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STATUTORY INSTRUMENTS
1991No. 824
PROFESSIONAL QUALIFICATIONS
The European Communities (Recognition of Professional
Qualifications) Regulations 1991
Made
25th March 1991
Laid before Parliament
27th March 1991
Coming into force
Regulation 11 In accordance with regulation 1(2)(a)
Regulation 12 In accordance with regulation 1(2)(b)
Remainder
17th April 1991
The Secretary of State, being a Minister designated[1]
for the purposes of section 2(2) of the European
Communities Act 1972[2]
in relation to measures relating to recognition of
higher-education diplomas or formal qualifications required for the
pursuit of professions or other occupations, in exercise of the powers
conferred on him by that section, hereby makes the following
Regulations:—
Citation and commencement
1.—(1) These Regulations may be cited as the European Communities
(Recognition of Professional Qualifications) Regulations 1991.
(2) These Regulations shall come into force as follows:—
(a) regulation 11, on the date of coming into force of section 25 of the
Companies Act 1989[3]
;
(b) regulation 12, on the date of coming into force of Article 28 of the
Companies (Northern Ireland) Order 1990[4]
;
(c) all other regulations on 17th April 1991.
Interpretation
2.—(1) In these Regulations, unless the context otherwise requires, the
following words and phrases have the following meanings (and cognate
expressions shall be construed accordingly)—
"adaptation period" means a period of practice of a regulated profession in the United
Kingdom under the supervision of a qualified member of that profession,
required by a designated authority pursuant to regulation 6(1)(b);
"another member State" means a member State other than the United Kingdom;
"appeal body" means, in respect of any regulated profession, the body, court or
person specified in relation to that profession in Schedule 4;
"aptitude test" means a test required by a designated authority pursuant to
regulation 6(1)(b);
"competent authority" means, in relation to any
(a) document, certificate, diploma or qualification, or
(b) period of professional experience,
referred to in these Regulations, the authority, body or person in a member State authorised under the laws, regulations or administrative provisions of that State, to issue, award or recognise such document, certificate, diploma or qualification, or to certify any such period;
"corresponding profession" means a profession, the pursuit of which in another member State
includes a substantial number of the professional activities comprised
in the pursuit of the profession in the United Kingdom which is the
subject of the migrant's application;
"designated authority" means a body or authority designated in relation to a regulated
profession by regulation 4 and Schedule 1 and any qualifying body
referred to in regulations 11(2) and 12(3);
"diploma" means any diploma, certificate or other evidence of formal
qualifications awarded by a competent authority in a member
State—
(a) which shows that the holder:
(i) has successfully completed a post-secondary course of at least three
years' duration (or of an equivalent duration part-time) at a university
or an establishment of higher education or an establishment of similar
level;
(ii) has successfully completed any additional professional training
required; and
(iii) has the qualifications required for the practice of a regulated
profession in that State;
provided that either:
(A) the education and training attested were received mainly within the
Economic Community; or
(B) the holder has had at least three years' professional experience
certified by a competent authority in that State (being a State which
recognised a diploma, certificate or other evidence of formal
qualifications obtained in a non-member State);
or
(b) which was awarded on the successful completion of education and
training received within the Economic Community, and which—
(i) has been recognised by a competent authority in that State as
equivalent in level to a diploma to which sub-paragraph (a) applies; and
(ii) confers the same rights in respect of the practice of a regulated
profession in that State;
"the Directive" means Council Directive 89/48/EEC[5]
on a general system for the recognition of
higher-education diplomas awarded on completion of professional
education and training of at least three years' duration;
"migrant" means a national of a member State applying under these Regulations
to a designated authority for authorisation to practise;
"native applicant" means a national of a member State applying to a designated
authority for authorisation to practise, the qualifications of whom were
obtained wholly within the United Kingdom;
"practise" in relation to any regulated profession, includes—
(a) the taking up or pursuit of the profession in a member State,
whether in a self-employed capacity or as an employed person; and
(b) the right to use, in the course of such pursuit, a professional
title or designatory letters, or the enjoyment of any special status
corresponding to a diploma, granted by a designated authority for that
profession;
"professional experience" means the lawful pursuit in a member State of a profession
corresponding to the regulated profession which is the subject of the
migrant's application;
"regulated profession" means a profession in respect of which a designated authority is
specified in Schedule 1 and the profession of company auditor as defined
in section 24(2) of the Companies Act 1989 and Article 27(2) of the
Companies (Northern Ireland) Order 1990.
