Prof. Jean Tagliaferri, Luxembourg

European Directives - an instrument for encouraging free movement of citizens of the European Union
Delegates Meeting of the European Federation for Psychoanalytic Psychotherapy in the Public Sector (EFPP), Luxembourg, 30 - 31 mars 2001

The construction of a single market within the European Union ran into difficulty from the very outset, when it became clear that citizens of the E.U. were reluctant to move freely from one member country to another. Already complicated to implement, the idea of freedom of movement was often further impeded by a whole series of obstacles.
These were (and to some extent still are) due to the fact that political structures as between Member States are very different, thus giving rise to more or less substantial variations in social and educational provisions. In order to encourage free movement of skilled workers - a vital necessity if the economy of the E.U. as a whole is to remain competitive - the European Commission, in drawing up and implementing Europe-wide legislative provisions called Directives, has attempted to introduce regulations that facilitate freedom of movement.
One of the most obvious obstacles lies in the fact that the structure of educational systems varies to a considerable extent as between Member States. In order to remedy this situation, the Commission has drawn up Directives promoting access to and practice of a certain number of regulated professions; these Directives include provisions relating to access to the said professions and mechanisms for recognizing educational and training qualifications (diplomas and certificates).
These legislative instruments came into force in the late 1970s. Called Sectoral Directives, they concern regulated professions in the public health sector, and include:

Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications

Council Directive 85/433/EEC of 16 September 1985 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in pharmacy, including measures to facilitate the effective exercise of the right of establishment relating to certain activities in the field of pharmacy

Council Directive 78/1026/EEC of 18 December 1978 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in veterinary medicine, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

Council Directive 78/686/EEC of 25 July 1978 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of practitioners of dentistry, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

Council Directive 80/154/EEC of 21 January 1980 concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in midwifery and including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

Council Directive 85/384/EEC of 10 June 1985 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications in architecture, including measures to facilitate the effective exercise of the right of establishment and freedom to provide services

This series of Council Directives relates to "sensitive" areas of activity such as health and public safety, and professions that in Member States are to all intents and purposes regulated.
These instruments of Community legislation are restricted to their specific field of application. The holder of any formal qualification listed in the Annexes to the said Directives has the right to practice that regulated professional activity in any other Member State, whether as a salaried worker or as self-employed.
The advantage of this procedure lies in its ease of application to any given case, since each Directive lays down a list of qualifications that enable access to the professional activity involved; it thus excludes any other qualification not specifically mentioned in the Annexe. The disadvantage, however, lies in the very fact that these Sectoral Directives have to be so detailed: for each regulated profession a specific Directive lays down a whole series of provisions, including duration of education and training, recognized qualifications on completion of training, exercise of the given professional activity, etc.
The procedure, already complex and time-consuming when there were only 9 or 10 Member States, becomes even more cumbersome in the case of 15 Member States (not to mention a possible 20 to 25 in the future). Realizing that a new approach would have to be adopted, the Commission began to draw up a second generation of Directives, known as the General System for Recognition.
There are at present three such Directives covering higher education, secondary education, and professional education and training:

Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration

Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC

European Parliament and Council Directive 99/42/EEC of 7 July 1999, on establishing a mechanism for the recognition of qualifications with respect to professional activities covered by the Directives on liberalization and transitional measures and supplementing the general system for the recognition of qualifications

Implementing these Directives differs from the situation obtaining in the case of Sectoral Directives in that the former allow Member States a range of possible options (and therefore greater flexibility). These general Directives provide also for "supplementary" measures to be taken. The range of possible choices open to the host Member State with respect to an applicant is not limited to a positive or negative decision as is the case with the Sectoral Directives; the applicant may obtain recognition as a result of additional training via a practice period or by passing an aptitude test.
In principle, the choice between adaptation period and aptitude test is to be made by the migrant himself [Directive 89/48/EEC], but the host Member State, under certain conditions, may be allowed to prescribe one or the other [Directive 1999/42/EEC].
It should be noted that the overriding aim of these Directives (as was already the case with the Sectoral Directives) is to establish a range of measures enabling a migrant already in possession of a diploma, certificate, or other qualification delivered by one Member State to exercise a given professional activity, regulated or not, in another Member State. Though it is obvious that education and training are important elements in the migrant's application, they should not constitute the sole criteria on which the recognition decision with respect to granting access to the exercise of the said profession is based.
Over the years, the practical experience the migrant has acquired through the exercise of his or her profession in a Member State has been taken more and more into account and now plays an important role in the decision-making process relative to granting access to the exercise of that profession.
The General System is not limited to establishing procedures for recognition of diplomas; it attempts also to define some important concepts such as
(a) diploma, certificate, or other qualification:
(b) host Member State:
(c) a regulated profession:
(d) regulated professional activity:
(e) professional experience:

The General System for Recognition differs from Sectoral Directives in that, in practice, it gives the host Member State much more flexibility in the decision-making process with respect to recognition.
When a migrant applies for education and training to be recognized by the host Member State with a view to exercising therein a given profession, the said applicant, particularly in cases where education and training are of shorter duration than in the host Member State, may be required to submit to further measures such as
(a) an adaptation period; or
(b) an aptitude test.
An adaptation period is defined as the pursuit of a regulated profession in the host Member State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice is thereupon made the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of a migrant person under supervision are laid down by the competent authority in the host Member State.
An aptitude test is defined as a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State.
In order to permit this test to be carried out, the competent authorities must draw up a list of subjects which, on the basis of a comparison of the education and training required in the Member State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant.
The aptitude test must take account of the fact that the applicant is a qualified professional in the Member State of origin or the Member State from which he comes. It covers subjects to be selected from those on the list, knowledge of which is essential in order to be able to exercise the profession in the host Member State. The test may also include knowledge of the professional rules applicable to the activities in question in the host Member State. The detailed application of the aptitude test is determined by the competent authorities of that State with due regard to the rules of Community law.
The status, in the host Member State, of the applicant who wishes to prepare himself for the aptitude test in that State is determined by the competent authorities in that State.
It should be noted that these supplementary measures will often apply
(i) where the applicant can show that he has exercised a profession regulated in the host Member State but not necessarily regulated in the applicant's home State, the education and training for which in the home State being organized differently from those in the host Member State (e. g. duration and / or substantial differences in content of education and training, etc.); or
(ii) where the actual substance of professional activity in the Member State of origin differs from that of the host Member State. For example, it used to be the case that migrants possessing the Belgian graduate in physiotherapy had to undergo, in Luxembourg, an aptitude test in electrotherapy, the reason for this being that in Belgium electrotherapy may be practised only by qualified medical practitioners whereas in Luxembourg electrotherapy lies within the field of activity of qualified physiotherapists.
In recent years, implementation of these provisions has changed somewhat, in particular as a result of appeals to the administrative tribunals of individual Member States or to the European Court of Justice. For example, the migrant worker's professional experience is a factor that must be taken into account. The same is true of any decision concerning recognition of education and training or access to a profession (regulated or not) taken by the host Member State - a second host Member State is required to have due regard for the migrant's situation as regards these Community issues, including the decision on recognition of education and training or on allowing access to a given profession taken by the first host Member State.
In the light of provisions both of the General System of Recognition of education and training and of the Sectoral Directives, access to a given profession is the key element in the migrant's application. Comparison between diplomas or certificates awarded on completion of professional education and training (duration, curricula, etc.) is only one of the factors that have to be considered. The European Commission and the case-law of the European Court of Justice quite clearly support this position.

The profession of psychotherapist in the European context
During the above-mentioned Delegates Meeting of the EFPP, questions were asked as to the conditions under which a new profession (considered as part of the health-care network?) could see the light of day at the E.U. level. It should first of all be noted that Member States have sole responsibility for determining
- the professions that require specific kinds of education and training before access may be granted;
- the professional education and training modalities (access to education and training, duration, qualifications awarded on successful completion, content of courses [curricula, etc.]…)
- modalities of access to and exercise of the said professions.
The European Commission has taken the initiative in attempting to harmonize the criteria for enabling professionals working within certain specific fields to migrate towards other Member States of the E.U. and exercise their profession therein.
In the case of psychotherapists, one - cumbersome - procedure would be to draw up a Sectoral Directive for psychotherapy, the main provisions of which would cover migrant access to a specific professional activity within this field, and have it passed by the Commission. However, as has been pointed out, drawing up a Sectoral Directive is a cumbersome procedure; the professional activity of psychotherapists should be looked on as a "sensitive" field that is very much the concern of all citizens of the E.U. In addition, Member States would have to come to an agreement as to the legislative or other provisions requiring those who wish to exercise that profession to satisfy certain conditions relative to:
- education and training (duration, similarity of curricula…)
- a definition of the professional activity of psychotherapists

The fact that Member States may reach agreement on these points does not necessarily mean that the education and training programmes leading to the exercise of this professional activity have to be identical as to duration and content. Small differences are quite acceptable, whereas substantial variations as to right of exercise (relative in particular to the field of activity) would be much more difficult to overlook. Before taking any steps towards requesting the Commission to enact provisions, Member States must first come to some agreement with respect to psychotherapists' field of activity. This implies that it would be preferable for the profession of psychotherapist to be declared a "regulated" profession within the meaning of the aforementioned EEC Directives. It is up to Member States to do the necessary groundwork for drawing up a Sectoral Directive by clearly defining the professional activity of psychotherapists, as well as the education and training parameters that open up access to its exercise.

The current situation
The Co-ordinating Group on General System Directives met in Brussels early in June to assess the current situation concerning the application of these Directives. Members were informed by Commission officials of a project to consolidate, within a single overall Directive, all existing Sectoral Directives together with the current Directives on General Systems.
It is obvious that this project gives rise to a whole series of questions, most of which still remain to be answered. The one question to which a reply has been given concerns the fact that the Commission has declared that it intends to present the project on Directives to the Spring 2002 meeting of Heads of State.
The Commission has sent a questionnaire concerning implementation of the Directives to Member States, with the request that their national professional associations report back on it.

Luxembourg, 21 September 2001.

Paper translated by David Alcorn

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