S.I. No. 1/1991 - European Communities(General System For The Recognition of Higher Education Diplomas) Regulations, 1991.

S.I. No. 1 of 1991.

EUROPEAN COMMUNITIES(GENERAL SYSTEM FOR THE RECOGNITION OF HIGHER EDUCATION DIPLOMAS) REGULATIONS, 1991.

I, MARY O'ROURKE, Minister for Education, in exercise of the powers conferred on me by section 3 of the European Communities Act, 1972 (No. 27 of 1972), and for the purpose of giving effect to Council Directive No. 89/48/EEC of 21 December, 1988¹ hereby make the following regulations:

1. These Regulations may be cited as the European Communities (General System for the Recognition of Higher Education Diplomas) Regulations, 1991.

2. These Regulations shall come into operation on the 4th day of January, 1991.

3. (1) In these Regulations, except where the context otherwise requires:—

"adaptation period" has the meaning assigned to it by Regulation 7;

"applicant" means a person who makes an application;

"application" means an application made pursuant to these Regulations and the Directive by a national of a Member State to a designated authority for authorisation to take up or pursue a regulated profession in the State;

"aptitude test" means a test that complies with Regulation 6;

"competent authority" means, in relation to:—

( a ) a diploma or other certificate or document, or

( b ) a period of professional experience,

referred to in these Regulations, the person in a Member State authorised under the laws, regulations or administrative provisions of that State, to issue, award or recognise that diploma, certificate or document, or to certify that period;

"corresponding profession", in relation to a regulated profession in the State that is the subject of an application, means a profession in another Member State which corresponds substantially to the first-mentioned profession;

"designated authority" means, as the context requires,—

¹ O.J. No. L 19, 24.1.1989, p. 16.

( a ) in relation to a profession or professional activity in the State specified in column (1) of the First Schedule, the person or one of the persons specified in column (2) of Part I or column (3) of Part II of the said Schedule opposite the first-mentioned specification, or

( b ) an authority designated by another Member State pursuant to Article 9 of the Directive;

"diploma" means—

( a ) a diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence—

(i) that has been awarded by a competent authority in a Member State, designated in accordance with its own laws, regulations or administrative provisions,

(ii) that shows that the holder has successfully completed a post-secondary course of at least 3 years' duration or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level and, where appropriate, that the holder has successfully completed the professional training required in addition to the post-secondary course, and

(iii) that shows that the holder has the professional qualifications required for the taking up or pursuit of a regulated profession in that Member State:

Provided that the education and training attested by the diploma, certificate or other evidence of formal qualifications were received mainly in the Community, or the holder thereof has 3 years' professional experience certified by the Member State which recognised a third-country diploma, certificate or other evidence of formal qualifications, or

( b ) a diploma, certificate or other evidence of formal qualifications or any set of such diplomas, certificates or other evidence awarded by a competent authority in a Member State if it is awarded on the successful completion of education and training received in the Community and recognised by a competent authority in that Member State as being of a level equivalent to that of a diploma specified in paragraph (a) and if it confers the same rights in respect of the taking up and pursuit of a regulated profession in that Member State;

"the Directive" means Council Directive No. 89/48/EEC of 21 December 1988;

"the Minister" means the Minister for Education;

"professional experience", in relation to a regulated profession that is the subject of an application, means the actual and lawful pursuit in another Member State of a corresponding profession;

"regulated profession" means, as the context requires—

( a ) a profession or professional activity in the State specified in the First Schedule, or

( b ) a professional activity or range of activities in another Member State for which an authority has been designated under Article 9 of the Directive,

and "regulate", in relation to a profession, shall be construed accordingly;

"regulated professional activity" means—

( a ) a professional activity, in so far as the taking up or pursuit thereof or one of the modes of such pursuit in a Member State is subject, directly or indirectly by virtue of laws, regulations or administrative provisions, to the possession of a specific diploma and, in particular (but without prejudice to the generality of the foregoing), the following shall constitute, for the purposes of this definition, a mode of pursuit of a regulated professional activity:

(i) pursuit of an activity under a professional title, in so far as the use of such a title is reserved to the holders of a diploma governed by laws, regulations or administrative provisions,

(ii) pursuit of a professional activity relating to health in so far as remuneration or reimbursement or both for the activity is subject by virtue of national arrangements to the possession of a diploma, and

( b ) a professional activity to which paragraph (a) does not apply and which is pursued by the members of an association or organisation the purpose of which is, in particular, to promote and maintain a high standard in the professional field concerned and which, to achieve that purpose, is recognised in a special form by a Member State and—

(i) awards a diploma to its members,

(ii) ensures that its members respect the rules of professional conduct which it prescribes, and

(iii) confers on them the right to use a title or designatory letters or to benefit from a status corresponding to the diploma;

(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless a contrary intention appears, the meaning in these Regulations that it has in the Directive.

