| 1. | When the Committee first considered this proposal it was concerned that Article 5, read with the relevant recital, could give rise to an assumption in favour of accepting third country qualifications recognized by other Member States, which would go further than the ECJ case law requires.
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| 2. | Although in her reply the Minister does not state in terms that she is confident that the draft directive does not go further than the ECJ case law on mutual recognition of third country qualifications, implicit in her answer is the view that Article 5 and the sixth recital of the draft directive does not exceed the requirements of that case law. In justifying that view, she relies on the Commission's interpretation of the Tawil-Albertini1 and Haim 2 judgments of the ECJ.
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| 3. | The judgments cited make clear that nothing in the sectoral directives requires Member States to recognise a qualification awarded by a non-Member State, even if it has been recognised as equivalent to a national qualification in one or more Member States.
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| 4. | As Advocate-General Francis Jacobs states in his Opinion delivered on 16 September 1999 in case C-238/98, Hocsman, on the one hand it is clear that:
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| " ... a Member State is free, but not obliged, to recognise a non-Community qualification and that, under the Directive, such recognition has no effect beyond its territory."
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| but on the other:
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| " ... it is noteworthy that the aim of the proposed amendment [Article 5 of this proposal] is to provide that account must be taken of such qualifications."
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| 5. | In its judgment in Haim, the ECJ went on to consider the position under Article 43 EC (formerly Article 52 EC). It held that a competent national authority considering whether a dentist had met a training period requirement prescribed by its national rules:
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| " ... must take into account the professional experience of the [dentist], including that which he has acquired during his appointment as a dental practitioner of a social security scheme in another Member State."
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| 6. | This judgment is, indeed, accurately summarised in the first limb of recital 6 - Member States, while not obliged to recognise qualifications awarded on completion of education and training undergone in a third country, must take into account professional experience gained by the person concerned in another Member State.
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| 7. | It is noteworthy that in Haim the recognition or not of the applicant's (Turkish) qualification was not an issue, since his status as a dental practitioner in the Federal Republic had been recognised on 18 September 1981, which enabled him to practise there as a self-employed dentist. The sole issue was whether he was required to undergo further training before being recognised as a dentist practising in a social security scheme. On that point, the Court held that the German authorities were obliged to take into account his professional experience and to assess whether it was equivalent to the prescribed period of training.
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| 8. | It does not follow from this judgment that a Member State is, in a case where recognition of a third country diploma recognised by another Member State is applied for, obliged to examine the migrant's third country diploma and to give a reasoned opinion justifying its rejection, which may be reviewed by the courts.
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