Report To The President Of The Republic Order No. 2008-507 Of May 30, 2008 On The Transposition Of Directive 2005/36/ec Of The European Parliament And Of The Council Of 7 September 2005 On The Recognition Of Qualifications Pro...

Original Language Title: Rapport au Président de la République relatif à l'ordonnance n° 2008-507 du 30 mai 2008 portant transposition de la directive 2005/36/CE du Parlement européen et du Conseil du 7 septembre 2005 relative à la reconnaissance des qualifications pro...

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Legislative dossiers legislative Ordinance No. 2008-507 of May 30, 2008 Dossier JORF n ° 0126 31 May 2008 page 8999 text no. 15 report to the President of the Republic order No. 2008-507 of May 30, 2008 on the transposition of directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications NOR : ECEX0805383P
ELI: https://www.legifrance.gouv.fr/eli/rapport/2008/5/31/ECEX0805383P/jo/texte





Monsieur le Président,
En vertu de l'article 3 du traité instituant la Communauté européenne, l'abolition entre les Etats membres des obstacles à la libre circulation des personnes et des services constitue un des objectifs de la Communauté.
In May 2001, during the adoption of directive 2001 / 19 / EC on the recognition of professional qualifications, the European Parliament, the Council and the Commission agreed to the importance "to have consolidated, accessible to all and everyone, versions applicable legal texts in the field of mutual recognition of professional qualifications.
In the same time, the European Council in Stockholm of 23 and 24 March 2001 gave a mandate to the Commission to present to the European Council in spring 2002 for the specific proposals for a diet more uniform, transparent and flexible of recognition of qualifications.
As envisaged in the communication adopted at the outcome of the Stockholm European Council, a "task force" of high-level skills and mobility was created. It published a report in December 2001 which provides that in matters of recognition professional qualifications the European Union (EU) and the Member States should give priority to accelerate and facilitate professional recognition (for regulated professions), including favourable conditions for more automatic recognition, and introduce, for regulated professions, a more uniform system of recognition of qualifications transparent and flexible by 2005.
In the line of the mandate it was given by the Stockholm European Council, the Commission presented, on March 7, 2002, a proposal for a directive of the European Parliament and of the Council on the recognition of professional qualifications.
This directive was finally adopted on 7 September 2005 under the number 2005 / 36 / EC and published in the Official Journal of the European Union on 30 September 2005.
Directive 2005 / 36 / EC of 7 September 2005 aims to establish the rules under which a Member State which makes access to a regulated profession or pursuit, in possession of qualifications recognises, for access to this profession or pursuit, professional qualifications acquired in another State.
The Community rules governing professional recognition has long evolved into order dispersed and resulted in many parallel provisions. It is thus formed a system criticised by migrants from professionals as well as judged too complex and, in places, unsuitable to the particularities of a specific profession.
In the interests of rationalization, the directive revises in depth all guidelines based on the recognition of titles, so as to maintain the principal conditions and guarantees, while simplifying the structure of the system and by improving its functioning.
It also provides, for free cross-border provision of services, more simple conditions than those that apply to the freedom of establishment, in order to enhance the flexibility of labour and services markets.
The directive focuses on two main components: 1 ° freedom to provide services (LPS): Member States may restrict, for reasons relating to professional qualifications, the LPS under the professional title of origin when the beneficiary is legally established in another State. The directive defines the concept of provision of services (article 5);
2 ° freedom of establishment: this chapter lays down the conditions to which the recognition of professional qualifications, as well as the rules of implementation of the mechanisms of recognition in the context of the freedom of establishment is subject.
The directive is divided into six titles: ― the title 1st, entitled 'General provisions', sets the object (article 1), the scope of application (article 2) and the key terms used in the directive (article 3);
― the title II, entitled "Free provision of services", lays down the principle of LPS (article 5), the exemptions enjoyed by the migrant (section 6), options that can implement the Member States in terms of "prior notification" of migrants (article 7) and information of recipients of services (article 9). Are also laid down a number of obligations regarding administrative cooperation between competent authorities (article 8);
— Title III, entitled "Freedom of establishment", resumes the three regimes of recognition of previous directives: general system for the recognition of evidence of formal qualifications (Chapter I), experience (chapter II) and recognition on the basis of coordination of the minimum conditions of training (chapter III), which concerns six professions (doctor, nurse responsible for general care, dental practitioner veterinarian, pharmacist and architect);
— Title IV, entitled "Modalities for the exercise of the profession", sets the conditions of language knowledge (article 53) and the terms of use of the training title (article 54);
― Title V, entitled "Administrative Cooperation and implementing powers", determines the conditions for intervention by the competent authorities (article 56), a number of obligations on Member States (designation of the competent authorities, a coordinator and a point of contact), and creates the "Committee for the recognition of professional qualifications" (article 58), instance of comitology of the directive;
― Finally, title VI, entitled 'Other provisions', contains the final provisions (repeal, transposition, entry into force).
I. — General provisions relating to linguistic knowledge and administrative cooperation (title I, articles 1 to 3) the provisions of the directive relating to linguistic knowledge required of a migrant for the practice of a profession on the national territory are listed in this order (article 1) under a General that apply to all regulated professions formulation.
In this respect, it is not in conformity with the case law of the community courts to set uniform specific requirements for all occupations. In these circumstances, it will be up to the competent authorities in respect of a profession of control, where appropriate, language knowledge of each migrant with regard to specific requirements for this profession.
For administrative cooperation, directive 2005 / 36 / EC provides the exchange between the Member States of the European Community, States parties to the agreement on the European economic area (EEA), to information on disciplinary or criminal sanctions have been taken against a claimant (sections 8 and 56 of the directive).
With regard to obtaining information, concerning criminal sanctions, as of now the article 776, paragraph 3, of the code of criminal procedure authorizes the «administrations or bodies by law or the regulation of the control of a professional or social activity when this exercise subject to restrictions expressly based on the existence of criminal convictions"for the issuance of a bulletin No. 2 (B2) from the criminal. This provision does not distinguish according to whether the B2 application concerns the exercise of the occupation in France or in another State.
With regard to the transmission of information obtained from an authority of a another State, the difficulty lay in the transmission of criminal information. Article 13, paragraph 2, of the European convention on mutual legal assistance of 20 April 1959 already allows such requests by returning "to the conditions prescribed by law, regulations or practice of the requested Party". A single provision exists to this day for veterinarians (article R. 241 - 17 of the code rural).
