51996AC0884

Opinion of the Economic and Social Committee on the 'Proposal for a European Parliament and Council Directive establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalization and transitional measures and supplementing the general systems for the recognition of qualifications` (96/C 295/09)

On 11 April 1996 the Council decided to consult the Economic and Social Committee, under Articles 49 and 57 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 20 June 1996. The Rapporteur was Dame Jocelyn Barrow.

At its 337th Plenary Session (meeting of 10 July 1996), the Economic and Social Committee adopted the following Opinion by 103 votes to two, with six abstentions.

1. General comments

The Economic and Social Committee welcomes the Commission proposal, subject to the following points:

1.1. The mutual recognition of qualifications throughout the European Union must deal with a reality of diverse, confusing and overlapping situations. It is nonetheless a 'core` policy area in the development of real free movement and in bringing the European Union 'closer` to the citizen. Clarity, brevity and plain language are therefore essential if this admittedly complex policy development is to be comprehensive and comprehensible to the citizen as well as to the national governments which are expected to transpose the proposed general system into effective national legislation.

1.1.1. The Committee recognizes the difficulties involved in drafting a single text which consolidates, updates, builds upon and supplements some thirty-five previous measures and systems dealing with the recognition of qualifications. It applauds the Commission's ability to compress so much into one relatively short proposal, and it acknowledges that any substantial modifications attempting to simplify previous decisions might only have the reverse effect and complicate discussion at Council level. Nonetheless, the Committee is concerned that the text as it stands might not be clear to those for whom it is intended, who are not 'insiders`, who have not been party to EU decision-making and who are not familiar with all the extensive discussions on the subject.

1.1.2. Similarly, whilst the Committee recognizes that specific terminology in the text refers to existing EU legislation, it is disappointed that the Commission not once refers in the proposal to the 'citizen wishing to settle or work in another Member State`, preferring instead the outdated and insensitive term 'migrant`. This is in contrast to the Commission proposals to the IGC and to the provisions on citizenship and free movement registered in Article 8 of the current Treaty.

1.1.3. The Committee would also urge the Commission to adopt gender-neutral terminology in the proposal (English version).

1.2. The new proposal introduces machinery to cover the recognition of professional activities excluded from the general systems 89/48/EEC and 92/51/EEC. It is again based on mutual confidence and on the 'assumption` that any professional who is qualified in one Member State possesses the qualifications needed to practise the same profession in another Member State. If the comparative examination shows only partial correspondence, the host Member State shall give the applicant the 'opportunity` to demonstrate acquired knowledge and skills apparently lacking (Article 3.1).

1.2.1. The Committee is informed that the previous general systems worked well on the whole, that no complaints were registered and that consultations with the main professional associations at European level would indicate that the current proposal could work on the same basis. The Commission will need to be vigilant on this point, monitoring progress to ensure freedom of movement and be prepared to intervene if necessary. It should examine the recent DG XXII/DG XV synergy report on the implementation of the general systems to ensure that the problems highlighted do not occur with this directive when put into practice. At the same time, the basic mutual recognition 'assumption` principle might require fine-tuning if or when enlargement of the EU takes place. The Commission should report to the EP and ESC on progress of the directive and review the mechanism prior to any further enlargement of the Community.

2. Specific comments

2.1. The Committee would urge the Commission to replace the term 'migrant` by 'citizen wishing to settle or work in another Member State` and to refer to Article 8 of the Treaty at the beginning of the proposal.

2.2. Article 1 (Scope) 2.2.1. The scope of the Directive set out in Annex A has been defined after Commission consultations with the main professional associations at European level.

2.2.2. The Committee is satisfied that these consultations were sufficiently exhaustive and have been adequately taken into account. National or sectoral professional organizations concerned by the Directive have also had adequate access to the Commission. If it is during bilateral negotiations that problems may occur, the Commission could assist the professional bodies at Member State level.

2.2.3. The Commission has rightly avoided over-burdensome detail as regards the higher-qualified or specific professions catered for under earlier Directives.

2.3. Article 2 (Information) 2.3.1. Whilst appropriate and accessible information exist in the Member States on the 'rules governing` the occupations in question, the Committee considers that such information should be comprehensible to those for whom it is intended and that it should be available in all EU languages both in host countries and countries of origin. A simplified and updated EU brochure on mutual recognition of qualifications will need to be drawn up and made widely available, especially to entrepreneurs, through distribution by the 'Euro Information Centres` (EICs) and business organizations, for example associations and chambers.

