S.I. No. 8/2017 - European Union (Recognition of Professional Qualifications) Regulations 2017

ARRANGEMENT OF REGULATIONS

Part 1 Preliminary

Regulation

1.

2.

3.

4.

Part 2 Competent authorities, national co-ordination and assistance centre

5.

6.

7.

8.

Part 3 Effects of recognition

9.

10.

Part 4 Free provision of services on temporary and occasional basis

11.

12.

13.

14.

15.

16.

17.

Part 5 General system for recognition of evidence of training

18.

19.

20.

21.

22.

23.

24.

Part 6 Automatic recognition of professional experience in craft, commerce and industry sectors

25.

26.

27.

28.

29.

Part 7 Automatic recognition — doctors of medicine

30.

31.

32.

33.

34.

Part 8 Automatic recognition — nurses responsible for general care

35.

36.

37.

38.

Part 9 Automatic recognition — dental practitioners

39.

40.

41.

42.

Part 10 Automatic recognition — veterinary surgeons

43.

44.

45.

46.

Part 11 Automatic recognition — midwives

47.

48.

49.

50.

51.

Part 12 Automatic recognition — pharmacists

52.

53.

54.

55.

Part 13 Automatic recognition — architects

56.

57.

58.

59.

Part 14 Automatic recognition — common acquired rights

60.

61.

62.

63.

64.

65.

Part 15 Applications for recognition of professional qualifications

66.

67.

68.

69.

70.

71.

Part 16 European Professional Card

72.

73.

74.

75.

76.

77.

78.

79.

80.

Part 17 Revocation of documents, reversal of decisions and appeals

81.

82.

83.

Part 18 Pursuit of profession

84.

85.

86.

Part 19 Alerts

87.

Part 20 Electronic processing and fees

88.

89.

Part 21 Revocations, amendments and transitional arrangements

90.

91.

92.

93.

94.

95.

96.

Schedule 1 REGULATED PROFESSIONS AND COMPETENT AUTHORITIES

Schedule 2 PROFESSIONS IN WHICH COMPETENT AUTHORITIES ARE REQUIRED TO PROVIDE FOR AUTOMATIC TEMPORARY REGISTRATION IN ACCORDANCE WITH REGULATION 12(2)

Schedule 3 PROFESSIONS WHICH HAVE PUBLIC HEALTH OR SAFETY IMPLICATIONS AND IN RESPECT OF WHICH COMPETENT AUTHORITIES MAY CHECK PROFESSIONAL QUALIFICATIONS PRIOR TO FIRST PROVISION OF SERVICES ON TEMPORARY AND OCCASIONAL BASIS

Schedule 4 LEVELS OF QUALIFICATION UNDER GENERAL SYSTEM FOR RECOGNITION OF EVIDENCE OF TRAINING

Schedule 5 PROFESSIONS AND PROFESSIONAL ACTIVITIES WHOSE PURSUIT REQUIRES PRECISE KNOWLEDGE OF NATIONAL LAW AND IN RESPECT OF WHICH THE PROVISION OF ADVICE OR ASSISTANCE CONCERNING NATIONAL LAW IS AN ESSENTIAL AND CONSTANT ASPECT OF THE PROFESSIONAL ACTIVITY

Schedule 6 PROFESSIONS AND COMPETENT AUTHORITIES TO WHICH PART 9 (EUROPEAN PROFESSIONAL CARD) APPLIES

S.I. No. 8 of 2017

EUROPEAN UNION (RECOGNITION OF PROFESSIONAL QUALIFICATIONS) REGULATIONS 2017

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 20th January, 2017.

I, RICHARD BRUTON, Minister for Education and Skills, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving further effect to Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005¹ , as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013² and Commission Delegated Decision (EU) 2016/790 of 13 January 2016³ , and for the purpose of giving full effect to Commission Implementing Regulation (EU) 2015/983 of 24 June 2015⁴ , and for the purpose of giving effect to Article 49 of the Treaty on the Functioning of the European Union in so far as that Article relates to the recognition of pharmacist qualifications, hereby make the following regulations:

Part 1 Preliminary

Citation

Commencement

Interpretation

“adaptation period” has the meaning assigned to it in Regulation 23;

“aptitude test” has the meaning assigned to it in Regulation 24;

“competent authority” means—

• (a) in the State, the authority designated as competent authority for a profession or professions under Regulation 5, or

• (b) in another Member State, any authority or body empowered by that Member State specifically to issue or receive training diplomas and other documents or information and to receive the applications, and take the decisions, referred to in the Directive;

“Directive” means Directive 2005/36/EC of the European Parliament and of the Council of 7 September 20051, as amended by Council Directive 2006/100/EC of 20 November 2006⁵ , Commission Regulation (EC) No. 1430/2007 of 5 December 2007⁶ , Commission Regulation (EC) No. 755/2008 of 31 July 2008⁷ , Regulation (EC) No. 1137/2008 of the European Parliament and of the Council of 22 October 2008⁸ , Commission Regulation (EC) No. 279/2009 of 6 April 2009⁹ , Commission Regulation (EU) No. 213/2011 of 3 March 2011¹⁰ , Act concerning the accession of the Republic of Croatia¹¹ , Commission Regulation (EU) No. 623/2012 of 11 July 2012¹² , Council Directive 2013/25/EU of 13 May 2013¹³ , Directive 2013/55/EU of the European Parliament and of the Council of 20 November 20132 and Commission Delegated Decision (EU) 2016/790 of 13 January 20163;

