House of Commons - European Scrutiny

Select Committee on European Scrutiny First Report

FIRST REPORT

The European Scrutiny Committee has made progress in the matter referred to it and has agreed to the following Report:—

MUTUAL RECOGNITION OF PROFESSIONAL QUALIFICATIONS

(a) (18717) 13391/97 COM(97) 638	Draft 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, 80/154EEC, 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.
Legal base:		Article 40, Article 47(1) and (2) and Article 55 EC; co-decision; qualified majority voting

Department:		Trade and Industry
Basis of consideration:		Minister's letter of 26 October 1999
Previous Committee Report:		HC 155-xvii (1997-98), paragraph 1 (18 February 1998)
To be discussed in Council:		7 December 1999
Committee's assessment:		Legally and politically important
Committee's decision:		Not cleared; further information requested

Background

1.1 This proposal is designed to harmonise existing legislation on the mutual recognition of professional qualifications and to take account of recent European Court of Justice (ECJ) case law. We first considered it on 18 February 1998, but were unable to clear the document on that occasion because there were a number of uncertainties as to its effects. We therefore sought clarification by putting certain questions to the then Minister for Trade and Competitiveness in Europe (Lord Simon of Highbury).

1.2 Some twenty months later, the Minister of State for Energy and Competitiveness in Europe (The Rt Hon Helen Liddell MP) has replied.

The Government's view

1.3 Our first question was:

"The Minister says that he is by no means clear that the acquired rights provision (Article 4) is necessary or that it has been correctly drafted. We ask him to explain to us the difficulty which the Government has with this provision and what re-drafting it requires. We also ask the Minister to provide us with a further analysis of Article 3, and his view of it, when the Government has established more clearly what is intended."

The Minister has replied as follows:

"The Committee asked for clarification on the necessity of Article 4. The Commission has now explained that it is strongly of the opinion that the insertion of Article 4 in its present form into the draft directive is essential for transparency and legal certainty. The UK can see no real necessity for the article, but given that we would have no problem in practice in accepting it, we will not oppose it.

"You asked for a further analysis of Article 3. It should be read in conjunction with Articles 7-14, 17 and 18 and relates to all the sectoral directives except that for architects. The Commission proposes to remove the lists of diplomas and professional titles meeting the criteria of the sectoral directive from the body of the text to an annex to each directive. The Commission would then replace the existing procedure for updating the lists by a simpler procedure involving the publication in the Official Journal of new diplomas and titles once Member States had submitted them to the Commission.

"The Government's view of this proposal is that, although not ideal, it is acceptable. Its disadvantage is that it does not offer Member States' authorities an opportunity to challenge additions to the annexes, but past discussions in Advisory Committees (which meet only once a year at best) have not always proved satisfactory for this purpose. The advantage of the proposed new régime is that it will be simpler and quicker, thus fulfilling the Simpler Legislation principle, and the Government is therefore minded to accept it for nurses, midwives, dentists, pharmacists and veterinary surgeons while keeping a watching brief on its effectiveness and retaining the option to press for more stringent measures to be restored if necessary. The UK will, however, press for the existing comitology procedure for updating the qualifications of specialist doctors to be retained. This procedure has only recently come into operation and is so far working well."

1.4 We next asked:

"The wording of the sixth Recital to the draft Directive and the wording of Article 5 could, we suggest, give rise to an assumption in favour of accepting third country qualifications recognised by other Member States. This would go further than the ECJ case law, which provides that recognition by one or more Member States of qualifications awarded by third countries does not bind another Member State. We ask the Government whether it is confident that the draft Directive does not go further than this case law. If it does so, is the Government content?"

To this, the Minister has given the following reply:

"The Committee expressed concern that Article 5 and the Sixth Recital of the draft Directive might exceed the requirements of ECJ case law in respect of third country qualifications which have been recognised in a Member State. The Tawil-Albertini[19] judgment states that Member States are not bound to give automatic recognition to qualifications which do not testify to training acquired in a Member State. However, the Haim[20] judgment obliges a host state to examine, where a third country diploma has been recognised by a Member State, whether the holder has acquired experience within the European Community which may qualify him to practise in the host state.

"The Commission's interpretation of these judgments is that, while Member States are under no obligation to give automatic recognition to a third country diploma recognised by another Member State, they are nonetheless obliged to examine the migrant's diplomas and experience and, if refusing recognition, to give a reasoned opinion on what is lacking and to grant the migrant the right of appeal against the decision. The Commission further confirms that the Article does not oblige Member States to set up special arrangements for compensatory measures in the same way as is required by Directives 89/48/EEC and 92/51/EEC."

1.5 Finally, we asked:

"It is not clear whether the right of appeal provided for in Article 6 will allow for review on the merits of the case, or whether the courts will be limited to procedural questions only. Given that there will be an obligation on competent authorities to 'take account' of third country qualifications already recognised elsewhere in the EU, it may be that a number of substantive issues will arise on appeal.

