Key Benefits:
Mr. President,
Under Article 3 of the Treaty establishing the European Community, the abolition of barriers to the free movement of persons and services among member States is one of the objectives of the Community.
In May 2001, at the adoption of Directive 2001 / 19 / EC on recognition of professional qualifications, the European Parliament, the Council and the Commission agreed on the importance of having "consolidated versions, easily accessible to all, of the legal texts applicable in the field of mutual recognition of professional qualifications".
At the same time, the Stockholm European Council of 23 and 24 March 2001 gave the Commission a mandate to submit to the European Council of spring 2002 specific proposals for a more uniform, transparent and flexible regime of recognition of qualifications.
As envisaged by the communication adopted at the end of the Stockholm European Council, a high-level task force on skills and mobility was created. It published a report in December 2001, which states that in the field of recognition of professional qualifications the European Union (European Union) and the Member States should focus on accelerating and facilitating professional recognition (for regulated professions), including by conditions conducive to more automatic recognition, and introduce, for regulated professions, a more uniform, transparent and flexible qualification recognition regime by 2005.
In line with the mandate entrusted to it by the Stockholm European Council, on 7 March 2002, the Commission presented a proposal for a directive from the European Parliament and the Council on 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.
The purpose of Directive 2005 / 36 / EC of 7 September 2005 is to establish the rules that a Member State that provides for access to a regulated profession, or exercise, to the possession of professional qualifications recognizes, for access to that profession or exercise, the professional qualifications acquired in another State.
Community rules governing professional recognition have long evolved in a dispersed order and have resulted in many parallel provisions. It has thus formed a system criticized by migrants as well as by professionals because it is considered too complex and, in places, unadapted to the particularities of a specific profession.
With a view to rationalization, the Directive thoroughly revises all securities recognition guidelines, so as to maintain the main conditions and guarantees, while simplifying the structure of the system and improving its operation.
It also provides, in terms of the free provision of cross-border services, simpler conditions than those applicable to freedom of establishment, in order to enhance the flexibility of labour and services markets.
The directive is structured around two main components:
1° The free provision of services (PSLs): Member States may not restrict, for reasons related to professional qualifications, the LPS under the original professional title when the beneficiary is legally established in another State. The Directive defines the very concept of service delivery (Article 5);
2° Freedom of establishment: This chapter sets out the conditions for recognition of professional qualifications, as well as the rules for the implementation of recognition mechanisms in the context of freedom of establishment.
The directive is divided into six titles:
― Title I, entitled "General Provisions", defines the object (Article 1), the scope (Article 2) and the main terms used by the directive (Article 3);
– title II, entitled “Free service delivery”, sets out the principle of LPS (Article 5), the exemptions granted to the migrant (Article 6), the options that Member States can implement in terms of “pre-report” of the migrant (Article 7) and information of the recipients of the services (Article 9). A number of administrative cooperation obligations are also established between the competent authorities (Article 8);
― Title III, entitled "Freedom of establishment", recalls the three recognition regimes derived from the previous guidelines: General Recognition of Training Titles (chapter I), Recognition of Professional Experience (chapter II) and Recognition on the basis of the coordination of the minimum conditions of training (chapter III), which concerns six professions (physician, nurse responsible for general care, dental practitioner, veterinarian, pharmacist, pharmacy, pharmacist
– title IV, entitled "Terms of practice of the profession", sets out, inter alia, the terms of language knowledge (Article 53) and the terms and conditions for carrying the training title (Article 54);
― Title V, entitled "Administrative cooperation and enforcement skills", determines the conditions of intervention of the competent authorities (Article 56), a number of obligations to the 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), body of comitology of the directive;
Finally, title VI, entitled “Other provisions”, contains the final provisions (abrogation, transposition, entry into force).
I. General provisions on language knowledge and administrative cooperation (Title I, Articles 1 to 3)
The provisions of the Directive relating to the required language knowledge of a migrant for the exercise of a profession in the national territory are included in this Order (Article 1st) under a general formulation of the nature to apply to all regulated professions.
In this regard, it is not consistent with the Community judge's jurisprudence to set specific uniform requirements for all professions. Under these conditions, it will be up to the competent authorities under a profession to monitor, where appropriate, the language knowledge of each migrant in relation to the requirements of that profession.
With regard to administrative cooperation, Directive 2005 / 36 / EC provides for the exchange, between the member states of the European Community, the States parties to the agreement on the European Economic Area (EEA), of information on the disciplinary or penal sanctions that have been taken against a provider (articles 8 and 56 of the directive).
With regard to obtaining information on criminal sanctions, now theArticle 776, paragraph 3, of the Code of Criminal Procedure authorizes "governments or bodies charged by law or by regulation of control of the exercise of a professional or social activity where such exercise is subject to restrictions expressly based on the existence of criminal convictions" to obtain the issuance of a Bulletin No. 2 (B2) of the criminal record. This provision does not differ as B2's application concerns the exercise of professional activity in France or another State.
With regard to the transmission of information obtained from an authority of another State, the difficulty was in the transmission of criminal information. Article 13, paragraph 2, of the European Convention on Mutual Assistance of 20 April 1959 already authorizes such requests by referring to "the conditions laid down in the legislation, regulations or practice of the requested party". Only one provision exists to date for veterinarians (Article R. 241-17 of the Rural Code).
To organize the exchange of this information, a horizontal provision (Article 2) introduced to theArticle 776 of the Code of Criminal Procedure will allow the competent authority under a profession, on the one hand, to obtain from the national judicial record the number 2 of the criminal record (6°) and, on the other, to communicate it to the competent authority of another Member State (last paragraph added). Finally, the issuance of Bulletin No. 2 to the administrations provided for in the 3rd is extended to disciplinary sanctions.
Finally, a horizontal provision will allow the competent authority under a profession to transmit to its counterpart in another State information regarding a disciplinary sanction taken against a provider established in France (Article 3).
