Considerations on 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

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table>(1)Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (3) consolidated a system of mutual recognition which was initially based on 15 Directives. It provides for automatic recognition for a limited number of professions based on harmonised minimum training requirements (sectoral professions), a general system for the recognition of evidence of training and automatic recognition of professional experience. Directive 2005/36/EC also established a new system of free provision of services. It should be recalled that third-country family members of Union citizens benefit from equal treatment in accordance with Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (4). Third-country nationals may also benefit from equal treatment with regard to recognition of diplomas, certificates and other professional qualifications, in accordance with the relevant national procedures, under specific Union legal acts such as those on long-term residence, refugees, ‘blue card holders’ and scientific researchers.
(2)In its Communication of 27 October 2010 entitled ‘Single Market Act, Twelve levers to boost growth and strengthen confidence, ‘Working together to create new growth’, the Commission identified the need to modernise Union law in this area. On 23 October 2011, the European Council in its conclusions supported such a modernisation and urged the European Parliament and the Council to reach a political agreement on the revision of Directive 2005/36/EC by the end of 2012. In its resolution of 15 November 2011 on the implementation of the Professional Qualifications Directive (2005/36/EC) (5), the European Parliament also invited the Commission to come forward with a proposal. The EU Citizenship report 2010 of 27 October 2010 entitled ‘Dismantling the obstacles to EU citizens’ rights’ underlines the need to lighten the administrative burden linked to the recognition of professional qualifications.

(3)Notaries who are appointed by an official act of government should be excluded from the scope of Directive 2005/36/EC in view of the specific and differing regimes applicable to them in individual Member States for accessing and pursuing the profession.

(4)For the purposes of strengthening the internal market and promoting the free movement of professionals while ensuring a more efficient and transparent recognition of professional qualifications, a European Professional Card would be of added value. In particular, that Card would be useful to facilitate temporary mobility and recognition under the automatic recognition system, as well as to promote a simplified recognition process under the general system. The purpose of the European Professional Card is to simplify the recognition process and to introduce cost and operational efficiencies that will benefit professionals and competent authorities. The introduction of a European Professional Card should take into account the views of the profession concerned and should be preceded by an assessment of its suitability for the profession concerned and its impact on Member States. That assessment should be conducted together with Member States, where necessary. The European Professional Card should be issued at the request of a professional and after submission of necessary documents and completion of related verification procedures by the competent authorities. Where the European Professional Card is issued for the purpose of establishment, it should constitute a recognition decision and be treated as any other recognition decision under Directive 2005/36/EC. It should complement rather than replace any registration requirements associated with access to a particular profession. There is no need to introduce a European Professional Card for the legal professions for which professional cards are already implemented under the system provided for in Council Directive 77/249/EEC of 22 March 1977 to facilitate the effective exercise by lawyers of freedom to provide services (6) and Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained (7).

(5)The functioning of the European Professional Card should be supported by the Internal Market Information System (IMI) established by Regulation (EU) No 1024/2012 of the European Parliament and of the Council (8). The Card and IMI should enhance synergies and trust among competent authorities, while at the same time eliminating duplication of administrative work and recognition procedures for the competent authorities, and creating more transparency and certainty for professionals.

(6)The process for the application and issuing of the European Professional Card should be clearly structured and incorporate safeguards and the corresponding rights of appeal for the applicant. Implementing acts should specify translation requirements and the methods of payment of any fees to be provided by an applicant so that the workflow in IMI is not disrupted or impaired and the processing of the application is not delayed. Setting the level of fees is a matter for Member States. Member States should however notify the Commission about the level of fees set. The European Professional Card and the related workflow within IMI should ensure the integrity, authenticity and confidentiality of the data stored and avoid unlawful and unauthorised access to information contained therein.

(7)Directive 2005/36/EC applies only to professionals who want to pursue the same profession in another Member State. There are cases where, in the host Member State, the activities concerned are part of a profession with a larger scope of activities than in the home Member State. If the differences between the fields of activity are so large that a full programme of education and training would be required from the professional to compensate for shortcomings, and if the professional so requests, a host Member State should under these particular circumstances grant partial access. However, where there are overriding reasons of general interest, as defined by the Court of Justice of the European Union in its case-law relating to Articles 49 and 56 of the Treaty on the Functioning of the European Union (TFEU) and which may continue to evolve, a Member State should be able to refuse partial access. This may in particular be the case for health professions if they have public health or patient safety implications. Granting partial access should be without prejudice to the right of social partners to organise themselves.

