EU free movement of persons and services: Have qualifications, will travel?

The EU Commission has published a report on how things turn out in practice for mobile professionals: Internal Market: Commission publishes reports on how Professional Qualifications Directive works in practice (22 October 2010, press release IP/10/1367; available in English, French and German).

The press release highlights a number of problems the European Commission describes as issues which deserve ‘further consideration’:

- Training requirements: the Directive provides for minimum training requirements for certain health professions (doctors, dentists, nurses, midwives, pharmacists) and veterinary surgeons which sometimes date back more than 30 years. A considerable number of authorities consider that these requirements should be reviewed; nearly all competent authorities for the professions concerned welcome the system of automatic recognition of the qualifications in question.

- Language knowledge for health professionals: persons benefiting from the recognition of their qualifications should have the necessary language knowledge for practising their profession in the host Member State.

- Automatic recognition in the areas of craft, trade and industry: there is a call for examining the rules in question which date back to the 1960s (in particular, for updating the list of activities).

- Electronic applications: the reports reveal that, generally, the recognition procedures cannot be fully completed by electronic means.

- Administrative cooperation which is built on the Internal Market Information System (IMI) is quite promising. A proactive alert mechanism ensuring prompt information exchange between national authorities on cases of professional malpractice (for all cases not yet covered under the Services Directive, in particular for health professionals) needs to be considered.

Professional qualifications

The internal market service of the European Commission offers a first page on Professional qualifications, with links to more detailed texts: news, Directive 2005/36/EC, evaluation of the directive, database on regulated professions, group of coordinators, regulatory committee, general system, specific sectors (health professionals and architects), infringements and judgments of Court of Justice, useful links, archives, and contact & help. If you encounter problems, there is also a link to the Citizens Signpost Service, now Your Europe Advice. Your Europe is a helpful resource with regard to other cross-border problems as well.

Evaluation of the Directive is the page for you, if you want first-hand knowledge about the reports from the Commission. The web pages about professional qualifications exist in English, French and German, but the reports in English only.


Directive 2005/36

We generally speak about European Union legislation, even if it would be more exact to refer to the European Economic Area (EEA), as a reminder that the directives are in force in Iceland, Liechtenstein and Norway as well. Adoption is implied by the words ‘Text with EEA relevance’ after the name of a directive.

A few legal acts and corrections have modified Directive 2005/36, so the link is to the consolidated (updated) version of 27 April 2009:

DIRECTIVE 2005/36/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 7 September 2005 on the recognition of professional qualifications

The directive, including seven annexes, runs to 148 pages, but in its day it combined fifteen separate directives into one legal act. The Directive 2005/36 is a corner stone for the free provision of services and the free movement of persons in the internal market.

Next steps

The Commission intends to consult the public (stakeholders), publish a final evaluation report next autumn (2011) and prepare a Green Paper on possible amendments (by 2012).




Ralf Grahn


P.S. Adjudicating Europe – Judicial developments in European law – has returned to active blogging in October, through two blog posts by ‘Cartesio’, both dealing with cases in the Court of Justice of the European Union (CJEU). Hopefully the offer will begin to catch up with the demand for expert comment on EU case law.

EU TFEU: Common rules for services and establishment

The free movement of services shares many rules concerning the right of establishment in the Treaty on the Functioning of the European Union, as it does in the current Treaty establishing the European Community.

The pattern of this post is modified to take into account the publication of the consolidated Treaty of Lisbon, published 16 April 2008 by the Council of the European Union in the 23 treaty languages.



***

This is Article 62 of the Treaty on the Functioning of the European Union (TFEU), as amended by the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and consolidated by the Council of the European Union (document 6655/08; page 93), with the location of the provision added from the table of equivalences:

Part Three ‘Policies and internal actions of the Union’

Title IV TFEU ‘Free movement of persons, services and capital’

Chapter 3 ‘Services’

Article 62 TFEU
(ex Article 55 TEC)

The provisions of Articles 51 to 54 shall apply to the matters covered by this Chapter.

***

The IGC 2007 made no specific amendments to Article 55 TEC, but the provision and its referrals are renumbered. Cf. OJ 17.12.2007 C 306/55.

***

For the convenience of those who want to use the current TEC, we present the provision with the ones it refers to (from the latest consolidated version of the existing treaties, OJ 29.12.2006 C 321 E/63):

Article 55 TEC

The provisions of Articles 45 to 48 shall apply to the matters covered by this Chapter.

***

Article III-35 of the draft Treaty establishing a Constitution for Europe was essentially the same (OJ 18.7.2003 C 169/33):

Article III-35 Draft Constitution

Articles III-24 to III-27 shall apply to the matters covered by this Subsection.

***

Article III-150 of the Treaty establishing a Constitution for Europe followed the draft in style (OJ 16.12.2004 C 310/64):

Article III-150

Articles III-139 to III-142 shall apply to the matters covered by this Subsection.

***

No material change has been proposed during the reform cycle from the European Convention to the Treaty of Lisbon.

We have reached the last provision of Chapter 3 ‘Services’ in order to find out that we are told to go back to Articles 51 to 54 TFEU in Chapter 2 ‘Right of establishment’ to get things right.

With those readers in mind, who do not have the amended provisions at hand, we present the texts here (TFEU consolidation, pages 89 and 90):


Article 51 TFEU
(ex Article 45 TEC)

The provisions of this Chapter shall not apply, so far as any given Member State is concerned, to activities which in that State are connected, even occasionally, with the exercise of official authority.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may rule that the provisions of this Chapter shall not apply to certain activities.


Article 52 TFEU
(ex Article 46 TEC)

1. The provisions of this Chapter and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

2. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the coordination of the abovementioned provisions.


Article 53 TFEU
(ex Article 47 TEC)

1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.

2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.


Article 54 TFEU
(ex Article 48 TEC)

Companies or firms formed in accordance with the law of a Member State and having their registered office, central administration or principal place of business within the Union shall, for the purposes of this Chapter, be treated in the same way as natural persons who are nationals of Member States.

"Companies or firms" means companies or firms constituted under civil or commercial law, including cooperative societies, and other legal persons governed by public or private law, save for those which are non-profit-making.

***

We see that some of the derogations (exceptions) from the right of establishment apply to the free movement of services: the exercise of public authority and the grounds of public policy, public security or public health.

There are legal bases for legislation and there is the principle of equal treatment of companies.

For a closer look, se for instance Chapter 22 ‘Freedom of establishment and to provide services’ in Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Oxford University Press, 4th Edition, 2007).


Ralf Grahn

EU TFEU: Mutual recognition of diplomas

The recognition of diplomas and professional qualifications is important for self-employed (and employed) persons to seize EU-wide opportunities to establish themselves outside their country of origin.

Overcoming obstacles to mobility leads to a better match between the supply and the demand for professional services, bringing gains to individuals as well as the receiving country.

We look at the current Treaty establishing the European Community, the following steps during the treaty reform process – the draft Constitution and the Constitutional Treaty – and the wording of the Treaty of Lisbon undergoing ratification.

Because the right of establishment and the recognition of diplomas potentially concern huge numbers of European Union citizens, there are a few hints on further reading for those who want to gain a basic understanding and an additional link for people with a concrete interest to find out where they stand (or where their education might lead).


***

What does the Treaty of Lisbon (ToL) do to Article 47 of the Treaty establishing the European Community (TEC)? The intergovernmental conference (IGC 2007) decided on the following express amendments in what becomes the Treaty on the Functioning of the European Union (TFEU), as you can see in the Official Journal, OJ, 17.12.2007 C 306/55:

54) Article 47 shall be amended as follows:

(a) the following phrase shall be added at the end of paragraph 1: ‘and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.’;

(b) paragraph 2 shall be deleted and paragraph 3 shall be renumbered 2; a change shall be made to the French which does not concern the English version.

***

Disconnected amendments like this serve two purposes of the student of EU law. First, they invite us to read the treaties still in force. Second, since attaining 27 national ratifications on any substantial treaty reform is less than certain, reading the current provisions may mean that we study the future ones as well.

Anyway, we look at the current Article 47 TEC by retrieving it from the latest consolidated version of the existing treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/61:

Article 47 TEC

1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.

2. For the same purpose, the Council shall, acting in accordance with the procedure referred to in Article 251, issue directives for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self‑employed persons. The Council, acting unanimously throughout the procedure referred to in Article 251, shall decide on directives the implementation of which involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons. In other cases the Council shall act by qualified majority.

3. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.

***

We have the basic text and the express amendments. In addition, possible horizontal amendments here, the ordinary legislative procedure), the renumbering of the Article (Tables of equivalences) and the renumbering of referrals, if any (but here none), offer us the opportunity to construct the wording of the provision according to the Lisbon Treaty. The location of the Article (Tables of equivalences) is added to make it easier to remember the context. We should end up with the following consolidated Lisbon Treaty provision:

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 2 ‘Right of establishment’

Article 47 TFEU (ToL), renumbered Article 53 TFEU

1. In order to make it easier for persons to take up and pursue activities as self-employed persons, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.

2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.

***

The latest span of treaty reform, from Nice to Lisbon, would be incomplete without a look at the European Convention and the IGC 2004.

First, Article III-26 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/32):

Article III-26 Draft Constitution

1. European framework laws shall make it easier for persons to take up and pursue activities as self-employed persons. It shall cover:

(a) the mutual recognition of diplomas, certificates and other evidence of formal qualifications;

(b) the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.

2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.

***

The IGC 2004 replaced ‘it’ by ‘they’ in the first paragraph and added ‘of such professions’ in the second paragraph. Cf. OJ 16.12.2004 C 310/62.

In other words, already the draft Constitution abolished the Article 47(2) TEC requirement of unanimity in the Council regarding directives where the implementation involves in at least one Member State amendment of the existing principles laid down by law governing the professions with respect to training and conditions of access for natural persons.

***

Arguably, enhanced mobility is in the interest of EU citizens because it offers them new opportunities. In practice, fewer obstacles mean that it may be easier for a spouse to take up his or her profession if the family moves to another member state, and fewer cases of highly qualified people working as dishwashers. Added supply should work in favour of consumers, too.

Fifty years from the Treaty of Rome have shown that harmonisation requiring unanimity tends to turn into a bad joke, or at least quite cumbersome.

Abolishing the unanimity rule in a small but important question is a welcome step for individuals.

***

The Commission’s internal market directorate general presents a general background on the web page ‘Living and working in the Single Market’, with further links:

http://ec.europa.eu/internal_market/top_layer/index_15_en.htm

The Commission’s Scadplus pages offer a look more specifically aimed at ‘Recognition of qualifications: introduction’ (last update 7 March 2006):

http://europa.eu/scadplus/leg/en/cha/c00003d.htm

Introductory information is presented on the web page ‘Professional qualifications’, too:

http://ec.europa.eu/internal_market/top_layer/index_15_en.htm

***

Some readers may want more than an overview, for instance if they contemplate moving to another country within the European Economic Area (EEA).

The most important piece of secondary legislation is Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (Text with EEA relevance), OJ 30.9.2005 L 255/22.

Despite or by virtue of its 120 pages, including detailed annexes, the directive may be of interest to considerable numbers of Europeans. The directive replaces the bulk of earlier secondary legislation on professional qualifications, and the new framework is in force since 20 October 2007:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:EN:PDF



Ralf Grahn