I thank the committee for inviting us here today to brief it on the new EU directive on the recognition of professional qualifications.
The Commission proposed the directive on foot of both the Lisbon strategy "to make Europe the most dynamic and competitive knowledge-based economy in the world by 2010", and the final report of the high level task force on skills and mobility in 2001. That report recommended that the EU and member states should intensify their efforts to implement the strategy for an internal market for services in order to remove the existing barriers to cross-border provision of services and freedom of establishment, to attach priority to increasing the speed and ease of professional recognition, including conditions supporting more automatic recognition, and introduce a more uniform, transparent and flexible regime for the recognition of qualifications in the regulated professions by 2005.
The new directive aims to consolidate 15 existing general and sectoral directives in the field of the recognition of professional qualifications, to simplify the existing rules regarding the recognition of professional qualifications and the management of the recognition system, to improve the information and advice for citizens, to take account of rulings of the European Court of Justice and to contribute to the flexibility of labour markets, particularly by facilitating the temporary and occasional provision of services.
The Department of Education and Science is the national co-ordinator and contact point for the EU general systems directives. The current sectoral directives come under the remit of various Departments, such as the Department of Health and Children for doctors, dentists, pharmacists, midwives and general care nurses, the Department of the Environment, Heritage and Local Government for architects, and the Department of Agriculture and Food for veterinary surgeons.
The Department of Education and Science led the negotiations on the new directive at working group level. The Department is advised on sectoral issues via an interdepartmental committee comprising relevant Departments. The Minister for Enterprise, Trade and Employment represents Ireland at Council as this new directive comes under the EU Internal Market DG and Competitiveness Council.
Two types of directive, the general systems directive and the sectoral directive, exist under the current system. Under the general systems directives the principle of recognising a qualification for a regulated profession in another member state must be accepted. However, where there is a substantial and important difference in content between the qualifications or experience required in the host member state and that held by the applicant, provision is made for compensatory measures such as a period of adaptation under supervision, or an aptitude test. In determining whether compensatory measures apply, a member state must take full account of the content of training and experience in the home member state, and in any other member state, including a third country where the applicant has been before being recognised in an EU member state.
The sectoral directives cover architects, doctors, midwives, veterinary surgeons, pharmacists, general care nurses and dentists. The qualifications accepted for practice in each member state are set out in an annex to each relevant directive, and each member state must accept as valid a qualification from another member state listed in the relevant annex.
Under national transposition measures, each directive has designated a competent authority for the receipt, processing and determination of applications for professional recognition.
The general system comprises four directives. The first is Directive 89/48/EEC, which applies where the required qualification in the home member state includes a post-secondary diploma of at least three years' duration or equivalent. Most regulated professions in Ireland come under the terms of this directive.
Member states may apply a compensatory measure. However, these may only apply to the elements of the qualifications or experience deemed essential to practice and which are not judged to be part of the candidate's own qualifications and experience. This can also apply if the duration of education or experience is one year less than that required in the host member state. In most cases, unless the Commission agreed an alternative, the candidate should have the right to choose between an adaptation period and an aptitude test. Aptitude tests are allowed to test language proficiency, knowledge of Irish law, or of the Irish education system. Where a qualification is recognised for the profession in the home member state but is one level below that required in the host member state, the applicant is entitled to recognition, but with a compensatory measure applied.
If the profession in question is not regulated in the home member state, but has been practised by the applicant there for at least two of the past ten years, and he or she possesses a qualification from a competent authority which prepared him or her for pursuit of that profession, the qualification must be recognised by the host member state. Compensatory measures may be applied in such cases, if appropriate.
The period of supervised practice may not exceed the shortfall in professional supervised practice required for recognition in the host member state and may not exceed twice the shortfall in training and supervised practice, ending in an examination.
Competent authorities must give reasoned arguments for refusal and cases must be completed within four months of receipt of full documentation. The Commission must be notified of regulated professions and a statistical report submitted every two years on progress in implementing the directive. Where a statement of good character and financial standing is required, the member state must accept certification from the competent authorities in the home member state to this effect, or alternatively, a solemn oath or declaration signed by a notary or qualified professional. Those who fulfil the requirements must be allowed use the title of the host member state.
Each member state is required to designate a person responsible for co-ordination of the actions under the directive and the Department of Education and Science has that responsibility in Ireland. The Department represents Ireland on an EU Council working group on establishment and services, diplomas. Directive 89/48/EEC was transposed into Irish law under SI 1 of 1991.
Directive 92/51/EEC, the second general systems directive, extends the same processes as the first general systems directive to post-secondary qualifications for regulated professions of at least one year's duration or equivalent.
A small number of regulated professions in Ireland fall under this directive, for example, accounting technicians, ships' radio officers, engineering technicians and a number of professions in the marine sector, including certain classes of marine engineers. As with the first directive, where a substantial and critical difference in education and training has been identified, an adaptation period of supervised practice leading to assessment or aptitude test may apply. This directive was transposed under SI 135 of 1996.