(3) In these Regulations—

( a ) a reference to a regulation or schedule is a reference to a regulation of or schedule to these Regulations unless it is indicated that reference to some other Regulations is intended,

( b ) a reference to a paragraph or subparagraph is a reference to the paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

4. Subject to Regulation 5, where, in the State, the taking up or pursuit of a regulated profession is subject to possession of a diploma, the designated authority concerned may not, on the grounds of inadequate qualifications, refuse to authorise an applicant to take up or pursue that profession on the same conditions as apply to holders of that diploma—

( a ) if the applicant holds the diploma required in another Member State for the taking up or pursuit of the profession concerned, that profession is a regulated profession in its territory and the diploma was awarded in a Member State other than the State, or

( b ) if the applicant has pursued the profession full-time for 2 years during the previous 10 years in a Member State other than the State in which the profession is not a regulated profession and possesses evidence of—

(i) One or more formal qualifications—

(I) that have been awarded by a competent authority in a Member State other than the State,

(II) that show that the holder has successfully completed a post-secondary course of at least 3 years' duration, or of an equivalent duration part-time, at a university or establishment of higher education or another establishment of similar level of a Member State other than the State and, where appropriate, that the holder has successfully completed the professional training required in addition to the post-secondary course, and

(III) that have prepared the holder for the pursuit of his profession,

or

(ii) one or more formal qualifications or any set of such formal qualifications awarded by a competent authority in a Member State other than the State if the award was made on the successful completion of training received in the Community and is recognised by that Member State as being of an equivalent level:

Provided that the other Member States and the Commission have been notified of this recognition in accordance with Article 3 of the Directive.

5. A designated authority may, before authorising an applicant to take up or pursue a regulated profession in the State, require the applicant, either—

( a ) where the duration of the education and training is shown by the applicant in his application to be at least one year less than that required in the State of a person other than an applicant, to provide evidence of professional experience during a period determined in compliance with the Second Schedule, or

( b ) where the matters covered by the education and training received by the applicant and shown by him in his application differ substantially from those covered by the diploma required in the State by a person other than an applicant (being the first case referred to in Article 4.1. (b) of the Directive) or in either of the other cases referred to in the said Article 4.1. (b), at the option of the applicant, either

(i) to complete successfully an adaptation period, or

(ii) to pass an aptitude test:

Provided, however, that in the case of the professions and professional activities specified in, or regulated by a body specified in, the Third Schedule, the designated authority shall, notwithstanding the option aforesaid, require the applicant to pass an aptitude test.

6. (1) An aptitude test shall—

(i) be carried out by the designated authority concerned,

(ii) be designed to assess the ability of the applicant concerned to pursue the profession concerned in the State,

(iii) be limited to the professional knowledge of the applicant, and

(iv) take account of the fact that the applicant is a qualified member of the profession in the Member State of origin or the Member State from which he comes.

(2) ( a ) The designated authority concerned shall determine what subjects covered by the diploma concerned required by a person other than an applicant in the State are not covered by the diploma or other evidence of formal qualifications possessed by the applicant concerned and the aptitude test shall cover only—

(i) subjects so determined knowledge of which is essential for the pursuit of the profession concerned in the State, and

(ii) if the designated authority so determines, knowledge of the relevant rules of professional conduct.

(3) The professional status in the State of an applicant preparing for an aptitude test shall be determined by the designated authority concerned.

(4) The matters aforesaid and any matters connected therewith shall be governed by such rules made by the designated authority concerned as it may determine.

7. (1) An adaptation period is a period not exceeding 3 years—

(i) whose length is determined by the designated authority concerned,

(ii) during the whole of which the applicant concerned pursues the profession concerned under the responsibility of a qualified member of that profession, and

(iii) during which the applicant may be required by the designated authority to undergo such further training in relation to the profession as it may determine.

(2) The performance of an applicant in the pursuit of the profession concerned during an adaptation period shall be the subject of such an assessment as the designated authority concerned may determine.

