Recognition of Professional Qualifications (Directive 2005/36/Ec) Regulations, 2008

JurisdictionIreland
CitationIR SI 139/2008

S.I. No. 139 of 2008

RECOGNITION OF PROFESSIONAL QUALIFICATIONS (DIRECTIVE 2005/36/EC) REGULATIONS, 2008

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 13th May, 2008.

Part 1

I, MARY HANAFIN, Minister for Education and Science, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972) as amended by the European Communities Act 2007 (No. 18 of 2007), and for the purpose of giving effect to Council Directive No. 2005/36/EC of 7 September 2005 1 , Council Directive No. 2006/100/EC of 20 November 2006 2 , Article 24 of Council Directive No. 2004/38/EC of 29 April 2004 3 , Article 27 of Council Directive No. 2004/83/EC of 29 April 2004 4 , hereby make the following regulations:

Citation

1. (1) These Regulations may be cited as the Recognition of Professional Qualifications (2005/36/EC) Regulations, 2008.

(2) These Regulations shall come into operation on the 6th day of May 2008.

Interpretation

2. (1) In these Regulations, except where the context otherwise requires:—

“adaptation period” means the pursuit of a regulated profession in the State under the responsibility of a qualified member of that profession, such period of supervised practice possibly being accompanied by further training. This period of supervised practice shall be the subject of an assessment. The detailed rules governing the adaptation period and its assessment as well as the status of an applicant under supervision shall be laid down by the relevant competent authority. The status enjoyed in the State by the person undergoing the period of supervised practice, in particular in the matter of right of residence as well as obligations, social rights and benefits, allowances and remuneration, shall be established by the relevant authorities in accordance with applicable Community law;

“applicant” means a person who makes an application;

“application” means an application made pursuant to these Regulations and the Directive by a national of a Member State to a competent authority for authorisation to take up or pursue a regulated profession in the State;

“aptitude test” means a test limited to the professional knowledge of the applicant, made by the competent authorities of the State with the aim of assessing the ability of the applicant to pursue a regulated profession in the State. In order to permit this test to be carried out, the competent authorities shall draw up a list of subjects which, on the basis of a comparison of the education and training required in the State and that received by the applicant, are not covered by the diploma or other evidence of formal qualifications possessed by the applicant. The aptitude test must take account of the fact that the applicant is a qualified professional in the home Member State or the Member State from which he comes. It shall cover subjects to be selected from those on the list, knowledge of which is essential in order to be able to pursue the profession in the State. The test may also include knowledge of the professional rules applicable to the activities in question in the State. The detailed application of the aptitude test and the applicants status in the State shall be determined by the competent authorities in the State;

“attestation of competence” means any evidence of qualifications—

(a) attesting to education and training other than education and training constituting a diploma or certificate, or

(b) awarded following an assessment of the personal qualities, aptitudes or knowledge which it is considered essential that the applicant have for the pursuit of a profession by an authority designated in accordance with the laws, regulations or administrative provisions of a Member State without proof of prior education and training being required;

“competent authority” means any authority or body empowered by the State specifically to issue or receive training diplomas and other documents or information and to receive the applications, and take the decisions, referred to in these Regulations and the Directive;

“corresponding profession” means in relation to a regulated profession in the State that is the subject of an application, means a profession in another Member State which corresponds substantially to the first-mentioned profession;

“the Directive” means Council Directive No. 2005/36/EC of 7 September 2005;

“Evidence of formal qualifications” means diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions in that Member State and certifying successful completion of professional training obtained mainly in the Community. Where a qualification has been obtained in a third country, the conditions set out in Regulation 3.1(b) apply;

“Establishment” means the actual pursuit of an economic activity as referred to in Article 43 of the EU Treaty by the provider for an indefinite period and, where applicable, through a stable infrastructure from where the business of providing services is actually carried out;

“FÁS” means An Foras Áiseanna Saothair;

“the Minister” means the Minister for Education and Science;

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

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

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

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

“national coordinator” means the person appointed by the Minister pursuant to Regulation 26(1);

“professional experience” means in relation to a regulated profession that is the subject of an application, means the actual and lawful pursuit in another Member State of a corresponding profession;

“regulated education and training” means any education and training which is directly geared to the pursuit of a defined profession, and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice. The structure and level of the professional training, probationary or professional practice shall be determined by the laws, regulations or administrative provisions of the Member State concerned, or monitored or approved by the authority designated for that purpose;

“regulated profession” means a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which, is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications: in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. Where the first sentence of this definition does not apply, a profession referred to in paragraph (2) shall be treated as a regulated profession;

“relevant activity” means, insofar as activities under Regulations 10, 11, 12, 13 and 14 refer, an activity which falls within the lists of activities set out in Annex IV of the Directive;

“service” means any self employed economic activity normally provided for remuneration, as referred to in Article 50 of the EU Treaty.

(2) (a) A profession practised by the members of an association or organisation listed in Annex I of the Directive shall be treated as a regulated profession.

(b) The purpose of the associations or organisations referred to in subparagraph (a) is, in particular, to promote and maintain a high standard in the professional field concerned. To that end they are recognised in a special form by a Member State and award evidence of formal qualifications to their members, ensure that their members respect the rules of professional conduct which they prescribe, and confer on them the right to use a title or designatory letters or to benefit from a status corresponding to those formal qualifications.

(3) A word or expression that is used in these Regulations and is also used in the Directive has, unless a contrary intention appears, the meaning in these Regulations that it has in the Directive.

(4) For the purposes of these Regulations and the Directive, the Department of Education and Science is both the national contact point and the designated national co-ordinator for the activities of the competent authorities.

(5) For the purpose of these regulations, the profession which the applicant wishes to pursue in the host Member State is the same as that for which he is qualified in his home Member State if the activities are comparable.

(6) In these Regulations—

(a) a reference to a Regulation or Part is a reference to a Regulation or Part to these Regulations unless it is indicated that reference to some other provision is intended,

(b) a reference to a Schedule is a reference to a Schedule of these Regulations unless it is indicated that a reference to some other provision is intended,

(c) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that a reference to some other provision is intended,

(d) any reference to an Annex of the Directive shall be treated as encompassing the Annexes set out in Council Directive 2005/36/EC as updated by the additions in Council Directive 2006/100/EC on foot of the accession of Bulgaria and Romania,

(e) any reference to an Annex of the Directive shall be treated as encompassing subsequent updates made from...

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