Directive 2005/36/EC came into force in September 2005 with a two-year implementation period. It has replaced the Sectoral and General systems of recognition with one piece of consolidated legislation. Regulations governing temporary workers and proposals for Common Platforms are new aspects.

 

The intention of the Directive is to make it easier for qualified professionals to practise their profession in European Economic Area (EEA) countries other than their own, with a minimum of bureaucracy but with due safeguards for public health and safety, consumer protection and the maintenance of professional standards. They are to have access to the same rights as nationals (Recital 6 L255/22).[1]

 

Pursuant to Article 3(1)(c) of the EC Treaty, the abolition of barriers to the free movement of persons and services between Member States (Recital 1 L255/22) is an important objective of the European Community. In addition the Charter of the ER-WCPT states that ER-WCPT seeks to ‘facilitate free migration and the right of establishment for physiotherapists in Europe’ http://www.physio-europe.org/index.php?action=downloads&downloadarea=11

 

The Directive applies to all Member States of the European Union and to countries of the European Free Trade Association (EFTA), namely Iceland, Liechtenstein and Norway. Together these countries form the EEA. Members of third countries may still apply for recognition of professional qualifications in an EEA country (Recital10 L255/23).

 

What follows is an explanation of the Directive as it applies to the physiotherapy profession. Some clauses in the Directive contain options that allow Member States to choose how to implement them hence this paper should be used in conjunction with the Directive and the Member State’s legislation which transposes it into national law.

 

This paper may be used to:

It is strongly recommended that Member Organisations use this briefing paper as a guide. In addition reference should be made to the following documents or sources of information:

 

A number of important points applicable to the physiotherapy profession are set out in the preliminary recitals i.e. initial points listed in the Directive. These are listed with their page numbers (L255/23-142) for ease of reference to the text of the Directive.

 

Physiotherapists must practice according to the disciplinary and professional rules of the host Member State. For example a migrant physiotherapist with acupuncture skills may only use them if acupuncture is within the scope of practice of the profession in the host Member State.

 

Member States retain the right to lay down minimum standards of education for physiotherapists. The previous education and experience of migrant physiotherapists must be taken into account in the recognition process.

 

Migrant physiotherapists with a minimum of one year of training at post-secondary level should be able to apply for recognition in another EEA Member State if the requirement in that country is completion of a programme of higher or university education of no more than four years. Compensation measures may be required. If access to a regulated profession requires longer than four years education at higher or university level, then the migrant physiotherapist must have successfully completed higher or university education of at least three years.

 

The Directive recognises that there is no single minimum standard of qualifying education across the EEA that provides access to the physiotherapy profession. Where there are significant differences between the applicant’s qualifications and the requirements of the host Member State, compensation measures such as an adaptation period or a test of competence may be required. The migrant is required to choose. The Directive states that ‘any derogation from that choice should in each case be justified by an imperative requirement in the general interest.’

 

The Directive provides European organisations like the ER-WCPT with the option to consider establishing what is called a Common Platform. This is defined as  ‘a set of criteria which make it possible to compensate for the widest range of substantial differences which have been identified between  the training requirements  in at least two thirds of the Member States, including all the Member States  which regulate that profession’.

 It is recommended that contact points should be set up to provide the public with contact details for the authorities responsible for recognition of qualifications and regulation. Details of the Competent Authorities can be found on the ER-WCPT website’s Member Organisation pages. (Link)

Readers should refer to Annex 1 which contains the definitions listed in Article 3 of the Directive.

 

If a country outside the EU issues a qualification to a physiotherapist and if that physiotherapist has then practised physiotherapy for three years in a member state, the qualification issued from the country outside the EU will be considered as evidence of formal qualifications as defined in this Directive.

E.g. a physiotherapist who obtains a qualification in Brazil and who works in Portugal for three years wishes to move to the UK. The competent authority in the UK must consider the original qualification in the same manner as a qualification obtained in the EEA.

4.2 Temporary Provision of Physiotherapy Services - Article 5 (L255/28-29)

Some physiotherapists may wish to work occasionally or for a short period in another Member State, particularly if they live close to the border. The Directive has clarified the recognition procedure for temporary provision of services. There is flexibility about transposition into national law on this topic.

Article 5 underlines the principle of free migration and provision of services within the EEA which shall not be restricted for reasons relating to qualifications. Physiotherapists providing temporary services must

The competent authority in the Member State where the services are provided is required to monitor the working pattern of the physiotherapist and assess its duration, frequency and regularity. For example if a physiotherapist were to work regularly for extended periods, this would not constitute temporary work.

 

4.3 Temporary workers - Article 6 (L255/29)

This article sets out some points that are not to be applied to temporary workers. They shall not be required to:

·         Join, or pay fees to, any professional body in the host Member State. Member States may provide automatic temporary registration/membership of such bodies or make it the responsibility of the Competent Authority to provide pro forma membership (see Article 7).