(3) The professional status in the State of an applicant who is in the process of completing an adaptation period shall be determined by the designated authority concerned.

(4) The matters aforesaid and any matters connected therewith shall be governed by such rules made by the designated authority concerned as it may determine.

8. (1) A designated authority shall accept, as sufficient proof, for the purposes of Regulations 4, or 5, of any matters specified in those regulations, the appropriate diploma, certificate or other document in relation to that matter duly issued by the appropriate competent authority in the Member State concerned.

(2) ( a ) A designated authority shall accept as sufficient proof that an applicant satisfies a requirement that he—

(i) is of good character or repute or has not been declared bankrupt, or

(ii) has not been suspended or prohibited from practising the profession concerned in consequence of serious professional misconduct or conviction of a criminal offence,

a document showing that the requirement is met issued by the appropriate competent authority in the Member State of origin or the Member State from which the applicant comes.

( b ) Where the competent authority in another Member State does not issue documents of the kind specified in paragraph (a), a designated authority shall, in lieu of such a document, accept as sufficient proof that an applicant satisfies a requirement specified in paragraph (a)—

(i) (I) a declaration on oath that the requirement is met, or

(II) if there is no provision in the Member State for a declaration on oath, a solemn declaration that the requirement is met,

made by the applicant concerned before a competent judicial or administrative authority or, where appropriate, a notary or qualified professional body of the Member State of origin or the Member State from which the applicant comes, and

(ii) a certificate attesting the authority of the declaration on oath or the solemn declaration issued by the authority, notary or qualified professional body.

(3) A designated authority shall accept, as sufficient proof of the state of the physical or mental health of an applicant—

( a ) the document required for that purpose in the Member State of origin or the Member State from which the applicant comes, or

( b ) in case, in the Member State of origin or the Member State from which the applicant comes, there is no such requirement, a certificate issued by the competent authority in the Member State of origin or the Member State from which the applicant comes corresponding to the certificate issued for the purpose aforesaid in the State.

(4) A designated authority may require that a declaration, certificate or other document required to be presented to it under paragraph (2) or (3) be so presented not more than 3 months after the date of its issue.

(5) A designated authority shall ensure that, where the form of an oath required by it to be taken, or of a declaration required by it to be made, by an applicant cannot be used by nationals of other Member States, an appropriate and equivalent form of oath or declaration is offered to the applicant concerned.

(6) A diploma, certificate, declaration or other document purporting to be the appropriate diploma, certificate, declaration or other document in relation to a matter specified in Regulation 4 or 5 or paragraph (2) or (3) and to be duly issued by the appropriate competent authority or other authority or by a notary, as may be appropriate, shall be deemed to be such diploma, certificate, declaration or other document and to be so issued unless the contrary is proved.

9. An applicant who has been authorised pursuant to these Regulations to take up or pursue a regulated profession may, and shall be permitted by the appropriate designated authority to use—

( a ) the professional title and any abbreviatory letters relating to the profession in the State, and

( b ) the lawful academic or professional title and, where appropriate, the abbreviation thereof relating to the profession deriving from his Member State of origin or the Member State from which he came, in the language of that State followed, if so required by the designated authority, by the name and location of establishment or body by which it was awarded:

Provided that, if the profession is one that is specified in column (1) of Part II of the First Schedule, the applicant shall not use the professional title aforesaid or any abbreviatory letters therefor other than in accordance with the provisions of that Part and if those provisions require membership of the body or one of the bodies specified in column (3) of that Part opposite the first-mentioned specification and such membership is subject to any qualification requirements, those requirements may be applied by the designated authority to the applicant only in so far as they are consistent with these Regulations and, in particular, with Regulations 4 and 5.

10. An application shall be considered, as soon as may be, by the designated authority concerned and its decision to grant or refuse the application and the reasons for its decision shall be communicated by it to the applicant concerned not later than 4 months after the presentation to it of the documents, evidence and information relevant to the application.

11. (1) An applicant may appeal to the High Court from any decision of a designated authority, or any failure of a designated authority to make a decision, in relation to an application by him.

(2) Upon the hearing of an appeal under this Regulation the High Court may do one or more of the following:

( a ) affirm or set aside any decision of the designated authority concerned in relation to the application concerned,

( b ) make any decision in relation to the application that could be made by the designated authority,

( c ) remit the application with or without directions to the designated authority for reconsideration and the making of a new decision in relation to it,

( d ) make such other order as may be appropriate for the purpose of doing justice.

