The rights of EU citizens to establish themselves or to provide services anywhere in the EU are fundamental freedoms in the Single Market, and national
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DIRECTORATE GENERAL FOR INTERNAL POLICIES OF THE UNION DIRECTORATE A: ECONOMIC AND SCIENTIFIC POLICIES INTERNAL MARKET AND CONSUMER PROTECTION Study on Transposition of the Directive on the recognition of professional qualifications STUDY (IP/A/ALL/FWC/2006-105/LOT3/C1/SC9) IPOL/A/IMCO/ST/2009-05 PE 416.238
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This document was requested by the European Parliament’s Committee on Internal Market and Consumer Protection. (Contract reference number: IP/A/ALL/FWC/2006- 105/LOT3/C1/SC9) AUTHORS Mrs Benita Kidmose Rytz Ms Janne Sylvest Ms Karin Gros Pedersen Ramboll Management Consulting Oluf Palmes Allé 20 DK – 8200 AARHUS N DENMARK RESPONSIBLE ADMINISTRATOR Ms. Patricia SILVEIRA DA CUNHA Policy Department Economic and Scientific Policies European Parliament B-1047 Brussels E-mail: poldep-esc@europarl.europa.eu LINGUISTIC VERSIONS Original: EN ABOUT THE EDITOR To contact the Policy Department or to subscribe to its monthly newsletter please write to: poldep-esc@europarl.europa.eu Manuscript completed in September 2009. Brussels, © European Parliament, 2009. This document is available on the Internet at: http://www.europarl.europa.eu/activitie s/committees/studies.do?language=EN DISCLAIMER The opinions expressed in this document are th e sole responsibility of the author and do not necessarily represent th e official position of the European Parliament. Reproduction and translation for non-commerc ial purposes are auth orised, provided the source is acknowledged and the publisher is given prior notice and sent a copy.
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DIRECTORATE GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT A: ECONOMIC AND SCIENTIFIC POLICIES INTERNAL MARKET AND CONSUMER PROTECTION Study on Transposition of the Directive on the recognition of professional qualifications STUDY Abstract The study showed that all MS but one have transposed and implemented the Directive, albeit with severe delays, which have had implications for the enforcement of the Di rective in all MS. The MS lack trust in each other™s educational systems, and it is important to establish this trust if Directive is to work properly. Frequent meetings, common use of IMI, communication from Commission on how to interpret the Directive and assistance from indu stry organisations are all tools to improve this. IP/A/IMCO/ST/2009-05 September 2009 PE 416.238 EN
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CONTENTS Contents 4LIST OF ABBREVIATIONS 5Executive SUMMARY 61.Introduction 102.Recognition of professional qualifications 133.State of play 164.Possible legal and administrative challenges in transposition, implementation and enforcement 315.Examples of good practises in memb er states with regard to Directive 2005/36/EC or other (related) regulation 496.Case Studies 547.Conclusions 618.Recommendations 66Bibliography 69Overview of the interviewees 70
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Study on Recognition of Professional Skills ____________________________________________________________________________________________ EXECUTIVE SUMMARY The rights of EU citizens to establish themselv es or to provide services anywhere in the EU are fundamental freedoms in the Single Market, and national regulations which only recognise professional qualificat ions of a particular jurisdicti on present obstacles to these fundamental freedoms. With this rationale in mind, Directiv e 2005/36/EC on recognition of professional qualifications was adopted on 7 September 2005. The Directive consolidated 15 directives, 12 Main (Sectoral) Directives and three General System Directives into a single text, thus working to simplify the le gal and procedural regime for professional recognition. More specifically, instead of the General System and the Specific System being separated in several directives, they are now presented in diffe rent chapters of Directive. The main objectives of the Directive are to ra tionalise, simplify and improve the rules for the recognition of professional qualifications 1. Thus, the Directive is intended to encourage the free movement of skilled labour around the European Union while acknowledging that standards and content differ between countries by seeking to establish some equivalence between those trained in the countries of th e European Union. From an EU citizens™ perspective it means that an EU citizen with a prof ession qualified and recognised in one member state should be able to move and pr actice in another member state relatively frictionless. In order to allow for more flexibility within the Directive, many details and technical requirements are now included in the seve n annexes. This means that the technical requirements should be easier and faster to update, thus supporting the aim of faster and more efficient administra tion of the system for recognition of professional qualifications. Moreover, the Directive includes a wider use of the principle of automatic recognition in relation to the professions included in the Specific System 2, meaning that for these professions, and upon the presen tation of certain documents, specified in the annexes, the MS are to automatically recognise the qualifications of these professions. In order to improve flexibility and simplification in the implementation and general management of the Directive, Chapter IV esta blishes a framework for, among other things, communication and exchange of informat ion between MS and between MS and the Commission, including for instance the appointment of a National Contact Point in each Member State. The National Co ntact Points in the different MS have two main types of tasks3: to provide the citizens and contact points of the other Member States with information on e.g. the nation al legislation governing the pr ofessions and the