To organize the exchange of information, a horizontal provision (section 2) introduced in article 776 of the code of criminal procedure will provide to the competent authority in respect of a profession, on the one hand, the national judicial record Newsletter No. 2 criminal record (6 °) and, secondly, to communicate to the competent authority of another State Member (last paragraph added). Finally, the issue of no. 2 to administrations under 3 ° is extended to disciplinary sanctions.
Finally, a horizontal provision will allow the competent authority in respect of a profession to transmit to his counterpart of another State information relating to a disciplinary sanction taken against a provider established in France (article 3).
II. — provisions relating to the profession of assistant social service (title II, article 4) directive 2005 / 36 / it resumes, with amendments, directive 89 / 48 / EEC on the general system for recognition of professional qualifications, which forces to revise the equivalence conditions on the exercise of the profession of social service Wizard.
On the exercise of the profession of assistant social work profession including the use of the title and exercise are regulated, this order implements both the provisions relating to the LPS to the freedom of establishment of directive 2005 / 36 / this by providing a redrafting of article L. 411 - 1 of the code of social action and families (freedom of establishment) and by inserting a new article L. 411-1-1 (LPS).
These paragraphs define the conditions under which nationals of a Member State of the European Community or of a State party to the EEA Agreement may take the title or a job with social wizard without owning the french State of social service assistant diploma.
III. — provisions relating to the profession of Chartered Accountant (article 5) the transposition of directive 2005 / 36 / EC impact substantially the terms of exercise of the profession of Chartered Accountant.
This order inserts in order No. 45-2138 September 19, 1945, establishing the order of Accountants an article 26 bis to introduce into national law the concept of LPS (3 °).
Under the terms of this article, the profession of certified public accountant may be exercised in France on a temporary and occasional basis by one national of another State of the European Community which is legally established on a permanent basis and which has exercised the profession for at least two years during the ten years preceding the provision of services when the profession is not regulated. The condition requiring the exercise of the profession for two years is not applicable if either the profession or the training leading to the profession is regulated.
Regulatory measures will complement the present legislative transposition of the directive, including clarifying the modalities of implementation of the exemptions chosen by the France.
The introduction of the LPS to access the french market of public accounting to foreign nationals under the conditions defined above.
This opening is offset by the possibility offered to accountants established in France to provide services in other States.
IV. — provisions relating to the profession of travel (article 6) agent directive applies to travel agents, which constitute a regulated profession within the meaning of article 3 (1, a) directive, as well as to other professions that organize and market tourism benefits and falling, as such, regimes of administrative authorization issued pursuant to title I of book II of the tourism code.
The principles of the directive, including the distinction between the freedom of establishment and the LPS, are transposed into the tourism code in four articles: article L. 212 - 3 and articles L. 212 - 9, L. 212 - 10 and L. 212 - 11.
In article L. 212 - 3 are transposed the principles of recognition of professional experience appearing in articles 16 and 18 of the directive (chapter II of title III). This article is supplemented by a paragraph referring to a decree in Council of State the procedures for the recognition of professional competence.
Article L. 212 - 9 transposes the provisions relating to the LPS listed in article 5 of the directive.
Article L. 212 - 10 transpose the obligation of prior notification of the claimant in article 7. The terms of the prior statement will be transposed by the regulatory path.
Article L. 212 - 11 ensures the transposition of the directive to other professions that the travel agents, whose professional competence conditions are based on the scheme of travel agents and covered by the authorisation schemes of title I of book II of the code of the tourism.
V. — provisions relating to the profession of interpreter and lecturer (article 7) the principles of the directive, including the distinction between the freedom of establishment and the LPS, are transposed by three new articles of the tourism code: articles L. 221 - 2, L. 221 - 3 and L. 221 - 4.
Article L. 221 - 2, relating to the freedom of establishment, transposes the provisions of the "general regime for the recognition of evidence of formal qualifications" contained in chapter I of title III of the directive and refers to a decree in Council of State the procedures of recognition of qualifications.
Article L. 221 - 3 transpose the provisions relating to the LPS listed in article 5 of the directive.
Article L. 221 - 4 transposes article 7, paragraph 3, of the directive allowing the use of the professional title in the official language of the State of establishment.
VI. — provisions relating to the profession of entrepreneur large storage shed and tourism (article 8) the principles of the directive, particularly the distinction between the freedom of establishment and the LPS, are transposed in articles L. 231 - 5 and L. 231 - 6 of the code of tourism.
Article L. 231 - 5, in the matter of the freedom of establishment, transposes the provisions of the "general regime for the recognition of evidence of formal qualifications" which is contained in chapter I of title III of the directive and refers to a decree in Council of State the procedures of recognition of qualifications.
Article L. 231 - 6 transposes the provisions relating to the LPS listed in article 5 of the directive.
VII. — provisions relating to the teaching profession of driving and road safety (article 9) this order includes a section which amended articles L. 212 - 1 and L. 212 - 4 of the highway code.
The licensing scheme imposed by article L. 212 - 1 no is not questioned by the directive when it comes, to Community nationals or a State party to the EEA agreement in their countries to carry out the same activity to establish a permanent and lasting in France.
On the other hand, this licensing scheme cannot be imposed on EU citizens who wish to exercise the teaching of driving and road safety of a temporary and occasional basis in France, under article 5 of the directive. It is therefore necessary to include in article L. 212 - 1, which provides access to the profession, the existence of the separate and derogatory exercise regimen is the LPS.
Also, as a result of the current provisions of article L. 212 - 1, which are grouped into a paragraph I, it is proposed to create a paragraph (II) setting out the conditions of the LPS and transposing the options offered by the directive to regulate this new regime.
This paragraph II recalled the two conditions under which a national of a Member State of the European Union or of a State party to the EEA may freely lending service in France, and set out in article 5 of the directive, namely the legal establishment in one of these States other than the France and the ability to justify two years of professional experience in the activity in its state of establishment When the activity is not regulated and assuming where the training leading to the activity is not itself regulated.
Paragraph II also transposes two options that are offered by the directive in article 7 for the framing of the LPS.
