The EU - Background
Ian Pritchard, Director Policy & International Relations
The European Union has developed an extensive body of laws which constitute a legal framework for all its activities. Through the co-decision procedure (involving the Council of Ministers and the European Parliament), legal measures are developed – Decisions, Regulations, Directives and Recommendations. It is said that some 70% of UK legislation is currently 'EU-inspired'.
All legislation is subject to the well-established principles of proportionality and subsidiarity. Proportionality – is the obligation to legislate only where necessary i.e. where objectives cannot be met through national legislation. Subsidiarity – enshrines a requirement to avoid harmonisation for its own sake, and to develop legislation at the most appropriate level.
The Lisbon agenda
At its meeting in Lisbon, in March 2000, the European Council resolved to become 'the most competitive & dynamic knowledge-based economy in the world by 2010'. This decision set in motion a range of actions
• to prepare for the transition to a knowledge-based economy,
• to step up the process of structural reform for competitiveness and innovation, and
• to complete the internal market
Ten years later, evaluations of key Directives have been put in place to address their impact on professional mobility e.g.
• the Directive on the Recognition of Professional Qualifications,
• the Services in the Internal Market Directive and
• the Procurement Directives
Of course, there are many other Directives that affect the practice of the profession e.g. Energy performance in buildings, Temporary or Mobile Work Sites (health & safety). Unfair Terms of Contract, VAT etc.
The Internal Market
Directive on the Recognition of Professional Qualifications
Since 1985, professional mobility for architects in the EU has been governed by the so-called Architects’ Directive - the first and most comprehensive international agreement on the mutual recognition of qualifications in architecture. Its provisions have now been incorporated into a new Directive which combines
• the sectoral Directives covering professions with agreements providing for the automatic recognition of qualifications for registration), with
• the General Directive on the Mutual Recognition of Higher Education Diplomas, which covered the non-sectoral professions.
The key characteristics describing architectural training are incorporated in article 46.1 of the Qualifications Directive. It prescribes a list of approved qualifications in architecture, the holders of which are afforded automatic recognition for registration in the other jurisdictions of the EU, without the need to undergo aptitude tests or adaptation periods. It prescribes equal treatment for all EU-nationals, as far as licensing requirements are concerned, and establishes an Expert Group to assess new diplomas, examine challenges to newly notified diplomas and review other market access issues.
It is now recognised as a far-reaching and visionary document, which does not seek to harmonise educational requirements or develop complex professional and academic comparative metrics, but rather provides for an approach based on equivalency. The definition of the key characteristics of architectural training has achieved international currency and is included in the International Union of Architects’ 'Accord on International Standards of Professionalism' - developed with inputs from the RIBA and other national institutes from around the world - to describe the 'Fundamental Requirements of an Architect', as well as the UNESCO-UIA Education Charter.
Services in the Internal Market Directive
Though Services are responsible for around 70% of EU GDP and employment as a whole, they only account for 20% of trade between EU Member States. This is thought to have a negative impact on business and to restrict consumer choice. One of the main reasons for the low volume of trade has been attributed to barriers to the provisions of services. So the European Commission has taken steps to provide a legal framework that will eliminate obstacles to the freedom of establishment for service providers and to the free movement of services between Member States,
giving both providers and recipients of services the legal certainty they need in order to exercise these two fundamental freedoms of the Treaty of Rome.
The Services Directive - agreed in December 2006 for implementation by December 2009 - provides for the opening up of the internal market in services through the removal of unjustifiable barriers to service provision and the introduction of measures designed to facilitate the cross-border provision of services. It aims to make it easier for businesses to set up in other EU Member States and to provide services across-borders or on a temporary basis. In order to achieve this it will
• abolish restrictive legislation and practices that hinder service providers from setting up within the EU;
• set up Points of Single Contact in each Member State through which service providers will be able to find information and complete formalities necessary for doing business;
• facilitate greater co-operation between regulatory and authorisation bodies across the EU, reducing requirements placed on business; and
• engender greater consumer confidence in cross-border service provision through access to information and high quality services.
