The European Communities (Recognition of Professional Qualifications) Regulations 1991

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 theCompanies Act 1989(1);

(b)regulation 12, on the date of coming into force of Article 28 of theCompanies (Northern Ireland) Order 1990(2);

(c)all other regulations on 17th April 1991.

Interpretation

2.—(1) In these Regulations, unless the context otherwise requires, thefollowing words and phrases have the following meanings (and cognateexpressions shall be construed accordingly)—

• “adaptation period” means a period of practice of a regulated profession in the UnitedKingdom 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 orperson specified in relation to that profession in Schedule 4;

• “aptitude test” means a test required by a designated authority pursuant toregulation 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 Stateincludes a substantial number of the professional activities comprisedin the pursuit of the profession in the United Kingdom which is thesubject of the migrant’s application;

• “designated authority” means a body or authority designated in relation to a regulatedprofession by regulation 4 and Schedule 1 and any qualifying bodyreferred to in regulations 11(2) and 12(3);

• “diploma” means any diploma, certificate or other evidence of formalqualifications awarded by a competent authority in a memberState—

  (a)

  which shows that the holder:

  (i)

  has successfully completed a post-secondary course of at least threeyears' duration (or of an equivalent duration part-time) at a universityor an establishment of higher education or an establishment of similarlevel;

  (ii)

  has successfully completed any additional professional trainingrequired; and

  (iii)

  has the qualifications required for the practice of a regulatedprofession in that State;

  provided that either:

  (A)

  the education and training attested were received mainly within theEconomic Community; or

  (B)

  the holder has had at least three years' professional experiencecertified by a competent authority in that State (being a State whichrecognised a diploma, certificate or other evidence of formalqualifications obtained in a non-member State);

  or

• which was awarded on the successful completion of education andtraining received within the Economic Community, and which—

  (i)

  has been recognised by a competent authority in that State asequivalent in level to a diploma to which sub-paragraph (a) applies; and

  (ii)

  confers the same rights in respect of the practice of a regulatedprofession in that State;

• “the Directive” means Council Directive 89/48/EEC(3) on a general system for the recognition ofhigher-education diplomas awarded on completion of professionaleducation and training of at least three years' duration;

• “migrant” means a national of a member State applying under these Regulationsto a designated authority for authorisation to practise;

• “native applicant” means a national of a member State applying to a designatedauthority for authorisation to practise, the qualifications of whom wereobtained 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 professionaltitle or designatory letters, or the enjoyment of any special statuscorresponding to a diploma, granted by a designated authority for thatprofession;

• “professional experience” means the lawful pursuit in a member State of a professioncorresponding to the regulated profession which is the subject of themigrant’s application;

• “regulated profession” means a profession in respect of which a designated authority isspecified in Schedule 1 and the profession of company auditor as definedin section 24(2) of the Companies Act 1989 and Article 27(2) of theCompanies (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 orSchedule is a reference to the regulation or Schedule so numbered inthese Regulations.

Application

3.   These Regulations shall apply notwithstanding any enactment or ruleof 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 UnitedKingdom is the body or authority specified in relation to thatprofession in Schedule 1.

(2) Without prejudice to its other powers and functions, a designatedauthority shall have the function of considering applications andgranting authorisations under these Regulations.

Right to practise in the United Kingdom

5.—(1) Subject to regulation 6, a designated authority for a regulatedprofession may not, on grounds of inadequate qualifications, refuse toauthorise a migrant to practise the profession on the same conditions asapply to someone who holds the diploma required of native applicants,if—

(a)the migrant holds the diploma required in another member State forthe practice of a corresponding profession regulated by that State, thediploma having been awarded in another member State; or

(b)the migrant has within the ten years immediately prior to hisapplication pursued a corresponding profession for at least two yearsfull-time in a member State which does not regulate that profession, andproduces the evidence specified in paragraph (2) below.

(2) The evidence referred to in sub-paragraph (1)(b) of this regulationis of the following:

(a)formal qualifications awarded by a competent authority in a memberState which—

(i)show that the migrant has successfully completed a post-secondarycourse of at least three years' duration (or equivalent durationpart-time) at a university or an establishment of higher education or anestablishment of similar level in a member State;

(ii)show the migrant has successfully completed any additionalprofessional training required; and

(iii)prepared the migrant for the corresponding profession;

• or

(b)formal qualifications awarded by a competent authority in a memberState on the successful completion of education and training within theEconomic Community, and recognised by a competent authority in thatState as equivalent to the qualifications specified in sub-paragraph(2)(a) of this regulation; provided that notification of suchrecognition has been duly given in accordance with Article 3(b) of theDirective.

Professional experience, adaptation periods and aptitude tests

6.—(1) A designated authority may, before authorising the migrant topractise the regulated profession, require him to satisfy one or otherof the following conditions (but not both)—

(a)where the duration of the education and training received by themigrant, as appears from the matters established by him pursuant toregulation 5, is at least one year less than that required of nativeapplicants, he may be required to provide evidence of a period ofprofessional experience; and the provisions of Schedule 2 shall haveeffect 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 threeyears; or

(ii)to pass an aptitude test.

(2) Where a requirement is imposed pursuant to sub-paragraph (1)(b) ofthis regulation, the choice between an adaptation period and an aptitudetest shall be that of the migrant, except in the case of the regulatedprofessions specified in Schedule 3 (where the provisions of thatSchedule shall apply).

(3) The circumstances referred to in sub-paragraph (1)(b) of thisregulation are where the matters covered by the education and trainingreceived by the migrant, as established by him pursuant to regulation 5,differ substantially from those covered by the diploma required ofnative applicants.

Requirements in relation to aptitude tests

7.—(1) An aptitude test shall be limited to the professional knowledge ofthe migrant and shall have the aim of assessing his ability to pursuethe relevant regulated profession in the United Kingdom. The test shalltake into account that he is a qualified professional in another memberState.

(2) The designated authority shall determine the matters to be coveredby the aptitude test as follows:

(a)the authority shall establish which subjects covered by the diplomarequired of native applicants are not already covered by the migrant'sdiploma 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 regulatedprofession in the United Kingdom;

(c)the test may include knowledge of the relevant rules of professionalconduct.

(3) The professional status of a migrant preparing for the aptitude testshall be a matter for the designated authority.

Requirements in relation to adaptation periods

8.—(1) The designated authority shall determine the detailed requirementsof the adaptation period, having regard to the circumstances of eachindividual migrant and, in particular, to the fact that he is aqualified professional in another member State.

(2) The migrant may be required to undergo further training during theadaptation period.

(3) The migrant’s performance during the adaptation period shall beassessed by the designated authority.

(4) The professional status of a migrant during the adaptation periodshall be a matter for the designated authority.

Evidence from competent authorities

9.—(1) A designated authority shall, in connection with any matterrequiring to be established pursuant to regulation 5 or 6, accept assufficient evidence thereof the certificates or other documents dulyissued by a competent authority of the relevant member State for thepurpose of attesting such matters.

(2) A designated authority which—

(a)requires of an applicant for authorisation to practice proof that heis of good character or repute, or that he has not been declared oradjudged bankrupt, or had a bankruptcy or similar order made against himor in relation to his estate; or

(b)suspends or prohibits practise in the event of serious professionalmisconduct 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 issuedby the competent authorities of the member State of origin of themigrant, the member State from which the migrant comes or the memberState in which the migrant formerly qualified or practised; or

(ii)where those authorities do not issue such documents, a declarationon oath or solemn declaration to the required effect, made by themigrant before a competent judicial or administrative authority or(where appropriate) a notary or duly qualified professional body of therelevant member State; provided that in each case such declaration isauthenticated by a certificate issued by the authority, notary or body.

(3) A designated authority which requires of persons wishing to practisea certificate of physical or mental health, shall accept as sufficientevidence thereof the documents required for such a purpose in the memberState of origin of the migrant, the member State from which the migrantcomes or the member State in which the migrant formerly qualified orpractised, or (where none are required in those States) a certificateissued by a competent authority there which corresponds to thecertificate issued for that purpose in the United Kingdom.

(4) A designated authority may require any document or certificatereferred to in paragraph (2) or (3) of this regulation to be presentedno more than three months after the date of its issue.

(5) Where a designated authority requires applicants to take an oath ormake a solemn declaration, the form of which is such that it cannot betaken or made by nationals of another member State, it shall ensure thatan appropriate equivalent form of oath or declaration is available forthose nationals.

Use of professional title

10.—(1) A migrant who has been granted authorisation to practise a regulatedprofession pursuant to these Regulations shall have the right touse—

(a)the professional title and designatory letters applicable to thatprofession in the United Kingdom; and

(b)the lawful academic title (and where appropriate the abbreviationthereof) acquired by him in the member State in which he formerlyqualified and in the language of that State.

(2) Where the migrant makes use of the possibility provided for insub-paragraph (1)(b) of this regulation, the designated authority mayrequire that the title shall be followed by the name and location of theestablishment or examining board which awarded it.

(3) Where the migrant makes use of the possibility provided for insub-paragraph (1)(a) of this regulation, and the profession is one ofthose specified in Part 2 of Schedule 1 (Professions regulated byprofessional bodies incorporated by Royal Charter), he shall only beentitled to use the professional title or designatory letters on proofof membership of the relevant body.

(4) Where membership of a professional body is subject to anyqualification requirements, such requirements may be applied to amigrant who satisfies condition (a) or (b) of regulation 5(1) only sofar 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 isfor the time being in force an order made by the Secretary of Statepursuant 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 inforce an order made by the Secretary of State pursuant to paragraph 2 ofSchedule 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 acompany auditor only if he satisfies the conditions for eligibility laiddown in Part II of the Act.

(4) Notwithstanding anything in Part II of Schedule 11 to the Act, inthe case of a migrant who has been granted authorisation to practise bya qualifying body pursuant to these Regulations and who has satisfiedany requirements imposed by that body under regulation 6, a supervisorybody may not exclude the migrant from membership, or otherwise limit hiseligibility for appointment, on any ground related to his previouseducation and training or to the length of his previous professionalexperience or practice.

(5) Regulation 9 shall apply to supervisory bodies as it applies todesignated authorities.

(6) References, in Part II of the Act, to individuals holding anappropriate qualification are to be construed as including individualswho have been authorised to practise by a qualifying body pursuant tothese Regulations and who have fulfilled any requirements imposedpursuant 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 isfor the time being in force an order made by the Department of EconomicDevelopment 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 inforce an order made by the Department of Economic Development pursuantto paragraph 2 of Schedule 11 to the Order.

(3) Any qualifying body in Northern Ireland is a designated authorityfor the regulated profession of company auditor and may accordinglyauthorise a migrant as qualified to practise that profession.

(4) A migrant so authorised shall be eligible for appointment as acompany auditor only if he satisfies the conditions for eligibility laiddown in Part III of the Order.

(5) Notwithstanding anything in Part II of Schedule 11 to the Order, inthe case of a migrant who has been granted authorisation to practise bya qualifying body pursuant to these Regulations and who has satisfiedany requirements imposed by that body under regulation 6, a supervisorybody may not exclude the migrant from membership, or otherwise limit hiseligibility for appointment, on any ground related to his previouseducation and training or to the length of his previous professionalexperience or practice.

(6) Regulation 9 shall apply to supervisory bodies in Northern Irelandas it applies to designated authorities.

(7) References, in Part III of the Order, to individuals holding anappropriate qualification are to be construed as including individualswho have been authorised to practise by a qualifying body pursuant tothese Regulations and who have fulfilled any requirements imposedpursuant to regulation 6.

Decisions of designated authorities and appeals

13.—(1) A designated authority for a regulated profession shall consider themigrant’s application as soon as is reasonably practicable, and shallnotify him of its decision together with the reasons upon which it isbased within four months of receipt of all the relevant documents.

(2) Where a designated authority imposes a requirement pursuant toparagraph (1) of regulation 6, the decision referred to above shallinclude—

(a)in the case of a period of professional experience, a determinationof 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 tobe covered by the test.

(3) For the purposes of this regulation, if a designated authority failsto take a decision and notify it to the migrant within the periodmentioned in paragraph (1) of this regulation, it shall be deemed tohave taken a decision to reject his application and to have notified itto him on the last day of that period.

(4) Within three months of the notification to him of the designatedauthority’s decision, or thereafter with leave of the appeal body, themigrant may appeal against the decision to the appeal body specified inSchedule 4.

(5) An appeal body for a regulated profession may, for the purpose ofdetermining any appeal under these Regulations against the decision of adesignated authority—

(a)give any authorisation to practise and impose any condition whichthe designated authority could give or impose in relation to thatprofession; or

(b)remit the matter to the designated authority with such directions asthe appeal body sees fit.

(6) Without prejudice to any powers of the Court of Session in Scotlandto regulate the proceedings of itself and those of the sheriff courts,an appeal body in England and Wales or Northern Ireland may make rulesof procedure governing the hearing and determination of any appeal underthese Regulations against the decision of a designated authority. Suchrules may make different provision for different cases.

Information from designated authorities

14.  Designated authorities shall provide the Secretary of State withsuch information (including statistical information) as he may requireconcerning applications made and decisions taken under theseRegulations.