II. - Occupational provisions
Social Service Assistant (Title II, Article 4)
Directive 2005 / 36 / EC resumes, by amending it, Directive 89 / 48 / EWC related to the general system of recognition of professional qualifications, which requires revision of the equivalent conditions applicable to the exercise of the profession of social service assistant.
For the exercise of the profession of social service assistant, a profession whose title and exercise are regulated, this order transposes both the provisions relating to the PSA and the freedom of establishment of Directive 2005 / 36 / EC providing for a new drafting Article L. 411-1 of the Code of Social Action and Families (free of establishment) and insert 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 a State Party to the EEA Agreement may take the title or occupy a job as a social service assistant without having the French state diploma as a social service assistant.
III. - Occupational provisions
(Article 5)
Transposition of Directive 2005 / 36 / CE has a significant impact on the procedures for the exercise of the expert accounting profession.
This order inserts into theOrder No. 45-2138 of 19 September 1945 establishing the order of the experts-comptables an article 26 bis allowing to introduce in domestic law the concept of LPS (3°).
Under this article, the profession of accountant may be exercised in France on a temporary and occasional basis by a national of another State of the European Community who is legally established on a permanent basis and who has practised this profession for at least two years in the ten years preceding the performance when the profession is not regulated. The requirement for the exercise of the profession for two years is not applicable if the profession or training leading to the profession is regulated.
Regulatory measures will complement this legislative transposition of the directive, in particular in order to clarify the modalities for the implementation of the exemptions chosen by France.
The introduction of the LPS makes it possible to facilitate the access of the French market of accounting expertise to foreign nationals under the conditions defined above.
This opening is offset by the possibility offered to the accounting experts established in France to perform services in other states.
IV. - Occupational provisions
travel agent (section 6)
The Directive applies to travel agents, who constitute a regulated profession within the meaning of section 3 (1, a) of the Directive, as well as to other professions that organize and market tourism benefits and, as such, fall under the administrative authorization regimes issued under title I of Book II of the Tourism Code.
The principles of the Directive, including the distinction between freedom of establishment and the LPS, are transposed into the Tourism Code in four articles: L.-3 212 and L. 212-9, L. 212-10 and L. 212-11.
In Article L. 212-3 the principles of recognition of professional experience are transposed 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 the Council of State the setting of the modalities for recognition of professional fitness.
Section L. 212-9 transposes the provisions relating to the SDA in section 5 of the directive.
Section L. 212-10 transposes the provider's pre-reporting requirement in section 7. The terms and conditions of the advance declaration will be transposed by the regulatory process.
Section L. 212-11 provides for the transfer of the directive to other professions than travel agents, whose conditions of professional fitness are laid down on the travel agent regime and which fall under the authorization regimes of Book II title I of the Tourism Code.
V. ― Occupational Provisions
(Article 7)
The principles of the Directive, including the distinction between 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 freedom of establishment, transposes the provisions of the "general regime for recognition of training titles" in chapter I of title III of the directive and refers to a decree in the Council of State to the setting of the modalities for recognition of qualifications.
Article L. 221-3 transposes the provisions relating to the SLA contained in Article 5 of the Directive.
Article L. 221-4 transposes Article 7, point 3, of the directive allowing the use of the professional title in the official language of the State of the establishment.
VI. ― Provisions relating to the occupation of a major discount and tourism contractor (Article 8)
The principles of the Directive, including the distinction between freedom of establishment and the LPS, are transposed to articles L. 231-5 and L. 231-6 of the Tourism Code.
Article L. 231-5, relating to freedom of establishment, transposes the provisions of the "general regime for recognition of training titles" in chapter I of title III of the directive and refers to a decree in the Council of State to the setting of the modalities for recognition of qualifications.
Article L. 231-6 transposes the provisions relating to the SLA contained in Article 5 of the Directive.
VII. ― Provisions relating to the teaching profession
(Article 9)
This Order contains an article that amends the Articles L. 212-1 and L. 212-4 of the road code.
The authorization regime imposed by this article L. 212-1 is not questioned by the directive when it is, for community nationals or a State party to the agreement on the EEA qualified in their country to carry out the same activity, to settle permanently and permanently in France.
On the other hand, this authorization regime cannot be imposed on European nationals who would like to exercise the instruction of road traffic and road safety on a temporary and occasional basis in France, under Article 5 of the Directive. It is therefore necessary to include in section L. 212-1, which regulates access to the profession, the existence of the separate and derogatory exercise regime that is the SSA.
Accordingly, as a result of the current provisions of Article L. 212-1, which are grouped in paragraph I, it is proposed to create a paragraph II setting out the conditions of the SLA and transposing the options offered by the directive to regulate this new regime.
This paragraph II recalls 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 presert service in France, and set out in Article 5 of the Directive, namely the legal establishment in one of these States other than France and the possibility of justifying two years of professional experience in the activity considered in its State of establishment, when the activity is not regulated and
Paragraph II also transposes two of the options offered by the Directive in its Article 7 for the supervision of the LPS.
This is, on the one hand, the obligation imposed on the provider to inform the competent authority (i.e. the prefect, who issues the above-mentioned administrative authorization) before the first performance, by means of a written statement.
On the other hand, it is anticipated that the competent authority will conduct an audit of the professional qualifications of the provider in order to ensure that the benefit will not affect the safety of the student or that of other road users, as a result of a possible lack of qualifications of the provider. The implementation of this Qualification Control Mechanism, reserved by the Directive on Occupations with Public Health or Safety Implications and where the security of the service recipient is at issue, appears to be justified in this case. With respect to a suspensive declarative regime in which the competent authority retains an opposition power to the declaration, it is specified that the benefit may be made within one month of the receipt of the declaration by the competent authority if it did not object to it within that period.
TheArticle L. 212-4 of the road code It is supplemented by a sentence that equals the temporary and occasional exercise of the activity by a service provider who has not complied with the requirement of a declaration before an unlawful exercise of the profession, and provides that the provider may be penally punished to the penalties already provided for the illegal exercise of the teaching of conduct by nationals.