pursuit of those professions, and to assist citizens in understanding their rights in connection with this Directive. None of the Member States met the transposition deadline in time and citizens still encounter problems concerning the recognition of their professional qualifications abroad. Therefore, the Coordinators of the Committee on the Internal Ma rket and Consumer Protection (IMCO) commissioned a study to provide an overvi ew of the situation regarding transposition of the Directive on recognition of professional qualifications in the MS, as well as to understand real life problems enco untered in different Member States when individuals are trying to get th eir qualifications recognised. The main conclusions emerging fr om this study are as follows: Overall, all MS except Greece have now transp osed the Directive, and 17 out of 27 MS have fully implemented the Directive. However, both the transposition and the implementation have been at a rather slow pace for nearly all MS, not meeting the deadlines mentioned in the Directive. The main reason for this has been the comple xity of the Directive. 1 Directive 2005/36/EC 2 Directive 2005/36/EC, article 21-1. 3 Article 57, Directive 2005/36/EC
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Study on Recognition of Professional Skills ____________________________________________________________________________________________ The Directive covers many sectors, thus invo lving many national ministries (competent bodies) in the transposition and implementa tion phase. Secondly, a great number of measures had to be communicated, includin g existing measures under the previous sectoral directives (which the Commission asked for in accordance with Article 63). The legal systems in the MS are rather different due to different legal traditions, and so are the educational systems and the number of re gulated professions. The Directive takes these differences into account by allowing for a national interpretation of the provisions. However, although there is room in the Directive for national interpretation, it is of utmost importance that all MS are working towards the same goal. If just a few MS are not transposing and/or implementing the Directive properly, it a ffects the enforcement of the Directive in other MS. As the legal structures differ in the MS, it is difficult to define one good practice of the transposition and implementation of the Directive. However, as the Directive is as complex as it is, a system which is receptive of changes in the technical provisions of the directive can be seen as an advantage. In order to ensure this flexibility to as large extent as possible, the transposition strategy of on e main law combined with sector-specific secondary legislation is advised to use when possi ble. It is also highly important to support any changes in the Directive with interpretation guidance from EU-level or national level, taking into account the difference between more centralised or decentralised administrative structures in MS, in order to promote uniform transposition throughout the EU27. The MS™ lack of trust in each other™s system s seems to be a general issue affecting the proper enforcement of the Directive. Establishing a mutual understanding between MS is very dependent upon the MS trusting each other™s systems. The MS are not always willing to trust each other™s educational systems. Th e problem especially appears if people move with ‚old™ qualifications which do not correspond to the requirements of the educational system today. A similar problem applies to new types of education which are not broadly recognised, or to educations that are not typically found in the MS in question. The MS™ interpretation of Article 7 as the service provider being obliged to inform the competent authority about a possible move symbolises the current lack of trust in each other™s systems. However, the MS generally fe el the need to control the people before they are coming to work in their country. Several solu tions to this problem have been suggested, including introducing additional Codes of Conduct and better use of the IMI system. The IMI system provides a good practice for the exch ange of information, but a more active use should be encouraged. This seems not so much a question of technical barriers, but more a question of capacity an d priority in the MS. Industry organisations could also play a larger role in helping the MS gaining trust in each other, by helping competent bodies and regulatory authorities in the assessment of the suitability of a certain profe ssion from other MS and throug h providing these authorities with the needed information. The Common Platfo rms foreseen in Article 15 of the Directive should play a role in this, however, none of the MS have engaged in developing such platforms. The professional organisations interested in this are calling for more initiatives at European level in order to ensure a common footing on how these platforms should be developed. Some professional organisations, such as the EF PA (European Federation of Psychologists Association) and the ECCE (European Council of Civil Engineers) have however started to try and form common platforms by creating a single European certificate, through which a European agre ement on competency requirements should ensure mobility, patient safety as well as similar services across Europe. The European Parliament has also explored the need for a European Professional Card, containing certified information on qualifications. The card/certificate entails that the industry organisations can play a role in facilitate the understanding of the educational/professional structures in other MS, thus a ssisting the competent bodies in assessing the suitability of a certain profession from another MS. However, such a certificate should not become another bureaucratic hurdle for professionals who want to work in another Member State. This approach could then contribute to a common understanding between Me mber States of the professions in question.
