl oma has three             holder has three years’ pro ¬
years’ professional experience        fessional experience certified
certified by the Member State         by the Member State which
whi ch recognized a thi rd - coun ¬   recognized a thi rd - count ry
try dipl oma , certificate or         dipl oma , certificate or other
other evidence of formal qual ¬       evidence of formal qualific ¬
ifications .                          ations .
                     Remainder of Article 1 unchanged .
                            Article 2 unchanged .
 ---pagebreak---                                      6
        Conmon position                    Reexamined proposai
                     Article 3 , point ( a ) unchanged .
( b ) if the applicant has pur ¬     ( b ) if the applicant has pur ¬
      sued the profession in               sued the profession in
      question full-time for two           question full-time for two
      years during the previous            years during the previous
      ten years in another Mem¬            ten years in another Mem¬
      ber State which does not             ber State wh ich does not
      regulate that profession ,           regulate that profession ,
      within the meaning of Ar ¬           within the meaning of Ar ¬
      ticle 1(c ) and the first            ticle 1(c ) and the first
      subparagraph of Article 1            subparagraph of Article 1
      ( d ), and possesses eviden ¬        ( d ), and possesses eviden ¬
      ce of one or more formal             ce of one or more formal
      qualifications which meet            qua 1 ifications :
      the conditions of the
      first and second indents           - which has been awarded by
      of Article 1(a ) and which           a competent authority in a
      have prepared him for the            Member State , designated
      pursuit of that profes ¬             in accordance with its own
      sion .                               laws , regulations or admi ¬
                                           nistrative provisions .
                                         - which shows that the hol ¬
                                           der has successfully com¬
                                           pleted a post-secondary
                                           course of at least 3
                                           years * duration , or of an
                                           equivalent duration part -
                                           time , at a university or
                                           establishment of higher
                                           education or another esta ¬
                                           blishment of similar level
                                           of a Member State and ,
                                           where appropriate , that he
                                           has successfully completed
                                            the professional training
                                            required in addition to
                                            the post-secondary course
                                      and which have prepared the
                                     holder for the pursuit of his
                                      profession .
                    Remainder of Article 3 unchanged .
                Article 4 , paragraph 1(a ) and 1(b ), first
                          subparagraph unchanged .
 ---pagebreak---                                         7
        Common position                         Re-ex&mined proposai
Article 4(1 ) ( b ) final_sub-         Article . 4(l)(b ) final     sr.h-
p 8LX.A^XAplL                           parag ra p h
Should the host Member State            Should the host Member State
make use of this possibility ,         ma ke use of this possibility ,
 i t mu st give the applicant the       it must give the applicant the
right to choose between an              right to choose between an
adaptation period and an apti ¬         adaptation period and an apti ¬
tude test . By way of deroga ¬          tude test . By way of deroga ¬
tion from this principle , for          tion from this principle for
professions whose practice re ¬        J._e_g_a ]_professions in the
quires precise knowledge of             strictest sense whose practice
national law and in respect of          requires precise knowledge of
which the provision of advice           national law and in respect of
and / or assistance concerning         which the provision of advice
national      law is an essential       and / or assitance concerning
and constant aspect of the              national     law is an essential
professional activity , the             and constant aspect of the
host Member State may stipul ¬          professional activity , the
   ate either an adaptation pe ¬        host Member State may stipul ¬
riod or an aptitude test .              ate either an adaptation pe ¬
Wh ere    the host Memb e r  State      riod or an aptitude test .
 intends to introduce deroga ¬         Wh ere     the host Memb e r State
tions for other professions as          intends to introduce deroga ¬
regards an applicant’s right            tions for other professions as
to choose , the procedure laid          regards an applicant’s right
d own    in Article  10 shall           to choose , the procedure laid
apply ;                                 down in Article 10 shall
                                        apply ;
                            Article 4(2 ) unchanged
                         Articles S and 6 unchanged
              Article 7(1 ), ( 2 ) and ( 3 ), first sub-paragraph
                                   unchanged
 ---pagebreak---                                                      8
        Common position                                  Re-examined proposai
Article 7(3 ). second suhpara-                       Articl e., . 7 ( 3 ) __second subpara-
giapb.                                               gra,ph
Where the association or orga ¬                      Where the association or orga ¬
nization makes membership sub ¬                      nization makes membership sub ¬
ject to certain qualification                         ject to certain qualification
requirements it may apply                            requirements it may apply
these     to nationals            of  other           these   to nationals       of other
Member States who are in pos ¬                       Member States who are in pos ¬
session of a diploma within                          session of a diploma within
the meaning of Article 1(a ) or                       the meaning of Article 1(a ) or
a formal qua 1 i f i ca t i on wi thin               a formal qualification within
the meaning of Article 3(b )                          the meaning of Article 3(b )
only in accordance with this                         only in accordance with this
Directive , in particular Arti-                      Directive , in particular Arti ¬
des     3    and 4 .       In   such cases .          cles  3  and 4 .
the appi icant's               dossi er ma v
onlv be examined                 and anv fur-
t h e r n il a 1 i f i c a t i on refluir ftm ft n t
 in accordance with Article 4
 imposed , hv that associati on
or organization . and by no
other . authori t y .
                                  Articles 8 to 14 unchanged .