(2) A reference in these Regulations to"the United Kingdom"
shall, as the context requires, include a reference to any of the following: England and Wales, Scotland, and Northern Ireland.
(3) Any reference in these Regulations to a numbered regulation or
Schedule is a reference to the regulation or Schedule so numbered in
these Regulations.
Application
3. These Regulations shall apply notwithstanding any enactment or rule
of law, including any provision in any charter, bye-law or other rule
(however described) governing any designated authority.
Designated authorities
4.—(1) The designated authority for a regulated profession in the United
Kingdom is the body or authority specified in relation to that
profession in Schedule 1.
(2) Without prejudice to its other powers and functions, a designated
authority shall have the function of considering applications and
granting authorisations under these Regulations.
Right to practise in the United Kingdom
5.—(1) Subject to regulation 6, a designated authority for a regulated
profession may not, on grounds of inadequate qualifications, refuse to
authorise a migrant to practise the profession on the same conditions as
apply to someone who holds the diploma required of native applicants,
if—
(a) the migrant holds the diploma required in another member State for
the practice of a corresponding profession regulated by that State, the
diploma having been awarded in another member State; or
(b) the migrant has within the ten years immediately prior to his
application pursued a corresponding profession for at least two years
full-time in a member State which does not regulate that profession, and
produces the evidence specified in paragraph (2) below.
(2) The evidence referred to in sub-paragraph (1)(b) of this regulation
is of the following:
(a) formal qualifications awarded by a competent authority in a member
State which—
(i) show that the migrant has successfully completed a post-secondary
course of at least three years' duration (or equivalent duration
part-time) at a university or an establishment of higher education or an
establishment of similar level in a member State;
(ii) show the migrant has successfully completed any additional
professional training required; and
(iii) prepared the migrant for the corresponding profession;
or
(b) formal qualifications awarded by a competent authority in a member
State on the successful completion of education and training within the
Economic Community, and recognised by a competent authority in that
State as equivalent to the qualifications specified in sub-paragraph
(2)(a) of this regulation; provided that notification of such
recognition has been duly given in accordance with Article 3(b) of the
Directive.
Professional experience, adaptation periods and aptitude tests
6.—(1) A designated authority may, before authorising the migrant to
practise the regulated profession, require him to satisfy one or other
of the following conditions (but not both)—
(a) where the duration of the education and training received by the
migrant, as appears from the matters established by him pursuant to
regulation 5, is at least one year less than that required of native
applicants, he may be required to provide evidence of a period of
professional experience; and the provisions of Schedule 2 shall have
effect with respect to the length of that period;
(b) in the circumstances specified in paragraph (3) of this regulation (but subject to paragraph (2)), the migrant may be required either—
(i) successfully to complete an adaptation period not exceeding three
years; or
(ii) to pass an aptitude test.
(2) Where a requirement is imposed pursuant to sub-paragraph (1)(b) of
this regulation, the choice between an adaptation period and an aptitude
test shall be that of the migrant, except in the case of the regulated
professions specified in Schedule 3 (where the provisions of that
Schedule shall apply).
(3) The circumstances referred to in sub-paragraph (1)(b) of this
regulation are where the matters covered by the education and training
received by the migrant, as established by him pursuant to regulation 5,
differ substantially from those covered by the diploma required of
native applicants.
Requirements in relation to aptitude tests
7.—(1) An aptitude test shall be limited to the professional knowledge of
the migrant and shall have the aim of assessing his ability to pursue
the relevant regulated profession in the United Kingdom. The test shall
take into account that he is a qualified professional in another member
State.
(2) The designated authority shall determine the matters to be covered
by the aptitude test as follows:
(a) the authority shall establish which subjects covered by the diploma
required of native applicants are not already covered by the migrant's
diploma or other evidence of formal qualifications;
(b) the test shall cover subjects selected from those so established,
the knowledge of which is essential for the pursuit of the regulated
profession in the United Kingdom;
(c) the test may include knowledge of the relevant rules of professional
conduct.
(3) The professional status of a migrant preparing for the aptitude test
shall be a matter for the designated authority.
