Explanatory Memorandum to COM(2011)883 - Amendment of Directive 2005/36/EC on the recognition of professional qualifications and Regulation on administrative cooperation through the Internal Market Information System - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)883 - Amendment of Directive 2005/36/EC on the recognition of professional qualifications and Regulation on administrative ... |
|---|---|
| source | COM(2011)883  |
| date | 19-12-2011 |
Mobility of qualified professionals is low in the European Union. However, there seems to be a major unexploited potential for mobility: according to a 2010 Eurobarometer survey, 28% of EU citizens are considering work abroad. Recognition of professional qualifications is key to making the fundamental Internal Market freedoms work effectively for EU citizens. At the same time, mobility should not come at the expense of consumers, and notably patients who expect adequate language skills from health professionals. In addition, the potential of a more integrated services market remains unexploited in the area of professional services; whilst the Services Directive from 2006 offered new opportunities, the main focus of the Professional Qualifications Directive from 2005[3] was consolidation of 15 existing Directives into a single instrument.
Modernising the Directive would also respond to the needs of Member States facing increasing shortages of skilled workforce. Mobility of EU citizens within the single market is an important issue in this regard. Shortages of workforce will not only persist in the future but are projected to increase in particular in the health sector, in the education sector, and also in growth sectors, such as construction or business services.
In its strategy for smart, sustainable and inclusive growth (Europe 2020), the Commission already highlighted the need to promote intra-EU mobility. The New Skills and Jobs Agenda warned that mismatches in the EU labour market persist and that the potential of labour mobility is not sufficiently exploited. The Citizenship Report from 2010 also emphasized the need for modernisation in this area in the interest of EU citizens.
In its Annual Growth Survey for 2011 and 2012 and in the Single Market Act[7], the Commission identified recognition of professional qualifications as a major issue. The Single Market Act underlined the need for the modernisation of the existing framework, as part of the twelve levers aiming to boost growth and strengthen confidence amongst citizens. On 23 October 2011, the European Council[8] invited the Institutions to undertake their utmost to reach a political agreement on these 12 initiatives in the Single Market Act, including on a Commission proposal for modernising this Directive. The European Parliament also called for urgent action in its Report from 15 November 2011[9].
The Commission is not proposing a new Directive but well targeted modernisation of the existing provisions driven by the following objectives:
· Reducing the complexity of procedures through a European Professional Card which would further exploit the benefits of the already successful Internal Market Information System (IMI) (see section 4.1);
· Reforming the general rules for establishing in another Member State or moving on a temporary basis (see sections 4.2., 4.3 and 4.4.);
· Modernising system of automatic recognition, notably for nurses, midwives, pharmacists and architects (see sections 4.5, 4.6 and 4.7);
· Offering a legal framework in the Directive for partially qualified professionals and for notaries (see section 4.8);
· Clarifying safeguards for patients whose concerns over language skills and risks of malpractice should be better reflected in the legal framework (see section 4.9.);
· Creating the legal requirement for provision of user-friendly and content-driven information on the rules governing the recognition of qualifications underpinned by comprehensive e-government facilities for the whole recognition process (see section 4.10);
· Launching a systematic screening and mutual evaluation exercise for all regulated professions in the Member States (see section 4.11).
Contents
- RESULTS OF CONSULTATIONS
- BUDGETARY IMPLICATION
- 1.2. Aim of the proposal
- WITH INTERESTED PARTIES AND IMPACT ASSESSMENT
- 2.1. Evaluation
- 2.2. Public consultations
- 2.3. Outcome of the consultations
- 2.4. Steering Group on the European Professional Card
- 2.5. Impact Assessment
- 3. LEGAL ELEMENTS OF THE PROPOSAL 3.1. Legal basis
- 3.2. Subsidiarity and proportionality
- 3.3. Choice of the instrument
- 3.4. European Economic Area
- 4. Detailed explanation about the proposal
- 4.1. European professional card and Internal Market Information System
- 4.1.1. European professional card
- 4.2. Free provision of services
- 4.3. General system
- 4.4. Partial access
- 4.5. Automatic recognition based on professional experience
- 4.6. Automatic recognition based on minimum training requirements
- 4.8. Extending the scope of the Directive where necessary
- 4.8.1 Not fully qualified professionals
- 4.8.2. Notaries
- 4.9. Clarifying guarantees for patients and consumers of professional services
- 4.9.1. Language requirements
- 4.9.2 Alert mechanism
- 4.10. E-governance: Access to information and electronic procedures
- 4.11. Transparency and mutual evaluation
The initiative is the result of an ex-post evaluation of the Directive and of extensive consultations with all major stakeholders, including competent authorities, professional organisations, academic bodies and citizens.