This is, on the one hand, the obligation imposed on the claimant to inform the competent authority (i.e. the prefect, which issued the aforementioned administrative authorization) before its first performance, by means of a written declaration.
On the other hand, it is expected that the competent authority shall check the professional qualifications of the service provider in order to ensure that the provision will not affect safety of the student or other users of the highway, due to a possible lack of qualifications of the claimant. The implementation of this mechanism of control of qualifications, reserved by the directive to professions having public health or safety implications and where the safety of the service recipient is involved, seems warranted in this case. With regard to a suspensive declarative procedure in which the competent authority retains the power to opposition to the declaration, it is stated that delivery can be made within the time limit of one month from the receipt of the declaration by the competent authority if it is not objected within that period.
Article L. 212 - 4 of the code of the road as it is supplemented by a sentence which equates the temporary and occasional exercise of activity by a service provider who has not respected the reporting obligation prior to an illegal occupation exercise, and provides that the claimant may be punished criminally in the amount of the penalties already provided for the illegal practice of driving by the national education.
VIII. – provisions relating to the profession of expert in automobile (article 10) this order includes an article amending articles l 326 - 1, L. 326 - 3, L. 326 - 4, L. 326 - 6 and L. 326 - 8 of the code of the road, composed of four paragraphs.
The amendment of article L. 326 - 1 aims to adapt the conditions of professional qualifications allowing recognition of an expert — set out in 1 ° of article current ― with the requirements of the directive concerning freedom of establishment. It was necessary indeed that the recognition of an expert is more related to the holding of a diploma but can be granted to persons who can only demonstrate professional experience. This is to make the conditions for access to the profession for the free establishment comply with the rules for the system of 'recognition of professional experience' of chapter II of title III of the directive, which is the regime applicable to auto experts (activity listed in annex IV to the directive). The judgment of the Conseil d'Etat of March 31, 2008 (No. 302119) "International Federation of automobile experts», by sanctioning the failure to take account of the professional experience of European candidates wishing to settle as auto experts in France in Decree No. 2006-1808 on the organisation of the profession of automotive expert, highlighted the nonconformity, on this point, of the regulation of the profession with the Community rules on recognition of qualifications.
The provisions of the current 2 ° of article L. 326 - 1, having had a transitional nature and are no longer topical and are deleted insofar as those benefiting can now enter the field of drafting proposed for the single paragraph of article L. 326 - 1 new.
The II of article 10 amends article L. 326 - 3 of the code of the road to integrate the possibility of the temporary entry of professionals free service providers on the national list of experts on automobile by the secretariat of the commission, on the basis of the procedure laid down in article l. II. 326-4. The need to allow the claimant to his performance in the time limits imposed by the directive requires that the national list of automotive experts be updated whenever necessary and not "annually" as provided in the current wording of article L. 326 - 3. The need for the period of one month from the receipt of the prior declaration also requires that the decisions taken on the declaration are taken by the single secretariat, a convening of the commission within this period being physically impossible.
III of article 10 is intended to allow Community nationals or of States parties to the EEA agreement to perform the activities listed in article L. 326 - 4 in being temporarily registered in the national list of automotive experts.
To this end, it is necessary to include in article L. 326 - 4 which provides access to the profession the existence of separate and derogatory exercise plan is the LPS. Also, as a result of the current paragraph I of article L. 326 - 4, it is proposed to create a new paragraph (II) setting out the conditions of the LPS and transposing the options offered by the directive to regulate this new regime.
This paragraph new article L. 326 II - 4 recalls the two conditions under which a Community national or of a State party to the EEA may freely lending service in France, and set out in article 5 of the directive, namely the legal establishment in another Member State of the European Union or in a State party to the EEA and the ability to justify two years of professional experience in the activity in its original state When the activity is not regulated and assuming where the training leading to the activity is not itself regulated.
The new paragraph II of article L. 326 - 4 also transposed two of the options offered by the directive in article 7 for the framing of the LPS.
It is, on the one hand, the obligation imposed on the claimant to inform the competent authority before its first performance, by means of a written declaration.
On the other hand, it is expected that the competent authority shall check the professional qualifications of the service provider in order to ensure that the provision will not affect the safety of the beneficiary of the service, due to a possible lack of qualifications of the claimant. The implementation of this mechanism of control of qualifications, reserved by the directive to professions having public health or safety implications and where the safety of the service recipient is involved, seems warranted in this case.
In case of positive decision at the end of the procedure to verify the qualifications, the claimant is registered automatically and for a period of one year on the national list of automotive experts.
Paragraph current II becomes a paragraph (III) whose writing is only specified to take account of the practical reality vehicles of the State expertise, because in fact the civilian state vehicles are evaluated by "classical" experts included on the national list, while military vehicles are examined by agents of the State who are not included in this list. It is therefore proposed to replace "activities carried out for the benefit of the State" by "activities involving the security of the State or national defence", which is more restrictive.
The IV of article 10 lift the prohibition of commercial advertising for automotive experts in article L. 326 - 6 of the code of the road, ban which cannot be imposed on professionals from exercise as part of the LPS, because it is a rule unrelated to professional qualifications. The lifting of this ban also benefits the national automotive experts.
Article 10 V rewritten article L. 326 - 8 of the code of the road to provide assent for the year temporary and casual of activity by a service provider who has not respected the obligation of prior notification, by assimilation with the illegal practice of the profession.
IX. – provisions relating to the profession of technical controller of vehicles (article 11) this order amends article l 323 - 1 of the code of the road.
Licensing imposed by article l 323 - 1 is not called into question by directive 2005 / 36 / EC when it comes, to Community nationals or a State party to the EEA agreement in their countries to carry out the same activity to establish a permanent and lasting in France.
On the other hand, this accreditation system may be imposed to Community nationals or a State party to the EEA Agreement wishing to exercise technical control of motor vehicles of a temporary and occasional basis in France, under article 5 of the directive. It is therefore necessary to include in article l 323 - 1 which regulates access to the profession the existence of separate and derogatory exercise plan is the LPS.
Also, as a result of the current provisions of article l 323 - 1, which are grouped into a paragraph I, it is proposed to create a paragraph (II) setting out the conditions of the LPS and transposing one of the options offered by the directive to regulate this new scheme, namely the prior declaration.