To this end, regulatory bodies were asked to examine and justify their authorisation processes. Some prohibited requirements have been identified and others are to be evaluated (e.g. restrictions on legal forms or shareholdings in companies, insurance requirements, fee-scales).
The Member States have been invited to consider, on a voluntary basis, any steps that could be taken to promote greater convergence and consumer confidence, notably in the areas of advertising, multi-disciplinary forms of practice, certification, dispute resolution and codes of conduct.
To this end, Architects Council of Europe has been
• analysing licensing procedures, considering ways of simplifying the presentation of credentials, including the possibility of developing some sort of 'smart card' holding professional data;
• developing a consumer-facing Quality Charter;
• developing a pan-European Code of Conduct;
• considering a reasoned justification for cost-information systems;
• discussing the development of a pan-European dispute resolution system, and
• engaging with insurance mutuals to address the uneven playing field in Europe (given that liability regimes are different in the various jurisdictions)
The EU is also evaluating its Procurement Directives this year in order to
• describe the scope of EU procurement policy in terms of economic coverage;
• review trends in the application of procurement law and describe national structures/ policies put in place to implement procurement policy;
• evaluate penetration of partner country markets;
• gather data on price impacts of procurement legislation
The RIBA will be aiming to make representations, through ACE, with regard to
• the lack of a transparent scoring system;
• the use of turnover as an indicator of competence;
• the amount (and cost) of bureaucracy;
• requirements for direct previous experience;
• the low level of thresholds
Under the Treaty of Nice, it has been determined that agreements between the EU and third countries are matters of 'mixed competence'. The Trade Representatives of the Member States sit on a trade committee known as the International Trade Committee, and jointly negotiate agreements, as a block, with third countries.
The World Trade Organisation (WTO)
Article VI.4 of the General Agreement on Trade in Services (GATS) charges the World Trade Organisation’s Council for Trade in Services to 'develop rules and disciplines aimed at ensuring that qualifications, requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services'.
The Working Party on Domestic Regulation seeks to ensure rules/requirements are
• based on objective and transparent criteria;
• not more burdensome than necessary to ensure quality of service;
• in the case of licensing procedures, not in themselves a restriction to the supply of services;
The WPDR has been active in seeking to
• establish guidelines on mutual recognition of qualifications;
• encourage the development and use of international standards for qualifications and practice, through co-operation with relevant international governmental and non-governmental organisations;
• develop disciplines on domestic regulation to ensure that national requirements and procedures, technical standards and licensing requirements do not constitute unnecessary barriers to trade in services;
In developing such disciplines, the RIBA has sought to satisfy itself that an appropriate balance is achieved between liberalisation on the one hand, and the protection of those who rely on the services of the architectural profession, on the other hand.
The Architects Council of Europe has agreed to consider negotiating Mutual Recognition Agreements (MRAs) with countries that have concluded a Free Trade Agreement (FTA) with the European Union. This enables market access to be dealt with under a political, leaving it to the profession to try to determine mutual recognition of qualifications for architects. The ACE has
• concluded a MRA with the profession in Mexico and is currently waiting for this to be legally underpinned by the EU-Mexican authorities;
• concluded a MRA with the profession in the USA, though political underpinning is proving elusive for the time being, as the EU tries to surmount 'States’ Rights' issues;
• is close to concluding a MRA with the profession in Canada, which could be enshrined in a wider political agreement by the end of the year
• reached an advanced stage in negotiations with the profession in South Korea, though these have not yet been finalised.
ACE is not considering opening new fronts of negotiation just yet, preferring to wait until the others are finalised, evaluated and start to bear fruit.
The RIBA has produced a reference handbook, as part of its recession toolkit, called 'Working Internationally'. While the UK is slow to emerge from recession, other markets are recovering more quickly, some having even ‘bucked the trend’ altogether. It is understood that there will be strong demand for UK professional services and education to support investments to urbanise the developing world sustainably. UK architects are seen to have strong credentials in sustainable design, master-planning and regeneration, and experts in services already account for 26% of UK GDP and are well supported by UKTI. 'Working Internationally' is downloadable from the RIBA website.