Directive 99/42/EEC applies to craft and trade professions listed in Annex A of the directive. The list in Annex A is divided into a number of sub-sections and lists a wide range of qualifications, none of which is regulated in Ireland. These include manufacturing, construction, demolition, food industries, fishing, personal services, laundries, hawkers, pedlars, hairdressers, transport workers, retail trade, catering and so forth. For each sub-section, the directive sets out arrangements that require member states to view as qualified any persons who have professional experience for prescribed periods acquired in another member state.
Member states may not refuse to permit an applicant from another member state, on grounds of being unqualified, the right to take up activities listed in Annex A, without first carrying out a comparison of the education, training and experience he or she has vis-à-vis that required of its own nationals. Where the comparison shows a substantial difference, compensatory measures may be applied under EU Directives 89/48/EEC and 92/51/EEC.
The directive provides for certification of the nature and duration of activity by a competent authority, which is FÁS in Ireland. Article 9 provides for the usual procedures for respecting other member states' certificates of good standing, proof of non-bankruptcy and so on, or declarations or oaths to this effect. As none of the occupations listed in Annex A is regulated in Ireland, this EU directive only impacts on workers travelling from Ireland to other member states, mainly Germany and Austria, where these professions are regulated. In such cases, they can provide details of their experience and FÁS will issue the necessary certification, which will count towards meeting the minimum experience specified in the directive. This directive was transposed into law under SI 372 of 19 August 2003.
EU Directive 2001/19/EEC amends both the general and sectoral systems directives. It changes the general systems to include the term "equivalent" level of qualification, instead of "similar" level; provides a definition of "regulated education and training"; provides that two years' experience is not required where the holder has a regulated education and training qualification which prepared him or her for that profession; obliges member states, in applying comparisons of qualifications and experience, to take account in full of all education and training and experience of the migrant; and provides extra clauses regarding acceptance of certificates of good standing, insurance and so forth.
The directive applies the same approach to the sectoral directives. For occupations covered by the sectoral directives, it requires member states to carry out a comparative process where an applicant holds a qualification which is recognised for the profession but is not listed in the annex, and to accept certificates from other member states that the qualifications are equivalent to those listed in the annex.
As this directive amends both the general and sectoral systems, the relevant Departments required various instruments and measures for its transposition. The Department of Education and Science co-ordinated the transposition process.
The sectoral directives relate to seven professions: nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, architects, pharmacists and doctors. In each case the directives provide for automatic recognition where applicants hold qualifications listed in the directive or annex. This is meant to simplify the procedures for recognition and set out co-ordinated minimum education, training and experience requirements.
Under the Dreeson case, the European Court has ruled that this is a facilitative process in progressing rights under the treaty, and that if a recognised qualification is not listed in the annex, the comparison exercise provided for under the general systems must be carried out. This is also stipulated under Directive 2001/19.
As the lead Department in negotiations at official level for the new proposed Directive, we consulted the relevant stakeholders at all stages of the process. An interdepartmental committee was established comprising representatives from the Departments of Health and Children, Environment, Heritage and Local Government, Enterprise, Trade and Employment, Agriculture and Food, and Justice, Equality and Law Reform. This committee informed the Irish position on the new directive.
The Department made two presentations on the new directive to which all the designated competent authorities were invited. A survey was undertaken of the designated competent authorities with responsibility for vetting qualifications under the existing directives, asking them for information on processes, timescales and health and safety risks for temporary or occasional services. The Department also consulted electronically with the designated competent authorities on relevant aspects of the proposal.
In February 2001, the EU Commission undertook to present proposals for a more uniform, transparent and flexible regime of professional recognition based on the existing general systems directives. A draft consolidated directive was presented in March 2001, which aimed to consolidate and replace the existing directives with one overall directive, to clarify issues of interpretation which had surfaced in EU case law and to provide for more liberalisation, particularly in the provision of temporary services.
The Council working group, at which the Department of Education and Science led the Irish delegation, had numerous meetings between July 2002 and May 2004 to discuss the EU Commission proposal. The Department of Health and Children also attended these working group meetings, as did other Departments from time to time.
In May 2004, under the Irish Presidency, political agreement was reached at the Competitiveness Council on an amended text as negotiated by the Council working group. Germany and Greece voted against the proposal and all other member states and the EU Commission voted in favour. A common position was reached in December 2004.
The EU Parliament initially tabled 408 amendments but following its first reading of the proposal in March 2004, this was reduced to 155 amendments. Tripartite discussions between the Council, the Commission and the EU Parliament took place under the Luxembourg Presidency in early 2005 and following these negotiations, the EU Parliament agreed, at its second reading, to the common position with 34 of its amendments. This position was adopted at Competitiveness Council on 6 June 2005.
While the sectoral system directives have worked comparatively well and quickly — a qualification is either listed or not — the general systems can be cumbersome and require very detailed levels of documentation to be submitted and a long time for scrutiny. These directives marry the principles of free movement with the right of subsidiarity in each member state to decide the content of its education and training system.
