Recognition of professional qualifications. Bernhard Zaglmayer, Deputy Director, Internal Market Affairs Oslo, 29 November 2011

Transcription

1 Recognition of professional qualifications Bernhard Zaglmayer, Deputy Director, Internal Market Affairs Oslo, 29 November 2011

2 1. The EEA Legal Framework EEA Agreement (+ enlargement agreements) Text 49 Protocols 22 Annexes Dynamic development Standing Committee, Surveillance and Court Agreements Provide for the EFTA pillar organisations parallel to the European Community organisations

3 The two pillar structure under the EEA Agreement Iceland Liechtenstein Norway EFTA Standing Committee EFTA Surveillance Authority EFTA Court Committee of MP s of the EFTA States EFTA Consultative Committee EFTA Council EEA Joint Committee EEA Joint Parliamentary Committee EEA Consultative Committee EU Council European Commission European Court of Justice European Parliament Economic and Social Committee

4 Who are these bureaucrats? About 70 employees 16 nationalities Run by a college of three Four departments

5 The Authority s tasks - general surveillance Implementation control EEA Acts have to be transposed into national law time limits notified to ESA Conformity assessment Correlation between directives and national provisions Case handling Own initiative cases Complaints Management and reporting tasks

6 Procedures Informal action Formal procedure Breach of treaty SCA Art. 31 Requests for information Pre-Article 31 letters Letters of formal notice Reasoned opinion EFTA Court Package meetings

7 2.1 Sectoral system - professions Doctors (general and specialised) Nurses (general care) Midwifes Pharmacists Dentists (general and specialised) Veterinarian Surgeons Architects 1. New diplomas/titles have to be notified to ESA in accordance with Article 21(7) of Directive 2005/36 2. New Form 21(7) was created for these notifications. It is available on the ESA website: [Lawyers (2 separate directives)]

8 Sectoral system - basic principles Only applicable to specific professions/titles mentioned in Annex V Certificate of correspondence Art 23(6) Specialisation has to exist in at least 2/5 of MS - other MS apply general system (C-16/99 Erpelding) Automatic recognition of diploma (not substantive but formal assessment!) Minimum harmonisation of training in EEA if not fulfilled: Acquired rights principle (Arts 23, 27, 30) if not fulfilled: Article 10: general system applies (with adaptations, see Article 14(3) paragraph 2)

9 2.2 General system basic principles (1) Professions not covered by sectoral system Horizontal recognition based on 5 levels of qualification (Article 11) Not EQF (for non-regulated professions)! No harmonisation 2 compensation measures to choose from (derogation 14(2)): - aptitude test - adaptation period Partial recognition of qualifications (C-330/03 Colegio de Ingenieros)

10 Case C-330/03 Colegio de Ingenieros whether the competent authorities of host state are precluded by the Directive from partly allowing that application [ ] by limiting the scope of the permission to the activities which that diploma allows to be taken up in the home State? The wording, scheme and objectives of the Directive do not preclude the possibility of partial taking-up of a regulated profession, except activity cannot objectively be separated from the rest of the activities compensation measures are sufficient to fill gaps consumer protection cannot be guaranteed

11 3.1 Cases of Norway with ESA Turnus doctors - infringement ESA does not attack the Turnus system as such, but its application to foreign doctors ESA attacks the alternative practical period as such unclear legal basis (Rundskriv) There is a possibility to restrict access to profession when justified (e.g geographical situation) Medical specialisation finalised outside Norway Accountants - aptitude test at Norwegian Universities Application of Directive 98/5 for rettshjelper

12 3.2 Case before EFTA Court Request for an advisory opinion from Statens helsepersonellnemd (E-1/11) Substantive question: What if competent authorities learn that a [doctor] subject to automatic recognition actualy lacks profound substance knowledge? Oral hearing on 20 September 2011 Judgment to be expected before end of year

13 4. Actual pursuit of profession Registration with professional organisations not for service provision! Documents: Art 50 icw Annex VII to Directive 2005/36 Proof of personal health Professional misconduct/criminal offence (CCPS) In case of justified doubts request confirmation from MS (IMI) Language requirements

