51998AC0797

Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Directive amending Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and supplementing Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (presented by the Commission)` () (98/C 235/11)

On 16 December 1997 the Council decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 15 May 1998. The rapporteur was Mrs Sigmund.

At its 355th plenary session (meeting of 27 May 1998) the Economic and Social Committee adopted the following opinion with 115 votes in favour and two abstentions.

1. Introduction

With the SLIM initiative (Simpler Legislation for the Internal Market) the Commission has initiated a process under which small working parties of experts draw up proposals for measures to simplify internal market law in the broadest sense. Under the 1996 pilot project four working parties were set up, one of which was concerned with the law on mutual recognition of qualifications. This working party submitted its report in October 1996. The report's recommendations can be summarized as follows:

- The sectoral directives should be retained.

- The advisory committees should in principle be retained, but the appointment procedure should be simplified, they should scaled down and their working methods should be improved.

- The legal and administrative formalities associated with recognition in some Member States should be re-examined and, where necessary, simplified or clarified.

- The procedure for updating the lists of qualifications eligible for automatic recognition should be simplified.

- The provisions of the sectoral directives concerning general and vocational training should be more skill and results-orientated, rather than relying strictly on training content.

With the current proposal for a directive the Commission is implementing some of the proposals of the SLIM group of experts. In the explanatory memorandum to the proposal the Commission announces formal decisions for 1998, with which the proposals for rationalization of the advisory committees will be implemented.

2. General comments

2.1. The Committee congratulates the Commission on the proposal for a directive, which, the Committee feels, contributes to making the work of the Union more transparent and efficient, without however endangering citizens' interests which need to be protected.

The Committee regards this Commission proposal as an important contribution to the confidence pact for employment.

2.2. In the explanatory memorandum to the current proposal the Commission looks in detail at the reform of the advisory committees on the health-care professions.

The following points are raised:

- Simplification of the appointment procedure;

- Reduction of the number of members;

- Extension of the term of office;

- Extension of remit.

2.3. The operative part of the directive can be summarized as follows:

- The concept of 'regulated education and training` contained in the second recognition directive (92/51/EEC) is incorporated into the first recognition directive (84/48/EEC) (Article 1).

- The coordinating group is empowered to issue opinions (Article 2).

- The simplified procedure for the updating of the list of qualifications eligible for automatic recognition contained in the 'doctor's` directive is extended to all sectoral directives; the only exception is the 'architects` directive, for which a separate, proven procedure is provided (Article 3).

- The situation of migrants, who are nationals of a Member State but who obtained their qualifications outside the European Union, is to be clarified (Article 5).

- A right of appeal against decisions of the Member States on applications for recognition is introduced (Article 6).

3. Specific comments

The document submitted for the Committee's opinion contains information of varying legal status. For example, the text relating to the discussion of reform of the advisory committees is purely for information, as the relevant decisions have not yet been adopted. On the other hand, the draft directive contains specific proposals for a binding text.

3.1. Reform of the advisory committees

Before discussing the Commission's specific proposals, it seems worthwhile to give an account of the membership and working methods of the committees operating within the ambit of the sectoral directives.

The members of the advisory committees are experts with an advisory remit. At the time they were established, the primary objective of these committees was to promote and ensure a comprehensive exchange of information on the structure and content of training methods. This need for information has now to a great extent been met. The relevant SLIM team has therefore now recommended that in future a more results-orientated and vocation-specific approach be adopted.

The committees of senior officials, which differ in their working methods from the advisory committees, are not affected by the SLIM team's reform proposals. In contrast to the advisory committees, the committees of senior officials have decision-making powers and work in the framework of the committee procedure.

3.1.1. Simplification of the appointment procedure

At present each Member State forwards its list of experts to the Council, which makes the formal appointment decision. This has proved to be an extremely time-consuming procedure, which in extreme cases has been completed only a short time before the mandate of the relevant committee was due to expire, as the Council waits for all the lists to be submitted before taking a decision. Thus, in some cases the committee's work has been compromised from the outset for purely formal reasons.

The Committee therefore wholeheartedly supports the Commission's proposal that the procedure be simplified by allowing the Member States to forward the names of their representatives directly to the Commission.

3.1.2. Reducing the number of members

At present each Member State provides three full members (one representative each from the profession, the educational sector and the responsible authority) and three alternate members, so that each committee has ninety members.

The Committee shares the view of the SLIM experts and the Commission that the committees should be scaled down in the interests of greater efficiency. Another important consideration is costs. When the EU is again enlarged each committee will gain another six members per new Member State!

The Commission's proposal to restrict membership of the committees to one full member and one alternate (one from the profession and one from the education sector) per Member State seems balanced and appropriate to the tasks of the committees.

In view of the changed tasks of the advisory committees, already referred to above, and the Commission's reaction to this, in extending their mandate and making this more practically orientated, it would be logical for the Member States to appoint representatives of the profession in question as full members of the advisory committees. It would not appear appropriate, nor consistent with the Commission's wish for a more practical orientation, to leave it to the Member States to decide whether full members of the committees should be drawn from the profession itself or from training institutions.