The ex-post evaluation was conducted between March 2010 and May 2011. The European Commission reached out to competent authorities and national coordinators for the Directive and received around 200 experience reports, published on the Commissions website[10].
In addition, a study[11] was commissioned from GHK Consulting focusing on the impacts of recent educational reforms on the recognition of professional qualifications.
On 7 January 2010, the Commission launched a public consultation on the Directive. The Commission services received 370 contributions[12].
On 22 June 2010, the Commission adopted a Green Paper[13] on 'Modernising the Professional Qualifications Directive'. About 420 contributions were received. The Commission also held two public conferences on the revision of the Directive.
All stakeholders recognised a need to ensure better access to information on the recognition of qualifications. Most citizens and professional organisations supported the simplification of recognition procedures whilst representatives of the health sector also stressed the need to safeguard the quality of services. A large majority of stakeholders within all the categories expressed positive views on the idea of a European professional card. Many professional organisations expressed support for the revision of the concept of common platforms. The majority of competent authorities and professional organisations representing professions benefitting from automatic recognition agreed on the need to modernise the system.
In January 2011, the European Commission set up a steering group with external experts to discuss the need for and the feasibility of a European Professional Card. The Group brought together representatives of various professional associations and competent authorities and completed a number of case studies[14] presented at the Single Market Forum held in Krakow, Poland on 3 and 4 October. In their declaration, the Forum's participants welcomed the idea of a European Professional Card.
The Commission conducted an impact assessment on various policy alternatives.
This analysis identified eight groups of problems, deriving mainly from the outcome of the evaluation and from the reactions to the Green Paper. These groups of problems cover: the access to information on recognition procedures, the efficiency of recognition procedures, the functioning of the automatic recognition system, the conditions applying to establishment and those applying to temporary mobility and the scope of the Directive. Since public health emerged as a particular issue during the evaluation, the protection of patients has also been mentioned in the problem definition. The last problem relates to the lack of transparency and justification of qualifications requirements in regulated professions.
The analysis identified three general objectives: facilitating the mobility of professionals and the intra-EU trade in services, addressing the challenge of filling high-skill jobs and offering more possibilities for job seekers. These objectives were declined in specific objectives, taking account of the context and problems identified.
A wide range of options were examined for each group of problems and assessed against the following criteria: effectiveness, efficiency, consistency and impacts on stakeholders (benefits and costs on mobile professionals, Member States, consumers and patients, employers).
With respect to access to information, the impact assessment explored different options to facilitate the identification of competent authorities and document requirements and to foster the use of electronic procedures. Extending the scope of the Points of Single Contact (set up under the Services Directive) was considered the preferred option. By further developing existing structures, this option should not lead to significant cost increases.
In relation to the efficiency of recognition procedures, various options were considered to reduce the length of procedures and to ensure a better use of compensation measures. The creation of a European professional card, based on a stronger involvement of the home Member State, was the preferred option, since it creates favourable conditions to accelerate the recognition procedure. This option could incur some administrative costs for certain Member States but would allow professionals to benefit from quicker recognition procedures. In addition, a set of measures was identified to improve the use and organisation of compensation measures. Finally, the analysis considered necessary to overhaul the concept of 'common platforms' to further facilitate recognition for certain professions.
Concerning the automatic recognition system, different options were examined to streamline the procedure for notifying and examining new diplomas. The set up of a national compliance function appeared to be the most effective and efficient option. Different sets of options were examined to adjust the minimum training requirements for sectoral professions - in particular for doctors, nurses, midwives, pharmacists and architects -and to modernise the classification of economic activities in Annex IV of the Directive. These options are presented in the executive summary of the impact assessment.
A wide range of options were examined to simplify the conditions applying to permanent establishment. In particular, the impact assessment concluded that the qualifications levels defined in Article 11 should be maintained as a reference point to compare qualifications but should no longer be used to assess the eligibility of an application. The introduction of the principle of partial access in the Directive was identified as another solution which could reduce the obstacles to mobility. The specific requirements applying to professionals coming from non-regulating Member States were considered unnecessary under the establishment regime.
In relation to temporary mobility, the impact assessment analysed different options likely to facilitate this kind of mobility and to improve legal certainty for professionals. One of the selected options consists in simplifying the requirements imposed on professionals from non-regulating Member States accompanying consumers. In addition, the impact assessment concluded that each Member State should produce a list of professions with health and safety implications (for which a prior check of qualifications is required).