This paragraph II recalled the two conditions under which a Community national or a State party to the EEA Agreement may freely lending service in France, and set out in article 5 of the directive, namely the legal establishment in another Member State of the European Union or in a State party to the EEA Agreement and the possibility of justifying two years of professional experience in the activity in its original state When the activity is not regulated and assuming where the training leading to the activity is not itself regulated.
X. — provisions relating to the profession of technical controller of the construction (article 12) this order amends article L. 111 - 25 of the code of construction and housing.
From current technical control regulations of Act No. 78-12 of 4 January 1978 relating to liability and insurance in the field of construction makes demands of technical capacity of controllers based on theoretical and practical skills needed to complete critical analysis of constructive processes as well as their implementation. 4 January 1978 Act also spent the independence of the technical controller as essential factor in its ability to advise the contracting authority strictly without possibility of influence on the part of stakeholders in design (architects, engineering) or under construction.
This regulation contained in the code of construction and housing in articles L. 111 - 23-L. 111 - 26 is based on a prior approval issued by the Minister responsible for construction after notice of a commission on accreditation.
The commission shall ensure that the applicant has the technical and organizational capacities required in the light of the scope for intervention in technical control considering it (by category of works or equipment and specialty). It also checks that the condition of independence is respected.
The transposition of the directive requires to amend this device in order to allow Community nationals regularly established in a Member State to carry out as part of the LPS on simple declaration.
Also it is proposed to rewrite the article L. 111 - 25 of the code of construction and housing to provide the new regime of the LPS alongside the current system of accreditation, and to transpose the options offered by the directive to regulate this new regime.
The new article L. 111 - 25 integrated the mention of the two essential conditions that national of another Member State must meet in order to carry out this activity in the context of the LPS, and laid down by the directive: it must be legally established in its original state and be able to justify two years of professional experience in this same activity when it is not regulated and in the event where the training leading to the activity is not itself regulated.
On the other hand, this article subject access to the activity of technical control with the obligation to contact the authority administrative (Ministry of construction) a prior declaration giving rise to verification of professional qualifications of the service provider, as permitted by the directive in article 7.
XI. — provisions relating to the profession of trainer at the conduct of pleasure craft in sea and inland waters (article 13) motor this order includes a section which amends article 17 of security and the development of the Transport Act, no. 2006-10 dated January 5, 2006.
Article 17 of the above-mentioned Act of 5 January 2006 in paragraph II makes the teaching of the conduct of pleasure boats motor to the issuance of a permit by the administrative authority. This scheme is not called into question by the directive when it comes, to Community nationals in their countries to carry out the same activity to establish a permanent and lasting in France.
On the other hand, this licensing scheme cannot be imposed on Community nationals wishing to form the conduct of recreational craft engine to a temporary and occasional basis in France, under article 5 of the directive. It is therefore necessary to include in article 17 of the Act, the existence of the exercise regime separate and derogatory as the LPS.
Also, as a result of the current provisions 2 of II of article 17, it is proposed to create a 3 requirements of the LPS and transposing the options offered by the directive to regulate this new regime.
This 3 recalled the two conditions under which a Community national or a State party to the EEA Agreement may freely lending service in France, and set out in article 5 of the directive, namely the legal establishment in another EU Member State and the possibility of justifying two years of professional experience in the activity in its original state When the activity is not regulated and assuming where the training leading to the activity is not itself regulated.
3 transpose also two options that are offered by the directive in article 7 for the framing of the LPS.
It is, on the one hand, the obligation imposed on the claimant to inform the administrative authority before its first performance, by means of a written declaration.
On the other hand, it is expected that the administrative authority conducts an audit of the professional qualifications of the service provider to ensure that provision will not affect the safety of the pupil of the fact of a possible lack of qualifications of the claimant. The implementation of this mechanism of control of qualifications, reserved by the directive to professions having public health or safety implications and where the safety of the service recipient is involved, seems warranted in this case. With regard to a suspensive declarative procedure in which the competent authority retains the power to opposition to the declaration, it is stated that delivery can be made within the time limit of one month from the receipt of the declaration by the administrative authority if it is not objected within that period.
Finally, 1 III is completed to provide for enforcement of the employer recruiting a trainer did not fulfil the obligation of prior notification to a first performance on national territory, by assimilation with the use of an unlicensed trainer for teaching valid authorization.
XII. — provisions relating to the profession of surveyor (article 14) article of transposition in the No. 46-942, may 7, 1946 Law amended establishing the order of expert surveyors is composed of five paragraphs numbered from I to V.
1 ° freedom to provide services.
I. ― article 2-1 of the aforementioned Act amending writing brings together all provisions relating to the LPS.
The provider is subject to the following conditions: be legally established in another State, be sure and make the declaration prior to the first provision of services, respect professional secrecy and the rules of conduct determined by Decree in Council of State.
The obligation of the claimant to be covered by an insurance contract, to make a statement prior to the first provision of services is made necessary by the nature of the benefit that is to establish the boundaries of land and thus to define land ownership rights. The consequences of a poorly conducted performance being out of proportion to the cost of the benefit, it is necessary to provide to the customer an insurance coverage.
The claimant made his performance under the professional title in the State of establishment or under his title of training.
The service is provided under the disciplinary control of the regional order of expert surveyors in the electoral district of which it is made. This control is exercised retrospectively in the event of the customer complaint.
2 ° freedom of establishment.
II. — the wording of the first paragraph of article 3 is enhanced to aim more clearly the derogation to the rule of the entry in the table of the order contained in article 2-1 and concerning service providers. The condition of nationality (being a national of a Member State of the European Union), which was the alternative condition to that of the entry in the table in order to be able to practise, is rendered unnecessary by reference to article 2-1, which applies to nationals of the EU and EEA.
III. ― variation writing shortens 4 ° of article 3 referring to Decree the conditions for recognition of qualifications for the practice of the profession of surveyor.
IV. — the wording of the second paragraph of article 4 is amended to take account of the reference to the order in Council of State of the conditions for recognition of qualifications operated 4 ° of article 3, including those relating to the adaptation period which is referred here. The same solution by reference to the decree in Conseil d'Etat for the conditions and terms of the adaptation period is adopted here.
V. ― as currently drafted, the law submits to compliance with the professional rules expert surveyors listed in table and free service providers (see in particular the first paragraph of article 6). Besides the directive limits the application of professional rules, as part of the LPS to the rules in direct link with the professional qualifications, certain rules have no meaning for professionals in temporary and casual and their application to these must be rejected.