“ECTS” means the European Credit Transfer and Accumulation System, the credit system for higher education used in the European Higher Education Area;

“eligible person” means—

• (a) a national of a Member State,

• (b) a family member of a national of a Member State, as defined in Article 2(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004¹⁴ , who has been given the right of residence or permanent residence in the State pursuant to that directive, or

• (c) a person granted refugee or subsidiary protection status in the State under Council Directive 2004/83/EC of 29 April 200413, or a dependent family member of such person;

“European Professional Card” means an electronic certificate proving either—

• (a) that the professional has met all the necessary conditions to provide services in a host Member State on a temporary and occasional basis in a particular profession, or

• (b) the recognition of professional qualifications for establishment in a host Member State;

“evidence of formal qualifications” means diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions in that Member State and certifying successful completion of professional training obtained mainly in the European Union and, where a qualification has been obtained in a state which is not a Member State, in compliance with Regulation 4(1)(b);

“home Member State” means a Member State in which a person obtained his or her professional qualification or in which he or she is legally established for the purpose of pursuing his or her profession;

“host Member State” means the Member State in which a person wishes to pursue professional activity pursuant to the Directive;

“IMI” means the Internal Market Information System established by Regulation (EU) No. 1024/2012 of the European Parliament and of the Council of 25 October 2012¹⁵ ;

“Implementing Regulation” means Commission Implementing Regulation (EU) 2015/983 of 24 June 20154;

“lifelong learning” means all general education, vocational education and training, non-formal education and informal learning undertaken throughout life, resulting in an improvement in knowledge, skills and competences, which may include professional ethics;

“manager of an undertaking” means any person who in an undertaking in the occupational field in question has pursued an activity:

• (a) as a manager of an undertaking or a manager of a branch of an undertaking; or

• (b) as a deputy to the proprietor or the manager of an undertaking where that post involves responsibility equivalent to that of the proprietor or manager represented; or

in a managerial post with duties of a commercial and/or technical nature and with responsibility for one or more departments of the undertaking;

“medical practitioner” has the meaning assigned to it in the Medical Practitioners Act 2007 (No. 25 of 2007);

“Minister” means the Minister for Education and Skills;

“Member State” means—

• (a) in relation to all provisions except Regulation 96(2), a state which is a member state of the European Union, and

• (b) in relation to Regulation 96(2)—

• (i) a state which is a contracting party to the Agreement on the European Economic Area signed in Oporto on 2 May 1992, or

• (ii) Switzerland;

“national coordinator” means the person appointed by the Minister pursuant to Regulation 7;

“overriding reasons of general interest” means reasons recognised as such in the case-law of the Court of Justice of the European Union;

“professional experience” means the actual and lawful full-time or equivalent part-time pursuit of the profession concerned in a Member State;

“professional qualifications” means qualifications attested by evidence of formal qualifications, an attestation of competence or professional experience;

“professional traineeship” means, without prejudice to Article 46(4) of the Directive, a period of professional practice carried out under supervision provided it constitutes a condition for access to a regulated profession, and which can take place either during or after completion of an education leading to a diploma;

“regulated education and training” means any training which is specifically geared to the pursuit of a given profession, and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice, the structure and level of such training or practice being monitored or approved by the competent authority;

“regulated profession” means—

• (a) a profession or professional activity in the State listed in column 1 in Schedule 1, or

• (b) an activity in the State listed in Annex IV to the Directive, access to or the pursuit of which is contingent upon possession of general, commercial or professional knowledge and aptitudes;

“veterinary practitioner” has the meaning assigned to it in section 2 of the Veterinary Practice Act 2005 (No. 22 of 2005).

• (2) A word or expression which is used in these Regulations and which is also used in the Directive has, unless the context otherwise requires, the same meaning in these Regulations as it has in the Directive.

Scope of Regulations

• (a) who obtained his or her professional qualification in a Member State other than the State, or

• (b) whose qualifications have been issued by a state other than a Member State, where a Member State other than the State has certified that the person has three years’ professional experience in the profession concerned on its territory, that Member State having recognised the evidence of formal qualifications in accordance with its rules,

and who wishes to pursue a regulated profession in the State, on either a self-employed or employed basis.

• (2) These Regulations do not apply to a notary appointed by an official act of government.

• (3) Paragraph (1)(a) includes within its scope an eligible person who pursued a professional traineeship outside his or her home Member State.

Part 2 Competent authorities, national co-ordination and assistance centre

Designation of competent authorities in State

• (2) The national co-ordinator is designated as the competent authority for professions in the State which are not regulated.

• (3) Subject to paragraph (4), An tSeirbhís Oideachais Leanúnaigh agus Scileanna (SOLAS) is designated as the competent authority for the purposes of these Regulations, the Directive and the Implementing Regulation, in respect of the activities listed in Annex IV to the Directive access to, or the pursuit of which, is contingent in the State upon general, commercial or professional knowledge and aptitudes.

