MUTUAL RECOGNITION OF PROFESSIONAL QUALIFICATIONS
(a)
(18717)
13391/97
COM(97) 638
(b)
(20707)
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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.
Unofficial text of the same draft Directive.
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| Legal base: |
Article 40, Article 47(1) and (2) and Article 55 EC; co-decision; qualified majority voting
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| Department: |
Trade and Industry |
| Basis of consideration:
| (a) Minister's letter of 26 October 1999
(b) EM of 26 November 1999 and Minister's letter of 29 November 1999
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| Previous Committee Report:
| (a) HC 23-i (1999-2000), paragraph 1 (24 November 1999); HC 155-xvii (1997-98), paragraph 1 (18 February 1998)
(b) None
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| To be discussed in Council:
| 7 December 1999 |
| Committee's assessment:
| Legally and politically important
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| Committee's decision:
| Cleared |
Background
6.1 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).
Some twenty months later, the Minister of State for Energy and
Competitiveness in Europe (The Rt Hon Helen Liddell) replied.
We considered her response on 24 November, but were not satisfied
that our questions had been adequately dealt with and did not
clear the document. We sought further clarification and the Minister
has written to us with further information. We have also received
a short unsigned EM on the latest unofficial text. We consider
these two documents together here.
The Minister's letter
— Article 5
6.2 Our question read:
"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?"
6.3 We did not consider that the Minister
had made a convincing case, in her letter of 26 October, for her
conclusion that Article 5 of this proposal codifies existing ECJ
case law on mutual recognition of third country diplomas. We expanded
on this point in a note from our Legal Adviser which we printed
with our Report.
6.4 The Minister now tells us that Article
5 and the sixth recital have been amended. Where the original
text of the Article read "Member States shall take account
of...", the amended text reads "Member States shall
examine..." The recital was amended, she says, to reflect
the lessening of the obligation on Member States imposed by this
provision.
6.5 The Minister then explains the Government's
position with regard to this provision:
"Dealing first with
the policy grounds on which we support Article 5, it is already
established practice in the UK, in respect of the professions
specified in this Article, for competent authorities to give due
weight to any recognition accorded by another Member State to
a third country qualification. Article 5 would not therefore oblige
relevant UK authorities to adopt any new procedures in this area.
"We consider that inclusion of this provision
has the advantage for the UK that it produces a degree of uniformity
of approach by all Member States to the issue of recognition of
third country diplomas. This is particularly relevant to applications
from UK citizens holding third country diplomas recognised by
the UK.
"A concern over Article 5 was that its original
wording and that of the sixth Recital to the draft Directive might
have imposed an obligation on Member States to take account of
a third country migrant's qualifications, where those qualifications
are recognised by another Member State, which would give rise
to an obligation on the part of the Member State to give a reasoned
opinion justifying the Member States' rejection of the applicant's
qualification, which may be reviewed by the Courts. This was thought
to go further than what is required by current case law.
"We accept that the current amendments also
go slightly further than existing case law in that a Member State
is obliged to examine and give reasons to a migrant for rejecting
a third country qualification, against which rejection that migrant
has the right to appeal. However, we consider that the obligation
imposed 'to examine' the migrant's qualifications is of a lesser
nature than in the earlier version of the draft Directive, which
obliged a Member State to 'take into account' a migrant's third
country qualification.
"Furthermore, the Government is content to accept
both the current position (and that of the earlier position) for
the policy reasons set out above."
— Article 6
6.6 The Minister recalls that this proposal
requires that the applicants shall have a right of appeal before
the courts under national law and the question is whether judicial
review would satisfy that requirement. She comments:
"It is accepted that
the wording of Article 6 is specific and could be argued to require
a right of appeal directly from the decision-making body to the
courts with the court being able to substitute its decision for
that of the decision-making body.