·         Register with a public social security body for settling accounts with an insurer relating to physiotherapy services provided to insured patients. However the physiotherapist must inform the body referred to, in advance, about what services will be provided.

 

This article explains procedures for recognition of qualifications and temporary registration in the host Member State. Regulators have various options.  Member States may provide for automatic temporary registration to enable disciplinary provisions in force on their territory, to be applied. They are allowed to

·         require certain documentary evidence from service providers

·         conduct further checks on certain providers in the interests of public health and safety

·         treat as misconduct breach of conditions imposed in the service provider’s home state.

 

Prior to providing services for the first time the physiotherapist may be required to provide a written advance declaration of their intention to provide services and details of professional liability insurance cover. The declaration shall be renewed annually. In addition, the physiotherapist may also be required to provide the following documentation:

·         Proof of nationality

·         Evidence of professional qualifications

·         Attestation of legal establishment (or proof of 2 year professional experience – see Article 5 b above)

·         Evidence of no prohibitions or restrictions regarding professional practice 

·         Evidence of good character - no criminal convictions

·         Details of personal professional liability insurance cover

 

If permission is provided to the applicant, services shall be provided under the title of the physiotherapist’s Member State of establishment (Article 7, paragraph 3).  The competent authority shall endeavour to inform the service provider of its decision within one month of receipt of all the documentation. Delays must be explained and a final decision reached within a further one month. If these mandatory deadlines are not met the services may be provided (Article7, paragraph 4).

 

The Member State may wish to make additional checks on the qualifications of the service provider. Where substantial differences are identified between the qualifications of the service provider and the requirements of the host member state, compensation measures may be required. This is likely to be an aptitude test, given the short timescales (see above). After this type of verification, services will be provided under the title of the host member state.

 

Recital 39 (L255/26) refers to compliance with conditions of pursuit in the host member state, provided these are ’objective and proportionate’. Member States may make their own arrangements about lifelong learning requirements for temporary service providers.

 

4.6 Collaboration between Competent Authorities (Article 8 L255/30 and Article 56 L255/50)

This is essential for the protection and security of the public and relies on close collaboration between Competent Authorities on disciplinary and criminal matters, with due respect for confidentiality and data protection legislation. The ER-WCPT has had substantial input into the design of the Internal Market Information tool designed to facilitate information exchange about applicants for recognition.

 

The Member State may require the temporary service provider to give patients some information, listed below, if they are practising under the title of their Member State of Establishment.  Competent authorities may set up a new register for temporary service providers, stating their entitlement to be registered.

·         Registration number and register where their details may be found

·         Contact details of the competent authority

·         Professional body to which they belong

·         Professional title, qualifications and where awarded

·         VAT ID number where relevant

·         Professional liability insurance status.

These articles apply to migrant physiotherapists who wish to work on a long term basis in another Member State and who have completed qualifying higher education of at least three, and not more than four years, duration or the part time equivalent. The Directive confers rights to equal treatment of their professional qualifications by virtue of recognition of those qualifications in the Member State of establishment.

 

Applicants for recognition shall be permitted access to the profession and to its practice under the same conditions as apply to nationals.

Attestations of competence and evidence of formal qualifications shall

a.    Have been issued by a Competent Authority in a Member State in accordance with regulations obtaining there

b.    Show evidence  of a level of qualification at least equivalent to the level immediately prior to that required in the host member state (Article 11d, L255/32)

c.    Show evidence that the physiotherapist holding the qualification has been prepared for practising the profession ( e.g. a course transcript)

 

Applicants from Member States where the profession is not regulated must provide evidence of one of more of the attestations listed above as well as evidence of two years full time experience within the last ten.

Article14, paragraph 1 states that Member States have the option to require applicants to undertake a test of competence or period of adaption of up to three years, if

a.    Training is at least one year shorter than in the host Member State

b.    Content is substantially different  in the host Member State

c.    One or more professional activities in the host Member State do not exist in the Member State of establishment.

If Member States opt for compensation measures in particular cases, they must offer applicants the choice of a test of competence or an adaptation period (Article 14, paragraph 2). If a choice is not offered, Member States must provide other Member States and the EU Commission with justifiable reasons for their action.

 

Competent authorities shall:

·         Acknowledge receipt of applications within one month

The wording of this article is as follows:

EEA nationals are exempt from a requirement to provide evidence of such language proficiency to competent authorities, as a condition of recognition of professional qualifications. Individual employers will check that applicants have the necessary language skills for the job.

They shall cooperate with one another to facilitate application of this Directive and ensure confidentiality of information which they exchange.

 

A common platform is an optional initiative. It is defined as a set of agreed criteria for the mutual recognition of professional qualifications which if met, would allow compensation measures to be waived. A review of other professions indicates that a small number are considering the establishment of a Common Platform however, ER-WCPT is not considering the establishment currently.