• (4) Where an activity listed in Annex IV to the Directive is carried on by a profession in the State listed in column 1 of Schedule 1, the competent authority shall be the corresponding authority listed in column 2 of that Schedule, rather than the authority referred to in paragraph (3).

Functions of competent authorities

• (2) A competent authority in the State may obtain advice from an appropriate third party in relation to the carrying out of its functions under these Regulations, the Directive and the Implementing Regulation, and the third party may receive payment for such advice.

• (3) A competent authority in the State shall, on request, assist the State in compiling a report for submission to the European Commission pursuant to Article 60 of the Directive and shall compile statistical summaries of decisions it has taken having regard to the requirements of that Article.

• (4) A competent authority in the State shall work in close collaboration with the National Co-ordinator, the Assistance Centre, Government Departments and other relevant bodies in the State to facilitate compliance with the Directive in the State.

• (5) A competent authority in the State shall work in close collaboration with competent authorities in other Member States and shall provide assistance in order to facilitate the application of the Directive.

• (6) A competent authority in the State shall ensure the confidentiality of the information which it exchanges with competent authorities in other Member States.

• (7) A competent authority in the State shall exchange, with competent authorities in other Member States, information regarding disciplinary action or criminal sanctions taken or any other serious, specific circumstances which are likely to have consequences for the pursuit of activities under the Directive or these Regulations.

• (8) In exchanging information pursuant to paragraph (7), a competent authority in the State shall respect personal data protection rules provided for under Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995¹⁶ and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002¹⁷ .

• (9) A competent authority in the State in receipt of information referred to in paragraph (7) shall—

• (a) examine the veracity of the circumstances arising,

• (b) decide on the nature and scope of the investigations which need to be carried out, and

• (c) inform the competent authority which provided the information of the conclusions which it draws from the information available to it.

• (10) For the purposes of paragraph (5) to (9), a competent authority in the State shall use IMI.

National co-ordination

• (2) The Minister may revoke an appointment under paragraph (1) and appoint another official to replace the official whose appointment has been revoked.

• (3) The national co-ordinator shall, in concert with national co-ordinators appointed by the other Member States—

• (a) promote uniform application of the Directive,

• (b) collect all the information which is relevant for application of the Directive, such as on the conditions for access to regulated professions in the Member States,

• (c) examine suggestions for common training frameworks and common training tests under the Directive,

• (d) exchange information and best practice for the purpose of optimising continuous professional development in Member States, and

• (e) exchange information and best practice on the application of compensation measures under Regulation 22 and Article 14 of the Directive.

• (4) For the purpose of carrying out the task set out in paragraph (3)(b), the national co-ordinator may solicit the help of the assistance centres referred to in Article 57b of the Directive.

• (5) The national co-ordinator, Government Departments and other relevant bodies in the State shall work in close collaboration to facilitate compliance with the Directive in the State.

Assistance centre

• (2) The Minister may revoke an appointment under paragraph (1) and appoint another person or organisation to replace the person or organisation whose appointment has been revoked.

• (3) The remit of the assistance centre shall be to provide citizens, as well as assistance centres of the other Member States, with assistance concerning the recognition of professional qualifications under these Regulations and the Directive, including information on the national legislation governing the regulated professions and the pursuit of those professions, social legislation, and, where appropriate, the rules of ethics.

• (4) The assistance centre shall assist persons in exercising the rights conferred on them by these Regulations and the Directive in the State, in co-operation, where appropriate, with the assistance centre in the home Member State and the competent authorities and the points of single contact in the State.

• (5) A competent authority in the State shall fully cooperate with the assistance centre in the State and, where appropriate, the assistance centre in the home Member State, and provide all relevant information about individual cases to such assistance centres upon their request and subject to data protection rules in accordance with Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995¹⁶ and Directive 2002/58/EC of the European Parliament and of the Council of 12 July 200217.

• (6) At the European Commission’s request, the assistance centre shall inform the European Commission of the result of enquiries with which it is dealing within two months after receiving such a request.

Part 3 Effects of recognition

General effect of recognition

• (2) For the purpose of these Regulations, the profession which the applicant wishes to pursue in the State is the same as that for which he or she is qualified in his or her home Member State if the activities covered are comparable.

Partial access

• (a) the professional is fully qualified to exercise in the home Member State the professional activity for which partial access is sought in the State,

• (b) differences between the professional activity legally exercised in the home Member State and the regulated profession in the State as such are so large that the application of compensation measures would amount to requiring the applicant to complete the full programme of education and training required in the State to have access to the full regulated profession in the State, and

• (c) the professional activity can objectively be separated from other activities falling under the regulated profession in the State.

• (2) For the purpose of paragraph (1)(c), a competent authority in the State shall take into account whether the professional activity can be pursued autonomously in the home Member State.

• (3) Partial access sought under this Regulation may be rejected by a competent authority if such rejection is justified by overriding reasons of general interest, suitable for securing the attainment of the objective pursued, and does not go beyond what is necessary to attain that objective.