(8)In the interest of protecting local consumers in the host Member State, temporary and occasional provision of services in Member States should be subject to safeguards, in particular a requirement of a minimum of one year’s professional experience during the last 10 years preceding the provision of services, in cases where the profession is not regulated in the home Member State. In the case of seasonal activities, Member States should have the possibility to carry out controls in order to verify the temporary and occasional nature of the services provided on their territory. To that end, the host Member State should be able to require, once a year, information about the services actually provided on its territory, in cases where such information has not been already communicated on a voluntary basis by the service provider.

(9)Directive 2005/36/EC allows Member States to check the professional qualifications of the service provider prior to the first provision of service in the case of regulated professions that have public health or safety implications. This has led to legal uncertainty leaving it to the discretion of a competent authority to decide on the need for such a prior check. In order to ensure legal certainty, professionals should know from the outset whether a prior check of professional qualifications is necessary and when a decision can be expected. In any event, the conditions for such prior checks of professional qualifications under the free provision of services should not be more stringent than under the establishment rules. In the case of regulated professions that have public health or safety implications, Directive 2005/36/EC should be without prejudice to the possibility for Member States to impose an insurance cover obligation related to the professional acts in accordance with the rules applicable under Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare (9) and Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (10).

(10)Vocational education and training systems have proved to be a useful tool for ensuring youth employment and enabling a smooth transition from training into working life. The review of Directive 2005/36/EC should therefore take their specificities fully into account.

(11)In order to apply the mechanism of recognition under the general system, it is necessary to group the various national education and training schemes into different levels. Those levels, which are established only for the purpose of the operation of the general system, should have no effect on the national education and training structures or on the competence of Member States in that field, including national policy for implementing the European Qualifications Framework (EQF). The EQF is a tool designed to promote the transparency and comparability of professional qualifications and can be a useful additional source of information for the competent authorities examining professional qualifications issued in other Member States. Following the Bologna process, higher education institutions have adapted the structure of their programmes to a two-cycle Bachelor’s and Master’s degree system. In order to ensure that the five levels outlined under Directive 2005/36/EC are consistent with this new degree structure, Bachelor’s degree should be classified under level d and Master’s degree under level e. The five levels established for the operation of the general system should in principle no longer be used as a criterion for excluding Union citizens from the scope of Directive 2005/36/EC when this would be contrary to the principle of lifelong learning.

(12)Applications for recognition from professionals who come from non-regulating Member States and who have one year of professional experience should be treated in the same way as those of professionals who come from a regulating Member State. Their professional qualifications should be compared to the professional qualifications required in the host Member State on the basis of the professional qualification levels set out in Directive 2005/36/EC. In the event of substantial differences, the competent authority should be able to impose compensation measures. Any mechanisms for assessing theoretical knowledge and practical skills which might be required for access to the profession as compensation measures, should guarantee and comply with the principles of transparency and impartiality.

(13)In the absence of harmonisation of the minimum training conditions for access to the professions governed by the general system, it should remain possible for the host Member State to impose a compensation measure. Any such measure should be proportionate and, in particular, take account of the knowledge, skills and competences acquired by the applicant in the course of his professional experience or through lifelong learning, formally validated to that end by a relevant body. The decision imposing a compensation measure should be duly justified in order to enable the applicant to better understand his situation and to seek judicial review before national courts under Directive 2005/36/EC.

(14)The review of Directive 2005/36/EC has shown a need to update and clarify with more flexibility the lists of industrial, commercial and craft activities in Annex IV, while maintaining a system of automatic recognition for those activities based on professional experience. Annex IV is currently based on the International Standard Industrial Classification of all Economic Activities (ISIC) dated from 1958 and no longer reflects the current structure of economic activities. The ISIC classification has been reviewed several times since 1958. Therefore, the Commission should be able to adapt Annex IV in order to maintain intact the system of automatic recognition.

(15)Continuous professional development contributes to the safe and effective practice of professionals who benefit from the automatic recognition of their professional qualifications. It is important to encourage the further strengthening of continuous professional development for those professions. Member States should in particular encourage continuous professional development for doctors of medicine, medical specialists, general practitioners, nurses responsible for general care, dental practitioners, specialised dental practitioners, veterinary surgeons, midwives, pharmacists and architects. The measures taken by Member States to promote continuous professional development for those professions should be communicated to the Commission, and Member States should exchange best practice in that area. Continuous professional development should cover technical, scientific, regulatory and ethical developments and motivate professionals to participate in lifelong learning relevant to their profession.