Requirements in relation to adaptation periods
8.—(1) The designated authority shall determine the detailed requirements
of the adaptation period, having regard to the circumstances of each
individual migrant and, in particular, to the fact that he is a
qualified professional in another member State.
(2) The migrant may be required to undergo further training during the
adaptation period.
(3) The migrant's performance during the adaptation period shall be
assessed by the designated authority.
(4) The professional status of a migrant during the adaptation period
shall be a matter for the designated authority.
Evidence from competent authorities
9.—(1) A designated authority shall, in connection with any matter
requiring to be established pursuant to regulation 5 or 6, accept as
sufficient evidence thereof the certificates or other documents duly
issued by a competent authority of the relevant member State for the
purpose of attesting such matters.
(2) A designated authority which—
(a) requires of an applicant for authorisation to practice proof that he
is of good character or repute, or that he has not been declared or
adjudged bankrupt, or had a bankruptcy or similar order made against him
or in relation to his estate; or
(b) suspends or prohibits practise in the event of serious professional
misconduct or the commission of a criminal offence;
shall accept as sufficient evidence in relation to the foregoing:
(i) the documents showing the relevant conditions are met, duly issued
by the competent authorities of the member State of origin of the
migrant, the member State from which the migrant comes or the member
State in which the migrant formerly qualified or practised; or
(ii) where those authorities do not issue such documents, a declaration
on oath or solemn declaration to the required effect, made by the
migrant before a competent judicial or administrative authority or
(where appropriate) a notary or duly qualified professional body of the
relevant member State; provided that in each case such declaration is
authenticated by a certificate issued by the authority, notary or body.
(3) A designated authority which requires of persons wishing to practise
a certificate of physical or mental health, shall accept as sufficient
evidence thereof the documents required for such a purpose in the member
State of origin of the migrant, the member State from which the migrant
comes or the member State in which the migrant formerly qualified or
practised, or (where none are required in those States) a certificate
issued by a competent authority there which corresponds to the
certificate issued for that purpose in the United Kingdom.
(4) A designated authority may require any document or certificate
referred to in paragraph (2) or (3) of this regulation to be presented
no more than three months after the date of its issue.
(5) Where a designated authority requires applicants to take an oath or
make a solemn declaration, the form of which is such that it cannot be
taken or made by nationals of another member State, it shall ensure that
an appropriate equivalent form of oath or declaration is available for
those nationals.
Use of professional title
10.—(1) A migrant who has been granted authorisation to practise a regulated
profession pursuant to these Regulations shall have the right to
use—
(a) the professional title and designatory letters applicable to that
profession in the United Kingdom; and
(b) the lawful academic title (and where appropriate the abbreviation
thereof) acquired by him in the member State in which he formerly
qualified and in the language of that State.
(2) Where the migrant makes use of the possibility provided for in
sub-paragraph (1)(b) of this regulation, the designated authority may
require that the title shall be followed by the name and location of the
establishment or examining board which awarded it.
(3) Where the migrant makes use of the possibility provided for in
sub-paragraph (1)(a) of this regulation, and the profession is one of
those specified in Part 2 of Schedule 1 (Professions regulated by
professional bodies incorporated by Royal Charter), he shall only be
entitled to use the professional title or designatory letters on proof
of membership of the relevant body.
(4) Where membership of a professional body is subject to any
qualification requirements, such requirements may be applied to a
migrant who satisfies condition (a) or (b) of regulation 5(1) only so
far as they are consistent with the provisions of these Regulations.
Special provisions for company auditors
11.—(1) In this regulation—
(a) "the Act" means the Companies Act 1989;
(b) "company auditor" has the meaning given in s.24(2) of the Act;
(c) "qualifying body" means a body offering a qualification in respect of which there is
for the time being in force an order made by the Secretary of State
pursuant to paragraph 2 of Schedule 12 to the Act; and
(d) "supervisory body" means a body in respect of which there is for the time being in
force an order made by the Secretary of State pursuant to paragraph 2 of
Schedule 11 to the Act.
(2) Any qualifying body is a designated authority for the regulated profession of company auditor and may accordingly authorise a migrant as qualified to practise that profession.
(3) A migrant so authorised shall be eligible for appointment as a
company auditor only if he satisfies the conditions for eligibility laid
down in Part II of the Act.
(4) Notwithstanding anything in Part II of Schedule 11 to the Act, in
the case of a migrant who has been granted authorisation to practise by
a qualifying body pursuant to these Regulations and who has satisfied
any requirements imposed by that body under regulation 6, a supervisory
body may not exclude the migrant from membership, or otherwise limit his
eligibility for appointment, on any ground related to his previous
education and training or to the length of his previous professional
experience or practice.
(5) Regulation 9 shall apply to supervisory bodies as it applies to
designated authorities.
(6) References, in Part II of the Act, to individuals holding an
appropriate qualification are to be construed as including individuals
who have been authorised to practise by a qualifying body pursuant to
these Regulations and who have fulfilled any requirements imposed
pursuant to regulation 6.
Special provisions for company auditors in Northern Ireland
12.—(1) This regulation applies to Northern Ireland only.
(2) In this regulation—
(a) "the Order" means the Companies (Northern Ireland) Order 1990;
(b) "company auditor" has the meaning given in Article 27(2) of the Order;
(c) "qualifying body" means a body offering a qualification in respect of which there is
for the time being in force an order made by the Department of Economic
Development pursuant to paragraph 2 of Schedule 12 to the Order;
(d) "supervisory body" means a body in respect of which there is for the time being in
force an order made by the Department of Economic Development pursuant
to paragraph 2 of Schedule 11 to the Order.
(3) Any qualifying body in Northern Ireland is a designated authority
for the regulated profession of company auditor and may accordingly
authorise a migrant as qualified to practise that profession.
(4) A migrant so authorised shall be eligible for appointment as a
company auditor only if he satisfies the conditions for eligibility laid
down in Part III of the Order.
(5) Notwithstanding anything in Part II of Schedule 11 to the Order, in
the case of a migrant who has been granted authorisation to practise by
a qualifying body pursuant to these Regulations and who has satisfied
any requirements imposed by that body under regulation 6, a supervisory
body may not exclude the migrant from membership, or otherwise limit his
eligibility for appointment, on any ground related to his previous
education and training or to the length of his previous professional
experience or practice.
(6) Regulation 9 shall apply to supervisory bodies in Northern Ireland
as it applies to designated authorities.
(7) References, in Part III of the Order, to individuals holding an
appropriate qualification are to be construed as including individuals
who have been authorised to practise by a qualifying body pursuant to
these Regulations and who have fulfilled any requirements imposed
pursuant to regulation 6.
Decisions of designated authorities and appeals
13.—(1) A designated authority for a regulated profession shall consider the
migrant's application as soon as is reasonably practicable, and shall
notify him of its decision together with the reasons upon which it is
based within four months of receipt of all the relevant documents.
(2) Where a designated authority imposes a requirement pursuant to
paragraph (1) of regulation 6, the decision referred to above shall
include—
(a) in the case of a period of professional experience, a determination
of the length of that period;
(b) in the case of an adaptation period, a determination of the length of the period and the training, if any, required;
(c) in the case of an aptitude test, a determination of the matters to
be covered by the test.
(3) For the purposes of this regulation, if a designated authority fails
to take a decision and notify it to the migrant within the period
mentioned in paragraph (1) of this regulation, it shall be deemed to
have taken a decision to reject his application and to have notified it
to him on the last day of that period.
(4) Within three months of the notification to him of the designated
authority's decision, or thereafter with leave of the appeal body, the
migrant may appeal against the decision to the appeal body specified in
Schedule 4.
(5) An appeal body for a regulated profession may, for the purpose of
determining any appeal under these Regulations against the decision of a
designated authority—
(a) give any authorisation to practise and impose any condition which
the designated authority could give or impose in relation to that
profession; or
(b) remit the matter to the designated authority with such directions as
the appeal body sees fit.
(6) Without prejudice to any powers of the Court of Session in Scotland
to regulate the proceedings of itself and those of the sheriff courts,
an appeal body in England and Wales or Northern Ireland may make rules
of procedure governing the hearing and determination of any appeal under
these Regulations against the decision of a designated authority. Such
rules may make different provision for different cases.
Information from designated authorities
14. Designated authorities shall provide the Secretary of State with
such information (including statistical information) as he may require
concerning applications made and decisions taken under these
Regulations.
Tim Sainsbury
Minister for Trade, Department of Trade and Industry