• (4) Notwithstanding Regulations 15(8) and 85(1), a professional activity to which partial access has been granted under this Regulation shall be exercised under the professional title of the home Member State and the competent authority in the State may require use of that professional title in the English language.

• (5) Professionals benefiting from partial access under this Regulation shall clearly indicate to the service recipients the scope of their professional activities.

• (6) This Regulation shall not apply to professionals benefiting from automatic recognition of their professional qualifications under Parts 6 to 14.

• (7) Applications for partial access to a profession in the State shall be examined in accordance with Part 4 or 5, as appropriate.

Part 4 Free provision of services on temporary and occasional basis

Principle of free provision of services

• (a) the service provider is legally established in a Member State other than the State for the purpose of pursuing the same profession in that Member State,

• (b) the service provider moves to the State to pursue the profession on a temporary and occasional basis, and

• (c) if neither the profession, nor the education and training leading to it, are regulated in the home Member State, the service provider has pursued that profession in one or several Member States for at least one year during the last 10 years preceding the provision of services.

• (2) For the purposes of paragraph (1), the temporary and occasional nature of the provision of services shall be assessed by a competent authority in the State on a case-by-case basis, in particular in relation to its duration, its frequency, its regularity and its continuity.

• (3) A competent authority in the State may seek documentation or information from a person purporting to provide services in the State pursuant to this Regulation to determine whether or not there has been compliance with the requirements of this Part.

• (4) Where a service provider moves to the State and provides services in a regulated profession in the State on a temporary and occasional basis pursuant to paragraph (1), he or she shall be subject to any professional, statutory and administrative rules applicable to that profession, including rules in relation to—

• (a) the definition of the profession,

• (b) the use of titles,

• (c) serious professional malpractice which is directly and specifically linked to consumer protection and safety, and

• (d) discipline.

Exemptions, requirements and revocations in relation to free provision of services

• (a) authorisation by, registration with or membership of a professional organisation or body, and

• (b) registration with a public social security body for the purpose of settling accounts with an insurer relating to activities pursued for the benefit of insured persons.

• (2) Notwithstanding paragraph (1)(a), and subject to paragraph (3), in order to facilitate the application of disciplinary provisions in the State in accordance with Regulation 11(4), the competent authority may provide either for automatic temporary registration with, or pro forma membership of, the professional organisation or body, provided that such registration or membership does not delay or complicate in any way the provision of services and does not entail any additional costs for the service provider.

• (3) In the case of the professions listed in Schedule 2, the competent authorities shall provide for automatic temporary registration in accordance with paragraph (2).

• (4) For the purposes of paragraph (2), where the competent authority and the professional organisation or body are different, automatic temporary registration or pro forma membership shall be effected by the competent authority sending to the professional organisation or body—

• (a) a copy of the declaration, and, where applicable, of the renewal, referred to in Regulation 13(1) and (2), and

• (b) for professions listed in Schedule 3 or which benefit from automatic recognition under Parts 7 to 14, a copy of the documents referred to in Regulation 13(3).

• (5) Notwithstanding paragraph (1)(b), a service provider shall inform in advance or, in an urgent case, afterwards, the body referred to in that paragraph of the services provided by him or her on a temporary and occasional basis under this Part.

• (6) A competent authority in the State shall revoke automatic temporary registration or pro forma membership of a person providing temporary and occasional services under this Part where—

• (a) the declaration or documents referred to in Regulation 13 are inaccurate or incomplete,

• (b) he or she fails to provide the competent authority with a renewal declaration in accordance with Regulation 13(2),

• (c) he or she becomes established in the relevant profession in the State,

• (d) he or she is not established in the relevant profession in another Member State,

• (e) he or she is prohibited, whether permanently or temporarily, from practising the profession in another Member State,

• (f) the services being provided in the State are not temporary and occasional, or

• (g) the requirements of this Part are otherwise not complied with.

• (7) Notwithstanding paragraph (6), a competent authority may decide not to revoke automatic temporary registration or pro forma membership of a person providing temporary and occasional services under this Part where—

• (a) the person is the subject of a complaint which has not been disposed of or otherwise dealt with under the relevant disciplinary procedures including fitness to practise procedures, and

• (b) it is in the public interest not to revoke registration or membership.

Declaration to be made in advance

• (2) The declaration referred to in paragraph (1) shall be renewed once a year if the service provider intends to provide temporary or occasional services in the State during that year.

• (3) For the first provision of services, or if there is a material change in the situation substantiated by the documents, a declaration provided pursuant to this Regulation shall be accompanied by the following documents:

• (a) proof of the nationality of the service provider;

• (b) an attestation certifying that the holder is legally established in a Member State other than the State for the purpose of pursuing the activities concerned and that he or she is not prohibited from practising, even temporarily, at the moment of delivering the attestation;

• (c) evidence of professional qualifications;

• (d) where Regulation 11(1)(c) applies, any means of proof that the service provider has pursued the activity concerned for at least one year during the previous 10 years;

• (e) for professions in the security sector, in the health sector and professions related to the education of minors, including in childcare and early childhood education, an attestation confirming the absence of temporary or final suspensions from exercising the profession or of criminal convictions;

• (f) for professions that have patient safety implications, a declaration about the service provider’s knowledge of the language necessary for practising the profession in the State.