This is why drafting amending the first paragraph of article 6, the rules of conduct limit the scope of this article to only expert surveyors, companies and trainees, the statement of the rules applicable to professionals free providers listed in article 2-1 on the LPS.
XIII. — provisions relating to artisanal occupations (articles 15 to 17) a. ― Profession of hairdresser (article 15) the legislative transposition of the directive entail an amendment of the Act No. 46-1173 23 May 1946 regulating the conditions for access to the profession of hairdresser.
Indeed, this Act lays down the conditions of recognition of qualifications of migrants wishing to practise in France article 3-1.
However, the definition of such conditions survey of the regulatory level, being particularly observed that the conditions applying to nationals are fixed by Decree (Decree No. 97-558 of 29 May 1997 on the conditions governing access to the profession of hairdresser). By analogy, one can meet qualifying conditions required so many nationals community to exercise craft occupations other than that of hairdresser are also a decree (Decree No. 98-246, 2 April 1998 concerning the professional qualifications required for the exercise of activities laid down in article 16 of Act No. 96-603 of 5 July 1996 on the development and the promotion of trade and crafts).
Under these conditions, the transposition downgrades at the regulatory level the abovementioned provisions of the law of May 23, 1946. This decommissioning will take place in two phases: initially, this order amends article 3-1 of the law of May 23, 1946 to insert new provisions (see paragraphs 1 and 2 below) and, secondly, the foregoing provisions of this section 3-1 will be included and completed in the Decree of 29 May 1997 supra.
1 ° freedom of establishment.
I of article 3 paragraph 1 lays down the principle of qualification of the migrant who wishes to exercise the hairstyle at home or "permanent and effective control" unauthorized in a hairdressing salon.
Detailed rules for the application of this obligation will be specified by Decree in Council of State (later modification of the Decree of 29 May 1997 supra).
2 ° freedom to provide services (LPS).
The new article 3-1 of the aforementioned law of 23 May 1946 resumes under its II, the two conditions laid down by the directive for the exercise, on a temporary and occasional basis, the hairstyle at home or "permanent and effective control" of unskilled people in a hairdressing salon, namely the legal establishment in the State of origin and two years of professional experience if the profession is not regulated in this state of origin (article 5 of the directive).
Article 3-1 transposes the principle of exemption from registration in a register of legal publicity, content principle in article 6 of the directive, by applying it to the directory of trades and in the register of companies (in Alsace-Moselle) which are required to register artisans hairdressers.
Detailed rules for the application of this new article 3-1 will be defined by Decree in Council of State (later modification of the Decree of 29 May 1997 supra).
Finally, 2 ° of article 15 of the order updates article 5 of the law of May 23, 1946 supra in the matter of criminal sanctions in order to cover the new provisions.
B. ― craft occupations other than Barber (article 16) development and the promotion of trade and Crafts Act, no. 96-603, 5 July 1996 contains a title II devoted to the professional qualification.
However, the provisions of this title II do not address the question of the qualifications required of a migrant.
This order therefore aims to introduce in Act 5 July 1996 of provisions both for LPS (new article 17-1) and establishment (article 17).
1 ° freedom of establishment.
The new wording of article 17 lays down the principle of the obligation of qualification of the migrant who wishes to exercise "effective and permanent control" of persons not qualified in a craft business.
Detailed rules for the application of this obligation will be specified by Decree in Council of State (subsequent modification of the Decree of 2 April 1998 supra).
2 ° freedom to provide services (LPS).
Like the transposition carried out hair, new section 17-1, on the one hand, resumed two mutual recognition in LPS conditions laid down by the directive (article 5) and, secondly, exempts the migrant from the obligation of registration to the directory of trades or in the register of companies.
Moreover, a declaration prior to the first provision is required of migrants wishing to exercise "effective and permanent control" to temporary and occasional, of a number of craft activities laid down in application of the possibility offered by article 7 of the directive.
Finally, the last paragraph of II introduces a faculty for the competent authority to check the qualification of the claimant on the basis of his prior statement, in accordance with article 7, paragraph 4, of the directive.
The modalities of application of article 17, including the content of the declaration, will be defined by Decree in Council of State (subsequent modification of the Decree of 2 April 1998 supra).
C. ― specific provisions for vocational training of craftsmen (article 17) Finally, article 17 of the Ordinance seeks to exempt nationals of a Member State of the European Community other than the France, another State party to the EEA agreement the ' preparing to install course "(SPI) provided for by article 2 of Act No. 82 - 1091 23 December 1982 on the professional training of craftsmen.
This exemption is without prejudice to the possibility for the competent authority submit the migrant to a 'compensation measure' on the assumption that its request for recognition of qualifications reveals a gap in business management.
XIV. — provisions relating to the profession of broker in wines and spirits (article 18) the legislative directive transposition implies an amendment of Act No. 49 - 1652 by December 31, 1949, regulating the profession of brokers in so-called wines "campaign brokers.
Act on December 31, 1949 shall submit the exercise of the profession of broker in wines under the retention obligation of a business card which is obtained on the basis of an aptitude test organized by the regional chambers of commerce and industry (RCCI).
1 ° freedom to provide services (LPS).
Restored article 6 of the Act on December 31, 1949 resumed the two conditions laid down by the directive for an LPS by migrants (article 5 of the directive), namely the legal establishment in the State of origin and professional experience of two years if the profession is not regulated in this state of origin.
The third paragraph of article 6 provides migrants wishing to work temporarily and occasionally the obligation to undergo an aptitude test (6 ° of article 2 of the Act on December 31, 1949) and its corollary, the obligation to detention of the professional card of broker.
2 ° freedom of establishment.
Broker in wines is covered by the scheme of automatic recognition of professional experience pursuant to article 19 of the directive and its annex IV (list III-1), which means that once a migrant meets the requirements of professional experience in his State of origin (number of years of activity), the country of destination (where he wishes to settle) must automatically recognize his qualification outside any other procedure (such as submission to a qualifying examination).
Thus, restored section 7 of the Act on December 31, 1949 provides simply that the migrant must fulfil the conditions laid down in article 2 of the Act, including the condition of qualification asked 6 ° of article 2.