VIII. - Occupational provisions
(Article 10)
This order contains an article amending them articles L. 326-1, L. 326-3, L. 326-4, L. 326-6 and L. 326-8 of the road codeconsisting of four paragraphs.
The amendment to section L. 326-1 is intended to adapt the conditions of professional qualifications that allow recognition of the quality of expert ― as set out in the 1st of the current article ― to the requirements of the free establishment directive. It was necessary, in fact, that recognition as an expert is no longer related to the detention of a diploma but can be granted to persons who can only justify a professional experience. This is to make the conditions of access to the profession for free establishment in accordance with the rules of the "recognition of professional experience" regime of Chapter II of Title III of the Directive, which is the regime applicable to automotive experts (activity set out in Appendix IV of the Directive). The decision of the Council of State of 31 March 2008 (No. 302119) "International Federation of Automotive Experts", sanctioning the non-prise in account of the professional experience of European candidates wishing to settle as automotive experts in France in the Decree No. 2006-1808 concerning the organization of the profession as an expert in automobiles, has highlighted the non-compliance, on this specific point, of the regulation of the profession with the Community Qualification Recognition Rules.
The provisions of the current 2nd of Article L. 326-1, having had only a transitional character and no longer current, are deleted as the persons who benefit from it can now enter the scope of the proposed drafting for the single paragraph of Article L. 326-1 new.
II of Article 10 amendsArticle L. 326-3 of the road code to integrate the possibility of the temporary registration of free service providers on the national list of automotive experts by the Commission secretariat, following the procedure provided for in Article II L. 326-4. The need to allow the service provider to perform its performance within the time constraints of the Directive requires that the national list of automotive experts be updated whenever necessary and not "annually" as provided for in the current drafting of Article L. 326-3. The need to hold the one-month deadline from the receipt of the pre-report also requires that the decisions made on the declaration be taken by the secretariat alone, a summons of the commission within that period being materially impossible.
Article 10, III, is intended to allow community nationals or States parties to the EEA agreement to carry out the activities listed in Article L. 326-4 by being temporarily listed on the national list of motor vehicles experts.
To this end, it is necessary to include in section L. 326-4, which regulates access to the profession the existence of the separate and derogatory exercise regime that is the SSA. As a result of the current paragraph I of Article L. 326-4, it is proposed to create a new paragraph II that sets out the conditions of the LPS and transposes the options offered by the directive to regulate this new regime.
This new paragraph II of the article L. 326-4 recalls the two conditions under which a Community citizen or a State Party to the EEA can freely take 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 possibility of justifying two years of professional experience in the activity considered in its State of the regulated
New paragraph II of Article L. 326-4 also transposes two of the options offered by the Directive in its Article 7 for the supervision of the SSA.
This is, on the one hand, the obligation imposed on the provider to inform the competent authority prior to the first performance by means of a written statement.
On the other hand, it is anticipated that the competent authority will conduct an audit of the professional qualifications of the service provider in order to ensure that the benefit will not affect the security of the service recipient as a result of a potential lack of qualifications from the service provider. The implementation of this Qualification Control Mechanism, reserved by the Directive on Occupations with Public Health or Safety Implications and where the security of the service recipient is at issue, appears to be justified in this case.
In the event of a decision favourable to the completion of the qualification verification procedure, the supplier is automatically registered and for a period of one year on the national list of automotive experts.
The current paragraph II becomes a paragraph III whose drafting is only specified to take into account the practical reality of State vehicle expertise, because in fact the civil vehicles of the State are expertized by "conventional" experts on the national list, while the military vehicles are examined by officials of the State who are not registered on this list. It is therefore proposed to replace "activities for the benefit of the State" with "activities involving state security or national defence", which is more restrictive.
Article 10 IV lifts the ban on commercial advertising for automotive experts in theArticle L. 326-6 of the road code, a prohibition that cannot be imposed on professionals coming to practice under the LPS because it is a rule that is not related to professional qualifications. The lifting of this prohibition also benefits national automotive experts.
Article 10 V rewrittenArticle L. 326-8 of the road code to provide for the sanction of the temporary and occasional exercise of the activity by a service provider who has not complied with the requirement of a prior declaration, by assimilation with the illegal exercise of the profession.
IX. - Occupational provisions
(Article 11)
This order amends theArticle L. 323-1 of the road code.
The accreditation regime imposed by this article L. 323-1 is not questioned by Directive 2005 / 36 / EC when it is for community nationals or a State Party to the EEA agreement qualified in their country to carry out this same activity, to settle permanently and permanently in France.
On the other hand, this accreditation regime may not be imposed on community nationals or a State party to the EEA agreement that would wish to exercise technical control of motor vehicles on a temporary and occasional basis in France, pursuant to Article 5 of the Directive. It is therefore necessary to enrol in section L. 323-1, which regulates access to the profession the existence of the separate and derogatory exercise regime of the SSA.
Accordingly, as a result of the current provisions of Article L. 323-1, which are grouped in paragraph I, it is proposed to create a paragraph II setting out the conditions of the SLA and transposing one of the options offered by the directive to regulate this new regime, namely the pre-report.
This paragraph II recalls the two conditions under which a Community national or a State Party to the EEA Agreement may freely take 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 considered in its State of origin,
X. ― Occupational Provisions
(Article 12)
This order amends theArticle L. 111-25 of the Construction and Housing Code.
The current regulation of technical control from Act No. 78-12 of 4 January 1978 The technical capacity requirements of the controllers based on theoretical and practical skills to carry out the critical analysis of the constructive processes as well as their implementation are established in respect of liability and assurance in the field of construction. The law of January 4, 1978, also devoted the independence of the technical controller as an essential factor in his ability to advise the construction manager in complete rigour without the possibility of influence from the design stakeholders (architects, engineering) or under construction.
This regulation is contained in the Construction and Housing Code articles L. 111-23 to L. 111-26 is based on a prior approval issued by the Minister responsible for the construction after notice of an approval commission.
The Commission ensures that the applicant has the technical and organizational capabilities required in relation to the technical control field that it considers (by category of work or equipment and specialty). It also ensures that the condition of independence is respected.