14 4.1 Language requirements "Persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State (Article 53) Language requirement is not part of recognition procedure, except if language is integral part of profession (e.g. speech therapist, teacher, ) It has only effect with regard to actual pursuit of profession Applicable for establishment and service provision

15 Summary of case law of the ECJ Choice of control of language knowledge is left to host state No universal/systematic language test (proportionality) Not only national language tests have to be accepted Linguistic knowledge necessary for exercise of profession - unclear Take into account official minorities with different language (ECJ Cases 379/87 Groener, C-424/97 Haim II, C-281/98 Angonese, C-193/05 Commission vs Luxembourg, C- 506/04 Wilson)

16 5. Flexibility of service providers Definition of service (Article 5(2)): pursuit of the profession on a temporal and occasional basis with individual assessment based on duration, frequency, regularity and continuity Application of definition in practise Nature of service Permanent infrastructure (C-55/94 Gebhard) Intention of circumvention (205/84 Van Binsbergen, C-23/93 TV 10) Service entirely or principally directed towards host state Intention of migrant

17 Requirements of service provision Simple prior declaration to host state of intention to provide service (Article 7(1)) Article 7(4) exceptions of public health and safety Short deadline - if missed, service can be performed! If aptitude test - service provided under title of host state! No formal registration with professional associations or organisations or public social security bodies (Article 6) only pro forma Service provided under title of home state (Article 7(3)) Person subject to host state disciplinary measures

18 5.1 PQ Directive vs Services Directive Complementary instruments regulating different issues PQD: Education and qualifications SD: Commercial communications (authorisation), professional liability insurance, multidisciplinary activities, administrative simplification, etc Addressees SD addresses a service provider (company or person) PQD addresses a person as service provider

19 Regulated profession Definition: professions directly or indirectly regulated by laws, regulations or administrative procedures Definition is a matter of Community law (C-164/94 Aranitis, C-313/01 Morgenbesser, C-234/97 Bobadilla, C- 285/07 Burbaud) Not activities constituting practical part of training necessary for access to a profession (C-313/01 Morgenbesser) Not when access to a profession is based on comparative assessment rather than by application of absolute criteria (C-586/08 Rubino) Regulated profession addresses education/qualification necessary to actually perform the activity ( know how - e.g. electrician, doctor, etc)

20 Regulated activity No clear criteria of distinction to regulated profession (see ECJ Cases 458/08 and C-203/11 (Q8) concerning construction sector) Regulated activity addresses rather the circumstances under which an activity is performed alcohol selling license manager

21 6. Third Country Nationals (TCN) Directive is applicable to EU nationals (Article 2(1)) enlarged to EEA. Certain rights guaranteed to TCN via other secondary legislation: Directive 2003/109 on long term residence not applicable in EEA (DK, IE, UK!) When TCN is family member of a citizen of an EEA State with legal residence (Article 23 of Directive 2004/38)

22 7. Third country diplomas - definition EU diploma in general system - Article 1 i.c.w. Article 3(1)(c): Diploma delivered in EU Member State and training mainly obtained in the Community EU diploma for sectoral system - ECJ Case C-110/01 Tennah-Durez: Diploma delivered in EU Member State

23 Third country diplomas - recognition MS may recognise 3 rd country diploma under its own national rules. Professions of sectoral system have to fulfil minimum requirements (Article 2(2)) Diploma of 3 rd country has to be recognised in another MS, if holder has three years professional experience in first MS (Article 3(3)) General system applies (Article 10(g)) Sectoral system never applies to 3 rd country diplomas If no 3 years professional experience in first MS, then case has to be assessed on general provisions of EEA Agreement (ECJ case C-238/98 Hocsman) Compare knowledge and abilities certified by the diploma with requirements of national rules Recognise experience and training in MS and 3rd country - proportionality Migrant cannot make use of rights for services provision (Articles 5-9)

24 Any further questions? Thank you! Bernhard Zaglmayer

25 Further reading FAQ: future/faq_en.pdf Code of Good conduct: qualifications/docs/future/cocon_en.pdf Recognition of Qualifications of Health Professionals in the EEA, Peeters/Zaglmayer, in Mår/Andenaes (red.), Klagenemnder Rettssikkerhet og Effektivitet, Fagbokforlaget, 2008, pages