(16)The system of automatic recognition on the basis of harmonised minimum training requirements depends on the timely notification of new or changed evidence of formal qualifications by the Member States and their publication by the Commission. Otherwise, holders of such qualifications have no guarantees that they can benefit from automatic recognition. In order to increase transparency and facilitate the examination of newly notified titles, Member States should provide information about the duration and content of the training programmes, which need to be in compliance with the minimum training requirements laid down in Directive 2005/36/EC.

(17)European Credit Transfer and Accumulation System (ECTS) credits are already used in a large majority of higher education institutions in the Union and their use is becoming more common also in courses leading to the qualifications required for the exercise of a regulated profession. Therefore, it is necessary to introduce the possibility to express the duration of a programme also in ECTS. That possibility should not affect the other requirements for automatic recognition. One ECTS credit corresponds to 25-30 hours of study whereas 60 credits are normally required for the completion of one academic year.

(18)In the interest of ensuring a high level of public health and patient safety within the Union and modernising Directive 2005/36/EC, it is necessary to modify the criteria used to define the basic medical training so that conditions relating to the minimum number of years and hours become cumulative. The objective of this modification is not to lower the training requirements for basic medical education.

(19)In the interest of enhancing the mobility of medical specialists who have already obtained a medical specialist qualification and afterwards follow another specialist training, Member States should be allowed to grant exemptions from some part of the training if such elements of the later training have already been completed during the former medical specialist training programme in a Member State. Member States should be allowed to grant, within certain boundaries, such exemptions for medical specialties which are covered by the automatic recognition system.

(20)The nursing profession has significantly evolved in the last three decades: community-based healthcare, the use of more complex therapies and constantly developing technology presuppose a capacity for higher responsibilities for nurses. Nurse training, the organisation of which still differs according to national traditions, should provide a more robust and more output-oriented assurance that the professional has acquired certain knowledge and skills during the training, and is able to apply at least certain competences in order to pursue the activities relevant to the profession.

(21)In order to prepare midwives to meet complex healthcare needs relating to their activities, midwifery trainees should have a solid general education background before they start midwifery training. Therefore, admission to midwifery training should be increased to 12 years of general education or successful examination of an equivalent level, except in the case of professionals who are already qualified as a nurse responsible for general care. Training of midwives should provide better assurance that the professional has acquired certain knowledge and skills necessary to pursue the activities of a midwife referred to in Directive 2005/36/EC.

(22)To simplify the system for automatic recognition of medical and dental specialties, such specialties should be covered by Directive 2005/36/EC if they are common to at least two-fifths of the Member States.

(23)A significant number of Member States have decided to allow access to all activities in the field of pharmacy and the pursuit of these activities based on the recognition of qualifications of pharmacists acquired in another Member State since the entry into force of Directive 2005/36/EC. Such recognition of a professional qualification acquired in another Member State should not, however, prevent a Member State from maintaining non-discriminatory rules governing any geographical distribution of pharmacies on their territory because Directive 2005/36/EC does not coordinate such rules. However, any derogation from the automatic recognition of qualifications which is still necessary for a Member State should no longer exclude pharmacists who are already recognised by the Member State using such derogation and who have already been lawfully and effectively practising as a pharmacist for a certain period on the territory of that Member State.

(24)The functioning of the system of automatic recognition depends on confidence in the training conditions which underpin the qualifications of the professionals. Therefore, it is important that the minimum training conditions of architects reflect new developments in architectural education, in particular with respect to the recognised need to supplement academic training with professional experience under the supervision of qualified architects. At the same time, the minimum training conditions should be flexible enough to avoid unduly restricting the ability of Member States to organise their education systems.

(25)Directive 2005/36/EC should, through the introduction of common training principles, promote a more automatic character of recognition of professional qualifications for those professions which do not currently benefit from it. This should take account of the competence of Member States to decide the professional qualifications required for the pursuit of professions in their territory as well as the contents and the organisation of their systems of education and training. Common training principles should take the form of common training frameworks based on a common set of knowledge, skills and competences or common training tests. It should be possible for common training frameworks also to cover specialties that currently do not benefit from automatic recognition provisions under Directive 2005/36/EC and that relate to professions encompassed by Chapter III of Title III and that have clearly defined specific activities reserved to them. Common training frameworks on such specialties, in particular medical specialties, should offer a high level of public health and patient safety. Professional qualifications obtained under common training frameworks should automatically be recognised by Member States. Professional organisations which are representative at Union level and, under certain circumstances, national professional organisations or competent authorities should be able to submit suggestions for common training principles to the Commission, in order to allow for an assessment with the national coordinators of the possible consequences of such principles for the national education and training systems, as well as for the national rules governing access to regulated professions.