"However, the Government intends to approach
implementation of the obligation, having regard to the clarification
provided by Recital 6 of the proposed Directive, on the basis
that the objective of Article 6 is to ensure that Member States
provide in the round a full right of appeal within the national
legal system from a rejection of an application based on a third
country qualification or a failure to give a decision within the
time limits prescribed by the proposed Directive.
"The Government are not yet ready to concede
that the only way of giving effect to this obligation is by creation
of a right of appeal on the merits to the court. It has been accepted
elsewhere that other formations are acceptable. Please see particularly
the European Court of Human Rights jurisprudence on the satisfaction
of the requirements of Article 6(1) of the ECHR in the case
of Bryan v United Kingdom (1995)[38]
and the decisions of the European Commission on Human Rights in
the cases of Stefan v United Kingdom[39],
Wickramsinghe v UK [40]
and X v UK [41].
In all of these cases, formations of decision making and appeal
therefrom which allowed participation by the Court only by means
of judicial review were found to satisfy the requirements of Article
6 — the right to a fair hearing by a tribunal established
by law. Lustig-Prean was decided in the substantially different
context of a derogation in accordance with Article 8(2) from the
right to respect for private and family life found in Article
8(1).
"The current procedure in respect of chiropractors
and osteopaths is for a Registrar to make decisions on applications
for registration with an appeal to the Council (the regulatory
body) and from there on a point of law to the High Court. The
Government has not yet taken a view as to which model would be
the most appropriate means of satisfying Article 6 in the
case of any or all of the professions concerned but will take
account of these and other precedents in agreeing with each relevant
professional body an appeals régime which meets the Directive's
requirements."
The Explanatory Memorandum
6.7 The amendments to the text are explained
at some length in the EM, with particular attention given to Article
5, where the explanation is similar to that given in the Minister's
letter.
6.8 The other changes, which the Government
regards as of minor importance, include:
— Article 1
- the possible inclusion of a proposal facilitating
the free movement of specialised nurses not covered by the sectoral
Directive. This was transferred into the draft from the Third
Diplomas Directive in an attempt to consolidate all amendments
to the General System within this Directive. However, the Commission
is now said to be very likely to withdraw the Article, in order
to consider whether the matter might be better dealt with by an
amendment to the sectoral directive. The Government says that
it could accept the current provision, but would alternatively
be willing to consider an amendment to the sectoral directive
if the latter proved to be a more effective way of facilitating
free movement for these nurses.
— Article 7
- a new provision inserting into the nurses' directive
recognition of a French government procedure for the conversion
of specialised psychiatric nurses into nurses responsible for
general care. The UK has obtained assurances, the Government says,
that these nurses will have received training of a standard commensurate
with that specified in the nurses' directive and is content with
this proposal.
— Article 18
- a new provision inserting into the doctors' directive
recognition of a Spanish government procedure for the certification
of specialist doctors who did not receive training in accordance
with the provisions of that directive. The UK has obtained assurances,
the Government says, that the certification awarded to these doctors
will be based on a rigorous assessment of their competence and
is content with this proposal.
Conclusion
6.9 The Minister has now acknowledged
that the amendments to Article 5, on which she commented
in October, do go further than existing case law. However, she
also explains the policy reasons why the Government was content
to accept these amendments. We note the latest text proposed,
which the Government is also content to accept, and which we agree
imposes a lesser obligation which is consistent with existing
UK practice. We also accept the Minister's explanation of the
Government's position on Article 6, and her arguments on the compatibility
of the two stage appeal process she contemplates with the ECHR.
We invite the Minister to inform us of the outcome of her further
consultations and of the appeals régime which the Government
in due course adopts.
6.10 It remains regrettable that neither
the Minister nor her predecessor was able to make faster progress
in answering our original questions. We thank the Minister for
her letter and now clear the documents.
38 Bryan v United Kingdom (21 EHRR342). Back
39 Stefan
v United Kingdom (Application No. 29419/95). Back
40 Wickramsinghe
v UK (Application No. 31503/96). Back
41 X
v UK (Application No. 28531/95). Back
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