title: COMMON POSITION (EC) No 42/98 adopted by the Council on 29 June 1998 with a view to adopting Directive 98/.../EC of the European Parliament and Council of ... establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications

eurovoc_concepts:
free movement of workers
professional qualifications
recognition of diplomas
right of establishment
vocational training

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text: C 262/12 EN Official Journal of the European Communities 19. 8. 98 COMMON POSITION (EC) No 42/98 adopted by the Council on 29 June 1998 with a view to adopting Directive 98/. /EC of the European Parliament and Council of. establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications (98/C 262/02) THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular Articles 49 and 57(1), the first and third sentences of Article 57(2), and Article 66 thereof, Having regard to the proposal from the Commission (1), Having regard to the opinion delivered by the Economic and Social Committee (2), Acting in accordance with the procedure laid down in Article 189b of the Treaty (3), (1) Whereas, under the Treaty, all discriminatory treatment on grounds of nationality with regard to is establishment and provision of prohibited as from the end of the transitional period; whereas, therefore, certain provisions of the Directives applying in this area have become redundant for the purposes of applying the rule of national treatment, since that rule is enshrined in the Treaty itself and has direct effect; services (2) Whereas, however, certain of to the Directives’ the effective provisions designed exercise of the right of establishment and freedom to provide services should be retained, particularly where they usefully prescribe how obligations under the Treaty are to be discharged; facilitate (3) Whereas, in order to facilitate the exercise of freedom of establishment and freedom to provide services in respect of a number of activities, (1) OJ C 115, 19. 4. 1996, p. 16 and OJ C 264, 30. 8. 1997, p. 5. (2) OJ C 295, 7. 10. 1996, p. 43. (3) Opinion of the European Parliament of 20 February 1997 (OJ C 85, 17. 3. 1997, p. 114), Common Position of the Council of 29 June 1998, and Decision of the European Parliament of in the Official. (not yet published Journal). Directives introducing transitional measures have been adopted pending mutual recognition of qualifications; whereas those Directives accept the fact that the activity in question has been pursued for a reasonable and sufficiently recent period of time in the Member State from which the national comes as a sufficient qualification for taking up the activities in question in Member States which have rules governing the taking up of such activities; (4) Whereas the main provisions of the said Directives should be replaced in line with the conclusions of the European Council held in Edinburgh on 11 and 12 December 1992 regarding subsidiarity, simplification of Community legislation and, in particular, the reconsideration by the Commission of the relatively old directives dealing with professional qualifications; whereas the Directives in question should therefore be repealed; (5) Whereas Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (4) and Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/49/EEC (5) do not apply to certain professional activities covered by the Directives applying to this subject-matter (Part One of Annex A to this Directive); whereas recognition machinery in respect of qualifications should, therefore, be introduced for those professional activities not covered by Directives 89/49/EEC and 92/51/EEC; whereas the professional activities listed in Part Two of Annex A to this Directive fall for the most (4) OJ L 19, 24. 1. 1989, p. 16. (5) OJ L 209, 24. 7. 1992, p. 25. Directive as last amended by Commission Directive 97/38/EC (OJ L 184, 12. 7. 1997, p. 31). 19. 8. 98 EN Official Journal of the European Communities C 262/13 part within the scope of Directive 92/51/EEC as far as the recognition of diplomas is concerned; (6) Whereas a proposal has been transmitted to the Council with a view to amending Directives 89/49/EEC and 92/51/EEC in respect of the proof of financial standing and the proof of an insurance against financial risks that a host Member State may require of the beneficiary; whereas the Council intends to deal with this proposal at a later stage; (7) Whereas a proposal has been transmitted to the Council with a view to facilitating the free movement of specialised nurses who do not have any of the qualifications listed in Article 3 of Directive 77/452/EEC (1); whereas the Council intends to deal with this proposal at a later stage; 2. This Directive shall apply to the activities listed in Annex A which nationals of Member States wish to pursue in a host Member State in a self-employed or employed capacity. Article 2 Member States in which the taking-up or pursuit of any activity referred to in Annex A is subject to possession of certain qualifications shall ensure that any beneficiaries who apply therefor be provided, before they establish themselves or before they begin to provide services, with information as to the rules governing the occupation which they propose to pursue. TITLE II (8) Whereas this Directive should require regular reports to be drawn up on its implementation; Recognition of formal qualifications awarded by another Member State (9) Whereas this Directive is without prejudice to the application of Articles 48(4) and 55 of the Treaty, HAVE ADOPTED THIS DIRECTIVE: TITLE I Scope Article 1 1. Member States shall adopt the measures defined in this Directive in respect of establishment or provision of services in their territories by natural persons and companies or firms covered by Title I of the General Programmes for the abolition of restrictions on freedom to supply services (2) and on freedom of establishment (3) (hereinafter called ‘beneficiaries’) who wish to pursue the activities listed in Annex A. (1) Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services (OJ L 176, 15. 7. 1977, p. 1) Directive as last amended by Directive 90/658/EC (OJ L 353, 17. 12. 1990, p. 73). (2) OJ 2, 15. 1. 1962, p. 32/62. (3) OJ 2, 15. 1. 1962, p. 36/62. Article 3 rules. Where formal qualifications obtained by 1. Without prejudice to Article 4, a Member State may not, on the grounds of inadequate qualifications, refuse to permit a national of another Member State to take up or pursue any of the activities listed in Part One of Annex A on the same conditions as apply to its own nationals, without having first compared the knowledge and skills certified by the diplomas, certificates or other evidence of the beneficiary with a view to pursuing the same activity elsewhere in the Community with those required under its own national the comparative examination shows that the knowledge and skills certified by a diploma, certificate or other evidence of formal qualifications awarded by another Member State correspond to those required by the national rules, the host Member State cannot refuse the holder the right to pursue the activity in question. Where, however, the comparative examination shows a substantial difference, the host Member State shall give the beneficiary the opportunity to demonstrate that he has acquired the knowledge and skills which were lacking by, at the choice of the host Member State, attending an adaptation period or taking an aptitude test by analogy with Directives shall 89/48/EEC and 92/51/EEC. Member States endeavour to take into consideration the beneficiary’s preference as between these alternatives. 2. Applications for recognition within the meaning of paragraph 1 shall be examined within the shortest possible time, and the competent authority in the host Member State shall state its reasons when giving a decision, which shall be taken no later than four months the application and from comprehensive were documentation submitted. There shall be a right to appeal under national law against a decision or against the absence of such decision. the date on which supporting C 262/14 EN Official Journal of the European Communities 19. 8. 98 TITLE III Recognition of professional qualifications on the basis of professional experience acquired in another Member State Article 4 Where, in a Member State, the taking-up or pursuit of any activity listed in Annex A is subject to possession of general, commercial or professional knowledge and ability, that Member State shall accept as sufficient evidence of such knowledge and ability the fact that the activity in question has been pursued in another Member State. Where the activity is mentioned in Part One of Annex A, it must have been pursued: 1. in the case of the activities in List I: (a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or (b) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years’ prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (c) for three consecutive years in a self-employed capacity where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity; or (d) for five consecutive years in a managerial capacity of which at least three years were spent in technical posts with responsibility for one or more departments of the beneficiary proves that he has received at least three years’ prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements. the undertaking where In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application under Article 8 is made; 2. in the case of the activities in List II: (a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or — for four consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least two years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (c) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity; or (d) — for five consecutive years in an employed capacity where the beneficiary proves that he has received at least three years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or — for six consecutive years in an employed capacity where the beneficiary proves that he has received at least two years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements. In the case referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made; 3. in the case of the activities in List III: (a) for six consecutive years in either a self-employed capacity or as a manager of an undertaking; or (b) for three consecutive years in a self-employed capacity or as a manager of an undertaking, where the beneficiary proves that he has received at least three years prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (b) — for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years’ prior training for (c) for three consecutive years in a self-employed capacity where the beneficiary proves that he has pursued the activity in question for at least five years in an employed capacity. 19. 8. 98 EN Official Journal of the European Communities C 262/15 In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made; 4. in the case of the activities in List IV: (a) for five consecutive years in either a self-employed capacity or as a manager of an undertaking; or (b) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least three years’ prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (c) for three consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received at least two years’ prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (d) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least three years in an employed capacity; or (e) for three consecutive years in an employed capacity where the beneficiary proves that he has received at least two years’ previous training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; 5. in the case of the activities in List V(a) and (b): (a) for three years in a self-employed capacity or as a manager of an undertaking, provided that pursuit of the activity in question did not cease more than two years before the the date on which application provided for in Article 8 is made; (b) for three years in a self-employed capacity or as a manager of an undertaking, provided that pursuit of the activity in question did not cease more than two years before the application provided for in Article 8 is made, unless the host Member State permits its nationals to interrupt their pursuit of that activity for a longer period; or the date on which 6. in the case of the activities in List VI: (a) for three consecutive a self-employed capacity or as a manager of an undertaking; or either years in (b) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has received prior training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements; or (c) for two consecutive years in a self-employed capacity or as a manager of an undertaking where the beneficiary proves that he has pursued the activity in question for at least three years in an employed capacity; or (d) for three consecutive years in an employed capacity where the beneficiary proves that he has received previous training for the activity in question, attested by a nationally recognised certificate or regarded by a competent professional or trade body as fully satisfying its requirements. In the cases referred to in (a) and (c), pursuit of the activity shall not have ceased more than ten years before the date on which the application provided for in Article 8 is made. Article 5 Where a beneficiary holds a nationally recognised certificate obtained in a Member State attesting to knowledge of and ability in the activity in question equivalent to at least two or three years, as appropriate, of professional training, that certificate may be treated by the host Member State in the same way as a certificate attesting to training of the duration required by Article 4(1)(b) and (d), (2)(b) and (d), (3)(b) and (4)(b), (c) and (e). Article 6 than three years, two years and Where the duration of the training of the beneficiary is at least the less requirements of Article 4 shall be satisfied if the duration of professional experience in a self-employed capacity or as a manager specified in Article 4(1)(b) and (d), (2)(b), first indent, (3)(b) and (4)(b) or in an employed capacity specified in Article 4(2)(d), first indent is extended in the same proportion to cover the difference in the duration of the training. Article 7 A person shall be regarded as having pursued an activity as a manager of an undertaking within the meaning of Article 4 if he has pursued such an activity in an undertaking in the occupational field in question: C 262/16 EN Official Journal of the European Communities 19. 8. 98 (a) as a manager of an undertaking or a manager of a branch of an undertaking; or (b) 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 (c) in a managerial post with duties of a commercial and/or technical nature and with responsibility for one or more departments of the undertaking. Article 8 Proof that the conditions laid down in Article 4 are satisfied shall be established by a certificate concerning the nature and duration of the activity issued by the competent authority or body in the home Member State or in the Member State from where the beneficiary comes which the beneficiary must submit in support of his application for authorisation to pursue the activity or activities in question in the host Member State. TITLE IV Recognition of other professional qualifications obtained in another Member State Article 9 its own 1. Where a host Member State requires nationals wishing to take up any activity referred to in Article 1(2) to furnish proof of good character and proof that they are not and have not previously been declared bankrupt, or proof of either of these, it shall accept as sufficient evidence, in respect of nationals of other Member States, the production of an extract from the ‘judicial record’ or, failing this, of an equivalent document judicial or a administrative authority in the home Member State or in the Member State from where the beneficiary comes showing that these requirements are satisfied. issued by competent the 2. Where a host Member State imposes on its own nationals wishing to take up any activity referred to in Article 1(2) certain requirements as to good character and requires them to prove that they are not and have not previously been declared bankrupt and have not previously been subject of professional or (for example, administrative disciplinary measures withdrawal of the right to hold certain offices, suspension from practice or striking-off), but proof cannot be obtained from the document referred to in paragraph 1 of this Article, it shall accept as sufficient evidence in respect of nationals of other Member States a certificate issued by a competent judicial or administrative authority in the home Member State or in the Member State from the where comes attesting the beneficiary that requirements are satisfied. Such certificate shall relate to the specific facts regarded as relevant by the host Member State. 3. Where the home Member State or the Member State from where the beneficiary comes does not issue the documents referred to in paragraphs 1 and 2, such documents shall be replaced by a declaration on oath — or, in those Member States where there is no provision for such declaration on oath, by a solemn declaration — made by the person concerned before a competent judicial or, where or in that Member State; such appropriate, a notary authority or notary shall issue a certificate attesting the authenticity of the declaration on oath or solemn declaration. The declaration of no previous bankruptcy may also be made before a competent professional or trade body in that Member State. administrative authority 4. Where a host Member State requires proof of financial standing, it shall regard certificates issued by banks in the home Member State from where the beneficiary comes as equivalent to those issued in its own territory. its own 5. Where a host Member State requires nationals wishing to take up or pursue any activity referred to in Article 1(2) to furnish proof that they are insured against the financial risks arising from their professional liability, it shall accept certificates issued by the insurance undertakings of other Member States as equivalent to those issued in its own territory. Such certificates shall state that the insurer has complied with the laws and regulations in force in the host Member State regarding the terms and extent of cover. 6. At the time of their production, the documents referred to in paragraphs 1, 2, 3 and 5 may not date from more than three months after their date of issue. TITLE V Procedural provisions Article 10 1. Member States shall designate, within the period stipulated in Article 14, the authorities and bodies responsible for issuing the certificates referred to in Articles 8 and 9(1), (2) and (3) and shall communicate this information forthwith to the other Member States and to the Commission. 2. Each Member State may nominate a coordinator for the activities of the authorities and bodies referred to in 19. 8. 98 EN Official Journal of the European Communities C 262/17 paragraph (1) to the coordinating group set up under Article 9(2) of Directive 89/48/EEC. The tasks of the coordinating group shall also be as follows: — facilitating the implementation of this Directive, — collecting all useful information for its application in the Member States and especially gathering and comparing information on the different professional qualifications in the areas of activity falling within the scope of this Directive. TITLE VI Final provisions Article 11 1. The Directives repealed. listed in Annex B are hereby 2. References construed as references to this Directive. to the repealed Directives shall be After undertaking all the necessary hearings, especially of the coordinators, the Commission shall submit its conclusions regarding any changes to the existing arrangement. If necessary, the Commission shall also submit proposals for improving the existing arrangements with the aim of facilitating free movement of persons, the right of establishment and freedom to provide services. Article 14 1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before. (*). They shall immediately inform the Commission thereof. When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States. 2. Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. Article 12 Article 15 from 1 January 2001, Member States As shall communicate to the Commission every two years a report on the application of the system introduced. In addition to general remarks, that report shall contain a statistical summary of the decisions taken and a description of the main problems arising from the application of this Directive. Article 13 Not later than five years after the date referred to in Article 14, the Commission shall report to the European Parliament and the Council on the state of application of this Directive, and in particular of Article 5, in the Member States. This Directive shall enter into force on the day of its publication in the Official Journal of the European Communities. Article 16 This Directive is addressed to the Member States. Done at For the European Parliament For the Council The President The President (*) 24 months from the date of its entry into force C 262/18 EN Official Journal of the European Communities 19. 8. 98 ANNEX A PART ONE ACTIVITIES RELATED TO CATEGORIES OF PROFESSIONAL EXPERIENCE Major groups covered by Directive 64/427/EEC, as amended by Directive 69/77/EEC, and by Directives 68/366/EEC, 75/368/EEC and 75/369/EEC List I 1 Directive 64/427/EEC (liberalisation Directive: 64/429/EEC) NICE Nomenclature (corresponding to ISIC Major Groups 23-40) Group Major Group 23 Major Group 24 Major Group 25 Major Group 26 Major Group 27 232 233 234 235 236 237 238 239 241 242 243 244 245 251 252 253 254 255 259 textile materials on cotton textile materials on woollen Manufacture of textiles Manufacturing and processing of machinery Manufacturing and processing of machinery Manufacturing and processing of textile materials on silk machinery Manufacturing and processing of textile materials on flax and hemp machinery Other textile fibre industries (jute, hard fibres, etc. ) cordage Manufacture of knitted and crocheted goods Textile finishing Other textile industries Manufacture of footwear, other wearing apparel and bedding Machine manufacture of footwear (except from rubber or wood) Manufacture by hand and repair of footwear Manufacture of wearing apparel (except furs) Manufacture of mattresses and bedding Skin and fur industries Manufacture of wood and cork, except manufacture of furniture Sawing and industrial preparation of wood Manufacture of semi-finished wood products Series production of wooden building components including flooring Manufacture of wooden containers Manufacture of other wooden products (except furniture) Manufacture of straw, cork, basketware, wicker-work and rattan products; brush-making 260 Manufacture of wooden furniture 271 272 Manufacture of paper and paper products Manufacture of pulp, paper and paperboard Processing of paper and paperboard, and manufacture of articles of pulp 19. 8. 98 EN Official Journal of the European Communities C 262/19 Major Group 28 Major Group 29 ex Major Group 30 ex Major Group 31 Major Group 32 Major Group 33 Major Group 34 Major Group 35 Major Group 36 280 Printing, publishing and allied industries 291 292 301 302 303 311 312 313 Leather industry Tanneries and leather finishing plants Manufacture of leather products Manufacture of rubber and plastic products, man-made fibres and starch products Processing of rubber and asbestos Processing of plastic materials Production of man-made fibres Chemical industry Manufacture of chemical base materials and further processing of such materials Specialised manufacture of chemical products principally for industrial and agricultural purposes (including the manufacture for industrial use of fats and oils of vegetable or animal origin falling within ISIC Group 312) Specialised manufacture of chemical products principally for domestic or office use the manufacture of medicinal and (excluding pharmaceutical products (ISIC ex Group 319) 320 Petroleum industry 331 332 333 334 335 339 341 342 343 344 345 351 352 353 354 355 359 361 362 363 364 365 Manufacture of non-metallic mineral products Manufacture of structural clay products Manufacture of glass and glass products Manufacture of ceramic products, including refractory goods Manufacture of cement, lime and plaster Manufacture of structural materials, in concrete, cement and plaster Stone working and manufacture of other non-metallic mineral products Production and primary transformation of ferrous and non-ferrous metals Iron and steel industry (as defined in the ECSC Treaty, including integrated steelworks-owned coking plants) Manufacture of steel tubes Wire-drawing, cold-drawing, cold-rolling of strip, cold-forming Production and primary transformation on non-ferrous metals Ferrous and non-ferrous metal foundries Manufacture of metal products (except machinery and transport) Forging, heavy stamping and heavy pressing Secondary transformation and surface-treatment Metal structures Boilermaking, manufacture of industrial hollow-ware Manufacture of tools and implements and finished articles and metal (except electrical equipment) Ancillary mechanical engineering activities Manufacture of machinery other than electrical machinery Manufacture of agricultural machinery and tractors Manufacture of office machinery Manufacture of metal-working and other machine-tools and fixtures and attachments for these and for other powered tools Manufacture of textile machinery and accessories, manufacture of sewing machines Manufacture of machinery and equipment for the food-manufacturing and beverage industries and for the chemical and allied industries C 262/20 EN Official Journal of the European Communities 19. 8. 98 Major Group 37 ex Major Group 38 Major Group 39 Major Group 40 366 367 368 369 371 372 373 374 375 376 377 378 379 383 384 385 389 391 392 393 394 395 396 397 399 400 401 402 403 404 Manufacture of plant and equipment for mines, iron and steel works foundries, and for the construction industry; manufacture of mechanical handling equipment Manufacture of transmission equipment Manufacture of machinery for other specific industrial purposes Manufacture of other non-electrical machinery and equipment Electrical engineering Manufacture of electric wiring and cables Manufacture of motors, generators, transformers, switch gear, and other similar equipment for the provision of electric power Manufacture of electrical equipment for direct commercial use Manufacture of telecommunication equipment, meters, other measuring appliances and electromedical equipment Manufacture of electronic equipment, radio and television receivers, audio equipment Manufacture of electric appliances for domestic use Manufacture of lamps and lighting equipment Manufacture of batteries and accumulators Repair, assembly and specialist installation of electrical equipment Manufacture of transport equipment Manufacture of motor vehicles and parts thereof Repair of motor vehicles, motorcycles and cycles Manufacture of motorcycles, cycles and parts thereof Manufacture of transport equipment not elsewhere classified instruments and equipment and Miscellaneous manufacturing industries Manufacture of precision instruments and measuring and controlling instruments Manufacture of medico-surgical orthopaedic appliances (except orthopaedic footwear) Manufacture of photographic and optical equipment Manufacture and repair of watches and clocks Jewellery and precious metal manufacturing Manufacture and repair of musical instruments Manufacture of games, toys, sporting and athletic goods Other manufacturing industries Construction Construction (non-specialised); demolition Construction of buildings (dwellings or other) Civil engineering; building of roads, bridges, railways, etc. Installation work Decoration and finishing 2 Directive 68/366/EEC (liberalisation Directive 68/365/EEC) NICE Nomenclature Major Group 20 A 200 Industries producing animal and vegetable fats and oils 19. 8. 98 EN Official Journal of the European Communities C 262/21 Major Group 20 B Food manufacturing industries (excluding the beverage industry) 201 202 203 204 205 206 207 208 209 211 212 213 214 304 043 381 382 386 ex 711 ex 712 ex 713 ex 714 ex 716 854 ex 856 ex 859 Slaughtering, preparation and preserving of meat Milk and milk products industry Canning and preserving of fruits and vegetables Canning and preserving of fish and other sea foods Manufacture of grain mill products Manufacture of bakery products, including rusks and biscuits Sugar industry Manufacture of cocoa, chocolate and sugar confectionery Manufacture of miscellaneous food products Beverage industry Production of ethyl alcohol by fermentation, production of yeast and spirits Production of wine and other unmalted alcoholic beverages Brewing and malting Soft drinks and carbonated water industries Manufacture of rubber products, plastic materials, artificial and synthetic fibres and starch products Manufacture of starch products 3 Directive 75/368/EEC (activities listed in Article 5(1)) ISIC Nomenclature Fishing Inland water fishing Manufacture of transport equipment Shipbuilding and repairing Manufacture of railroad equipment Manufacture of aircraft (including space equipment) Activities allied to transport and activities other than transport coming under the following groups: Sleeping- and dining-car services; maintenance of railway stock in repair sheds; cleaning of carriages Maintenance of stock for urban, suburban and interurban passenger transport Maintenance of stock for other passenger land transport (such as motor cars, coaches taxis) Operation and maintenance of services in support of road transport (such as road, tunnels and toll-bridges, goods depots, car parks, bus and tram depots) Activities allied to inland water transport (such as operation and maintenance of waterways, ports and other installation for inland water transport; tug and piloting services in ports, setting of buoys, loading and unloading of vessels and other similar activities, such as salvaging of vessels, towing and the operation of boathouses) Communication: postal services and telecommunications Personal services Laundries and laundry services, dry-cleaning and dyeing Photographic studios: portrait and commercial photography, except journalistic photographers Personal services not elsewhere classified (maintenance and cleaning of buildings or accommodation only) Major Group 21 ex 30 ex 04 ex 38 ex 71 73 ex 85 C 262/22 EN Official Journal of the European Communities 19. 8. 98 4 Directive 75/369/EEC (Article 6: where the activity is regarded as being of an industrial or small-craft nature) ISIC Nomenclature The following itinerant activities: (a) — by itinerant tradesmen, hawkers or pedlars (ex ISIC Group 612), — in covered markets other than from permanently fixed installations and in open-air markets, (b) activities covered by transitional measures already adopted that expressly exclude or do not mention the pursuit of such activities on an itinerant basis. List II Directive 82/470/EEC (Article 6(3)) Groups 718 and 720 of the ISIC Nomenclature The activities comprise in particular: — organising, offering for sale and selling, outright or on commission, single or collective items (transport, board, lodging, excursions, etc. ) for a journey or stay, whatever the reasons for travelling (Article 2(B)(a)). List III Directive 82/489/EEC ex 855 Hairdressing, excluding services of chiropodists and professional beauticians’ and hairdressers’ training schools List IV Directive 82/470/EEC (Article 6(1)) Group 718 and 720 of the ISIC Nomenclature: The activities comprise in particular: — acting as an intermediary between contractors for various methods of transport and persons who dispatch or receive goods, and carrying out related activities: (aa) by concluding contracts with transport contractors, on behalf of principals; (bb) by choosing the method of transport, the firm and the route considered most profitable for the principal; (cc) by arranging the technical aspects of the transport operation (e. g. packing required for transportation); by carrying out various operations incidental to transport (e. g. ensuring ice supplies for refrigerated wagons); (dd) by completing the formalities connected with the transport such as the drafting of way bills; by assembling and dispersing shipments; (ee) by coordinating the various stages of transportation, by ensurings transit, reshipment, transshipment and other termination operations; (ff) by arranging both freight and carriers and means of transport for persons dispatching goods or receiving them, — assessing transport costs and checking the detailed accounts — taking certain temporary or permanent measures in the name of and on behalf of a shipowner or sea transport carrier (with the port authorities, ship’s chandlers, etc. ). (The activities listed under Article 2(A)(a), (b) and (d)) 19. 8. 98 EN Official Journal of the European Communities C 262/23 List V Directives 64/222/EEC and 70/523/EEC a See Article 4(5)(a) of this Directive Directive 64/222/EEC (liberalisation Directive 64/224/EEC 1. Professional activities of an intermediary who is empowered and instructed by one or more persons to negotiate or enter into commercial transactions in the name of and on behalf of those persons. 2. Professional activities of an intermediary who, while not being permanently so instructed, brings together persons wishing to contract directly with one another or arranges their commercial transactions or assists in the completion thereof. 3. Professional activities of an intermediary who enters into commercial transactions in his own name on behalf of others. 4. Professional activities of an intermediary who carries out wholesale selling by auction on behalf of others. 5. Professional activities of an intermediary who goes from door to door seeking orders. 6. Provision of services, by way of professional activities, by an intermediary in the employment of one more commercial, industrial or small craft undertakings. b See Article 4(5)(b) of this Directive Directive 70/523/EEC Activities of self-employed persons in the wholesale coal trade and activities of intermediaries in the coal trade (ex Group 6112, ISIC Nomenclature) (See Article 4(5)(b) of this Directive Directives 68/364/EEC, 68/368/EEC, 75/368/EEC, 75/369/EEC and 82/470/EEC List VI 1 Directive 68/364/EEC (liberalisation Directive 68/363/EEC) ISIC ex Group 612 Retail trade Excluded activities: 012 640 713 718 839 841 842 843 853 854 859 Letting-out for hire of farm machinery Real estate, letting of property Letting-out for hire of automobiles, carriages and horses Letting-out for hire of railway carriages and wagons Renting of machinery to commercial undertakings Booking of cinema seats and renting of cinematograph films Booking of theatre seats and renting of theatrical equipment Letting-out for hire of boats, bicycles, coin-operated machines for games of skill or chance Letting of furnished rooms Laundered linen hire Garment hire C 262/24 EN Official Journal of the European Communities 19. 8. 98 2 Directive 68/368/EEC (liberalisation Directive 68/367/EEC ISIC Nomenclature ISIC ex Major Group 85: 1. Restaurants, cafe´s, taverns and other drinking and eating places (ISIC Group 852) 2. Hotels, rooming houses, camps and other lodging places (ISIC Group 853) 3 Directive 75/368/EEC (Article 7) All the activities listed in the Annex to Directive 75/368/EEC, except those referred to in Article 5 of that Directive (List I, No 3 of this Annex). ex 62 ex 71 ex 82 ex 84 ex 85 ex 620 ex 713 ex 719 827 843 ex 851 ex 855 ex 859 Banks and other financial institutions Patent buying and licensing companies Transport Road passenger transport, excluding transportation by means of motor vehicles Transportation by pipelines of liquid hydrocarbons and other liquid chemical products Community services Libraries, museums, botanical and zoological gardens Recreation services Recreation services not elsewhere classified: — sporting activities (sports grounds, organising sporting fixtures, etc. ), except the activities of sports instructors — games (racing stables, areas for games, racecourses etc. ) — other recreational activities (circuses, amusement parks and other entertainments) Personal services Domestic services Beatuy parlours and services of manicurists, excluding services of chiropodists and professional beauticians’ and hairdressers’ training schools Personal services not elsewhere classified, except sports and paramedical masseurs and moutain guides, divided into the following groups — disinfecting and pest control — hiring of clothes and storage facilities — marriage bureaux and similar services — astrology, fortune-telling and the like — sanitary services and associated activities — undertaking and cementery maintenance — couriers and interpreter-guides 4 Directive 75/369/EEC (Article 5) The following itinerant activities: (a) the buying and selling of goods: — by itinerant tradesmen, hawkers or pedlars (ex ISIC Group 612), — in covered markets other than from permanently fixed installations and in open-air markets; (b) activities covered by transitional measures already adopted that expressly exclude or do not mention the pursuit of such activities on an itinerant basis. 19. 8. 98 EN Official Journal of the European Communities C 262/25 5 Directive 82/470/EEC (Article 6(2)) (Activities listed in Article 2(A)(c) and (e), (B)(b), (C) and (D)) These activities comprise in particular: — hiring railway cars or wagons for transporting persons or goods, — acting as an intermediary in the sale, purchase or hiring of ships, — arranging, negotiating and concluding contracts for the transport of emigrants, — receiving all objects and goods deposited, on behalf of the depositor, whether under customs control or not, in warehouses, general stores, furniture depots, coldstores, silos, etc. — supplying the depositor with a receipt for the object or goods deposited, — providing pens, feed, and sales rings for livestock being temporarily accommodated while awaiting sale or while in transit to or from the market; — carrying out inspection or technical valuation of motor vehicles, — measuring, weighing and gauging goods. PART TWO ACTIVITIES OTHER THAN THOSE COVERED IN PART ONE Directives 63/261/EEC, 63/262/EEC, 65/1/EEC, 67/530/EEC, 67/531/EEC, 67/532/EEC, 68/192/EEC, 68/415/EEC and 71/18/EEC 1 ISIC Nomenclature ex Major Group 01 Agriculture In particular: (a) general agriculture including the growing of field crops and viticulture; growing of fruits, nuts, seeds, vegetables, flowers, both in the open and under glass; (b) raising of livestock, poultry, rabbits, fur-bearing or other animals, bees; the production of meat, milk, wool, skins and fur, eggs, honey; (c) agricultural, animal husbandry and horticultural services on a fee or contract basis. 2 Directive 63/607/EEC (Films) 3 Directive 64/223/EEC ISIC Nomenclature ex Group 611 Activities of self-employed persons in wholesale trade (with the exception of wholesale trade in medicinal and pharmaceutical products, in toxic products and pathogens, and in coal). C 262/26 EN Official Journal of the European Communities 19. 8. 98 4 Directive 64/428/EEC NICE Nomenclature Major Group 11 Major Group 12 Group 111 112 121 122 ex Major Group 13 Mining and preparation of solid fuels Mining and preparation of coal Mining and preparation of lignite Mining of metalliferous ores Mining of iron ore Mining of non-ferrous metalliferous ores and related activities ex 130 Extraction of petroleum and natural gas (excluding prospecting and drilling) Major Group 14 Major Group 19 140 Extraction of building materials and fireclays 190 Extraction of other minerals and of peat 5 Directive 65/264/EEC (cinema) 6 Directive 66/162/EEC ISIC Nomenclature Division 5 Electricity, gas, steam, water and sanitary services 7 Directive 67/43/EEC ISIC Nomenclature ex Group 640 Group 839 Real estate (excluding 6401) Business services not elsewhere classified (excluding journalism, activities of customs agents, advice on economic, financial, commercial, statistical, and labour and employment matters, debt collection) 8 Directive 67/654/EEC ISIC Nomenclature Major Group 02 021 022 Forestry and logging Forestry Logging 19. 8. 98 EN Official Journal of the European Communities C 262/27 9 Directives 68/369/EEC and 70/451/EEC ISIC Nomenclature ex Group 841 Production, distribution and projection of films 10 Directive 69/82/EEC ISIC Nomenclature ex Major Group 13 ex 130 Exploration (prospecting and drilling) for petroleum and natural gas 11 Directive 70/522/EEC ISIC Nomenclature ex Group 6112 Coal C 262/28 EN Official Journal of the European Communities 19. 8. 98 ANNEX B Repealed Directives PART ONE: Liberalisation Directives 63/261/EEC: 63/262/EEC: 63/607/EEC: 64/223/EEC: 64/224/EEC: 64/428/EEC: 64/429/EEC: Council Directive of 2 April 1963 laying down detailed provisions for the attainment of freedom of establishment in agriculture in the territory of a Member State in respect of nationals of other countries of the Community who have been employed as paid agricultural workers in that Member State for a continuous period of two years Council Directive of 2 April 1963 laying down detailed provisions for the attainment of freedom of establishment on agricultural holdings abandoned or left uncultivated for more than two years Council Directive of 15 October 1963 implementing in respect of the film industry the provisions of the General Programme for the abolition of restrictions on freedom to provide services Council Directive of 25 February 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities in wholesale trade Council Directive of 25 February 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of intermediaries in commerce, industry and small craft industries Council Directive of 7 July 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in mining and quarrying (ISIC Major Groups 11-19) Council Directive of 7 July 1964 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (industry and small craft industries) 65/1/EEC: Council Directive of 14 December 1964 laying down detailed provisions for the attainment of freedom to provide services in agriculture and horticulture 65/264/EEC: 66/162/EEC: 67/43/EEC: Second Council Directive of 13 May 1965 implementing in respect of the film industry the provisions of the General Programmes for the abolition of restrictions on freedom of establishment and freedom to provide services Council Directive of 28 February 1966 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons engaging in the provision of electricity, gas, water and sanitary services (ISIC Division 5) Council Directive of 12 January 1967 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons concerned with: 1. Matters of ‘real estate’ (excluding 6401) (ISIC Group ex 640); 2. The provision of certain ‘business services not elsewhere classified’ (ISIC Group 839) 67/530/EEC: Council Directive of 25 July 1967 concerning the freedom of nationals of a Member State established as farmers in another Member State to transfer from one holding to another 19. 8. 98 EN Official Journal of the European Communities C 262/29 67/531/EEC: 67/532/EEC: 67/654/EEC: 68/192/EEC: 68/363/EEC: 68/365/EEC: 68/367/EEC: Council Directive of 25 July 1967 concerning the application of the laws of Member States relating to agricultural leases to farmers who are nationals of other Member States Council Directive of 25 July 1967 concerning freedom of access to cooperatives for farmers who are nationals of one Member State and established in another Member State Council Directive of 24 October 1967 laying down detailed provisions for the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in forestry and logging Council Directive of 5 April 1968 concerning freedom of access to the various forms of credit for farmers who are nationals of one Member State and established in another Member State Council Directive of 15 October 1968 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in retail trade (ISIC ex Group 612) Council Directive of 15 October 1968 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in the food manufacturing and beverage industries (ISIC Major Groups 20 and 21) Council Directive of 15 October 1968 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in the personal services sector (ISIC ex Major Group 85); 1. Restaurants, cafe´s, taverns and other drinking and eating places (ISIC Group 852); 2. Hotels, rooming houses, camps and other lodging places (ISIC Group 853) 68/369/EEC: Council Directive of 15 October 1968 concerning the attainment of freedom of establishment in respect of activities of self-employed persons in film distribution 68/415/EEC: 69/82/EEC: 70/451/EEC: 70/522/EEC: Council Directive of 20 December 1968 concerning freedom of access to the various forms of aid for farmer who are nationals of one Member State and established in another Member State Council Directive of 13 March 1969 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons engaging in exploration (prospecting and drilling) for petroleum and natural gas (ISIC ex Major Group 13) Council Directive of 29 September 1970 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in film production Council Directive of 30 November 1970 concerning the attainment of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in the wholesale coal trade and activities of intermediaries in the coal trade (ISIC ex Group 6112) 71/18/EEC: Council Directive of 16 December 1970 laying down detailed provisions for the attainment of freedom of establishment in respect of self-employed persons providing agricultural and horticultural services Part Two: Directives providing for transitional measures 64/222/EEC: Council Directive of 25 February 1964 laying down detailed provisions concerning transitional measures in respect of activities in wholesale trade and activities of intermediaries in commerce, industry and small craft industries C 262/30 EN Official Journal of the European Communities 19. 8. 98 64/427/EEC: 68/364/EEC: 68/366/EEC: 68/368/EEC: 70/523/EEC: 75/368/EEC: 75/369/EEC: 82/470/EEC: Council Directive of 7 July 1964 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in manufacturing and processing industries falling within ISIC Major Groups 23-40 (Industry and small craft industries), as amended by Council Directive 69/77/EEC of 4 March 1969 Council Directive of 15 October 1968 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in retail trade (ISIC ex Group 612) Council Directive of 15 October 1968 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in the food manufacturing and beverage industries (ISIC Major Groups 20 and 21) Council Directive of 15 October 1968 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in the personal services sector (ISIC ex Major Group 85); 1. Restaurants, cafes, taverns and other drinking and eating places (ISIC Group 852); 2. Hotels, rooming houses, camps and other lodging places (ISIC Group 853) Council Directive of 30 November 1970 laying down detailed provisions concerning transitional measures in respect of activities of self-employed persons in the wholesale coal trade and in respect of activities of intermediaries in the coal trade (ISIC ex group 6112) Council Directive of 16 June 1975 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of various activities (ex ISIC Division 01 to 85) and, in particular, transitional measures in respect of those activities Council Directive of 16 June 1975 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of itinerant activities and, in particular, transitional measures in respect of those activities Council Directive of 29 June 1982 on measures to facilitate the effective exercise of freedom of establishment and freedom to provide services in respect of activities of self-employed persons in certain services incidental to transport and travel agencies (ISIC Group 718) and in storage and warehousing (ISIC Group 720) 82/489/EEC: Council Directive of 19 July 1982 laying down measures to facilitate the effective exercise of the right of establishment and freedom to provide services in hairdressing 19. 8. 98 EN Official Journal of the European Communities C 262/31 STATEMENT OF THE COUNCIL’s REASONS I. INTRODUCTION 1. On 9 February 1996, the Commission sent to the Council a proposal for a Directive establishing a mechanism for the recognition of qualifications in respect of the professional activities covered by the Directives on liberalisation and transitional measures and supplementing the general systems for the recognition of qualifications. That proposal was based on Article 49, Article 58(1), the first and third sentences of Article 57(2), and Article 66 of the EC Treaty. 2. The European Parliament delivered its Opinion at first reading on 20 February 1997. The Economic and Social Committee delivered its Opinion on 10 July 1996. In the light of those opinions, the Commission submitted an amended proposal on 16 July 1997. 3. The Council adopted its common position in accordance with Article 189b of the Treaty on 29 June 1998. II. OBJECTIVE The aim of the proposal is to establish a mechanism for the recognition of qualifications in respect of professional activities not covered by the general system. This mechanism will enable migrants to ask for the recognition of their qualifications where they do not have the necessary professional experience to seek application of a Directive on transitional measures. The proposal is also designed to recast the main provisions of the Directives on transitional measures and liberalisation relating in particular to trade, industry and small craft industries so as to make Community legislation clearer and simpler. III. COMMON POSITION 1. General comments The Council’s common position is in line with the objective of the Commission proposal as indicated in section II above. However, the Council has amended the proposal, in particular to ensure that the common position reflects more faithfully the systems of professional training in all the Member States, and especially the most recent trends in that sector. The Council has accepted most of the amendments proposed by the European Parliament at first reading (1). 2. Specific comments The amendments to the Commission proposal — other than the European parliament’s amendments — are summarised below. (1) It should be noted that the former Article 9, which was the subject of an amendment by the European Parliament, has been deleted (see point 2(v) below). C 262/32 EN Official Journal of the European Communities 19. 8. 98 (i) Choice of compensatory measure by the host Member State (Article 3(1) In the last sentence but one, for the sake of clarity and legal certainty, the Council wished to specify that, within the framework of the recognition of diplomas, it is for the host Member State to choose the measure (adaptation period or aptitude test) offered to the migrant to make up for the training deficit. A last sentence has been added so that the migrant’s preferences are taken into account as far as possible. (iii) Additions to Article 4 to take account of professional training systems based on assessment of skills rather than on duration of training (new articles 5 and 6) Article 4 consolidates the transitional and liberalisation Directives as regards the recognition of professional qualifications on the basis of professional experience gained in another Member State. Several passages of this Article provide that access to certain activities is granted to migrants who have pursued an activity after a period of previous training. The duration of the experience and of the training is expressly indicated in each case. However, this Article, which already existed in the transitional and liberalisation Directives, does not take account of the systems of certain Member States which recognise professional qualifications on the basis of acquired skills rather than duration of training. Such systems often involve a shorter period of training than other systems. It should also be pointed out that the latest trend in the area of professional training is to put the emphasis on acquired skills. The conclusion was that there was a gap in the system established by the transitional and liberalisation Directives. In order to fill that gap, the Council has added new Articles 5 and 6: — Article 5 enables Member States to equate with certificates awarded after two or three years of training, as required under Article 4, certificates issued on the basis of acquired skills provided the latter are equivalent to two or three years of training, as appropriate, — Article 6 makes it possible to compensate for an insufficient period of training by extending the duration of professional experience proportionately. (iii) Reference to the technical duties of persons in managerial posts (Article 7(c)) To reflect economic reality, the Council has added technical duties to the functions which may be carried out by a manager of an undertaking. (iv) Deletion of Article 8 of the Commission proposal The Council decided to transfer this Article to the proposal for a Directive amending Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and supplementing Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC 19. 8. 98 EN Official Journal of the European Communities C 262/33 concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor, hereinafter referred to as the ‘SLIM proposal’. Recitals 6 and 7 refer to this transfer. The SLIM proposal seems to be the most suitable place for the old Article 8, which basically made amendments to the general Directives, especially the one on nurses. (v) Deletion of Articles 9 and 10 (Committee procedure) The Council did not adopt Articles 9 and 10 introducing a Committee procedure for updating the lists in Annex A. In the interests of legal certainty, the Council considered that such updating should be the subject of Directives and hence of a co-decision procedure. (iv) Possibility of appointing an additional coordinator (first subparagraph of Article 10(2)) It is provided that the coordinating group for Directive 89/48/EEC is also responsible for this Directive. The Council considered it advisable to allow Member States, if they so wish, to appoint an additional coordinator to the group so as to be able to benefit from any knowledge gained by experts in the specific area of this Directive. (vii) Report on the application of Article 5 (first paragraph of Article 13) In Article 13 (former Article 13a inserted by the European Parliament), the Council decided to refer specifically to Article 5. As Article 5 is an important innovation in the system for the recognition of professional qualifications, the Commission should monitor its application very closely and, if necessary, submit proposals aimed at facilitating the free movement of persons holding a certificate of the type defined in Article 5. IV. CONCLUSION The Council considers that all the amendments made to the Commission proposal meet the objectives of the proposed Directive. The common position reproduces the substance of all the amendments proposed by the European Parliament and included in the amended Commission proposal, except in the case of Article 9, which has been deleted. The most significant change in the common position compared with the Commission’s original proposal is the inclusion of Articles 5 and 6, which are based on the same concern to facilitate free movement which is at the root of the Commission proposal


title: Directiva 98/49/CE a Consiliului din 29 iunie 1998 privind protecția dreptului la pensie suplimentară al lucrătorilor salariați și al lucrătorilor care desfășoară activități independente care se deplasează în cadrul Comunității

eurovoc_concepts:
free movement of workers
pension scheme
self-employment
social security
transfer of pension rights
wage earner

formats: pdf print xhtml

text: 05/vol. 5 RO Jurnalul Oficial al Uniunii Europene 91 31998L0049 L 209/46 JURNALUL OFICIAL AL COMUNITĂȚILOR EUROPENE 25. 7. 1998 DIRECTIVA 98/49/CE A CONSILIULUI din 29 iunie 1998 privind protecția dreptului la pensie suplimentară al lucrătorilor salariați ș(cid:13)i al lucrătorilor care desfăș(cid:13)oară activități independente care se deplasează în cadrul Comunității CONSILIUL UNIUNII EUROPENE, având în vedere Tratatul de instituire a Comunității Europene, în special articolele 51 ș(cid:13)i 235 ale acestuia, pentru regimurile suplimentare de pensie, cu excepția ace- lor regimuri care sunt incluse în termenul de „legislație”, definit la articolul 1 litera (j) primul paragraf din Regu- lamentul (CEE) nr. 1408/71, sau cu privire la care un stat membru dă o declarație conform articolului menționat; având în vedere propunerea Comisiei (1), având în vedere avizul Parlamentului European (2), având în vedere avizul Comitetului Economic ș(cid:13)i Social (3), (1) (2) (3) întrucât una dintre libertățile fundamentale ale Comunită- ții este libera circulație a persoanelor; întrucât tratatul pre- vede că, hotărând în unanimitate, Consiliul trebuie să adopte măsuri în domeniul protecției sociale care sunt necesare pentru a asigura libera circulație a lucrătorilor; întrucât protecția socială a lucrătorilor este garantată prin regimurile legale de protecție socială, completate de regimuri de securitate socială suplimentare; întrucât legislația deja adoptată de Consiliu cu privire la protecția drepturilor de securitate socială ale lucrătorilor care se deplasează în cadrul Comunității ș(cid:13)i a membrilor familiilor lor, ș(cid:13)i anume Regulamentul (CEE) nr. 1408/71 al Consiliului din 14 iunie 1971 privind aplicarea regimuri- lor de securitate socială în raport cu lucrătorii salariați, cu lucrătorii care desfăș(cid:13)oară activități independente ș(cid:13)i cu membrii familiilor acestora care se deplasează în cadrul Comunității (4)ș(cid:13)i Regulamentul nr. 574/72 al Consiliului din 21 martie 1972 de stabilire a procedurilor pentru aplicarea Regulamentului (CEE) nr. 1408/71 privind aplicarea regimurilor de securitate socială în raport cu lucrătorii salariați, cu lucrătorii care desfăș(cid:13)oară activități independente ș(cid:13)i cu membrii familiilor acestora care se deplasează în cadrul Comunității (5), priveș(cid:13)te numai regi- murile legale de pensie; întrucât sistemul de coordonare prevăzut de regulamentele menționate nu se aplică ș(cid:13)i (1) (2) (3) (4) (5) JO C 5, 9. 1. 1998, p. 1. JO C 152, 18. 5. 1998. JO C 157, 25. 5. 1998, p. 26. JO L 149, 5. 7. 1971, p. 2. Regulament modificat ultima dată de Regu- lamentul (CE) nr. 1223/98 (JO L 168, 13. 6. 1998, p. 1). JO L 74, 27. 3. 1972, p. 1. Regulament modificat ultima dată de Regu- lamentul (CE) nr. 1223/98 (JO L 168, 13. 6. 1998, p. 1). (4) (5) (6) întrucât Consiliul are deplină putere de decizie în ceea ce priveș(cid:13)te alegerea celor mai potrivite măsuri pentru îndepli- nirea obiectivului prevăzut la articolul 51 din tratat; întru- cât sistemul de coordonare prevăzut de regulamentele (CEE) nr. 1408/71 ș(cid:13)i (CEE) nr. 574/72 ș(cid:13)i, în special, regle- mentările privind agregarea nu sunt corespunzătoare pen- tru regimurile suplimentare de pensii, cu excepția acelor regimuri care sunt incluse în termenul de „legislație” defi- nit la articolul 1 litera (j) primul paragraf din Regulamen- tul (CEE) nr. 1408/71 sau cu privire la care un stat mem- bru dă o declarație conform articolului menționat, ș(cid:13)i astfel ar trebui să facă obiectul unor prevederi speciale, dintre care prezenta directivă este cea dintâi, cu scopul de a ține seama ș(cid:13)i de natura lor specifică, ș(cid:13)i de caracteristicile sau diversitatea unor astfel de regimuri de pensii în ș(cid:13)i între statele membre; întrucât nici o pensie sau indemnizație nu trebuie supusă nici prevederilor prezentei directive ș(cid:13)i nici celor ale Regu- lamentului (CEE) nr. 1408/71 ș(cid:13)i ale Regulamentului (CEE) nr. 574/72 ș(cid:13)i, ca urmare, nici un regim de pensii suplimentare care intră în domeniul de aplicare a regulamentelor respective, datorită faptului că un stat membru a făcut o declarație în acest scop în conformitate cu articolul 1 litera (j) din Regulamentul (CEE) nr. 1408/71 al Consiliului, nu poate fi reglementat de prezenta direc- tivă; întrucât, în Recomandarea sa 92/442/CEE din 27 iulie 1992 privind convergența politicilor ș(cid:13)i a obiectivelor de protecție socială (6), Consiliul a recomandat ca statele membre „să promoveze, atunci când este necesar, modificarea condițiilor care reglementează dobândirea pensiilor ș(cid:13)i, în special, a drepturilor la pensie suplimentară, cu privire la eliminarea obstacolelor în calea mobilității salariaților”; (6) JO L 245, 26. 8. 1992, p. 49. RO Jurnalul Oficial al Uniunii Europene 05/vol. 5 92 (7) (8) (9) (10) (11) (12) (13) întrucât se poate aduce o contribuție la realizarea acestui obiectiv dacă lucrătorilor care se deplasează sau celor al căror loc de muncă se deplasează dintr-un stat membru în altul li se poate garanta, în ceea ce priveș(cid:13)te protecția drep- turilor la pensie suplimentară, tratament egal cu cel al lucrătorilor care rămân sau al căror loc de muncă se schimbă, dar rămâne în acelaș(cid:13)i stat membru; întrucât libera circulație a persoanelor, care este unul din drepturile de bază înscrise în tratat, nu se limitează la lucrătorii salariați, ci se extinde ș(cid:13)i asupra lucrătorilor care desfăș(cid:13)oară activități independente; întrucât tratatul nu conferă alte competențe decât cele dintre articolul 235 în scopul adoptării de măsuri adecvate în domeniul protecției sociale pentru persoanele care des- făș(cid:13)oară activități independente; întrucât, în scopul de a face posibilă exercitarea efectivă a dreptului de liberă circulație, lucrătorii ș(cid:13)i celelalte persoane îndreptățite ar trebui să aibă garanții sigure în ceea ce pri- veș(cid:13)te tratamentul egal vizând păstrarea drepturilor lor de pensionare stabilite, care derivă din regimurile de pensie suplimentară; întrucât statele membre ar trebui să ia măsurile necesare spre a se asigura că beneficiile ce decurg din regimurile de pensie suplimentară sunt plătite membrilor ș(cid:13)i foș(cid:13)tilor membri, precum ș(cid:13)i altor persoane îndreptățite conform acestor regimuri în toate statele membre, în condițiile în care toate restricțiile referitoare la libera circulație a plăți- lor ș(cid:13)i capitalului sunt interzise conform articolului 73b din tratat; întrucât, în scopul de a facilita exercitarea dreptului la liberă circulație, reglementările naționale ar trebui, acolo unde este necesar, să fie adaptate pentru a permite conti- nuarea contribuției la regimul de pensii suplimentare sta- bilit într-un stat membru de către sau pentru lucrătorii care în se deplasează dintr-un stat membru în altul, (CEE) conformitate nr. 1408/71; II din Regulamentul cu titlul întrucât, în această privință, tratatul cere nu numai abolirea oricărei discriminări bazate pe cetățenie între lucrătorii din statele membre, ci ș(cid:13)i eliminarea oricărei măsuri naționale care ar putea să împiedice sau să facă mai puțin atractivă pentru respectivii lucrători exercitarea libertăților funda- mentale garantate prin tratat, aș(cid:13)a cum au fost acestea inter- pretate de Curtea de Justiție a Comunităților Europene, prin hotărâri succesive; (14) întrucât lucrătorii care îș(cid:13)i exercită dreptul la liberă circula- ție ar trebui să fie în mod adecvat informați de către angajatori, administratori sau alte persoane răspunzătoare de administrarea regimurilor de pensie suplimentară în special cu privire la opțiunile ș(cid:13)i alternativele pe care le au la dispoziție; (15) întrucât prezenta directivă nu aduce atingere legislațiilor statelor membre cu privire la acțiunile colective de apărare a intereselor profesionale; (16) (17) întrucât, dată fiind diversitatea regimurilor suplimentare de securitate socială, Comunitatea ar trebui să stabilească un cadru general unic de obiective ș(cid:13)i, în consecință, o direc- tivă reprezintă instrumentul juridic potrivit; întrucât, în conformitate cu principiile subsidiarității ș(cid:13)i proporționalității, definite la articolul 3b din tratat, obiectivele prezentei directive nu pot fi pe deplin realizate de către statele membre ș(cid:13)i ar putea fi, în consecință, mai bine îndeplinite la nivelul Comunității; întrucât prezenta directivă nu depăș(cid:13)eș(cid:13)te ceea ce este necesar pentru atinge- rea obiectivelor respective, ADOPTĂ PREZENTA DIRECTIVĂ: CAPITOLUL I OBIECTIVUL Ș(cid:13) I DOMENIUL DE APLICARE Articolul 1 Scopul prezentei directive este acela de a proteja drepturile membrilor regimurilor de pensie suplimentară care se deplasează dintr-un stat membru în altul, contribuind astfel la eliminarea obstacolelor în calea liberei circulații a lucrătorilor salariați ș(cid:13)i a lucrătorilor care desfăș(cid:13)oară activități independente în cadrul Comunității. O asemenea protecție se referă la dreptul la pensie atât în cadrul regimurilor facultative de pensie suplimentară, cât ș(cid:13)i al reglementate de cu excepția Regulamentul (CEE) nr. 1408/71. celor obligatorii, celor Articolul 2 Prezenta directivă se aplică membrilor regimurilor de pensie suplimentară ș(cid:13)i altor persoane îndreptățite conform regimurilor respective, care au dobândit sau sunt pe cale să dobândească drepturi în unul sau mai multe state membre. CAPITOLUL II DEFINIȚII Articolul 3 În sensul prezentei directive: (a) „pensie suplimentară” reprezintă pensiile de vârstă ș(cid:13)i, dacă regulile regimurilor de pensie suplimentară stabilite în conformitate cu legislația ș(cid:13)i practica națională prevăd acest 05/vol. 5 RO Jurnalul Oficial al Uniunii Europene 93 lucru, indemnizațiile de invaliditate ș(cid:13)i de urmaș(cid:13), care ar trebui să suplimenteze sau să le înlocuiască pe cele echivalente din regimurile legale de securitate socială; (b) „regim de pensie suplimentară” reprezintă orice regim de pensii stabilite după criteriul profesional în conformitate cu legislația ș(cid:13)i practica națională, cum ar fi contractele de asigu- rare de grup sau schemele de repartiție convenite de către unul sau mai multe ramuri sau sectoare, regimuri finanțate prin capitalizare sau promisiuni de pensii sprijinite prin înscri- erea unor provizioane sau orice alt aranjament, colectiv sau similar, care poate să asigure o pensie suplimentară lucrăto- rilor salariați sau lucrătorilor care desfăș(cid:13)oară activități inde- pendente; (c) „drepturi la pensie” reprezintă orice beneficii la care membrii acestor regimuri sau alte persoane îndreptățite au dreptul, conform regulilor specifice regimurilor de pensie suplimen- tară ș(cid:13)i, acolo unde este cazul, conform legislației naționale; (d) „drepturi de pensie dobândite” reprezintă orice îndreptățire la beneficii obținute după îndeplinirea condițiilor cerute de regulile specifice regimurilor de pensie suplimentară ș(cid:13)i, acolo unde este cazul, de legislația națională; (e) „lucrător detaș(cid:13)at” reprezintă acea persoană care este trimisă la lucru în alt stat membru ș(cid:13)i care, în condițiile titlului II din Regulamentul (CEE) nr. 1408/71, continuă să facă obiectul legislației din statul membru de origine, termenul „detaș(cid:13)are” se interpretează în consecință; „contribuție” reprezintă orice plată efectuată sau considerată a fi fost efectuată într-un regim de pensie suplimentară. iar (f) CAPITOLUL III MĂSURI PENTRU PROTECȚIA DREPTULUI LA PENSIE SUPLIMENTARĂ AL LUCRĂTORILOR CARE SE DEPLASEAZĂ ÎN CADRUL COMUNITĂȚII Articolul 4 Tratamentul egal în ceea ce priveș(cid:13)te păstrarea drepturilor la pensie Statele membre iau măsurile necesare pentru a asigura păstrarea drepturilor la pensie dobândite de către membrii unui regim de pensie suplimentară pentru care nu se mai plătesc contribuții în regimul respectiv ca urmare a deplasării lor dintr-un stat membru în altul, în aceeaș(cid:13)i măsură ca ș(cid:13)i pentru membrii ale căror contribuții nu mai sunt plătite, dar care rămân în acelaș(cid:13)i stat membru. Prezentul articol se aplică, de asemenea, altor persoane îndreptățite, conform regulilor regimului de pensie suplimentară respectiv. Articolul 5 Plățile peste graniță Statele membre trebuie să se asigure că, în privința membrilor unui regim de pensie suplimentară, ca ș(cid:13)i a altor persoane îndreptățite în cadrul unor asemenea regimuri, regimurile de pensie suplimentară efectuează plata în alte state membre, sumă netă, fără taxe ș(cid:13)i alte speze care ar putea fi aplicate, a tuturor beneficiilor datorate în cadrul acestor regimuri. Articolul 6 Contribuții la regimurile de pensie suplimentară din partea sau în numele lucrătorilor detaș(cid:13)ați (1) Statele membre adoptă măsurile necesare pentru a permite continuarea contribuțiilor la regimurile de pensie suplimentară stabilite într-un stat membru, din partea sau în numele unui lucră- tor detaș(cid:13)at care este membru al unui astfel de regim, pe perioada detaș(cid:13)ării într-un alt stat membru. (2) Dacă, în conformitate cu alineatul (1), contribuțiile continuă să fie plătite într-un regim de pensie suplimentară stabilit într-un stat membru, lucrătorul detaș(cid:13)at ș(cid:13)i, unde este cazul, angajatorul său sunt scutiți de obligația de a contribui la un regim de pensie supli- mentară într-un stat membru. Articolul 7 Informații pentru membrii regimurilor Statele membre trebuie să ia măsuri pentru a se asigura că angajatorii, administratorii sau alte persoane răspunzătoare de administrarea regimurilor de pensie suplimentară furnizează informații adecvate membrilor regimurilor, atunci când aceș(cid:13)tia din urmă se deplasează în alt stat membru, cu privire la drepturile lor la pensie ș(cid:13)i la opțiunile pe care le au în cadrul regimului respectiv. Aceste informații trebuie să corespundă cel puțin informațiilor furnizate membrilor regimului care încetează să mai contribuie, dar care rămân în statul membru respectiv. CAPITOLUL IV DISPOZIȚII FINALE Articolul 8 Statele membre se asigură că prevederile articolului 6 se aplică numai acelor transferuri de lucrători care încep pe data de 25 iulie 2001 sau după această dată. Articolul 9 Statele membre trebuie să introducă în ordinea lor juridică internă acele măsuri care sunt necesare pentru a permite tuturor persoanelor care se consideră lezate prin neaplicarea prevederilor prezentei directive să-ș(cid:13)i poată valorifica drepturile pe cale judecătorească, după recurgerea eventuală la alte autorități competente. 94 RO Jurnalul Oficial al Uniunii Europene 05/vol. 5 Articolul 10 (1) Statele membre adoptă actele cu putere de lege ș(cid:13)i actele administrative necesare, în conformitate cu prezenta directivă, în termen de cel mult 36 de luni de la data intrării sale în vigoare, sau se asigură, cel târziu până la acea dată, că partenerii sociali au introdus prevederile necesare prin acord. Statele membre iau toate măsurile necesare pentru a putea garanta, în orice moment, rezultatele impuse prin prezenta directivă. Acestea trebuie să informeze imediat Comisia în această privință. În momentul adoptării de către statele membre, aceste prevederi trebuie să cuprindă o trimitere la prezenta directivă sau să fie înso- țite de o astfel de trimitere la data publicării lor oficiale. Metodele prin care se face o astfel de referire sunt hotărâte de către statele membre. Acestea informează Comisia cu privire la autoritățile naționale care trebuie să fie contactate în legătură cu aplicarea prezentei directive. (2) Comisiei îi sunt comunicate de către statele membre, cel târziu până la data de 25 ianuarie 2002, dispozițiile de drept intern pe care le adoptă în domeniile reglementate de prezenta directivă. (3) Pe baza informațiilor furnizate de către statele membre, Comi- sia înaintează un raport Parlamentului European, Consiliului ș(cid:13)i Comitetului Economic ș(cid:13)i Social, în termen de ș(cid:13)ase ani de la data intrării în vigoare a prezentei directive. Raportul se ocupă de aplicarea prezentei directive ș(cid:13)i trebuie să propună, acolo unde este cazul, orice modificări care se dovedesc necesare. Articolul 11 Prezenta directivă intră în vigoare la data publicării în Jurnalul Oficial al Comunităților Europene. Articolul 12 Prezenta directivă se adresează statelor membre. Adoptată la Luxemburg, 29 iunie 1998. Pentru Consiliu Preș(cid:13)edintele R. COOK