"We ask the Government whether it envisages allowing an appeal on the merits of a particular application to the national courts. We also ask the Government to elaborate on the amendments that will be required in order to grant a right of appeal in the national courts."

The Minister's answer on this is:

(b) remit the matter to the designated authority with such directions as the appeal body sees fit.

"How closely any new UK legislation implementing this directive in relation to the sectoral professions might follow this pattern would be a matter for consideration at the time of implementation.

"The Committee asks whether the Government envisages allowing an appeal on the merits of a particular application to the national courts. The Government takes the view that since the Regulations implementing the two General System directives in the UK already require competent authorities to give reasons for decisions on applications for recognition and also grant applicants the right of appeal, it is appropriate that these provisions should be extended to applications for recognition under Articles 5 and 6 of this draft directive.

"Competent authorities in the UK which decide on applications for recognition of qualifications of nurses, midwives, pharmacists, dentists and veterinary surgeons currently have no duty to give reasons for their decision. Therefore, if the draft Directive were to be adopted, it would be necessary to make specific provision for this. Nor is there currently any provision in UK law giving a right of appeal in respect of a refusal to register nurses, midwives, dentists, pharmacists and veterinary surgeons, although the possibility of judicial review exists. The existing Review Board for doctors might be considered appropriate to meet the requirements of Article 6, but we cannot rely on it. However, it is not possible to give more specific answers to the Committee's questions regarding possible changes to UK legislation at this stage. If the draft Directive is adopted, we will need to clarify the meaning of the expression 'right of appeal before the courts' and the extent to which this is already provided for by the judicial review process. If judicial review is considered to be a sufficient appeals mechanism, there may be no need to introduce or amend national legislation in this respect."

Conclusion

1.6 We agree with the Commission that a requirement to recognise diplomas and such like awarded by Member States, which are in fact equivalent to the diplomas which are listed in the sectoral directives but which have different names, does promote legal certainty; we regard it as a sensible provision and welcome the Minister's (somewhat reluctant) acceptance of it.

1.7 We are grateful to the Minister for her explanation of Article 3 and agree with her that it provides a simple and quick means of updating the Community legislation to take account of changes to national nomenclature and are content with the Minister's approach.

1.8 For the reasons given in the note by our Legal Adviser, printed with this Report, we do not consider that the Minister has made out a convincing case for her conclusion that Article 5 of this proposal codifies existing ECJ case law on mutual recognition of third country diplomas.

1.9 There may indeed be good policy arguments for its approach, which is to constitute recognition by any Member State of a third country qualification as a Community element which other Member States must take into account (from which it follows that they must accept the existing recognition, unless they have convincing arguments for not doing so), but unfortunately the Minister has not explained what they are.

1.10 Certain Member States, because of historical and cultural links with particular third countries, may be pre-disposed to take a more generous view of qualifications obtained in such a third country (for example, Portugal may be more ready to recognise Brazilian qualifications than would other Member States). In the absence of a Community scheme for collective verification of the standards set in third countries, it is not immediately obvious that one Member State's judgement should bind the authorities in other Member States.

1.11 While we recognize the benefits of facilitating the occupational mobility of those with a third country qualification, we are also concerned about the risks to the recipients of professional services if persons having third country qualifications which do not meet UK standards were to become entitled to practise in the UK merely by virtue of recognition of their qualifications by another Member State.

1.12 As regards the question whether Article 6 requires, in the case of nurses, midwives, pharmacists, dentists and veterinary surgeons, a right of appeal to the courts on the merits of the refusal to recognise diplomas, certificates and other evidence of formal qualifications, the Minister, despite the length of time that has elapsed since the question was put, is unable to say whether the duty to provide "a right of appeal before the courts" would be satisfied by the availability of judicial review.

1.13 Since we put our question, the European Court of Human Rights (ECtHR) has held in the cases of Lustig-Prean and Beckett and of Smith and Grady against the United Kingdom that the irrationality test applied in those cases in judicial review proceedings constituted a threshold so high that the applicants did not have an effective domestic remedy, contrary to Article 13 of the European Convention on Human Rights (ECHR). By virtue of a long-standing case law, the ECJ requires Member States to take account of the principles of the ECHR when they apply Community legislation.

1.14 We therefore invite the Minister to answer the question we put previously whether the Government envisages allowing an appeal on the merits of a particular application to the national courts, taking into account the consequences of the judgment of the ECtHR referred to above.

1.15 We also ask the Minister on what grounds the Government supports the policy of Article 5 of this proposal.

1.16 Until we have the Minister's answers to these questions, we are not in a position to clear the document.

19 Case C-154/93, [1994] ECR I-451. Back

20 Case C-319/92, [1994] ECR I-439. Back

21 S.I., 1991, No. 824 and S.I.,1996, No. 2374 respectively. Back



© Parliamentary copyright 1999	Prepared 7 December 1999