The impact assessment explored different policy options to clarify and extend the scope of the Directive to new categories of professionals. The impact assessment concluded in favour of extending the scope of the Directive, under specific conditions, to non-fully qualified professionals and notaries. For third country qualifications, maintaining the status quo was identified as the preferred option. However, the treatment provided under the Directive to the Union citizens should be extended by the Member States to other third country nationals, in so far as required by international agreements on professional services.
With respect to the protection of patients, different options were assessed to give more guarantees on the status of professionals and on their language skills. The preferred options in this area include the introduction of an alert mechanism combined with increased transparency between Member States on continuous professional development and the clarification of the rules applying to the control of language skills.
Various options were considered to improve the transparency and justification of regulated professions. The preferred option identified in the impact assessment consists in a mutual evaluation exercise on the national legislations regulating the access to certain professions.
The synergies between the different preferred options were considered to ensure the internal coherence of the initiative.
The draft impact assessment was scrutinised by the Impact Assessment Board (IAB) and its recommendations for improvement were integrated into the final report. The IAB opinion is published alongside this proposal, as are the final Impact Assessment and its executive summary.
This proposal is based on Articles 46, 53, Article 62 and 114 of the TFEU.
The subsidiarity principle applies insofar as the proposal does not fall under the exclusive competence of the EU.
The aim of the Directive could not be sufficiently achieved through action by Member States which would inevitably result in divergent requirements and procedural regimes increasing regulatory complexity and causing unwarranted obstacles to mobility of professionals. Moreover, changes to the current legal regime imply the modification of an existing Directive which can only be achieved by Union law. The proposal therefore complies with the subsidiarity principle.
The principle of proportionality requires that any intervention is targeted and does not go beyond what is necessary to achieve the objectives. The proposed amendments are limited to what is necessary to ensure a better functioning of the rules on the recognition of professional qualifications and therefore comply with this principle.
The proposal is based on Articles 46, 53, 62 and 114 of the Treaty which foresee the use of a Directive for the mutual recognition of qualifications. Moreover, a Directive is best suited for the task as it provides Member States with the necessary flexibility to implement the rules laid down taking into consideration their national administrative and legal specificities. However, as an important number of national legislative acts have to be modified by the Member States, it is important that they accompany the notification of their transposition measures with one or more documents explaining the relationship between the components of the Directive and the corresponding part of national transposition instruments.
The proposed act concerns a European Economic Area matter and should therefore extend to the European Economic Area.
The proposed amendments to Directive 2005/36/EC are presented according to the objectives set out in section 1.2.
The European professional card will be an alternative tool which can be implemented for those professions which meet several objectives: bottom-up demand by members of the profession, significant mobility and better cooperation between competent authorities through IMI. The European Professional Card also offers potential for those professions interested mainly in temporary mobility. All in all, the introduction of the European Professional Card will depend on whether professions request its introduction. Its attractiveness should however lead to more and more professions adopting it.
The European professional card aims to facilitate and accelerate the recognition procedure while at the same time making it more transparent. Therefore, the card requires more involvement by the home Member State, which implies the shift of certain costs and administrative burdens from the host Member State to the home Member State. However, the use of IMI should reduce these costs and the new procedure can be carried out by competent authorities in place which are already frequently involved in the preparation of the recognition file of national professionals.
To the extent that a European Professional Card has been introduced for a specific profession, on request from a professional, the home Member State will assess the completeness of the professional's file and, in case of a request for establishment, create a European profession card. The role of the home Member State is even more important in case of temporary mobility, as it will both create and validate the professional card. The use of the Internal Market System becomes compulsory as it will serve as the back office for the European professional card. Both the involvement of the home Member State and the use of IMI will contribute to a reduction in cost and time necessary for the treatment of a recognition request. This creates the conditions for the reduction of the deadlines for the treatment of an application on the basis of the European professional card compared to the current procedure which will continue to exist for professionals preferring not to use the European Professional Card. 4.1.2. Making IMI mandatory under the Directive
Since the successive extensions of IMI to cover all recognition mechanisms under the Directive, a significant number of competent authorities use IMI regularly with good results. However, the potential of the system is undermined when a competent authority is not registered or refuses to deal with the information requests due to the non-compulsory nature of the IMI. Moreover, the functioning of the European Professional Card is contingent upon the systematic use of IMI. Therefore, the proposal obliges Member States to use IMI for the exchange of information relating to recognition of professional qualifications.
A special regime for the free provision of services on a temporary basis was introduced through Directive 2005/36/EC. It foresees lighter rules for temporary service providers: they can provide services without the prior check of professional qualifications (except for professions with health and safety implications) which is the rule under the recognition mechanisms for establishment.