The transposition of the directive requires that this mechanism be amended to allow community nationals regularly established in a Member State to carry out controls under the SSA on a simple declaration.
It is therefore proposed to rewrite section L. 111-25 of the Construction and Housing Code to provide for the new LPS regime next to the current accreditation regime, and to transpose the options offered by the directive to regulate this new regime.
The new article L. 111-25 incorporates the mention of the two essential conditions that the professional national of another Member State must respect in order to be able to exercise this activity within the framework of the LPS, and laid down by the directive: it must be legally established in its State of origin and be able to justify two years of professional experience in that same activity when it is not regulated and in the case that the training leading to the activity is not regulated.
On the other hand, this section submits access to the technical control activity to the obligation to address to the administrative authority (Minister responsible for the construction) a pre-reporting declaration that results in the verification of the professional qualifications of the provider, as permitted in section 7.
XI. - Provisions relating to the profession of trainer in the conduct of motor pleasure craft at sea and in inland waters (article 13)
This order contains an article that amends the orderArticle 17 of Act No. 2006-10 of 5 January 2006 on transport security and development.
Section 17 of the Act of 5 January 2006 referred to in paragraph II of the Act provides for the instruction of the conduct of motorboats for the issuance of an authorization by the administrative authority. This regime is not questioned by the directive when it is for qualified community nationals in their country to exercise this same activity to establish themselves permanently and permanently in France.
On the other hand, this authorization regime cannot be imposed on community nationals who would like to train motor pleasure craft temporarily and occasionally in France under section 5 of the directive. It is therefore necessary to include in section 17 of the Act the existence of the separate and derogatory exercise regime that is the SSA.
As a result of the current provisions of Article 17, 2 of II, it is proposed to create a 3 setting out the conditions of the SLA and transposing the options offered by the directive to regulate this new regime.
This 3 recalls the two conditions under which a Community national or a State Party to the EEA Agreement may freely take service in France, and set out in Article 5 of the Directive, namely the legal establishment in another Member State of the European Union and the possibility of justifying two years of professional experience in the activity considered in its State of origin, when the activity is not regulated and in the case of the formation
The 3 also transposes two of the options offered by the Directive in its Article 7 for the supervision of the LPS.
This is, on the one hand, the obligation imposed on the provider to inform the administrative authority prior to its first performance by means of a written statement.
On the other hand, it is anticipated that the administrative authority will conduct an audit of the professional qualifications of the provider in order to ensure that the benefit will not affect the safety of the student as a result of a possible lack of qualifications from the provider. The implementation of this Qualification Control Mechanism, reserved by the Directive on Occupations with Public Health or Safety Implications and where the security of the service recipient is at issue, appears to be justified in this case. With respect to a suspensive declarative regime in which the competent authority retains an opposition power to the declaration, it is specified that the benefit may be made within one month of the receipt of the declaration by the administrative authority if it did not object to it within that period.
Finally, 1 of the III is supplemented to provide for the penalty of an employer recruiting a trainer who has not fulfilled the requirement to report a first benefit on the national territory, by assimilation with the employment of a non-trainer with an authorization to teach in the course of validity.
XII. - Occupational provisions
(Article 14)
The transposition article in the Act No. 46-942 of 7 May 1946 Amending the order of the expert geometers is composed of five paragraphs numbered from I to V.
1° Free service delivery.
I. ― The amendment to section 2-1 of the above-mentioned Act includes all provisions relating to the SLA.
The provider is subject to the following conditions: to be legally established in another State, to be insured and to make the declaration before the first service delivery, to respect the professional secrecy and the rules of conduct determined by decree in the Council of State.
The obligation of the provider to be covered by an insurance contract, to make the declaration before the first service delivery is made necessary by the nature of the benefit that consists in setting the limits of the property and thus defining rights attached to the property. The consequences of a miscalculated benefit being out of proportion to the cost of the benefit, it is necessary to provide the client with insurance coverage.
The provider performs its service under the professional title of the State of establishment or under its training title.
The benefit is carried out under the disciplinary control of the regional order of the expert geometers in which it is carried out. This control is exercised a posteriori in the event of a client's complaint.
2° Freedom of establishment.
II. ― The drafting of the first paragraph of Article 3 is improved in order to clarify the derogation from the rule of registration in the order table set out in Article 2-1 and which concerns service providers. The condition of nationality (being a national of a Member State of the European Union), which was the alternative condition of registration to the board of order in order to be able to practise the profession, is rendered useless by the reference to Article 2-1, which applies to nationals of the European Union and the EEA.
III. ― Modificative drafting shortens the 4th of Article 3 by referring to the decree the conditions of recognition of qualifications for the exercise of the profession of expert geometer.
IV. ― The drafting of the second paragraph of Article 4 is amended to take into account the reference to the decree in the Council of State of the conditions for recognition of qualifications made at the 4th of Article 3, including those relating to the adaptation stage that is referred to here. The same solution of reference to the decree in the Council of State for the conditions and modalities of the adaptation internship is adopted here.
V. ― In its current drafting, the law submits to the same professional rules the expert geometers listed in the table and the free service providers (see in particular the first paragraph of Article 6). In addition to limiting the application of professional rules, within the framework of the LPS, to rules directly related to professional qualifications, certain rules do not make sense for professionals exercising temporary and occasional positions and their application to them must be excluded.
Therefore, the amendment to the first paragraph of Article 6 on the rules of conduct limits the scope of this article to the only expert geometers, companies and trainees, the statement of rules applicable to free-service professionals set out in Article 2-1 on the LPS.
XIII. ∙ Provisions relating to artisanal professions
(articles 15-17)
A. ― Hairdresser Profession (art. 15)
The legislative transposition of the directive implies a change in the Act No. 46-1173 of 23 May 1946 regulating conditions of access to the hairdresser profession.
Indeed, this law sets out in article 3-1 the conditions for recognition of the qualifications of migrants wishing to practise in France.