It should be clearly understood that the Commission, in adopting the SLIM proposals, has radically altered the mandate of the advisory committees (hitherto focused on the co-ordination of syllabuses) and added new responsibilities which in the light of current objectives could best be tackled by representatives of the profession.

The Committee calls on the Commission to make its views clear on this issue and to ask the Member States to appoint mainly practitioners as full members.

As the experts of the responsible authorities are already represented on the relevant committees of senior officials, which are in any case in contact with the advisory committees, reducing the number of members of the advisory committees is also consistent with the administrative adjustments desired by a number of Member States.

The Committee feels however that organizational measures are needed to ensure close and continuous cooperation between the two types of committee. Thus for example, at least one joint meeting could be held per year.

3.1.3. The extension of the life of the committees from three years to six is, in the Committee's view, a necessary consequence of the restructuring of the advisory committees, as in this way the initial difficulties arising from renewal of the committee's membership can be mitigated.

3.1.4. The extension of the remit of the advisory committees to cover all opinions requested by the Commission in relation to freedom of establishment in the various vocations covered by the sectoral directives is a decisive measure. All measures adopted in the framework of SLIM or as a consequence of this must ultimately be regarded as part of the Commission's wide-ranging internal market plan.

3.2. Regulated education and training (Article 1)

The adoption of the concept of 'regulated education and training` into the first recognition directive is to be welcomed as a contribution to the objective of uniform terminology, as the term is already used in the more recent second directive.

The inclusion of the term in Directive 89/48/EEC is also consistent with the wish for a more results- (and vocation-) orientated approach in the framework of the general rules on recognition. This will facilitate freedom of movement for many young citizens wishing to migrate.

3.3. Opinions of the coordinators (Articles 1 and 2)

The Committee welcomes the pragmatic approach spelt out by the Commission. It would be worthwhile making use of the experience of organizations responsible for the practical application of the directive and in this way accelerating uniform application and interpretation.

The Committee supports the trend towards making the coordinating group into a sort of consultative body for the Commission.

3.4. Updating of lists of qualifications (Articles 3 and 4)

Under the proposal the Member States are required to notify the Commission of all national laws and regulations adopted as regards the award of diplomas, certificates and other evidence of formal qualifications. The Commission will publish the names adopted by the Member States for the training qualifications concerned in the Official Journal.

As this procedure has already proved itself in the field of general medicine, the Committee considers it appropriate and correct to extend it to the other sectoral directives in the health care field.

3.5. Treatment of qualifications obtained by nationals of the Member States outside the EU (Article 5)

The Commission rightly states in the Explanatory Memorandum to Article 5 that each Member State remains free to recognize a qualification obtained outside the EU and that its decision is not binding on the other Member States.

This is consistent with the case law of the European Court of Justice, which states explicitly that a Member State is not bound by the recognition of a third country qualification by another Member State, but that it must take account of any experience gained within the Community subsequent to recognition (). The Court of Justice was clearer still in its judgment in the Tawil-Albertini case (), in which it stated that 'recognition by a Member State of qualifications awarded by non-Member States, even if they have been recognized as equivalent in one or more Member States, does not bind the other Member States`.

The Committee recommends that the wording of Article 5 be clarified, as it is at present not clear that the recognition of a non-Community qualification by a Member State is not automatically binding on the other Member States.

The phrase 'take account` used in Article 5 does leave some room for interpretation, as the law generally considers that 'taking account` is only part of a decision-making process.

However, in the interests of greater clarity, the Committee recommends that the first sentence of Article 5 be reworded as follows:

'Member States shall, as part of the process of assessing equivalence, take account of ...`.

3.6. Right of appeal (Article 6)

The Committee wholeheartedly welcomes the introduction of a right of appeal against decisions of the Member States, and also in the event of failure to reach a decision. This basic democratic right of citizens is reflected in the general principles of Community law.

3.7. Articles 7 to 21

The Committee has deliberately not commented on the specific changes to the sectoral directives. It considers that its priority should be to comment, in as concerted a form as possible, on the changes of principle proposed by the Commission, and for this reason it feels that it should refrain from discussion of essentially uncontroversial adjustments.

4. Final comments

The Committee in principle endorses the Commission proposal as it considers this to be an important instrument for simplification of the law and greater transparency.

The proposed measures for simplification of work will, apart from making for an improved cost/benefit relationship, accelerate work processes and thus strengthen citizens' confidence in Europe.

Brussels, 27 May 1998.

The President

of the Economic and Social Committee

Tom JENKINS

() OJ C 28, 26.1.1998, p. 1.

() Judgment of the Court of 9 February 1994. Salomone Haim v. Kassenzahnärztliche Vereiningung Nordrhein. Case C-319/92.

() Judgment of the Court of 9 February 1994. Abdullah Tawil-Albertini v. Ministre des Affaires sociales. Case C-154/93, quotation from Haim case, point 21.