Several amendments are proposed to clarify the rules on the free provision of services.
By removing the professional experience requirement imposed on service providers from non-regulating Member States when the service provider accompanies the service recipient, the proposal seeks to better cater to the needs of consumers crossing borders. Where the requirement of professional experience still applies, the proposal foresees that it can be acquired in one or several Member States which creates more opportunities for the services providers compared to the current situation.
For professions with health and safety implications, Member States implemented the prior check of qualifications in diverse ways which has led to legal uncertainty for service providers. The proposal addresses this issue by requiring Member States not only to provide a list of all professions they consider as belonging to this category but also to justify their reasons for the inclusion of each profession. This will allow service providers to know in advance the exact requirements they have to fulfil for the free provision of services and, through an increased transparency, reduce the risk of disproportionate or unnecessary obligations.
Finally, the proposal clarifies the list of documents a Member State may require prior to the first provision of services. It also explicitly states that the declaration service providers may be required to make prior to provision of service must be effective for the whole territory of a Member State.
The first element of the proposal concerns the existing possibility to exclude on the basis of Article 11 certain qualifications from the scope of the Directive when there are two ore more levels of difference between the professionals' training and the requirements in the host Member State. The qualification levels should, in principle, be used only as a benchmarking tool and not as a basis for excluding professionals from the scope of the Directive. The only exception relates to persons whose qualifications are based on professional experience who are seeking access to a profession requiring a university degree. The proposal also reinforces the obligation on Member States to better justify the compensation measures. Moreover, the proposal foresees the obligation for the Member States to organise aptitude tests on a regular basis.
Following the case law[15] of the Court of Justice, it is proposed to introduce the concept of partial access into the Directive. This will bring more legal certainty for professionals and will allow professionals fulfilling the conditions for partial access to establish themselves or to provide services where they were previously excluded from the benefits of the Directive. However, Member States may not apply this principle where there are overriding reasons such as in the case of health professions.
The amendment proposed in this field aims at introducing more flexibility for the Commission to adapt the list of activities contained in Annex IV. This list no longer reflects the current structure of economic activities. This may create difficulties in identifying the professions falling under this system of automatic recognition and result in uncertainties for the professionals.
A modernisation of the classification seems therefore necessary. However, any modification to the current classification should be carefully assessed since it can affect the scope of the regime. Therefore, the amendment proposed gives the Commission the possibility of a review but without reducing the scope of the activities benefiting from automatic recognition. The Commission also intends to launch a study involving stakeholders in 2012.
Stakeholders pointed to a lack of transparency of the training requirements in the Member States which are the basis for the automatic recognition system for the sectoral professions. In order to increase transparency at EU level, the proposal requires each Member State to notify the legislative, regulatory and administrative provisions related to the issuing of new or changed qualifications. Member States will also be obliged to involve an appropriate existing authority or body, such as an accreditation board or a ministry, to report about the compliance of the qualification with the Directive's minimum training requirements.
The evaluation of the Directive has also shown that the minimum duration of trainings for doctors, general care nurses and midwives requires clarification. In addition, in the light of the progress in the implementation of the European Credit Transfer and Accumulation System (ECTS) the proposal foresees specified numbers of ECTS credits as potential duration criteria for professions for which the training is to be delivered at university level.
In order to enhance the mobility of doctors who have already obtained a medical specialist qualification and afterwards wish to follow another specialist training, the proposal allows Member States to grant partial exemptions from some elements of the training if the doctor has already completed those elements during his or her previous medical specialist training programme in that Member State.
New professional requirements related to the general care nurse and midwife professions are reflected in the proposal which requires Member States to upgrade the admission requirement to the trainings of these professions from 10 years of general education to 12 years. This is already the case in 24 Member States.
Organising automatic recognition for nurses during the accession of new Member States in 2004 and 2007 had been complex. In 2012, the Commission services will undertake a technical assessment regarding the qualification of Polish and Romanian nurses whose formal qualifications were awarded or whose training started prior to 1 May 2004 in order to analyse if the additional requirements for Polish and Romanian nurses according to Article 33 are still justified.
The minimum duration of architect training should be updated to better reflect the broadly accepted standards in architectural education, in particular the need to supplement academic training with professional experience under the supervision of qualified professionals. Consequently, the proposal foresees that the minimum duration of architectural training should be at least six years: either at least four years of full-time study at a university level institution and at least two years of remunerated traineeship or at least five years of full-time study at a university level institution supplemented by at least one year of remunerated traineeship.