However, the definition of such conditions falls within the regulatory level, particularly since the conditions of exercise applicable to nationals are set by decree (Decree No. 97-558 of 29 May 1997 the conditions of access to the hairdresser profession). By analogy, it may be noted that the qualification requirements, required by both national and community nationals, to practise the craft professions other than that of hairdresser, are also subject to a decree (Decree No. 98-246 of 2 April 1998 the professional qualification required for the exercise of the activities provided for in theArticle 16 of Act No. 96-603 of 5 July 1996 on the development and promotion of trade and crafts).
In these circumstances, the transfer declassifies the above-mentioned provisions of the Act of 23 May 1946 referred to above. This declassification will take place in two phases: at first, this order amends the orderArticle 3-1 of the Act of 23 May 1946 to insert new provisions (see paragraphs 1 and 2 infra) and, in a second time, the previous provisions of this article 3-1 will be repeated and supplemented in the decree of 29 May 1997 referred to above.
1° Freedom of establishment.
Article 3-1 sets out the principle of the requirement of qualification of a migrant who wishes to exercise the hairstyle at home or the "effective and permanent control" of unskilled persons as part of a hairdresser.
The modalities for the implementation of this obligation will be specified by decree in the Council of State (subsequent amendment of the decree of 29 May 1997 referred to above).
2° Free service delivery (LPS).
The new article 3-1 of the Act of 23 May 1946 referred to above Resumes, under its II, the two conditions fixed by the directive to exercise, on a temporary and occasional basis, the hairdressing at home or the "effective and permanent control" of unqualified persons in the context of a hairdressing salon, namely the legal establishment in the State of origin and a two-year professional experience if the profession is not regulated in that State of origin (Article 5 of the directive).
This article 3-1 transposes the principle of waiver of registration to a legal register of advertising, a principle contained in article 6 of the directive, applying it to the repertoire of the trades and to the register of the enterprises (in Alsace-Moselle) which are required to register the hairmakers.
The modalities for the implementation of this new article 3-1 will be defined by decree in the Council of State (subsequent amendment of the decree of 29 May 1997 referred to above).
Finally, the second of section 15 of the order updates the orderArticle 5 of the Act of 23 May 1946 referred to above to cover the new provisions.
B. ― Craft Professions Other than Hairdresser
(art. 16)
La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 96-603 of 5 July 1996 relating to the development and promotion of trade and craftsmanship contains a title II dedicated to professional qualification.
However, the provisions of this title II do not address the question of the qualification required of a migrant.
The purpose of this Order is therefore to introduce in the Act of 5 July 1996 the provisions both in respect of LPS (new section 17-1) and in place (section 17).
1° Freedom of establishment.
The new wording of Article 17 sets out the principle of the obligation to qualify the migrant who wishes to exercise the "effective and permanent control" of unskilled persons within the framework of a craftsmanship.
The modalities for the implementation of this obligation will be specified by decree in the Council of State (subsequent amendment of the decree of 2 April 1998 above).
2° Free service delivery (LPS).
Like the transposition for hairdressing, the new article 17-1, on the one hand, reiterates the two conditions of mutual recognition in respect of LPS set out in the directive (Article 5) and, on the other hand, exempts the migrant from the requirement of registration in the trade register or in the business register.
In addition, a statement before the first performance is required of migrants who wish to exercise, on a temporary and occasional basis, the "effective and permanent control" of a number of artisanal activities that are limited to listed, in accordance with the possibility offered by section 7 of the directive.
Finally, the last paragraph of II establishes a power, for the competent authority, to control the qualification of the service provider on the basis of its prior declaration, pursuant to Article 7, paragraph 4, of the directive.
The modalities for the application of this article 17, including the contents of the declaration, will be defined by decree in the Council of State (ulterior amendment of the decree of 2 April 1998 above).
C. ∙ Specific provisions
professional training of craftsmen (art. 17)
Finally, Article 17 of the Order aims to exempt nationals of a Member State of the European Community other than France, from another State Party to the EEA Agreement to follow the "preparing course for installation" (SPI) provided for by the EEA AgreementArticle 2 of Act No. 82-1091 of 23 December 1982 concerning the professional training of craftsmen.
This exemption is without prejudice to the ability of the competent authority to submit the migrant to a "compensation measure" in the case that his application for recognition of qualification would reveal a deficiency in corporate management.
XIV. ― Broker profession provisions
(article 18)
The legislative transposition of the directive implies a change in the Act No. 49-1652 of 31 December 1949 regulating the profession of wine brokers called "country brokers".
La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act of 31 December 1949 referred to above submits the exercise of the wine broker profession to the obligation to hold a professional card that is obtained after a fitness test organized by the regional chambers of commerce and industry (CRCI).
1° Free service delivery (LPS).
Article 6 restored Act of 31 December 1949 referred to above Resumes the two conditions fixed by the directive for an LPS by a migrant (Article 5 of the directive), namely the legal establishment in the State of origin and a two-year professional experience if the profession is not regulated in that State of origin.
The third paragraph of this Article 6 exempts migrants wishing to temporarily and occasionally precede the obligation to undergo a suitability test (6° of Article 2 of the Act of 31 December 1949 referred to above) and its corollary, the obligation to hold the professional broker card.
2° Freedom of establishment.
The wine broker's profession is governed by the regime of automatic recognition of the professional experience pursuant to Article 19 of the directive and its annex IV (list III-1), which means that, as long as a migrant meets the conditions of professional experience in its State of origin (number of years of exercise of the activity), the State of destination (where it wishes to settle) must automatically recognize its qualification outside of any other procedure.
Thus, Article 7 reinstated from Act of 31 December 1949 referred to above simply provides that the migrant must fulfil the conditions laid down in section 2 of the law, in particular the qualification requirement laid at the 6th of section 2.
This qualification condition will be specified by decree and appreciated differently than for a national: in fact, as soon as the migrant fulfils the requirements of Article 19 of the directive (which will be repeated in the Implementing Decree), it will automatically be exempted from the obligation to undergo the aptitude examination and can obtain his professional card directly from the competent CRCI.
