Recognition of professional qualifications

Amendment to the act

On the website of the Government Legislation Centre, on December 8, 2021, a draft act was published to amend the act on the principles of recognition of professional qualifications acquired in the Member States of the European Union (hereinafter the "Draft Act", "Draft"). The envisaged changes are aimed at ensuring the correct implementation of the 2013 amended provisions of Directive 2005/36/EC of the European Parliament and of the Council of September 7, 2005 on the recognition of professional qualifications (hereinafter the "Directive").

The regulations provided for in the Directive were implemented in the Polish legal system pursuant to the Act of 22nd December 2015 on the principles of recognition of professional qualifications acquired in the Member States of the European Union (hereinafter the "Act"). However, on July 2, 2020, the European Commission (hereinafter the "EC") decided to refer a complaint against the Republic of Poland to the Court of Justice of the European Union in connection with the incorrect implementation of some provisions of the Directive into the Polish legal system. The decision was made after the European Commission conducted proceedings for failure to fulfil obligations by an EU Member State. Therefore, the Ministry of Education and Science has proposed an amendment to the Act, the discussion of which will be the subject of this article.

Change in the scope of exclusions relating to the application of the Act

Pursuant to Art. 2 clause 1 of the Directive, its provisions "shall apply to all citizens of the EU Member States who intend to pursue a regulated profession in a Member State other than the one in which they obtained their professional qualifications (...)". An exception to the above is provided for in Art. 2 clause 4 of the Directive, stating that its provisions do not apply to notaries appointed on the basis of an official act of public authorities.

The EC position shows that Poland has incorrectly implemented and exceeded the permissible scope of the above regulation, establishing that the provisions of the Directive do not apply to regulated professions and activities for which the regulatory provisions require Polish citizenship (Article 4 of the Act).

Bearing the above in mind, in Art. 1 point 1 of the Draft Act it is planned to amend Art. 4 of the Act, according to which "the provisions of the Act do not apply to the profession of notary and to other regulated professions and activities related to the exercise of public authority on the territory of the Republic of Poland".

Definition directory extension

Additionally the definition of "significantly different material", as defined in Art. 14 sec. has not been implemented into the Polish legal system. 4 of the Directive. In view of this lack, the legislator proposes to add to Art. 5 of the Act, point 20, according to which "significantly different material" will mean material that includes acquired knowledge, skills and competences that are essential for the performance of the profession and for which the education received by the applicant shows significant differences from the scope of education required in Poland.

Modification of the provisions on the application of compensatory measures

After receiving comments from the European Commission, there was a need to amend Art. 20 of the Act. The amendment concerns the rules for applying compensatory measures in a situation where the existence of significantly different material related to the training received by a person applying for recognition of professional qualifications in Poland in another EU Member State was found.

The legislator proposed a new wording for the art. 20 of the Act, pursuant to which the authority competent for the recognition of professional qualifications, in keeping with proportionality, will be able to make issuing a decision on the recognition of professional qualifications conditional on the applicant completing an adaptation period or taking an aptitude test in a situation where:

1)   the scope of education or training received by the applicant covers significantly different material or

2)   a regulated profession in Poland consists of at least one regulated activity that does not fall within the scope of the corresponding regulated profession in the applicant's country, and the scope of education or training received by the applicant covers significantly different material.

The above article will be supplemented with the provision that the application of compensatory measures will be proportionate, which is consistent with the wording of the provisions of the Directive. As you can read in the explanatory memorandum: "this means that the scope and duration of the adaptation internship or the scope of the aptitude test, as defined by the competent authority, will only be limited to the need to compensate for identified differences in the applicant's training or education compared to the content of education or training required in the Republic of Poland ".

Before issuing a decision on the necessity to complete an internship, the competent authority will be obliged to verify, on the basis of documents issued by the applicant's country, whether the applicant's knowledge and skills are “completely compensate for
a significantly different material” (proposed Article 20 (1a) of the Act).

Changing the regulations on checking the knowledge of the Polish language

From the current form of the provision of Art. 29 of the Act, it follows that after the decision on the recognition of qualifications is issued, the verification of the knowledge of the Polish language in relation to persons practicing professions affecting the safety of patients may be carried out in any case, and in relation to persons performing other professions - when there is a justified doubt as to the sufficient pursuing a regulated profession or regulated activity knowledge of the Polish language. The verification is performed at the request of the person whose professional qualifications are recognized and is subject to a fee.

In the opinion of the European Commission, the above mentioned provision does not guarantee verification of the knowledge of the Polish language in a manner that would be proportional to the regulated profession or regulated activity performed. It follows from the principle of proportionality set out in the Directive that the required level of knowledge of the language must be appropriate to the professional activity to be performed and that it should be possible to prove the knowledge of the language by any means of evidence.

In the opinion of the European Commission, it should be presumed that a specialist who completed a significant part of his education in a given EU Member State has an appropriate knowledge of the language of that country.

Similarly as before, the verification of the knowledge of the Polish language will be possible only after issuing the decision on the recognition of professional qualifications or after issuing the European Professional Card. The application of the proportionality principle will be manifested in the fact that the competent authority, on its own initiative, will be able to verify the level of language proficiency, which will be limited only to confirming that the person has the knowledge of the language to the extent necessary for the performance of a given regulated profession or activity. Verification will not include checking the general level of knowledge of the Polish language.

In order to confirm the knowledge of the Polish language, it will be possible to use various means of proof. Projected art. 29 sec. 4 contains an open catalogue of documents that can be presented, in particular it is a secondary school-leaving certificate obtained after passing the matriculation examination in Polish or a diploma of graduation from studies conducted in Polish. One of the options will also be the possibility of taking the Polish language exam and submitting the results to the competent authority.

After submitting the relevant documents or the results of a passed examination, the competent authority will issue a certificate confirming that the person concerned meets the requirement of knowledge of the Polish language to the extent necessary for the performance of a given regulated profession or a given regulated activity. The refusal to confirm the knowledge of the Polish language will be made by way of an administrative decision. It will be possible to challenge a negative decision on the basis of the Code of Administrative Procedure - this regulation is tantamount to the correct implementation of Art. 53 paragraph 4, second sentence of the Directive.

Entry into force

The legislator assumes that the Draft Act will enter into force on the day following its publication. As indicated in the explanatory memorandum to the Draft: "the entry into force on a date that does not ensure the statutory vacatio legis is dictated by the need to correctly implement the provisions of the directive as soon as possible due to the EC's decision to refer a complaint against the Republic of Poland to the CJEU".

Downloads

• PKF Alert - Recognition of professional qualifications.pdf [PDF]