This condition of qualification will be specified by Decree and appreciated differently than for a national: indeed, once the migrant will meet the requirements of article 19 of the directive (which will be included in the implementing Decree), it will be automatically exempt from the obligation to undergo examination and may be directly obtained his business with the competent RCCI card.
XV. — provisions relating to the profession of lawyer (article 19) specific guidelines for the LPS and the establishment of lawyers (directives 77 / 249 / EEC and 98 / 5 / this) are not taken into account in this exercise in transposition, since they concern not the recognition of professional qualifications, but the recognition of licensure. Therefore, the recognition of diplomas of lawyer is currently governed by directive 89 / 48 / EEC of 21 December 1989 and so effective October 20, 2007, by directive 2005 / 36 / EC.
Accordingly, this order substitutes for references contained in Act No. 71 - 1130 of 31 December 1971 on the reform of the judicial and legal professions to directive 89 / 48 / EEC a reference to directive 2005 / 36 / EC (I and II).
In accordance with the provisions of the directive on administrative cooperation, the Council of the order of each of the bars is responsible for collaborating with the competent authorities of other States in order to facilitate the application of this directive (III).
XVI. — provisions relating to the activity of voluntary sale of furniture at auction (article 20) Act No. 2000-642 of July 10, 2000, regulating voluntary of furniture at auction sales has introduced the principle of the LPS of the activity of voluntary sales of furniture at auction by nationals of the other Member States of the European Community and States party to the EEA Agreement until this is provided for in the General Community legislation or sectoral.
These provisions, codified in articles L. 321 - 24-L. 321 - 28 of the commercial code, are not compatible in full with the provisions of directive 2005 / 36 / EC. The provisions of the commercial code should therefore be amended accordingly.
The principle of the declaration to the "Council of the voluntary sales of furniture at auction", provided for in article L. 321 - 24 of the code of commerce, before the completion of the first sale is maintained, but within a period of one month. Furthermore, the claimant must renew its declaration each year where it plans to again exercising his professional activity of occasionally during the year, or in the event of a change in employment status. In any case, this statement must allow to certify the legality of their establishment in their State of origin as well as the absence of prohibition about them.
In accordance with the provisions of the directive on administrative cooperation, the Council of the voluntary sales of furniture at auction is responsible to collaborate with the competent authorities of other States in order to facilitate the application of the directive (I, 1).
XVII. — provisions relating to the conditions for the exercise of activities relating to certain transactions involving real property and business assets (article 21)
Article 5-1 of directive 2005 / 36 / this poses the principle of the LPS of the national who moves to the territory of the host Member State to carry on business of a temporary and occasional basis, the right cannot be restricted for reasons relating to professional qualifications.
Article 5-3 of the directive provides that the claimant remains subject to the rules of conduct of professional, regulatory or administrative nature applicable in the Member State.
As this claimant will have to proceed to the handling of funds, it must justify to the competent authority of a liability insurance professional and a financial guarantee ensuring the representation of the Fund if necessary.
The prior declaration must therefore be made to the prefect, designated as competent authority.
XVIII. — provisions relating to the profession of sports instructor (article 22) article L. 212 - 1 of the French sport code establishes an obligation of qualification guaranteeing security practitioners and third parties for supervisory functions of physical activities or sports against remuneration.
Article L. 212 - 7 provides that nationals of Member States of the European Community and the States parties to the EEA Agreement qualified for such duties may settle freely in the national territory for the exercise of their profession.
Finally the order amends the second paragraph, which shall become the third, by providing that a decree in Council of State sets out the conditions for the application of article L. 212 - 7.
XIX. — provisions relating to medical professions (articles 23 to 26) this order amends the provisions on freedom of establishment and LPS: ― freedom of establishment: the order specifies and modifies the rules of recognition of qualifications for the professions of doctor, dentist and midwife. In principle, the recognition is done on the basis of coordination of minimum training or work experience requirements, or automatic recognition of evidence of formal sanctioning training subject of harmonisation within the Union European, is the requirement of a profession for a fixed term. However, the Ordinance provides that, in specific and exceptional cases where the application for recognition of a qualification can lead, should apply the mechanisms of recognition of the "general regime". It requires the State host Member to conduct an examination on a case by case for each migrant and to propose, where appropriate, compensation measures (aptitude test) or adaptation period the only knowledge for which his training will be considered inadequate;
― freedom to provide services: the order amends provisions on LPS of physicians, dentists and midwives. The planned changes are to put an end to infringement proceedings brought by the European Commission which considered the provisions as being too restrictive and deterrent.
In addition, it incorporates the provisions of the Bill, tabled in the Senate on 12 January 2005 (No. 142), which was intended to ratify and amend Ordinance No. 2004-1174 4 November 2004 transposing directive 2001 / 19 / EC of the European Parliament and of the Council of 14 May 2001 concerning the recognition of diplomas and professional qualifications.
Finally, the transposition of the directive is an opportunity to extend the benefit of these provisions, where this had not already been done previously, to nationals of EEA.
XX. — provisions relating to the profession of pharmacist (section 27) this order amends the provisions on freedom of establishment and establishes the principle of LPS for pharmacists: ― freedom of establishment: the order specifies and modifies the rules of recognition of qualifications. In principle, the recognition is done on the basis of coordination of minimum training or work experience requirements, or automatic recognition of evidence of formal sanctioning training subject of harmonisation within the Union European, is the requirement of a profession for a fixed term. However, the Ordinance provides that, in specific and exceptional cases where the application for recognition of a qualification can lead, should apply the mechanisms of recognition of the "general regime". It requires the State host Member to conduct an examination on a case by case for each migrant and to propose, where appropriate, compensation measures (aptitude test) or adaptation period the only knowledge for which his training will be considered inadequate;
― freedom to provide services: order extends the provisions relating to the LPS to the profession of pharmacist. Thus, Community nationals, legally established in their State of origin, can now run in France of the acts of their profession without being registered in the roll of the order. However, service providers are required, prior to the first provision of services, to make a declaration which the arrangements are defined by Decree in Council of State.
In addition, it incorporates the provisions of the Bill, tabled in the Senate on 12 January 2005 (No. 142), which was intended to ratify and amend Ordinance No. 2004-1174 4 November 2004 transposing directive 2001 / 19 / EC of the European Parliament and of the Council of 14 May 2001 concerning the recognition of diplomas and professional qualifications.