XV. ― Legal profession provisions
(art. 19)
Specific directives relating to the LPS and the establishment of lawyers (directives 77 / 249 / EEC and 98 / 5 / EEC) are not taken into account in the context of this transfer exercise because they are not intended for recognition of professional qualifications, but for recognition of the authorization to exercise. As a result, the recognition of legal degrees is currently governed by Directive 89 / 48 / EEC of 21 December 1989 and therefore, as of 20 October 2007, by Directive 2005 / 36 / EC.
Accordingly, this order replaces the references contained in the Act No. 71-1130 of 31 December 1971 Reforming the judicial and legal professions to Directive 89 / 48 / EWC a reference to Directive 2005 / 36 / EC (I and II).
In accordance with the provisions of the Directive on Administrative Cooperation, the board of each of the bars is responsible for working with the competent authorities of other States to facilitate the application of the Directive (III).
XVI. ― Provisions relating to sales activity
(Article 20)
La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La La Act No. 2000-642 of 10 July 2000 regulating the voluntary sales of public auction furniture has introduced the principle of the SSA of the voluntary sales activity of public auction furniture by nationals of other member states of the European Community and States parties to the agreement on the EEA before it is provided for by the general or sectoral community regulations.
These provisions, codified in Articles L. 321-24 to L. 321-28 of the Commercial Code, are not fully compatible with the provisions of Directive 2005 / 36 / EC. The provisions of the trade code must therefore be amended accordingly.
The principle of the declaration to the "Voluntary Sales Board for Public Auctions", as set out in theArticle L. 321-24 of the Commercial Code, before the realization of the first sale is maintained, but within one month. In addition, the provider will need to renew its statement each year if it plans to resume its professional activity on an occasional basis during the year or in the event of a change in its professional situation. In any event, this declaration must attest to the legality of their establishment in their State of origin and to the absence of a ban on the exercise of the persons concerned.
In accordance with the provisions of the Administrative Cooperation Directive, the Board of Voluntary Sales of Public Auction Furniture is responsible for working with the competent authorities of other States to facilitate the application of the Directive (I, 1°).
XVII. - Provisions relating to the conditions for the operation of certain transactions relating to real property and trade funds (Article 21)
Article 5-1 of Directive 2005 / 36 / CE lays down the principle of the LPS of the national who moves to the territory of the Member State to exercise his or her activity on a temporary and occasional basis, his or her right cannot be restricted for reasons relating to professional qualifications.
Article 5-3 of the directive states that the provider remains subject to the rules of conduct of a professional, regulatory or administrative nature applicable in the Member State.
As soon as the provider is required to handle funds, it will have to justify to the competent authority a professional civil liability insurance and a financial guarantee ensuring the representation of the funds if necessary.
The prior declaration must therefore be made with the Prefect, designated as the competent authority.
XVIII. - Occupational provisions
(Article 22)
TheArticle L. 212-1 of the Sports Code establishes a qualification obligation to guarantee the safety of practitioners and third parties for the supervision functions of physical or sports activities performed against remuneration.
Article L. 212-7 provides that nationals of the Member States of the European Community or of the States Parties to the EEA Agreement qualified to perform such functions may establish themselves freely in the national territory for the exercise of their profession.
Finally, the order amends the second paragraph, which became third paragraph, by providing that a decree in the Council of State sets the conditions for the application of Article L. 212-7.
XIX. ∙ Provisions relating to medical professions
(arts. 23-26)
This Order amends the applicable provisions on freedom of establishment and of LPS:
― freedom of establishment: the order specifies and amends the rules for recognition of qualifications for the professions of physician, surgeon-dentist and midwife. In principle, recognition is based on the coordination of minimum training conditions or professional experience, i.e. the automatic recognition of a training title sanctioning a training that has been harmonized within the European Union, i.e. the requirement for a fixed-term professional exercise. However, the order provides that, in specific and exceptional cases where the application for recognition of a qualification cannot result, the recognition mechanisms of the "general regime" must be applied. The latter requires the host Member State to conduct a case-by-case review of each migrant's file and to propose, where appropriate, compensation measures (aptitude test or adaptation stage) covering the only knowledge for which its training has been deemed insufficient;
― free service provision: the order amends the applicable provisions for physicians, dental surgeons and midwives. The proposed amendments should allow for an end to an infringement procedure initiated by the European Commission which considered the existing provisions to be too restrictive and deterrent.
It also incorporates the provisions of the bill, tabled in the Senate on January 12, 2005 (No. 142), which was intended to ratify and amend the bill.Order No. 2004-1174 of 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, when not previously done, to EEA nationals.
XX. ― Occupational Provisions
(art. 27)
This Order amends the applicable provisions on freedom of establishment and establishes the principle of LPS for pharmacists:
freedom of establishment: the order specifies and amends the rules for recognition of qualifications. In principle, recognition is based on the coordination of minimum training conditions or professional experience, i.e. the automatic recognition of a training title sanctioning a training that has been harmonized within the European Union, i.e. the requirement for a fixed-term professional exercise. However, the order provides that, in specific and exceptional cases where the application for recognition of a qualification cannot result, the recognition mechanisms of the "general regime" must be applied. The latter requires the host Member State to conduct a case-by-case review of each migrant's file and to propose, where appropriate, compensation measures (aptitude test or adaptation stage) covering the only knowledge for which its training has been deemed insufficient;
― free service provision: the order extends the provisions relating to the SLA to the pharmacist profession. Thus, community nationals, legally established in their state of origin, can now perform in France acts of their profession without being registered in the order table. However, service providers are required, prior to the first service delivery, to make a declaration whose terms are defined by decree in the Council of State.
It also incorporates the provisions of the bill, tabled in the Senate on January 12, 2005 (No. 142), which was intended to ratify and amend the bill.Order No. 2004-1174 of 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, when not previously done, to EEA nationals.