• (4) Subject to Regulation 15, submission of a required declaration by a service provider pursuant to this Regulation shall entitle that service provider to have access to and pursue the relevant profession or professional activity in the entire territory of the State.

Use of professional title when providing temporary and occasional services

• (2) The professional title referred to in paragraph (1) shall be indicated in the official language or one of the official languages of the home Member State in such a way as to avoid any confusion with the professional title used in the State.

• (3) Where no professional title exists for the relevant profession in the home Member State, a service provider providing services in the State under this Part shall indicate his or her formal qualifications in the official language or one of the official languages of that Member State.

• (4) In the case of professions subject to automatic recognition under Parts 7 to 14, services provided in the State under this Part shall be provided under the professional title used in the State.

Checking of professional qualifications

• (2) The prior check referred to in paragraph (1) shall be possible only where the purpose of the check is to avoid serious damage to the health or safety of the service recipient due to a lack of professional qualification of the service provider and where the check does not go beyond what is necessary for that purpose.

• (3) Subject to paragraph (4), where this Regulation applies to the provision of services, no later than one month after receipt of a declaration and accompanying documents provided in accordance with Regulation 13, the competent authority shall inform the service provider who provided such declaration and documents of its decision—

• (a) not to check his or her professional qualifications, or

• (b) having checked his professional qualifications—

• (i) to require the service provider to take an aptitude test, or

• (ii) to allow the provision of services.

• (4) Where there is a difficulty which would result in delay in taking a decision under paragraph (3), the competent authority shall notify the service provider of the reason for the delay within the same deadline and the difficulty shall be solved within one month of that notification and the decision finalised within two months of resolution of the difficulty.

• (5) Where there is a substantial difference between the professional qualifications of the service provider and the training required in the State for the relevant profession, to the extent that that difference is such as to be harmful to public health or safety, and that it cannot be compensated by the service provider’s professional experience or by knowledge, skills and competences acquired through lifelong learning formally validated to that end by a relevant body, the competent authority shall give that service provider the opportunity to show, by means of an aptitude test, as referred to in paragraph (3)(b)(i), that he or she has acquired the knowledge, skills or competence that were lacking and the competent authority shall take a decision on that basis on whether to allow the provision of services.

• (6) In any case, it must be possible to provide the service within one month of a decision taken in accordance with paragraphs (3) and (4) to allow the provision of services.

• (7) In the absence of a reaction of the competent authority within the deadlines set out in this Regulation, the service sought to be provided may be provided.

• (8) In cases where professional qualifications have been verified under this Regulation, the service shall be provided under the professional title used in the State.

Administrative co-operation

• (2) In the event that a competent authority in the State decides to check a service provider’s professional qualifications pursuant to Regulation 15, it may ask the competent authority of the home Member State for information about the service provider’s training courses to the extent necessary to assess substantial differences likely to be harmful to public health or safety.

• (3) A competent authority in the State that is asked for information, pursuant to Article 8 of the Directive, in relation to a service provider established in the State shall provide that information in accordance with Article 56 of the Directive.

• (4) In the case of the provision of services in the State under this Part in a profession which is not regulated in the home Member State, the competent authority in the State may seek information from an assistance centre designated under Article 57b of the Directive.

• (5) The assistance centre designated under Regulation 8 shall, upon request, provide information to a competent authority in another Member State in relation to applications for the provision of services in that state by a service provider in a profession which is not regulated in the State and who obtained his or her professional qualification in the State.

• (6) A competent authority in the State shall ensure the exchange of all information necessary for complaints by a recipient of a service against a service provider under this Part to be correctly pursued and recipients shall be informed of the outcome of the complaint.

Information to be given to recipients of service

• (a) if the service provider is registered in a commercial register or similar public register, the register in which he or she is registered, his or her registration number, or equivalent means of identification contained in that register;

• (b) if the activity is subject to authorisation in the home Member State, the name and address of the competent supervisory authority;

• (c) any professional association or similar body with which the service provider is registered;

• (d) the professional title or, where no such title exists, the formal qualification of the service provider and the Member State in which it was awarded;

• (e) if the service provider performs an activity which is subject to VAT, the VAT identification number referred to in Article 22(1) of Sixth Council Directive 77/388/EEC of 17 May 1977¹⁸ ;

• (f) details of any insurance cover or other means of personal or collective protection with regard to professional liability.