(26)Directive 2005/36/EC already provides for the obligation for professionals to have the necessary language skills. The review of the application of that obligation has shown a need to clarify the role of competent authorities and employers, in particular in the interest of better ensuring patient safety. Competent authorities should be able to apply language controls after recognition of professional qualifications. It is important for professions that have patient safety implications in particular that language controls under Directive 2005/36/EC be applied before the professional accesses the profession in the host Member State. Language controls should however be reasonable and necessary for the professions in question and should not aim at excluding professionals from other Member States from the labour market in the host Member State. In order to ensure respect of the principle of proportionality, and in the interests of enhancing the mobility of professionals in the Union, the controls carried out by, or under the supervision of, a competent authority should be limited to the knowledge of one official language of the host Member State, or one administrative language of the host Member State, provided that it is also an official language of the Union. This should not preclude host Member States from encouraging professionals to acquire another language at a later stage if necessary for the professional activity to be pursued. Employers should also continue to play an important role in ascertaining the knowledge of languages necessary to carry out professional activities in their workplaces.

(27)National rules organising the access to regulated professions should not constitute an obstacle to the mobility of young graduates. Therefore, when a graduate completes a professional traineeship in another Member State, the traineeship in question should be recognised when the graduate applies for accessing a regulated profession in the home Member State. The recognition of a professional traineeship completed in another Member State should be based on a clear written description of learning objectives and assigned tasks, to be determined by the trainee’s supervisor in the host Member State. Professional traineeships completed in third countries should be taken into account by Member States when considering a request to access a regulated profession.

(28)Directive 2005/36/EC provides for a system of national contact points. Due to the entry into force of Directive 2006/123/EC and the establishment of points of single contact under that Directive, there is a risk of overlap. Therefore, the national contact points established by Directive 2005/36/EC should become assistance centres which should focus their activities on providing advice and assistance to citizens, including face-to-face advice, in order to ensure that the daily application of internal market rules in complex individual cases of citizens is followed up at national level. Where necessary, the assistance centres would liaise with competent authorities and assistance centres of other Member States. In respect of the European Professional Card, Member States should be free to decide whether the assistance centres are either to act as a competent authority in the home Member State or to support the relevant competent authority in the handling of applications for a European Professional Card and processing of the applicant’s individual file created within IMI (IMI file). In the context of free provision of services, if the profession concerned is not regulated in the home Member State, the assistance centres may also participate in the exchange of information envisaged for the purpose of administrative cooperation.

(29)This Directive contributes to ensuring a high level of health and consumer protection. Directive 2005/36/EC already provides for detailed obligations for Member States to exchange information. Those obligations should be reinforced. In future, Member States should not only react to requests for information but their competent authorities should also be empowered within the boundaries of their competences to proactively alert the competent authorities of other Member States about professionals who are no longer entitled to practise their profession. A specific alert mechanism is necessary for health professionals under Directive 2005/36/EC. This should also apply to veterinary surgeons as well as to professionals exercising activities relating to the education of minors, including professionals working in childcare and early childhood education. The obligation to send an alert should apply only to the Member States where such professions are regulated. All Member States should be alerted if a professional is no longer entitled, due to a disciplinary action or criminal conviction, to practise, even temporarily, the professional activities in a Member State. The alert should contain any available details of the definite or indefinite period to which the restriction or prohibition applies. This alert should be activated through IMI regardless of whether the professional has exercised any of the rights under Directive 2005/36/EC or has applied for recognition of his professional qualifications through the issuance of a European Professional Card or through any other method provided for by that Directive. The alert procedure should comply with Union law on the protection of personal data and fundamental rights. The alert procedure should not be designed to replace or adapt any arrangements between Member States on cooperation in the field of justice and home affairs. Competent authorities under Directive 2005/36/EC should also not be required to contribute to such cooperation via alerts provided for under that Directive.