As to pharmacists, the proposal provides for an extension of their list of activities but also for a deletion of the derogation for Member States, foreseen in Article 21, which allows them to prevent pharmacists with foreign qualifications from opening new pharmacies. This exception is no longer used by an increasing number of Member States (such as The Netherlands, Ireland and the United Kingdom). In addition, the Court of Justice allows territorial restrictions only as far as they do not entail discrimination.
4.7. Common training principles – a new regime for automatic recognition
The 'common platforms' concept of the 2005 Directive is replaced by common training principles: a common training framework or common training tests. These aim at introducing more automaticity in the recognition of qualifications currently covered by the general system and should better respond to the needs of the professions. While the common platforms offered only the possibility of harmonising compensation measures, the common training principles allow the professionals to be exempted from compensation measures altogether. The qualifications obtained under this regime should be automatically recognised in the Member States which might however benefit from derogations in applying them. In addition, the conditions for setting up common training principles are less difficult to fulfil than the conditions for setting up common platforms.
While the common training principles would not replace national training programmes, professionals with a qualification under this regime would benefit from the same advantages as the professions for which the minimum training requirements are specified in the Directive.
This proposal extends the scope of the Directive to professionals who hold a diploma but have yet to complete a remunerated traineeship which might be required under the law of the Member State where they graduated (this can apply, for example, to lawyers, architects and teachers). This amendment would bring more legal certainty to this category of professionals, which currently benefits from the Treaty rules on free movement but not from the procedural safeguards of the Directive. It is based on the case law[16] of the Court of Justice.
In May 2011, the Court of Justice decided[17] that nationality requirements cannot be imposed on notaries. As regards the application of the Directive, the Court took the view that the Member States concerned, at the close of the period of the reasoned opinion, could not reasonably be expected to consider that the Directive should be transposed for notaries. The Court did not rule out that there is an obligation to implement the Directive but considered that the obligation was not sufficiently clear at the time of the infringement proceedings. The scope of the directive needs therefore to be clarified. Considering the specificities of the profession, the rules on establishment and free provision of services have to be well tailored: in the first case, Member States should be able to impose the necessary aptitude tests in order to avoid any discrimination in the national selection and nomination procedures. In the case of free provision of services, notaries should not be able to draw up authentic deeds and carry out other activities of authentication which require the seal of the host Member State.
The proposal clarifies that the checking of language knowledge is to take place only after the host Member State has recognized the qualification. In the case of health professionals, it also specifies that it is up to the national health care systems and patient organizations to check whether competent authorities should carry out language controls where strictly necessary.
In line with the responses received to the public consultations, the proposal obliges national competent authorities to alert each other in case a health professional benefiting from automatic recognition under the Directive is prohibited, even temporarily, to practice the profession. In case of other professionals, not covered by the Services Directive, Member States have also to alert each other where necessary.
In order to allow an easy identification of the competent authority and the required documents for a recognition request, the proposal foresees that the points of single contact, created under the Services Directive, become central online access points for all professions covered by the Professional Qualifications Directive. Therefore, the scope of the points of single contact is extended to categories of professionals not covered by the Services Directive (health professionals and job seekers). Through this new provision, professionals could revert to a single structure for all administrative procedures linked to establishment or provision of services in a Member State.
The proposal foresees that the national contact points which exist under the current Directive become assistance centres, therefore avoiding a duplication of information structures. These assistance centres will focus on individual cases providing advice and assistance to citizens such as via phone calls or even allowing face to face meetings. Where necessary, they would liaise with competent authorities and assistance centres of other Member States.
Across the 27 Member States, the Professional Qualifications Directive applies to about 800 categories of regulated professions. There is a lack of transparency on the scope of and the justifications for the regulation, which may create obstacles to mobility.
Therefore this proposal provides for the introduction of an obligation for Member States to notify a list of professions they regulate and to assess their legislation on the access to regulated professions against the principles of necessity (public interest), proportionality and non-discrimination. Each Member State would have to report to the Commission the outcome of this assessment. This mutual evaluation exercise would allow Member States to compare their regulatory approaches and to simplify, where necessary, their national legal frameworks for the regulated professions.
The proposal is expected to have implications for the EU budget to the extent that the future European Professional Card (EPC) will use the Internal Market Information System ("IMI") as its operational backbone. The IMI will have to be adapted to the EPC processes and storage requirements and supplemented with some additional functions, namely a specific interface, an alert mechanism and a declaration mechanism. The implications for the EU budget are already covered by planned allocations and will however be modest in view of the fact that using the IMI to underpin the EPC will provide important economies of scale and scope. In addition, the main existing IMI capabilities and those currently under development are to a large extent compliant with the requirements of the EPC. The adaptation and development costs will therefore be substantially reduced.