Part 5 General system for recognition of evidence of training

Scope of Part 5

• (a) a regulated profession in the State which is not covered by Parts 6 to 14, or

• (b) one of the following cases in which the applicant for recognition, for specific and exceptional reasons, does not satisfy the conditions for recognition provided for in the provisions referred to in paragraph (a):

• (i) for an activity listed in Annex IV to the Directive, when the migrant does not meet the relevant requirements set out in Regulation 27, 28 or 29;

• (ii) for doctors with basic training, specialised doctors, nurses responsible for general care, dental practitioners, specialised dental practitioners, veterinary surgeons, midwives, pharmacists and architects, when the migrant does not meet the relevant requirements of effective and lawful professional practice referred to in Regulation 33, 38, 42, 46, 51 or 59 or Part 14;

• (iii) for architects, when the migrant holds evidence of formal qualification not listed in point 5.7.1 of Annex V to the Directive;

• (iv) without prejudice to Regulations 30, 35, 39, 43, 47, 52 and 56 and Part 14, for doctors, nurses, dental practitioners, veterinary surgeons, midwives, pharmacists and architects holding evidence of formal qualifications as a specialist who must have taken part in the training leading to the possession of a title listed in points 5.1.1, 5.2.2, 5.3.2, 5.4.2, 5.5.2, 5.6.2 and 5.7.1 of Annex V to the Directive and solely for the purpose of the recognition of the relevant specialty;

• (v) for nurses responsible for general care and specialised nurses holding evidence of formal qualifications as a specialist who have taken part in the training leading to the possession of a title listed in point 5.2.2 of Annex V to the Directive, when the migrant seeks recognition in another Member State where the relevant professional activities are pursued by specialised nurses without training as general care nurse;

• (vi) for specialised nurses without training as general care nurse, when the migrant seeks recognition in another Member State where the relevant professional activities are pursued by nurses responsible for general care, specialised nurses without training as general care nurse or specialised nurses holding evidence of formal qualifications as a specialist who have taken part in the training leading to the possession of the titles listed in point 5.2.2 of Annex V to the Directive; and

• (vii) a migrant from a state which is not a Member State who meets the requirements set out in Regulation 4(1)(b).

Levels of qualification

Equal treatment of qualifications

• (2) Any professional qualification which, although not satisfying the requirements contained in the legislative, regulatory or administrative provisions in force in the home Member State for access to or the pursuit of a profession, confers on the holder acquired rights by virtue of these provisions, shall also be treated as such evidence of formal qualifications under the same conditions as set out in paragraph (1).

• (3) Paragraph (2) applies in particular if the home Member State raises the level of training required for admission to a profession and for its exercise, and if an individual who has undergone former training, which does not meet the requirements of the new qualification, benefits from acquired rights by virtue of national legislative, regulatory or administrative provisions; in such case this former training shall be considered by a competent authority in the State, for the purposes of the application of Regulation 21, as corresponding to the level of the new training.

Conditions for recognition

• (2) Subject to paragraph (4), access to, and pursuit of, a regulated profession in the State shall also be granted to applicants who have pursued the profession in question on a full-time basis for one year or for an equivalent overall duration on a part-time basis during the previous 10 years in another Member State which does not regulate that profession, and who possess one or more attestations of competence or evidence of formal qualifications issued by another Member State which does not regulate the profession.

• (3) In order to be recognised by a competent authority in the State, attestations of competence and evidence of formal qualifications shall—

• (a) be issued by a competent authority in another Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State, and

• (b) attest that the holder has been prepared for the pursuit of the profession in question.

• (4) The one year of professional experience referred to in paragraph (2) may not be required by a competent authority in the State if the evidence of formal qualifications which the applicant possesses certifies regulated education and training.

• (5) A competent authority in the State shall accept the level attested under Schedule 4 by the home Member State, as well as the certificate by which the home Member State certifies that regulated education and training or vocational training with a special structure referred to in level (c)(ii) in Schedule 4 is equivalent to the level provided for in level (c)(i) in Schedule 4.

• (6) Notwithstanding paragraphs (1) to (4) of this Regulation and Regulation 22, a competent authority in the State may refuse access to, and pursuit of, the profession to holders of an attestation of competence classified under level (a) in Schedule 4 where the national professional qualification required to exercise the profession on its territory is classified under level (e) in Schedule 4.

Compensation measures

• (a) the training the applicant has received covers substantially different matters than those covered by the evidence of formal qualifications required in the State, or

• (b) the regulated profession in the State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home Member State, and the training required in the State covers substantially different matters from those covered by the applicant’s attestation of competence or evidence of formal qualifications.

• (2) Subject to paragraphs (3), (4) and (5), where a competent authority in the State makes use of the option provided for in paragraph (1), it must offer the applicant the choice between an adaptation period and an aptitude test.

• (3) An applicant is required to undergo an aptitude test in the case of the professions and professional activities listed in Schedule 5, pursuit of which requires precise knowledge of national law and in respect of which the provision of advice or assistance concerning national law is an essential and constant aspect of the professional activity.

• (4) A competent authority in the State may stipulate either an adaptation period or an aptitude test in the following cases:

• (a) the cases provided for in Regulation 18(b)(ii) and (iii);

• (b) the cases provided for in Regulation 18(b)(iv) concerning doctors and dental practitioners;

• (c) the cases provided for in Regulation 18(b)(vi);

• (d) the cases provided for in Regulation 18(b)(vii);

• (e) the cases provided for in Regulation 18(b)(i), if the migrant envisages pursuing professional activities in a self-employed capacity or as a manager of an undertaking which require the knowledge and the application of the specific national rules in force, provided that knowledge and application of those rules are required by the competent authority in the State for access to such activities by nationals of the State;

• (f) the case of a holder of a professional qualification referred to in level (a) in Schedule 4 who applies for recognition of his or her professional qualifications where the professional qualification required in the State is classified under level (c) in Schedule 4; and

• (g) the case of a holder of a professional qualification referred to in level (b) in Schedule 4 who applies for recognition of his or her professional qualifications where the professional qualification required in the State is classified under level (d) or (e) in Schedule 4.