(3) An appeal under this Regulation in relation to an application to the Council of the Honorable Society of King's Inns shall be heard and determined by a judge of the High Court who is not a member of that Council.

(4) An appeal under this Regulation shall be brought—

( a ) within 42 days of the date upon which the decision concerned is communicated to the applicant concerned, or

( b ) in the case of failure by the designated authority concerned to make a decision in relation to the application concerned, within 42 days of the expiration of the period of 4 months specified in Regulation 10.

(5) A decision of the High Court on an appeal under this Regulation shall be final and not appealable.

12. (1) The Minister shall appoint an official of the Minister to co-ordinate the activities of the designated authorities in the State and to promote uniform application of the Directive to all the professions concerned.

(2) Designated authorities in the State shall furnish to the official standing appointed for the time being pursuant to paragraph (1), at his request, such information as he may reasonably require for the purposes of his functions under these Regulations and the Directive.

13. Nothing in these Regulations or the Directive shall be construed as entitling a person who has, by virtue of a diploma awarded to him in the State, been authorised pursuant to the Directive to take up and pursue the relevant profession in another Member State to claim in the State any rights or status not conferred on him by the diploma.

14. (1) Section 3 of the Legal Practitioners (Qualification) Act, 1929 (No. 16 of 1929), shall not apply to an applicant to whom paragraph (a) or (b) of Regulation 4 applies.

(2) Section 24 of the Solicitors Act, 1954 (No. 36 of 1954), and regulations under section 40 of that Act shall not apply to an applicant to whom paragraph (a) or (b) of Regulation 4 applies.

Regulation 3

FIRST SCHEDULE

PROFESSIONS AND PROFESSIONAL ACTIVITIES

PART I

Professions and professional activities regulated by law.

PART II

Professions and professional activities regulated by professional bodies which are recognised in a special form by the State.

1. In the case of a profession specified in column (1) of this Part—

( a ) the professional activity concerned is regulated only by virtue of admission to membership of the body specified in column (3) of this Part opposite the first-mentioned specification,

( b ) only members of that body may use the abbreviatory letters specified in column (2) of this Part opposite such first-mentioned specification, and

( c ) except in the case of a chemist, tax consultant, technician engineer, graduate professional engineer or town planner, the use of the name of the profession is regulated by such membership as aforesaid.

2. Where the same body is specified in Part I of this Schedule and in this Part, that body regulates both:

( a ) the pursuit of the profession or professional activity concerned specified in the said Part I, and

( b ) the use of the abbreviatory letters concerned specified in this Part.

Regulation 5

SECOND SCHEDULE

1. In this Schedule "the shortfall" means the length of time by which the period of education and training received by an applicant and established by him pursuant to Regulation 4 is shorter than the period required of persons other than applicants in the State in relation to the regulated profession concerned.

2. Subject to paragraph 6, to the extent that the shortfall or part of it relates to post-secondary studies, or to a period of probationary practice carried out under the control of a supervising professional person and ending with an examination, or both, the required period of professional experience may not exceed twice the shortfall or the part, as the case may be.

3. Subject to paragraph 6, to the extent that the shortfall or part of it relates to professional practice acquired with the assistance of a qualified member of the profession, the required period of professional experience may not exceed the shortfall or the part, as the case may be.

4. The duration of education and training required in the case of a diploma referred to in paragraph (b) of the definition of "diploma" in Regulation 3 shall be determined as for the education and training referred to in paragraph (a) of that definition.

5. In determining the length of the required period of professional experience, the period of professional practice referred to in Regulation 4 (b) shall be taken into account.

6. A period of professional experience may be required in respect of both of the matters referred to in paragraphs 2 and 3, but the total of the periods so required may not in any event exceed 4 years.

Regulation 5

THIRD SCHEDULE

Auditing company accounts.

Barrister.

Solicitor.

Patent agent.

Institute of Taxation in Ireland.

The Institute of Chartered Accountants in Ireland.

The Institute of Certified Public Accountants in Ireland.

The Chartered Association of Certified Accountants.

GIVEN under my Official Seal, this 2nd day of January, 1991.

MARY O'ROURKE,

Minister for Education

EXPLANATORY NOTE.

The purpose of these Regulations is to give legal effect to Council Directive No. 89/48/EEC of 21 December, 1988. This Directive introduced, for regulated professions, a general system for the recognition of higher education diplomas awarded on completion of professional education and training of at least three years' duration.