The new consolidated directive provides, as before, for a verification and recognition of qualifications before a worker can take up a regulated profession in a host member state on a permanent or long-term basis. This is known as the right of establishment. There is no change here in the new directive, other than incorporating interpretations of case law. The new directive also provides for free movement and the right to provide services of a temporary or occasional nature without a checking process of qualifications, under Articles 5 to 9. There were very strong objections and vociferous lobbying from various member states to this aspect of the directive, particularly in terms of risks for the health sector. Following negotiations at working group, the original proposal was amended to provide for a check of qualifications for the first provision of services for professions having public health or safety implications but only where the purpose of the check is to avoid serious damage to the health or safety of the service recipient due to a lack of professional qualification of the services provider and where this does not go beyond what is necessary for that purpose.
In Ireland, this check will be possible for the regulated professions in the health, social care and veterinary professions only. The check on qualifications for the provision of a temporary service must be done within one month. Where there is a delay, the applicant must be notified of the delay and the reason for it and a decision must be finalised within the second month. Service providers moving to another member state are subject to the disciplinary procedures of a professional or administrative nature which apply in that host state. For this purpose, member states may provide pro forma automatic registration of the relevant body, without cost or delay to the service provider.
The service provider must complete a declaration to the competent authority — usually the professional body — each time he or she provides a service. The first such includes details of qualifications, nationality, etc. The competent authorities in another member state may be asked to provide information on the legality of establishment and absence of disciplinary procedures of a service provider in the case of any service provision. In effect, the proposal does not expressly allow for the checking of qualifications held by the sectoral directive professions but in such cases the condition under which a temporary service is allowed is that they are recognised and established in their home member state and this is determined by whether their qualification is listed in the relevant annex. In addition, the competent authority can consult with its counterpart body on the legality of the establishment.
With regard to Article 10, certain categories of applicant with acquired rights within the professions covered by sectoral directives were provided with the right to have cases treated under the general system, including the application of compensatory measures. This brings the directive into line with case law.
In terms of Article 11, levels of qualifications are identified in the directive for the purpose of applying compensatory measures. If the level of qualification held is one level below that which is required, compensatory measures can be applied. The original Commission proposal suggested five levels of qualifications, namely, level 1, "attestation of competence" or general school education; level 2, "certificate" or post-primary level; level 3, "diploma certifying successful completion of a short training course" or one year post-leaving certificate level; level 4, "diploma certifying successful completion of an intermediate training course" or three years post-leaving certificate level; and level 5, "diploma certifying successful completion of a higher training course" or at least four years post-leaving certificate level.
Following discussions of the working group, the consensus was for four levels, in line with the current general systems directives. The European Parliament insisted on specifying the fifth level of qualification. Its argument was that university studies last longer and are in excess of four years for many professions. Consequently, a further level of qualifications must be provided to take account of these facts and to avoid unfair treatment of those who have completed such lengthy studies. During tripartite negotiations, it was agreed by Council and the Commission to concede to five levels so as to facilitate an agreement.
Article 15 envisages that a EU-wide association or professional body could agree within itself arrangements by which compensatory measures could be waived and that this common platform could then be submitted to the Commission for approval. The Commission would be advised by an expert group and would decide whether it was worth proposing for decision to a commitology group under Article 58.
Article 27 gives acquired rights to doctors trained in medical specialisms which are the subject of agreements reached under the sectoral directives not applying in all member states. Other member states which were party to the agreements must recognise these qualifications where training occurred before the date set out under Article 62. Following the implementation of the directive, only medical specialisms common to two fifths of member states will be considered for inclusion in the directive. Bilateral and multilateral agreements can be continued after that but not under the auspices of rights established under the EU directives.
With regard to Article 44, Ireland had sought and has retained the derogation on recognition of qualifications of pharmacists under which persons or companies from other member states may not operate a new pharmacy, that is, one which has operated for less than three years.
Article 53 provides that persons benefitting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host member state. The common position was that the individual should have a knowledge of the necessary language, thus leaving an element of optionality to the provision. However, this was an issue about which the Parliament was adamant and the Commission and Council agreed to accede to the amendment in order to reach an agreement.
On Article 58, most of the current directives have provision for a committee chaired by the Commission and made up of representatives of member states. Each sectoral directive has its own committee. Under the new directive, there will be one Article 58 committee, which will assist the Commission in making decisions on such issues as common platforms. It will consist of representatives of member states and will be chaired by the Commission. Its rules and procedures are determined by the committee itself. An amendment by the Parliament to include in the text of Article 58 the Commission's consultation of experts from the professional groups concerned was agreed to. The member states will decide who will be represented at committee meetings, depending on the agenda.
The final formal text has not as yet been published. It is expected that the directive will be signed in Strasbourg on 6 July and will be published shortly afterwards. Information on the systems of mutual recognition of professional qualifications is available on the Department's website, www.education.ie, and the new text will be added to the website as soon as it becomes available. The Department of Education and Science will then commence consultations with the relevant Departments and competent authorities regarding its transposition into national law. I thank the members of the committee for their attention and I hope this briefing has been informative.