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Study on Recognition of Professional Skills ____________________________________________________________________________________________ In terms of the lessons learned from the cases , it can be seen that the main problems with the recognition procedure are often due to delays, in the sense that the MS are not respecting the 3-month deadline stated in the Directive, and protectionism , meaning that the MS favour own nationals and deliberately hi nder the recognition of professionals from other MS. These problems also continue to exist with regard to the professions regulated by the specific system. These professions are separately regulated in order to ensure automatic recognition, meaning that the competent authorities of the host MS should not examine the training leading to these qualifications, but merely examine whether the applicant has fulfilled all the requirements necessary to pr actice that profession in the home Member State. Nevertheless, problems still exist, mainly due to the fact that the education structures differ among MS. Coming back to the i ssue of lack of trust, if the MS could trust each other™s education systems and believe that for instance a child nurse is well educated in the EU regardless of the formal degree he or she has obtained, there might be fewer problems with recognition of professional qualifications. The below recommendations have emerged from this study. Recommendation 1: Ensure that transposition and implementation is concluded in all MS as soon as possible. The recommendation is rather obvious, but neve rtheless of utmost importance if citizens are to benefit fully from the Directive. As me ntioned, the success of the Directive largely depends on all MS working towards the same goal, and the transposition and implementation in one MS affe cts the enforcement of the Dire ctive in other MS. This means that in order for the Directive to function prop erly, and thus for the citizens to benefit fully from the provisions in the Directive, the MS will have to be able to depend upon each other and have a common ground on which to refer. This can only be reached if all MS have transposed and implemented th e Directive. The regular co mmittee meetings between the Commission and the national cont act points could possibly be us ed to put pressure on the remaining MS. A lesson learned from the transposition and implementation of this Directive is that the deadline should probably be less ambitious, as all MS have had trouble reaching the deadline. Thorough discussions between the Commission and the responsible national ministries could possibly be undertaken prior to setting the deadline, consulting each responsible ministry on when it will be possible to transp ose and implement the Directive and setting the deadline with depart ure point in these discussions. Recommendation 2: Overcome the MS™ lack of trust in each other™s systems The Directive takes the national differences into account by allowing for a national interpretation of the provisions, which then impl ies that in order for the citizens to be able to move rather freely within the EU, the MS need to trust each other™s systems and interpretation of the Directive. One of the ways in which these trust issues could be overcome is to continue the regular meetings between the national contact points in order to provide the national contact points and competent bodies with a forum in which to clarify legal and technical issues, and to get a bette r understanding of how the system works in other countries. Another tool that could be used in increasing the MS™ understanding of each other™s systems is the IMI system. The technical framework is there for the MS to exchange knowledge and to help each other with specific cases, but there is a need for the MS to agree on how to use the system. A Code of Conduct developed by the Commission and the national contact points on the use of the IMI system could probably help better exploit the opportunities for sharing knowle dge that the system offers. If the IMI system is to be used to its fullest benefit, it should according to the MS include a greater number of professions, thereby also cover the professions wi th less mobility, and the MS should agree on a more uniform way of using the system and keeping it up to date.
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Study on Recognition of Professional Skills ____________________________________________________________________________________________ Recommendation 3: Exploit the syne rgies between related directives In particular this Directive, the Professional Qualification Directive, and the Services Directive potentially have much in common, si nce both aim at free movement of service providers, use the IMI system and require th e proper functioning of a national contact point/point of single contact. Therefore bo th directives could probably benefit from synergies if administrations are working closer together. However, there is a lack of resources in the different agencies/ministries im plementing the directiv es to carry out such information exchange. Also lack of tradition for cooperating between national ministries seems to prevent the contact points from achieving these synergies. What could be done at EU level is to arrange regular meetings between all contact points for the two Directives, thus providing them with a forum to exchange knowledge. At EU level, steps could be taken to identify the most active contact points in terms of cooperation, bring them together and have them act as an inspiration towards other MS. However, the contact points could also take the initiatives of setting up forums fo r better and more cooperation. Given the budget restraint, focus could especially be on how re sults can be reached without spending a large amount of money. Recommendation 4: Increase the communication from the Commission to the national contact points and the coordination among national contact points As the Directive leaves room for national interpretation of the transposition and the implementation, several national contact poin ts stress the need for more communication from the Commission on how the Directive™s provisions should be interpreted, how the MS can explain the Directive to the citizens in a similar fashion, and on new court rulings of relevance to the Directive, in order to be cert ain that the MS interpret the Directive in the same way and to provide the MS with a common platform to do so. As some MS are already working on providing the needed docu ments, increased coor dination between the National Contact Points could also help in securing a more uniform approach across MS. The regular meetings between th e national contact points coul d serve as a forum for this. Recommendation 5: Include industry organisations in the assessment of professions from other MS Industry organisations can play a role in facilitating the understanding of the educational/professional structures in other MS, thus assisting the competent bodies in assessing the suitability of a certain profession from another MS. A better understanding of the educational/professional structures can help MS gain a better understanding and thereby trust in other MS™ systems. It is therefore recommended to include industry organisations more in the assessments of prof essions from other MS and to formalise this cooperation further. This could for instance be done through the use of professional cards/certificates, as suggested by two pr ofessional organisations. When properly implemented, these certificat es would contain a European agreement on competency requirements assisting the professional to get his qualifications recognised within the EU. Another (simultaneous) approach could be to facilitate meetings at EU level between industry organisations and competent bodies, where sectors of certain interest could be discussed and competent bodies could have the opportunity to ask for clarifications where necessary.
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