• (5) In the case of a holder of a professional qualification referred to in level (a) in Schedule 4 who applies for recognition of his professional qualifications where the professional qualification required in the State is classified under level (d) in Schedule 4, the competent authority in the State may impose both an adaptation period and an aptitude test.

• (6) In deciding whether to require an applicant to complete an adaptation period or take an aptitude test under paragraph (1), a competent authority in the State shall—

• (a) have due regard to the principle of proportionality, and

• (b) ascertain whether the knowledge, skills and competences acquired by the applicant in the course of his professional experience or through lifelong learning, and formally validated to that end by a relevant body, in any other Member State or in a state which is not a Member State, is of such nature as to cover, in full or in part, the substantially different matters.

• (7) A decision by a competent authority in the State to impose an adaptation period or an aptitude test under this Regulation shall be duly justified and the applicant shall be provided with the following information:

• (a) the level of the professional qualification required in the State and the level of the professional qualification held by the applicant in accordance with the classification set out in Schedule 4; and

• (b) the substantially different matters and the reasons for which those matters cannot be compensated by knowledge, skills and competences acquired in the course of professional experience or through lifelong learning formally validated to that end by a relevant body.

• (8) A competent authority in the State shall ensure that an applicant has the possibility of taking the aptitude test under this Regulation not later than six months after the initial decision imposing an aptitude test on the applicant.

• (9) In this Regulation “substantially different matters” means matters in respect of which knowledge, skills and competences acquired are essential for pursuing the profession and with regard to which the training received by the migrant shows significant differences in terms of content from the training required in the State.

Adaptation period

• (2) The period of supervised practice referred to in paragraph (1) may be accompanied by further training.

• (3) The period of supervised practice referred to in paragraph (1) shall be the subject of an assessment.

• (4) The detailed rules governing an adaptation period and its assessment as well as the status of an applicant under supervision shall be laid down by the competent authority.

• (5) The status enjoyed in the State by a person undergoing an adaptation period pursuant to this Part, in particular in the matter of right of residence as well as obligations, social rights and benefits, allowances and remuneration, shall be established by the relevant authorities in the State in accordance with applicable European Union law.

Aptitude test

• (2) In order to permit an aptitude test to be carried out, a competent authority shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.

• (3) An aptitude test must take account of the fact that the applicant is a qualified professional in the home Member State or the Member State from which he or she comes.

• (4) An aptitude test shall cover subjects to be selected from those on the list referred to in paragraph (2), knowledge of which is essential in order to be able to pursue the particular profession in the State.

• (5) In addition to the matters referred to in paragraph (4), an aptitude test may also include knowledge of the professional rules applicable to the activities in question in the State.

• (6) The status in the State of an applicant undertaking an aptitude test pursuant to this Part shall be determined by the relevant authorities in the State.

Part 6 Automatic recognition of professional experience in craft, commerce and industry sectors

Scope of Part 6

Automatic recognition of professional experience

• (a) access to, or pursuit of, one of the activities listed in Annex IV to the Directive, in the State, is contingent upon possession of general, commercial or professional knowledge and aptitudes, and

• (b) the activity has been pursued in accordance with the relevant requirements of Regulation 27, 28 or 29,

previous pursuit of the activity in another Member State shall be recognised by the competent authority in the State as sufficient proof of such knowledge and aptitudes.

• (2) The competent authority shall issue a certificate to the effect that a person’s professional experience has been recognised in accordance with paragraph (1).

Activities referred to in list I of Annex IV to Directive

• (a) for six consecutive years on a self-employed basis or as a manager of an undertaking,

• (b) for three consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary proves that he or she has received previous training of at least three years for the activity in question, evidenced by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid,

• (c) for four consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary can prove that he or she has received, for the activity in question, previous training of at least two years’ duration, attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid,

• (d) for three consecutive years on a self-employed basis, if the beneficiary can prove that he or she has pursued the activity in question on an employed basis for at least five years, or

• (e) for five consecutive years in an executive position, of which at least three years involved technical duties and responsibility for at least one department of the company, if the beneficiary can prove that he or she has received, for the activity in question, previous training of at least three years’ duration, as attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid.

• (2) In the cases referred to in paragraph (1)(a) and (d), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority.

• (3) Paragraph (1)(e) shall not apply to activities in Group ex 855, hairdressing establishments, of the International Standard Industrial Classification (ISIC) nomenclature.

Activities referred to in list II of Annex IV to Directive

• (a) for five consecutive years on a self-employed basis or as a manager of an undertaking,

• (b) for three consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary proves that he or she has received previous training of at least three years for the activity in question, evidenced by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid,

• (c) for four consecutive years on a self-employed basis or as a manager of an undertaking, where the beneficiary can prove that he or she has received, for the activity in question, previous training of at least two years duration, attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid,

• (d) for three consecutive years on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he or she has pursued the activity in question on an employed basis for at least five years,

• (e) for five consecutive years on an employed basis, if the beneficiary can prove that he or she has received, for the activity in question, previous training of at least three years duration, as attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid, or

• (f) for six consecutive years on an employed basis, if the beneficiary can prove that he or she has received previous training in the activity in question of at least two years duration, as attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid.

