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Letters to the Editor
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EU services directive
Draft directive clarified
From Mr J. Ferguson, FRPharmS
In your item “EC
cross-border services plan to be eased” (PJ,
19 March, p326), you reported on the agreement reached at the meeting of
heads of governments of EU member states on 22 March and on the need for “far
reaching” revision of the proposed directive on services. As the
spokesperson for the EU Commission quoted in your report stated, the next
stage will be for the Commission to consider the views of the European
Parliament, as expressed in the first reading of the text that is currently
taking place and the view of the Council of Ministers. The Commission will
then produce a revised text for the second reading procedure. This draft
directive is a long way from being adopted.
You report that “the draft directive would implement a ‘country
of origin’ principle” and that “this would mean that
any company offering services throughout the EU would only have to meet
the national standards of the country in which it is based and not those
of the countries in which those services are used”. I believe this
statement, although true, should be qualified in relation to pharmaceutical
services.
The draft directive on recognition of professional qualifications is much
further along the EU legislative process. The signs are that this will
be adopted before the end of the Luxembourg Presidency on 30 June. British
pharmacists who meet the requirements for automatic recognition of qualifications
and establish themselves to practise in another member state will, as now,
have to do so in compliance with the laws and the profession’s code
of standards and practice in that country.
However, the draft directive has new provisions relating to the situation
where a service provider moves to a host member state “to pursue
on a temporary and occasional basis” his profession. There is no
definition of “temporary and occasional” with each incidence
to be assessed on a “case by case” basis in relation to duration,
frequency, regularity and continuity. For temporary provision, there is
no requirement to register in the host member state. The need will be,
before the first temporary provision of services and annually thereafter,
to make a written declaration — and then only if required by the
host member state — giving details of professional liability insurance
held. For the first provision of services, or if there is a material change
in circumstances, host member states may require this declaration to be
accompanied by specified documents. For professions such as pharmacy, where
there are provisions for automatic recognition of qualifications, there
is no provision for a check of these before the first provision of services.
Thus, as discussions with officials of the EU Commission have made clear,
the way in which the eventual directive is implemented in UK law, in terms
of the prior declaration to be made and the form the accompanying documents
must take, will be extremely important.
The draft directive also makes it clear that, even for temporary provision
of services the service provider shall be subject to “the disciplinary
provisions of a professional or administrative nature which are directly
linked to professional qualifications, such as the definition of the profession,
the use of titles and serious professional malpractice which is directly
and specifically linked to consumer protection and safety, which are applicable
in the host member state to professionals who pursue the same profession
in that member state”. Thus the “country of origin” principle
will not apply. Malpractice which meets the definition in the directive
will presumably be for the host member state to decide subject, as always,
to Commission and, in the end, European Court of Justice review.
Reverting to the draft directive on services, the position relating to
these professional services appears to be recognised and confirmed. Recital
13b in the consolidated text from the presidency dated 10 January 2005,
refers to this derogation from the “country of origin” principle.
The final sentence states: “Therefore none of the measures applicable
in the host member state under the directive on recognition of professional
qualifications is affected by the country of origin principle.”
The exemption is confirmed
in Article 17(8) of the draft directive.
It will, of course, be important for the profession to watch closely the
way in which the directive on recognition of professional qualifications
is to be implemented in UK law and, subsequently, to ensure that there
is no conflict with the text of the eventual directive on services.
John Ferguson
Haywards Heath,
West Sussex |
The
Pharmaceutical Journal