XXI. ∙ Provisions relating to the professions of Director
and Assistant Director of Laboratory (Article 28)
This Order introduces in the Public Health Code provisions relating to the freedom of establishment and the LPS for assistant directors and directors of the medical biology laboratory:
freedom of establishment: the order specifies the rules for recognition of qualifications by transposing the mechanisms for recognition of the "general regime". For example, access to the functions of Director or Assistant Director of Laboratory is possible provided the applicant holds a training title obtained in another Member State and attests to a minimum four-year post-secondary level of training. However, where the applicant's original Member State does not regulate access to these functions, the applicant must justify, in addition to the training title, two years of full-time professional experience over the past ten years. In the event of a substantial difference between the training acquired by the migrant and the training required in France, the recognition of the training titles is subject to the completion by the applicant of a compensation measure (e.g. aptitude test or adaptation course) covering the only knowledge for which his training has been deemed insufficient;
― free service provision: the order extends the provisions relating to the SLA to the functions of Director or Deputy Laboratory Director of Medical Biology Analysis. For example, community nationals, legally established in their State of origin and who have served in them for two years in the last ten years if these functions are not regulated, can now perform in France acts related to their activities without being registered in the corresponding order table. However, service providers are required, prior to the first service delivery, to make a declaration whose terms are defined by decree in the Council of State.
In addition, the order transposes the jurisprudence of the Court of Justice of the European Communities that, in an application for authorization to practise a regulated profession formed by a Community national who holds a degree acquired in a third State but recognized by a Member State, the competent authorities are required to take into account all the training titles as well as the relevant professional experience of the individual and to make a comparison with the required national knowledge and qualifications.
Finally, the transposition of the directive is an opportunity to extend the benefit of these provisions, when not previously done, to EEA nationals.
XXII. - Occupational provisions
(articles 29 to 40)
Directive 2005 / 36 / CE consolidates, amends or supplements the provisions relating to the freedom of establishment applicable to all paramedical professions and extends, while supplementing them, the provisions relating to the LPS already provided for nurses.
1° The general regime for recognition of the qualifications of freedom of establishment meets the European Union's desire to establish the free movement of people and services. All medical assistants, pharmacy preparers, hospital pharmacy preparers and osteopaths are affected by this device. Permissions are granted to community nationals, who hold European degrees.
This Order presents a double object in respect of the freedom of establishment of medical assistants. On the one hand, it is necessary to transpose the few new obligations introduced by the directive. On the other hand, with this directive, the Commission wished to simplify the drafting in order to make it more understandable. This is the same objective that the national legislation on medical assistants has been amended.
2° Directive 2005 / 36 / EC aims to facilitate the LPS within the European Union states, in accordance with the principle of free movement of persons and services, enshrined in the Treaty establishing the European Community.
In effect for the nursing profession, the LPS is now extended and completed to all medical assistants.
The service provider shall apply the rules and procedures relating to the conditions of practice of the profession in the receiving Member State as well as those relating to ethics and discipline, and shall not be subject to registration in the order of the profession concerned when it exists in the profession.
Temporary and casual delivery of services is the subject of a prior written statement, established in the language of the host Member State, in the first performance or in the event of material change in the provider's situation.
The service is carried out 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 place where it was obtained.
The provision of services is carried out under the professional title of the State of establishment written in one of the official languages of that State.
A professional qualification check is performed for medical assistants, and for nurses whose training title does not receive automatic recognition within the meaning of the directive, prior to the first service delivery. This may result in compensation measures in the event of a substantial difference between these qualifications and the training required in France. In this case, the benefit is carried out under the professional title of the host Member State.
With respect to the profession of preparator in hospital pharmacy, whose French diploma was created in 2001, this order introduces provisions relating to the situation of community nationals, in terms of freedom of establishment and LPS.
XXIII. - Occupational provisions
(Article 41)
Article 41 of this Order is intended to allow nationals of a Member State of the European Community or of another State Party to the Agreement on the EEA to practise the profession of dance teacher under the same conditions as nationals of the French State, subject to the provision of a preliminary declaration for the beneficiaries of the LPS.
On the other hand, it extends to some European companies the field in which the professional activity of choreographic artists can be validated which can follow a specific educational training that will allow them to benefit, as well as French dancers, from the state diploma of dance teacher.
XXIV. - Occupational provisions
(Article 42)
Section 42 of this Order is the main objective of transpositioning Directive 2005 / 36 / EC.
Article 42 I therefore provides:
― the 1st of the system of automatic recognition of architectural degrees;
- to grant recognition to holders of a diploma, certificate or other title issued by a third State, which was recognized in a Member State or in another State Party to the EEA other than France and which allowed it to practise the profession legally, in the State which recognized the degree, certificate or title, for a minimum period of three years. This professional experience must be certified by the State in which it was carried out. When the professional experience has not been carried out in the State which has recognized the title, the competent authorities are required to take into account all the diplomas, certificates and other titles, as well as the relevant experience of the individual and to make a comparison with the knowledge and qualifications required by national legislation (cf. in particular case 238 / 98 ― Hugo Fernando Hocsman v / Minister of Employment and Solidarity);
– to grant recognition to graduates who do not benefit from automatic recognition.
These provisions also correspond to the transposition of Article 10 of Directive 2005 / 36 / EC which provides specific provisions in the case of "specific and exceptional motive" and it has become appropriate in this context to transpose Article 14 on compensation measures;
― the resumption at the 4th of former section 10-3 of Act No.77-2 of 3 January 1977 amended on architecture taking into account the provisions of section 48 of Directive 2005 / 36.
Section 42 II deals specifically with the SLA.
The Act of 3 January 1977 provides no provision for the provision of services.
However, the regulatory provisions for the application of the law and the practice of the National Council for the Order of Architects (CNOA) correspond to the flexibility required by the Directive for the provision of services.
So itArticle 7 of Decree No. 78-67 of 16 January 1978 modified for application articles 10, 11 and 38 of Act No. 77-2 of 3 January 1977 and with respect to the requirements for registration in the regional architectural table, a simple statement to the Regional Council of Order (CROA) for a specific project is provided, rather than the inscription in order. In order to provide a legal basis for this regulatory provision and to adapt it to the device provided for in Directive 2005 / 36 / EC, it seems necessary to introduce an article 10-1 dealing specifically with the LPS, placing the principle of a reduced procedure and referring to a decree in the Council of State to specify the terms of the declaration that will include verification of the guarantees and professional qualifications of the provider during the first service delivery.