2.4. Article 3 (Recognition of qualifications) 2.4.1. As stated in point 1.2.1 above, the Committee is confident that the mutual recognition principle will work under the new general system. The Commission must ensure that comparative examination of qualifications and the questions of partial correspondence and of supplementary 'opportunities` to 'demonstrate` acquired knowledge and skills do not degenerate into artificial barriers to free movement. The right to appeal under the national law of the host state also requires rigorous and clear procedures. Deadlines for the completion of appeals procedures should be fixed in accordance with the procedural law or procedural provisions of the Member State concerned up to a maximum of six months. In addition, unsuccessful applicants must be informed of the reasons why their qualifications were not recognized.

2.5. Articles 4-7 (Recognition of professional qualifications and experience) 2.5.1. The Committee notes that the various reference periods, common definitions and basic procedures are those recommended by the professional associations consulted and are in line with earlier Directives. The 'proof of good repute` could be open to abuse. The burden of proof in such cases applies, under Article 7, in the home Member State, where it needs to be handled sensitively.

2.5.2. The Committee also notes that throughout Article 4 the Commission uses the term 'in a... managerial capacity` instead of the phrase 'person responsible for managing an undertaking` employed in the liberalization and transition directives. This phrase ('person responsible for managing an undertaking`) appears, inter alia, in Article 3(1)(a) of Directive 64/427/EEC, Article 7(1)(a) and (b) of Directive 68/366/EEC and Article 2(1)(a) and (b) of Directive 82/489/EEC. At the same time, the Committee acknowledges that the Commission definition of an 'activity in a managerial capacity` in Article 5 makes for greater clarity, since it focuses on model entrepreneurial qualities.

2.6. Article 5 2.6.1. The Committee would specifically suggest that in Article 5 the words 'industrial or commercial` be deleted so as to read: '... an activity in an enterprise...`.

2.6.2. The Committee thinks that to have held a managerial post merely involving duties of a commercial nature, as provided for by Article 5c), is insufficient. Technical knowledge is also required. In the case of artisanal/craft enterprises and activities, it is of crucial importance.

Article 5c) should therefore read:

'(c) in a managerial post with duties of a commercial and technical nature and with responsibility for at least one department of the undertaking.` 2.7. Article 6 2.7.1. The Committee would draw attention in this connection to the announcement published by the Commission in the Official Journal of the European Communities in 1974 (). This relates to proof of the type and duration of the professional activities undertaken in the country of origin. The Commission also explained how such proof was to be provided in an appendix to its announcement.

2.7.2. In the interests of clarification and procedural simplification, Article 6 could read as follows:

'Proof that the conditions laid down in Article 4 are satisfied shall be established by a certificate issued by the competent authority or body in the home Member State or in the Member State from where the applicant comes and which the applicant shall submit in support of his application for authorization for the type and duration of the activity or activities in question in the host Member State.` 2.8. Article 8 (Amendment of the general system) 2.8.1. The supplements to 89/48/EEC and to 92/51/EEC are straightforward.

2.9. Articles 9-11 (Procedural provisions) 2.9.1. The Committee thinks that the committee procedure provided for in Articles 9 and 10 of the Directive can not be applied with regard to the provisions of Article 4. This Article summarizes the regulatory content of the earlier transition and liberalization directives. Consequently, its provisions reflect the central element of those directives. Article 4 is therefore itself a central regulatory element and the most important article of the proposed directive. These central provisions can only be altered by means of the standard procedure for the amendment of directives, involving the Council, Parliament and the Committee. At most, the lists in Annex A could be amended using the procedure proposed by the Commission in Article 10.

2.9.2. The Committee also accepts that the composition of the technical Committee should conform to the established model. It would, however, urge the Commission to ensure the active participation of the relevant associations in the implementation of the directive and the monitoring of its application. Discussions and regular contacts with the technical Committee could be intensified, hearings could be organized, the Economic and Social Committee should be fully informed of the situation reports and the CEDEFOP services could be more usefully entrusted with the task of supervising and comparing certificates relating to new professional qualifications and training courses.

2.10. Articles 12-16 (Final provisions) 2.10.1. The Committee would suggest that Article 14 (par. 1) be re-drafted as follows:

'... to comply with this Directive within two years of its adoption. They shall immediately...` Done at Brussels, 10 July 1996.

The President of the Economic and Social Committee Carlos FERRER

() OJ No C 81, 13. 7. 1974, pp. 1-13.