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FREE MOVEMENT: MEMBER STATES WARNED OVER DIPLOMAS AND QUALIFICATIONS.

Summary:On December 16, the European Commission decided to initiate a series of infringement procedures before the European Union Court of Justice against several Member States for breaches of EU law with regard to the free movement of people (two cases, France and Italy), and mutual recognition of qualifications (diplomas and experience, 3 cases, Belgium, Italy and Portugal).

Qualifications.

The European Commission has decided to initiate infringement proceedings against Belgium, Italy and Portugal for breaches of Community law in the field of qualifications (diplomas and experience). The Community rules in this field set out the conditions under which certain professions may become established and/or provide their services in another Member State. In the case of Belgium, the Commission has decided to bring proceedings before the European Court of Justice on account of two infringements, one relating to architects and the other to captains of ocean-going vessels. The Commission has also decided to take legal action against Italy because of two problems relating to dental practitioners. In the case of Portugal, the Commission has decided to transmit a reasoned opinion (the second stage of infringement proceedings under Article 169 of the Treaty) on the failure to transpose a Directive on the treatment of laboratory assistants under the general system for the recognition of diplomas. In the absence of a satisfactory reply within one month after receipt of the reasoned opinion by Portugal, the Commission could initiate proceedings before the Court of Justice.

Architects in Belgium.

The Commission has decided to bring proceedings before the Court of Justice against Belgium because it is refusing to carry out a comparative examination of the qualifications of architects in other Member States who wish to exercise their profession in Belgium. In effect, the Belgian authorities are refusing to apply the judgement of the Court in the Vlassopoulou case (May 7, 1991, C-340/89). Since the Directive on the field of architecture (85/384/EEC) does not provide for the full harmonisation of training providing access to this sector, there may be quite legitimate types of training that do not fall within the scope of this Directive. In accordance with the above-mentioned judgement, however, the host Member State (in this case Belgium) must examine the extent to which the qualifications required to exercise the profession of architect on its territory correspond to those (diplomas and, where appropriate, experience) held by the party concerned. If there is no such correspondence, the host State is entitled to require that the person concerned acquire the missing qualifications. Any refusal must be reasoned and open to appeal. However, the Belgian authorities are refusing in principle to apply the judgement in question to architecture, and their reply to the reasoned opinion of August 6, 1998 was not satisfactory.

Ship captains in Belgium.

Belgium is also in the ECJ dock because its authorities are refusing, for captains of ocean-going vessels, to apply the general system for the recognition of diplomas introduced by Directives 89/48/EEC and 92/51/EEC. The decision to bring the matter before the Court of Justice was made when a Community national was unable to secure recognition in Belgium for his Netherlands diploma in the captaincy of ocean-going vessels. The competent authorities, in this case the Flemish authorities, are asking him to repeat his training, which is not consistent with the general system for the recognition of diplomas. The whole purpose of the general system is to promote the free movement of individuals within the EU by setting up mechanisms that make it unnecessary for them to repeat training when they wish to exercise their profession in another Member State. In this sense, these Directives are aimed directly at the citizen. The basic principle of the general system for the recognition of diplomas is that the host Member State may not refuse a Community national access to a regulated profession if he is fully qualified to exercise that profession in the Member State of origin.

Dentists in Italy.

For its part, Italy is in the dock for two breaches of Community law in connection with dentists. The first concerns the imposition of a residency requirement on dental practictioners prior to registration as professionals, and the loss of the registration right for any dentist setting up a practice abroad. The principle of a residency requirement is inconsistent with the principles of free movement and free establishment (Articles 48 and 52 of the EC Treaty). The Commission feels that such a requirement seriously jeopardises the ability to set up and maintain more than one place of work within the territory of the European Union and is likely to lead to discrimination against dentists established in other Member States. The Italian authorities have cited legislative texts that amend the legislation in question and purportedly bring it into line with Community law. In the view of the Commission, the problems remain, as it is not unambiguously clear from the amending legislation in question (Law No 362 of November 8, 1991 on the pharmaceutical sector) that, in terms of the conditions governing professional registration, it likewise applies to dental practitioners. Furthermore, in the event of residency being transferred to a country other than Italy, only Italian dentists may, under the terms of the relevant law (No 1398 of December 14, 1964) stay registered as professionals. The Italian authorities have not replied to the earlier reasoned opinion sent by the Commission in connection with this case.

The second infringement concerns the Italian legislation that allows doctors to practise as dentists. Under the terms of Law No 409 of July 24, 1985, the profession of dental practitioner (odontoiatra) may be exercised not only by persons holding the specific diploma that was recently created for dentists, but also by doctors that have supplemented their medical training with a specialisation in the field of dentistry. This is not consistent with the objective of the Directive harmonising minimum training requirements for dental practitioners (78/687/EEC), which is to create a specific profession of dental practitioner that is separate from that of doctor. Furthermore, all doctors that are eligible for cover by the "acquired rights" provisions specific to doctors that were practising dentistry in Italy prior to entry into force of the Directive may be enrolled simultaneously on the register of doctors and that of dentists. This seems inconsistent with the provisions in that such doctors are not exercising the profession of dentists under the same conditions as dental practitioners (new profession), who are enrolled on the register of dental practitioners only. The Italian authorities have not replied to the Commission's earlier reasoned opinion.

Laboratory assistants in Portugal.

The Commission has posted off a reasoned opinion to Portugal on the failure to transpose Directive 97/38/EC. This Directive, which should have been transposed by 30 September 1997, amended Directive 92/51/EEC on the general system for the recognition of diplomas.

Free movement of people: France and Italy warned.

Following complaints, the European Commission has decided to send reasoned opinions to France and Italy concerning suspected violations of Community law on the free movement of people. In the case of France, the Commission considered that its rules on health insurance for foreign students constitute de facto restrictions on the right of residence for students from other Member States. The problem in Italy, which was brought to the Commission's attention through a petition lodged with the European Parliament, arose from a case where a German citizen was served with an expulsion order under circumstances which the Commission considers may be incompatible with EU rules (i.e. without explanation or means of appeal). In both cases, if a satisfactory reply is not forthcoming within two months, the Commission may refer the matter to the ECJ.
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Publication:European Report
Date:Dec 24, 1998
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