Finally, the transposition of the directive is an opportunity to extend the benefit of these provisions, where this had not already been done previously, to nationals of EEA.
XXI. — provisions relating to professions of Director and Director Assistant of laboratory (article 28) this order introduced into the code of public health of the provisions relating to freedom of establishment and to the LPS for principals and vice-principals of medical biology laboratory: ― freedom of establishment: the precise order rules of recognition of qualifications by transposing the mechanisms for the recognition of the "general regime". Thus, access to the functions of Director or Deputy Director of laboratory is possible since the applicant is the holder of a qualification obtained in another Member State and showing a level of post-secondary education for a minimum of four years. However, when the Member State of origin of the applicant does not regulate access to these functions, it must justify, in addition to the title training, two years of professional experience full time over the past ten years. In case of substantial differences between the training acquired by the migrant and that required in France, the recognition of evidence of formal qualifications shall be subject to the fulfilment of the applicant a compensation measure (aptitude test) or adaptation period the only knowledge for which his training will be considered inadequate;
― freedom to provide services: order extends the provisions relating to the LPS to the functions of Director or Deputy Director of laboratory of medical biology analyses. Thus, Community nationals legally established in their State of origin and who have performed these duties for two years during the last ten years if these functions are not regulated, can now run in France of the acts of their activities without being registered in the table to the corresponding order. However, service providers are required, prior to the first provision of services, to make a declaration which the arrangements are defined by Decree in Council of State.
Moreover, the order transposes the jurisprudence of the Court of justice of the communities European whereby, during a request for authorisation to practise a regulated profession formed by a Community national a degree earned in a third State but recognised by a Member State, the competent authorities are required to take into consideration all of the qualifications and relevant experience of the person concerned and make a comparison with the knowledge and qualifications required by the national law) CF. case 238 / 98 Hugo Fernando Hocsman c ― / Minister of employment and solidarity).
Finally, the transposition of the directive is an opportunity to extend the benefit of these provisions, where this had not already been done previously, to nationals of EEA.
XXII. — provisions relating to the paramedical professions (sections 29-40) directive 2005 / 36 / this consolidates, amends or supplements the provisions on freedom of establishment applicable to the whole of the paramedical professions and extends, and complementary provisions to the LPS already planned for nurses.
1 ° the general system of recognition of qualifications on freedom of establishment meets the desire of the European Union to establish the free movement of persons and services. All physician assistants, preparers in pharmacy, preparers in hospital pharmacy, and osteopaths are affected by this device. Community nationals holders of European diplomas are granted permissions to exercise.
This order has a dual purpose with regard to the freedom of establishment of physician assistants. Firstly, it is necessary to implement some new obligations introduced by the directive. On the other hand, with this directive, the Commission wished to simplify the writing to make it more understandable to the device. It is for this same reason that the national legislative provisions relating to physician assistants have been changed.
2 ° directive 2005 / 36 / EC aims to facilitate the LPS within the States of the European Union, in accordance with the principle of free movement of persons and services, enshrined in the Treaty establishing the European Community.
Implemented for the nursing profession, the LPS is now extended and complemented to all physician assistants.
Apply to the provider of services rules and procedures relating to the conditions of exercise of the profession in the host Member State as well as those pertaining to ethics and discipline him without opposable registration on the agenda of the profession concerned when there is in the reporting profession.
Exercised on a temporary and occasional basis, the provision of services is subject to a prior written declaration, established in the language of the State home, during a first performance or in the event of a material change in the situation of the claimant.
The service is provided under the title of formation of the State of origin and in the official language of that State. It is required to include the place and the institution where he got.
The provision of services is carried out under the professional title of the State of establishment in one of the official languages of that State.
An audit of professional qualifications is conducted for physician assistants, and nurses whose training does not have automatic recognition within the meaning of the directive, before the first provision of services. It may give rise to compensation measures in the event of substantial difference between these qualifications and the training required in France. In this case, the service is provided under the professional title of the host Member State.
With regard to the profession of demonstrator in hospital pharmacy, which the french diploma was created in 2001, this order introduces provisions on the situation of Community nationals, in terms of freedom of establishment and LPS.
XXIII. — provisions relating to the profession of teaching dance (article 41) article 41 of this order is designed to allow the nationals of a Member State of the European Community or of another State party to the EEA agreement to exercise the profession of dancing under the same conditions as the nationals of the french State, subject to the beneficiaries of the LPS to provide a prior declaration.
It expands, other hand, some European airlines the field which can be validated the business of dance artists who can follow specific training which will allow them to benefit, in the same way as french dancers, the State of dance teacher diploma.
XXIV. — provisions relating to the profession of architect (section 42) section 42 of the present order has for main objective the transposition of directive 2005 / 36 / EC.
I of article 42 provides accordingly: ― the resumption at 1 ° of the system of automatic recognition of diplomas in architecture;
― to grant recognition to holders of a diploma, certificate or other evidence issued by a third State, which has been recognised in a Member State or in another State party to EEA other that the France and which allowed him to legally exercise the profession in the State which has recognised the diploma, certificate or title, for a minimum period of three years. This professional experience must be certified by the State in which it was made. When experience was not made in the State which has recognized the title, the competent authorities are required to take into consideration all the diplomas, certificates and other titles, as well as the experience of the person concerned and make a comparison with the knowledge and qualifications required by the national law (see in particular case 238 / 98 Hugo Fernando Hocsman c ― / Minister of employment and solidarity and jurisprudence Dressen);
― to grant recognition to holders of diplomas that do not benefit from automatic recognition.
These provisions correspond also to the transposition of article 10 of directive 2005 / 36 / which provides for specific provisions in case of "specific and exceptional reasons" and it appeared timely, in this context, to transpose article 14 on compensation measures;
― resumption at 4 of former article 10-3 of Act No. 77-2 of 3 January 1977 as amended on architecture taking into account the provisions of article 48 of directive 2005 / 36.
The II of section 42 deals more specifically with the LPS.
On January 3, 1977 Act makes no provision for the provision of services.
However the regulatory arrangements for the application of the law and practice of the national Council of the order of Architects (CNOA) correspond to the flexibility required by the directive for the provision of services.