XXV. - Occupational provisions
(articles 43)
Directive 2005 / 36 / EC sets out the rules that a Member State, which provides for access to a regulated profession to the possession of professional qualifications, recognizes the professional qualifications acquired in another Member State.
Prefectural enabling articles L. 2223-23 and L. 2223-41 of the general code of territorial authorities (CGCT), particularly issued on the basis of conditions of professional capacity, is required for the access and exercise of funeral benefits related to the external service of funeral pumps and the management of crematorium.
As a result, the funeral sector enters the scope of the above-mentioned directive. The provisions of the transfer must therefore be made so that nationals of States members of the European Community or of another State Party to the EEA agreement wishing to settle in France or to ensure a simple service provision can be applied to this system of recognition of professional qualifications.
This Order declines the provisions of the Directive by providing for the creation of a sub-section 6 entitled "Recognition of professional qualifications of nationals of a Member State of the European Community or another State Party to the Agreement on the European Economic Area" in Chapter III of Title II of Part II of the CGCT.
This text defines benefits under the Vocational Qualification Recognition Plan (Article L. 2223-47). As the area " Funeral Pumps and Cemetery Maintenance" is listed in List III of Schedule IV, this area is the application of the applicant's professional experience recognition principle (Article L. 2223-48).In the absence of a more general recognition of training titles (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). Section L. 2223-51 provides for the recognition of professional qualifications as part of a service delivery.
XXVI. - Occupational provisions
(Article 44)
The provisions on the LPS are new and must be transposed.
The transfer meets the principle of the directive that provides that any community national legally established in a State of origin may perform a temporary and occasional service provision in another Member State under its original professional title, without requiring recognition of its qualifications.
However, the provider must also justify two years of professional experience when the expert profession is not regulated in the state of establishment.
In contrast to the easing of the GPA regime, the supplier is required to make a prior declaration.
The service provider performs its service under the professional title in its state of establishment. The benefit is carried out under the ethical and disciplinary control of the National Council of Land, Agriculture and Forestry Expertise.
Regulatory measures will complement this legislative transposition of the directive, in particular in order to clarify the modalities for the implementation of the exemptions chosen by France.
With regard to freedom of establishment, recognition of professional qualifications can lead to the fulfilment of compensation measures defined by decree in the Council of State.
XXVII. ― Provisions relating to agricultural professions with public health and safety implications: dog dresser with bite, maintenance of domestic animal species, applicator and distributor of agricultural pest control products, equine inseminator and artificial insemination centre (Article 45)
It is recalled the two conditions under which a community national can freely take service in France, and set out in Article 5 of the Directive, namely the legal establishment in another Member State of the European Union and the possibility of justifying two years of professional experience in the activity considered in its State of origin, when the activity is not regulated and in the case that the training leading to the activity is not itself regulated.
The two options offered by the Directive in its Article 7 for the supervision of the LPS are also transposed.
This is, on the one hand, the possibility of requiring the provider to inform the competent authority prior to its first performance by means of a written statement.
On the other hand, it is anticipated that the competent authority will conduct an audit of the professional qualifications of the provider to ensure that the benefit will not affect public safety and health. The implementation of this qualification control mechanism, reserved by the Directive on Occupations with Public Health or Safety Implications, appears to be justified for the above professions.
Finally, the benefit of these new provisions is extended to nationals of the States parties to the EEA agreement.
XXVIII. - Occupational provisions
(Article 46)
The Directive sets out the rules that a Member State must assimilate to a training title any training title issued in a third country as long as its holder has, in the profession concerned, a three-year professional experience in the territory of the Member State that has recognized the title and certified by the Member State (Article 3, item 3).
The amendments introduced in this order allow for the recognition of veterinary training titles in cases that meet the above-mentioned rules.
In addition, the Directive provides specific acquired rights to veterinarians (art. 39). This order strictly follows these provisions.
XXIX. ― Provisions relating to the profession of animal husbandry establishment of non-domestic species, sale, lease, transit, and establishment intended for the presentation to the public of live specimens of local or foreign fauna (section 47)
The possession of the Certificate of Captivity Captivity for Non-Home Animals is imposed by theArticle L. 413-2 of the Environmental Code.
The Certificate of Capacity is an administrative authorization to exercise the responsibility for the maintenance of non-domestic animals in captivity for the purposes of animal husbandry, sale, rental, transit or public presentation.
It is issued by department prefects in the light of the diplomas, supplemented by a professional experience of inversely proportional to the degree level available to the applicant and after maintenance of the applicant with a departmental or national advisory board for the presentation to the public of the majority of animal species.
It is anticipated that the certificate of capacity will be granted to nationals of the Member States of the European Union under the same conditions as for French nationals. However, where, under the directive, it will be considered that the diplomas issued in the applicant's Member State are not at the same level as those issued in France, it is necessary to provide compensation measures by opening the applicant's ability to claim up to three years of professional experience or to submit to a fitness test.
Accordingly, the application of the Recognition of Professional Qualification Directive requires:
1° An amendment to the environmental code (Article L. 413-2) to set the conditions for the exercise of services in a temporary and occasional manner by nationals of other EU Member States;
2° An environmental code modification (articles R. 413-2, R. 413-4 and R. 413-26) to specify the conditions for the recognition of professional qualifications prior to the issuance of certificates of capacity to nationals of Member States of the European Union other than France, in particular when the diplomas of these persons are not considered as of the same level as the French diplomas whose possession is necessary for obtaining a certificate of capacity;
3° An amendment to the order setting out the list of diplomas and professional experiences necessary to solicit the issuance of a certificate of capacity.
This is the subject of this order that we have the honour to submit to your approval.
Please accept, Mr. President, the assurance of our deep respect.
