Don’t surprise me by saying that Directive 2005/36/EC on the recognition of professional qualifications is not on your bedside-table, to be consulted when you need to be entertained in the middle of the night. It is right up there with Stephen King and JK Rowling, a masterpiece in horror and wizardry. And now the European Commission is bringing out a new edition, with exciting additions.
The proposed new section which will keep you looking at your curtains as the wind blows through them - is that a claw poking through? A gun aimed at your heart? - relates to partial access to the profession. This notion derives from the European Court of Justice case (C-330/03C-330/03) Colegio de Ingenieros de Caminos, Canales y Puertos, in which Giuliano Mauro Imo qualified as a hydraulics engineer in Italy and the Court held that he should be entitled in principle to be entitled to perform similar work in Spain, even if hydraulics was included in Spain under a wider and more general qualification of civil engineering.
The Commission will now make it a duty to allow partial access if (a) differences between the professional activity in the home and the host member state are so large that in reality the applicant would have to requalify; and (b) the professional activity in question can objectively be separated from other activities falling under the regulated profession in the host member state.
Partial access may be rejected by an overriding reason of general interest, such as public health. It is too early to know the extent to which partial access could apply to the legal profession, but listen out for the screams and footsteps running past your room.
(If I may be allowed a small diversion here, to explain my approach to explaining the Directive to you, I want to say how difficult it is to translate European legislation into meaningful developments for practitioners on the ground. Selling Europe has rarely been undertaken successfully. Older readers may remember a newspaper called The European, launched by Robert Maxwell in 1990 as Europe’s first national newspaper, which turned eventually into a business newspaper, and then folded in 1998.
Because Europe covers so many people, countries, languages, and systems, its language - to be universal - is alienating and complex, and nobody ends up feeling as if it applies to them. Sceptics say that it is because it has become too large, and drifted too far from its original market origins. Enthusiasts just have to accept the challenge of trying to sell it in fresh ways. We find that our own press releases from the Council of Bars and Law Societies of Europe (CCBE) rarely penetrate beyond the specialist press, because the mainstream does not know how to accommodate European concerns. Our big successes have been when we issued releases linked to large world issues such as the trial procedures for Saddam Hussein, or more recently the activities of the Troika in the bailed-out countries.)
To return to the compelling pages of the Professional Qualifications Directive, the Commission has introduced a chilling section set in a graveyard where the corpses rise up and demand European professional cards. This is particularly likely to make UK readers shudder. Effectively, the Commission wants to introduce professional cards for all European professions, but, recognising the difficulties, proposes a voluntary system.
In other words, each profession has to request inclusion in the system before an individual member of the profession can benefit. Once in the system, the cards will be issued through what is called the Internal Market Information System, which is a government-run electronic system linking up competent authorities in each member state. But - thrilling anti-climax - you can be pretty certain that lawyers are not covered by this section. We lawyers already have our own professional identity card issued by the CCBE, and the Commission believes that our card acquires its authority through the lawyers’ directives and not through the Professional Qualifications Directive.
The final new part of interest to lawyers in the proposed changes to the Directive is the codification of the Morgenbesser (C-313/01C-313/01) judgment. Morgenbesser is the decision which allows trainees to move freely around the EU and have their qualifications and experience acquired to date recognised outside the home member state.
There is some question as to whether the new wording succeeds in doing that, or does something else altogether - but that is for discussion during the legislative process.
There are rumours that Stieg Larsson has not died. He fled from Sweden and is moonlighting for the European Commission, churning out thrilling amendments to the Professional Qualifications Directive.
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs