Professional Liability: Law and Insurance

Ray Hodgin, Ray Hodgin

• Publisher: Informa Law from Routledge
• Year: 2020
• ISBN:
  9781000288186
• Edition: 2
• Topic: Droit
• Subtopic: Droit commercial

Professional Liability: Law and Insurance 2nd Edition has been updated in line with changes in the law. With the increase in liability litigation and the growing sophistication of the law in this area, this edition provides an easy-to-read reference source offering a practical analysis of professional negligence.

CHAPTER 1

THE MUTUAL RECOGNITION OF PROFESSIONAL QUALIFICATIONS IN THE EC

1 INTRODUCTION

This chapter seeks to outline the main principles of the European Community (hereafter EC) rules on mutual recognition of professional qualifications operating with regard to the professions covered in this book.¹ It will outline the general rules on free provision of services and establishment within the EC and then concentrate on the rules on the mutual recognition of qualifications and includes particular observations on some of the professions covered in this book. This chapter does not deal with the wider international issues represented by the adoption of GATS—the general agreement on trade and services.² Article VII of the GATS contains details on how members should recognise training education or experience where any licence or certifications or diplomas are required. However, the article is broad brush and further negotiation is necessary before concrete rules emerge in this world arena. Similarly, no further mention is made of the EEA Treaty which essentially extends the EU rules to Norway, Liechtenstein and Iceland.³

For the professions under discussion, this chapter primarily looks to the position in the UK. It is beyond the scope of the chapter to look at how all the individual professions in all the Member States have or have not accepted and implemented rights of mobility according to Community law. The body of Community law in this area continues to grow and the case-law advances jokingly in line with the chances of litigation. This chapter focuses on the principle of mutual recognition of professional qualifications, and does not cover all the EC rules dealing with mobility for particular professions as such. It is hoped, nevertheless, that it will provide useful guidance and insight for those seeking an understanding of how the EC rules operate and affect professions. It may also help to throw some light on the meaning of the term “profession”.

After discussing the rules on mutual recognition of qualifications in general terms, the chapter has short sections on how the rules apply to the main professions covered in this book.

1. The Treaty of Rome has been updated recently by the Amsterdam Treaty which came into force on 1 May 1999. The main impact of the changes as regards this chapter is the re-numbering of almost all the Articles in the Treaty. This chapter will refer to the new numbering and make reference to the old numbering in parentheses after, as appropriate.

2. For a useful general survey of this area, see M Footer, “The International Regulation of Trade and Services following completion of the Uruguay Round” (1995) 29 The International Lawyer 453.

3. European Economic Area Treaty, 1994 OJ L 1/3.

2 FREE MOVEMENT OF PROFESSIONALS

The Treaty of Rome establishing the European Community⁴ covers all economic activities in their cross-border dimensions. Sporting activities, for example, have their economic dimension as the Bosman case illustrated.⁵ As the European Court has stated⁶:

“… the provisions of the Treaty relating to freedom of movement of persons are intended to facilitate the pursuit by Community citizens of occupational activities of all kinds throughout the Community, and to preclude measures which might place Community citizens at a disadvantage when they wish to pursue an economic activity in the territory of another Member State.”

The rights of mobility conferred by EC law include immigration rights for workers, the self-employed and businesses.⁷ Access to a national market cannot be refused on grounds of nationality or residence.⁸ The benefits of such mobility are normally conferred only on nationals of a Member State and their families.⁹ Rights conferred by Community law mean that providers of professional services who are Community citizens,¹⁰ in principle, can take advantage of the immigration rights granted by the Treaty to provide services on a temporary basis or establish businesses or agencies or to work as an employee in another Member State of the EU.¹¹ Moreover, any rules impeding their ability to do so, regardless of their origin, can be subject to scrutiny to assess their legitimacy in the eyes of Community law.¹²

In “purely internar’ cases Community law simply does not operate at all. In Openbaar Ministerie v. Geert van Buynder¹³ Mr van Buynder, a Belgian national, carried out operations on animals in Belgium contrary to a Belgian law which “allegedly” reserved such activities to registered vets who had appropriate qualifications. The operations consisted of grinding down horses’ teeth and involved no use of medicine or anaesthetic. The national court was aware that such activities could be carried out in neighbouring States (the Netherlands, France and Germany) without any qualifications and wondered whether Article 43 (ex-Article 52) of the EC Treaty could protect Mr van Buynder from a criminal charge that he had acted contrary to the relevant Belgian law. The European Court made it clear that Community law was inapplicable in such circumstances as there was no cross-border element involved. Community law allows reverse discrimination whereby nationals of a Member State can be discriminated against by their own State if there is no element in their case with a cross-border dimension.¹⁴ In Aubertin¹⁵ French hairdressers were unable to avail themselves of Directive 82/489/EEC laying down measures to facilitate the effective exercise of the right of establishment and freedom to provide services in hairdressing.¹⁶ They had operated hairdressing salons in France without the necessary (under French law) diplomas. They argued as a defence to their criminal prosecution that as hairdressers with the requisite experience outside France (within the EU) were exempt from this requirement, according to the (correct) French implementation of the Directive they too should benefit even though they had no such (non-French) experience. The European Court following its case-law ruled that they were unable to rely on Community law in such circumstances as there was no cross-border element in their case. Thus France was harsher to its own nationals than foreigners, and this was permitted by Community law.

4. Hereinafter referred to as the EC Treaty, as amended by the Treaty on European Union (1993) OJ C-172/1, and most recently by the Treaty of Amsterdam.

5. C-415/95 Union Royale Belge des Sociétés de Football Association ASBL v. Jean-Marc Bosman and Royal Club Liégois SA v. Jean-Marc Bosman, SA d’Économie Mixte Sportive de l’Union Sportive du Littoral de Dunkerque, Union Royal Belges des Sociétés de Football Association ASBL, Union des Associations Européennes de Football (UEFA) and Jean-Marc Bosman v. Union des Associations Européennes de Football (UEFA) [1995] E.C.R. I-4921.

6. Bosman (above) at para. 94.

7. Their spouses and families can also obtain rights, not dealt with here. For example, see case 131/85 Gülv. Regierungs-präsident Düsseldorf [1986] E.C.R. 1573.

8. This was established in the early cases 2/74 Reyners v. Belgian State [1974] E.C.R. 631 (as regards Article 43 (ex-Article 52) and nationality requirements) and 33/74 Van Binsbergen v. Bestuur van de Bedrijfsvereneging voor de Metaalnijverheid [1974] E.C.R. 1299 (as regards Article 49 (ex-Article 59) and residence requirements).

9. Generally speaking, non-EU nationals cannot utilise EC-based mobility rights. This cannot be considered a watertight rule. For example, the lawyers’ services Directive, 77/249/EEC ((1977) OJ L 78/17) (as amended) applies to all relevant lawyers who are established in a Member State regardless of nationality.

10. This means nationals of a Member State: see Article 17 (ex-Article 8) of the EC Treaty, more generally, D O’Keeffe, “Union Citizenship” in O’Keeffe and Twomey (Eds) Legal Issues of the Maastricht Treaty (Chancery Law, 1994) p. 87; Closa, “Citizenship of the Union and Nationality of Member States” in O’Keeffe and Twomey (Eds) Legal Issues of the Maastricht Treaty (Chancery Law, 1994) p. 109.

11. See generally, Marenco, “The notion of Restriction on the Freedom of Establishment and Provision of Services in the case-law of the Court” (1991) 11 Y.E.L. Ill; Lonbay, “Picking over the bones: Rights of establishment reviewed” (1991) 16 E.L.Rev. 507.

12. Bosman (above) at paras 69–87.

13. Case C-152/94 Openbaar Ministerie v. Geert van Buynder [1995] E.C.R. I-3981.

This chapter does not deal with the basic immigration rights which are already clearly established, ¹⁷ but rather with the secondary barriers to cross-border activity thrown up by national differences in ways of organising professions and professional activities. These differences create difficulties for Community law. How can one reconcile the principle of national regulation of professional activities with the right of professionals to move either temporarily or permanently to practice their profession or activity in another Member State? The next section briefly illustrates the general scope of EC law granting rights to those providing cross-border services under these Articles.¹⁸

Professionals exercising their rights of mobility can do this either on a permanent basis by virtue of Article 43 (ex-Article 52) of the EC Treaty et seq. or on a temporary basis in which case the provisions of Article 49 (ex-Article 59) of the EC Treaty et seq. apply.¹⁹ As workers (employees) they would...