(30)One of the major difficulties faced by a citizen who is interested in working in another Member State is the complexity and uncertainty of administrative procedures with which they have to comply. Directive 2006/123/EC already obliges Member States to provide easy access to information and to make it possible to complete procedures through the points of single contact. Citizens seeking recognition of their professional qualifications under Directive 2005/36/EC can already use the points of single contact if they are covered by Directive 2006/123/EC. However, job seekers and health professionals are not covered by Directive 2006/123/EC and available information remains scarce. There is therefore a need, from the user’s perspective, to specify that information and to ensure that such information is easily available. It is also important that Member States not only take responsibility at national level but also cooperate with each other and the Commission to ensure that professionals throughout the Union have easy access to user-friendly and multilingual information and are able to easily complete procedures through the points of single contact or the relevant competent authorities. Links should be made available through other websites, such as the Your Europe portal.

(31)In order to supplement or amend certain non-essential elements of Directive 2005/36/EC, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of the updating of knowledge and skills referred to in Article 21(6), the updating of Annex I, the updating and clarifying the activities listed in Annex IV, the adaptations of points 5.1.1 to 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2, 5.6.2 and 5.7.1 of Annex V, adapting the minimum periods of training of medical and dental specialists, the inclusion in point 5.1.3 of Annex V of new medical specialties, the amendments to the list set out in points 5.2.1, 5.3.1, 5.4.1, 5.5.1 and 5.6.1 of Annex V, the inclusion in point 5.3.3 of Annex V of new dental specialties, specifying the conditions of application of common training frameworks, and specifying the conditions of application of common training tests. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(32)In order to ensure uniform conditions for the implementation of Directive 2005/36/EC, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (11).

(33)Due to the technical nature of those implementing acts, the examination procedure should be used for the adoption of implementing acts concerning the introduction of European Professional Cards for particular professions, the format of the European Professional Card, the processing of written applications, the translations to be provided by the applicant to support any application for a European Professional Card, details of documents required under Directive 2005/36/EC to present a complete application, procedures for making and processing payments for that Card, rules for how, when and for which documents competent authorities may request certified copies for the profession concerned, the technical specifications and the measures necessary to ensure integrity, confidentiality and accuracy of information contained in the European Professional Card and in the IMI file, the conditions and the procedures for issuing a European Professional Card, rules concerning the conditions of access to the IMI file, the technical means and the procedures for the verification of the authenticity and validity of a European Professional Card, and the application of the alert mechanism.

(34)The Commission should, by means of implementing acts and, given their specific features, acting without the application of Regulation (EU) No 182/2011, decide to reject a requested update of Annex I where the conditions set out in Directive 2005/36/EC are not fulfilled, ask the relevant Member State to refrain from applying the derogation as regards the choice between the adaptation period and aptitude test where that derogation is inappropriate or is not in accordance with Union law, reject requested amendments of points 5.1.1 to 5.1.4, 5.2.2, 5.3.2, 5.3.3, 5.4.2, 5.5.2, 5.6.2 or 5.7.1 of Annex V where the conditions set out in Directive 2005/36/EC are not fulfilled, list the national professional qualifications and national professional titles benefiting from automatic recognition under common training framework, list the Member States in which the common training tests are to be organised, the frequency during a calendar year and other arrangements necessary for organising common training tests, and permit the Member State concerned to derogate from the relevant provisions of Directive 2005/36/EC for a limited period of time.

(35)Following the positive experience with the mutual evaluation under Directive 2006/123/EC, a similar evaluation system should be included in Directive 2005/36/EC. Member States should notify which professions they regulate, for which reasons, and discuss amongst themselves their findings. Such a system would contribute to more transparency in the professional services market.

(36)The Commission should in due course assess the recognition regime applicable to the evidence of formal qualifications as a nurse responsible for general care issued in Romania. Such an assessment should be based on the results of a special upgrading programme, which Romania should set up in accordance with its national laws, regulations and administrative provisions, and for which it should liaise with other Member States and the Commission. The purpose of such special upgrading programme should be to enable participants in that programme to upgrade their professional qualification to successfully satisfy all the minimum training requirements set out in Directive 2005/36/EC.

(37)Since the objectives of this Directive, namely the rationalisation, simplification and improvement of the rules for the recognition of professional qualifications, cannot be sufficiently achieved by the Member States as it would inevitably result in divergent requirements and procedural regimes increasing regulatory complexity and causing unwarranted obstacles to mobility of professionals but can rather, by reason of coherence, transparency and compatibility, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

(38)In accordance with the Joint Political Declaration of Member States and the Commission of 28 September 2011 on explanatory documents (12), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(39)The European Data Protection Supervisor was consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (13) and delivered an opinion on 8 March 2012 (14).

(40)Directive 2005/36/EC and Regulation (EU) No 1024/2012 should therefore be amended accordingly,