• (2) In the cases referred to in paragraph (1)(a) and (d), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority.

Activities referred to in list III of Annex IV to Directive

• (a) for three consecutive years, either on a self-employed basis or as a manager of an undertaking,

• (b) for two consecutive years, either on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he or she has received previous training for the activity in question, as attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid,

• (c) for two consecutive years, either on a self-employed basis or as a manager of an undertaking, if the beneficiary can prove that he or she has pursued the activity in question on an employed basis for at least three years, or

• (d) for three consecutive years, on an employed basis, if the beneficiary can prove that he or she has received previous training for the activity in question, as attested by a certificate recognised by the other Member State or judged by a competent professional body to be fully valid.

• (2) In the cases referred to in paragraph (1)(a) and (c), the activity must not have finished more than 10 years before the date on which the complete application was submitted by the person concerned to the competent authority.

Part 7Automatic recognition — doctors of medicine

Automatic recognition of doctors

• (2) Evidence of formal qualification referred to in paragraph (1) must be issued by the appropriate authority in the relevant Member State and accompanied by any certificate listed in point 5.1.1 of Annex V to the Directive for such qualification.

• (3) Subject to paragraphs (4) and (5), the competent authority in the State for medical practitioners shall recognise evidence of formal qualifications as a specialised doctor listed in point 5.1.2 of Annex V to the Directive which satisfy the minimum training conditions referred to in Article 25 of the Directive, and shall, for the purposes of access to and pursuit of the profession of medical practitioner in the State, give such evidence the same effect in the State as the equivalent evidence of formal qualification obtained in the State.

• (4) Evidence of formal qualification referred to in paragraph (3) must be issued by the appropriate authority in the relevant Member State and accompanied by any certificate listed in point 5.1.2 of Annex V to the Directive for such qualification.

• (5) Paragraphs (1) and (3) do not affect the acquired rights referred to in Regulation 33 and Part 14.

• (6) Subject to paragraph (7), the competent authority in the State for medical practitioners shall recognise, for the purpose of pursuing general medical practice in the State in the framework of the State’s social security system, evidence of formal qualifications listed in point 5.1.4 of Annex V to the Directive and issued in accordance with the minimum training conditions laid down in Article 28 of the Directive.

• (7) Paragraph (6) does not affect the acquired rights referred to in Regulation 34.

• (8) In this Regulation, “evidence of formal qualifications as a specialised doctor” is such evidence awarded by the competent authority, referred to in point 5.1.2 of Annex V to the Directive, as corresponds, for the specialised training in question, to the titles in use in the various Member States and referred to in point 5.1.3 of that Annex.

Training of doctors

Access to and pursuit of professional activities of doctors

Acquired rights specific to specialised doctors

• (2) The competent authority in the State for medical practitioners shall recognise the qualification of specialised doctor awarded in Spain to doctors who completed their specialist training before 1 January 1995, even if that training does not satisfy the minimum training requirements provided for in Article 25 of the Directive, in so far as that qualification is accompanied by a certificate issued by the competent Spanish authorities and attesting that the person concerned has passed the examination in specific professional competence held in the context of exceptional measures concerning recognition laid down in Royal Decree 1497/99, with a view to ascertaining that the person concerned possesses a level of knowledge and skill comparable to that of doctors who possess a qualification as a specialised doctor defined for Spain in points 5.1.2 and 5.1.3 of Annex V to the Directive.

• (3) The competent authority in the State for medical practitioners shall recognise the qualification of specialised doctor awarded in Italy, and listed in points 5.1.2 and 5.1.3 of Annex V to the Directive, to doctors who started their specialist training after 31 December 1983 and before 1 January 1991, despite the training concerned not satisfying all the training requirements set out in Article 25 of the Directive, if the qualification is accompanied by a certificate issued by the competent Italian authorities stating that the doctor concerned has effectively and lawfully been engaged, in Italy, in the activities of a medical specialist in the same specialist area concerned, for at least seven consecutive years during the 10 years preceding the award of the certificate.

Acquired rights specific to general practitioners

• (2) The competent authority in the State for medical practitioners shall, on demand, issue a certificate stating the holders right to pursue the activities of general practitioner in the framework of the State’s national social security system, without the evidence of formal qualifications referred to in point 5.1.4 of Annex V to the Directive, to doctors established in the State who enjoy acquired rights pursuant to paragraph (1).

• (3) The competent authority in the State for medical practitioners shall recognise certificates issued by competent authorities in other Member States pursuant to Article 30 of the Directive and shall give such certificates the same effect in the State as evidence of formal qualifications which it awards and which permit the pursuit of the activities of a general practitioner in the framework of the State’s national social security system.

Part 8Automatic recognition — nurses responsible for general care

Automatic recognition of nurses responsible for general care