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
Showing posts with label self-employed. Show all posts
Showing posts with label self-employed. Show all posts
Tuesday, 8 April 2008
Friday, 4 April 2008
EU TFEU: Right of establishment
Are you interested in working as a self-employed person, setting up shop in another EU country? Do you manage an agency, a branch or a subsidiary in another member state of the European Union?
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
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 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
The right of establishment, also known as the freedom of establishment, is an expression of the principle of free movement within the internal market.
The EU’s Treaty of Lisbon preserves your right of establishment on equal grounds.
***
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) has nothing substantial to say about Article 43 of the Treaty establishing the European Community (TEC). Cf. OJ 17.12.2007 C 306/54.
***
Unchanged does not mean unimportant, so we turn to the latest consolidated version of the existing treaties, in 29.12.2006 C 321 E/59:
CHAPTER 2
RIGHT OF ESTABLISHMENT
Article 43 TEC
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48, under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
Although there are no specific amendments, there are still details to check before we now for sure how the corresponding Article of the Treaty on the Functioning of the European Union (TFEU) is going to look according to the Lisbon Treaty.
The annexed Tables of equivalences tell us that we have arrived at a new chapter: Chapter 2 ‘Right of establishment’. They also tell us that Article 43 TEC first becomes Article 43 ToL, and later will be known under the new number Article 49 TFEU (17.12.2007 C 306/208).
As always, we have to watch out for possible horizontal amendments, mentioned on OJ 17.12.2007 C 306/41 and the following pages. (Here, there seem to be none.)
We notice a referral to another Article, which means that we have to check the numbering and that the referral remains substantially correct.
In order to make it easier to read this post on a stand-alone basis, we start by indicating the location of the Article (using the Tables of equivalences, OJ 17.12.2007 C 306/207-208).
***
Here is what the Article should look like, according to the Treaty of Lisbon:
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 43 TFEU (ToL), renumbered Article 49 TFEU
Within the framework of the provisions set out below, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Freedom of establishment shall include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article 48 [ToL, renumbered Article 54 TFEU], under the conditions laid down for its own nationals by the law of the country where such establishment is effected, subject to the provisions of the Chapter relating to capital.
***
In Article III-22 of the draft Treaty establishing a Constitution for Europe, the European spoke more directly to the potential entrepreneurs in the second subparagraph, without altering the substance of the provision (OJ 18.7.2003 C 169/32):
Subsection 2
Freedom of establishment
Article III-22 Draft Constitution
Within the framework of this Subsection, restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State shall be prohibited. Such prohibition shall also apply to restrictions on the setting-up of agencies, branches or subsidiaries by nationals of any Member State established in the territory of any Member State.
Nationals of a Member State shall have the right, in the territory of another Member State, to take up and pursue activities as self-employed persons and to set up and manage undertakings, in particular companies or firms within the meaning of the second paragraph of Article III-27, under the conditions laid down for its own nationals by the law of the Member State where such establishment is effected, subject to the provisions of the Section relating to capital.
***
The IGC 2004 took over the draft text in Article III-137 of the Treaty establishing a Constitution for Europe, with only technical adjustments (OJ 16.12.2004 C 310/61).
***
Even more focused on institutional questions and economical concerning amendments without substantial impact, the IGC 2007 reverted to the current TEC text.
From a reader’s point of view it was not a ‘failed Constitution’. Only ratification failed, and as a result we lost a host of small improvements, too, ending up with two slightly less well adapted treaties than the whole one on offer a few years ago.
***
This time, instead of suggesting further reading from the web, I would like to recommend turning to a textbook on the subject of freedom of establishment. An alternative in English is:
Josephine Steiner, Lorna Woods and Christian Twigg-Flesner: EU Law (Oxford University Press, Ninth Edition, 2006), pages 446 to 467.
Ralf Grahn
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