Thus article 7 of Decree No. 78-67 of 16 January 1978 amended taken for the purposes of articles 10, 11 and 38 of Act No. 77-2 of 3 January 1977 and on the conditions required for the regional register of Architects provides a simple declaration to the regional Council's agenda (increases) for a specific project rather than the inclusion in the agenda. In order to give a legal to this regulatory provision basis and adapt it to the framework laid down in directive 2005 / 36 / EC, it appears necessary to introduce an article 10-1 dealing with specifically the LPS, establishing the principle of a simplified procedure and referring to a decree in Council of State to clarify the terms of the declaration which will include an audit of warranties and professional qualifications of the claimant in the first provision of services.
XXV. — provisions relating to the professions of the funeral (43 items) directive 2005 / 36 / EC establishes rules according to which a Member State which makes access to a regulated profession for the possession of qualifications, recognizes the professional qualifications acquired in another Member State.
A prefectural authorisation laid down in articles L. 2223-23 and L. 2223-41 code general des collectivités territoriales (CGCT), including issued on the basis of professional competence conditions, is required for access and the provision of funeral related to foreign funeral service and crematory management.
Thus, funeral sector falls within the scope of that directive. The transposition provisions should accordingly be taken to ensure that nationals of Member States of the European Community or of another State party to the EEA Agreement wishing to settle in France or a simple provision of services may apply this device for the recognition of professional qualifications.
This order accepts the provisions of the directive by providing for create a sub-section 6 entitled 'recognition of the professional qualifications of nationals of a Member State of the European Community or of another State party to the agreement on the European economic area' in chapter III of title II of book II of the second part of the CGCT.
This text defines the services subject to the regime for the recognition of professional qualifications (article L. 2223-47). The sector 'funeral and maintenance of cemeteries' being mentioned in list III of annex IV, this area falls under the application of the principle of recognition of professional experience of the applicant (article L. 2223-48). Otherwise, a more general recognition device of the qualifications (article L. 2223-49) is implemented. In this case, the possibility for the competent authorities to take compensatory measures is also provided (article L. 2223-50). Article L. 2223-51 provides the regime for the recognition of professional qualifications within the framework of the provision of services.
XXVI. — provisions relating to the professions of land, agricultural and forestry expert (article 44) the provisions relating to the LPS are new and have to be transposed.
Transposition meets the principle of the directive, which provides that all Community nationals legally established in a State of origin can make the provision of services of a temporary and occasional basis in another Member State under his home-country professional title without having to apply for recognition of their qualifications.
However, the claimant must also justify two years of professional experience when the expert profession is not regulated in the State of establishment.
In Exchange for the relaxation of the regime of the LPS, the claimant made a prior declaration is required.
The claimant made his performance under the professional title in its state of establishment. Delivery is carried out under the control ethics and discipline of the national Council of land, agricultural and forestry expertise.
Regulatory measures will complement the present legislative transposition of the directive, including clarifying the modalities of implementation of the exemptions chosen by the France.
As regards freedom of establishment, the recognition of professional qualifications may give rise to the completion of compensation measures laid down by Decree in Council of State.
XXVII. — provisions relating to the agricultural professions having public health and safety implications: the biting dog trainer, maintenance of domestic animal species, applicator and dispenser of pest control products for use in agriculture, horse inseminator and head of centre for artificial insemination (article 45) it is recalled the two conditions under which a Community national can freely lending service in France , and set out in article 5 of the directive, namely the legal establishment in another EU Member State and the possibility of justifying two years of professional experience in the activity in its original state, when the activity is not regulated and where the training leading to the activity is not itself regulated.
The two options that are offered by the directive in article 7 for the framing of the LPS are also transposed.
It is, on the one hand, the possibility of requiring the service provider that it informs the competent authority before its first performance by means of a written declaration.
On the other hand, it is provided the possibility for the competent authority to conduct an audit of the professional qualifications of the service provider in order to ensure that the provision will not affect security and public health. The implementation of this mechanism of control of qualifications, reserved by the directive to professions with implications for health or public security seems justified for the above-mentioned professions.
Finally the benefit of these new provisions is extended to nationals of States parties to the EEA Agreement.
XXVIII. — provisions relating to the profession of veterinary (article 46) the directive lays down the rules under which a Member State must assimilate to a title of training any academic title awarded in a third country as long as its holder has, in the profession concerned, a professional experience of three years in the territory of the Member State which has recognized such title and certified by it (paragraph 3 of article 3).
The changes introduced in this order so to recognize the qualifications of veterinarian in the case meets the rules described above.
Furthermore, the directive provides acquired rights specific to veterinary surgeons (article 39). This order strictly includes these provisions.
XXIX. — provisions relating to the profession of head of breeding of animals of non-domestic species, sale, rental, transit and establishment for the presentation to the public of live specimens of local or foreign wildlife (article 47) the possession of a certificate of capacity for the maintenance of non-domestic species of animals in captivity is imposed by article L. 413 - 2 of the environment code.
The certificate of competence constitutes an administrative authorization to exercise the responsibility for the maintenance of non-domestic species of animals in captivity for the purpose of breeding, sales, rental, transit or public presentation.
It is issued by the prefects of Department account of diplomas, supplemented by work experience of a duration that is inversely proportional to the level of graduates available to the applicant and after servicing with a departmental Advisory Committee or national for the presentation to the public of the majority of animal species.
It is expected that the certificate of competence be granted to nationals of the Member States of the European Union under the same conditions as for french nationals. However, where, with regard to directive, it will be deemed that the diplomas issued in the Member State of the applicant are not the same level as those issued in France, it is necessary to provide for measures of compensation by opening the possibility for the applicant to claim up to three years of professional experience or to undergo an aptitude test.
As a result, the application of the directive on the recognition of professional qualifications required: 1 ° an amendment of the code of the environment (article L. 413 - 2) to fix the conditions for the provision of services on a temporary and occasional basis by nationals of other Member States of the European Union;
2 ° a modification of the environment code (articles R. 413 - 2, R. 413 - 4 and R. 413 - 26) to clarify the conditions for the recognition of professional qualifications prior to the issuance of certificates of competency to nationals of Member States of the European Union other than the France, notably when graduates of these people are not considered as same level as french graduates whose possession is required to obtain a certificate of competency;
3 ° a modification of the decree establishing the list of diplomas and professional experience to apply for a certificate of competency.
This is the purpose of this order we have the honour to submit for your approval.
Please accept, Sir, the assurance of our deep respect.

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