Report of the Mobility Group

October 2000

REPORT OF THE MOBILITY GROUP

TO

THE DIRECTORS-GENERAL FOR PUBLIC ADMINISTRATION

Strasbourg, 9-10 November 2000

TABLE OF CONTENT

INTRODUCTION......

1. OPENING THE PUBLIC SERVICE – CURRENT STATUS......

2. NATIONALITY CONDITION......

3. CONDITIONS OF ACCESS TO THE PUBLIC SECTOR......

3.1. Recognition of diplomas for access to the public sector......

3.2 Recognition of professional experience in the absence of the diploma required......

3.3 Professional experience as a condition of access and awarding of points within the competition procedure for professional experience and/or the subject matter of a diploma

4. Mutual recognition of professional experience and seniority acquired in the public sector of another Member State for determining professional advantages

FINAL REMARKS AND RECOMMENDATIONS......

Annexes:...... 25

INTRODUCTION

The Directors General for Public Administration, at their meeting in Vienna in November 1998, asked the ad-hoc mobility group, created following the ministerial meeting in Nancy in 1995, to study the legal and practical problems of mobility in the public sector, and to present a report on the subject to their meeting during the French Presidency.

During its work, the mobility group meeting at troika level on 18 March 1999 decided to create working groups within the main group: a working group of "national contact points" and one of "legal experts". Given that legal questions have made up, since October 1999, the majority of the work of the group, and the fact that the members of the plenary group and the working groups were, for most countries, the same, from that date on the group has met in plenary session to study the legal problems.

The mandate[1] of the mobility group adopted in June 1999 for its work on legal obstacles can be found in Annex 1. It can be seen that the work has been organised following the problems identified; nationality condition, recognition of diplomas and recognition of professional experience.

The group met six times on the subject of legal problems. During the meeting of the Directors General of Public Administration in Lisbon 8-9 May an interim report was presented and adopted by the Directors General.

The present report takes into account that work that has taken place on the question of legal obstacles, but the practical aspects of free movement have not been forgotten. First of all, regular information has been provided on the progress of the project of the database of jobs available to migrant workers. If the work on this project has been rather slow due to the fact that not all Member States were in a position to participate, there is no doubt that the model envisaged could be operational, in the fairly short term, taking into account progress in the different countries in the use of information and communication technology.

Secondly, the group has always tried to put itself in the position of the Community citizen trying to exercise his right of free movement. For example, work has been undertaken on the recognition of qualifications and the procedures in place in the Member States to deal with requests for recognition of qualifications.

Finally, the group has tried to clarify the concepts and instruments on free movement in order to cover all aspects of time spent, whether short or long term, in the public service of another Member State (annex 5).

1. OPENING THE PUBLIC SERVICE – CURRENT STATUS

The Mobility Group is requested inter alia «to take stock in a regular way and to exchange information about progress in opening the national public service». Member States have therefore been requested to provide on the one hand, information on the functions or sectors reserved to nationals, and on the other hand, quantitative data on jobs actually open to EU nationals.

1.1 Functions and sectors open to nationals

The information received is summarized in annex 2 to this report. The basic difference between those Member States with a public service based on a«career system» and those with a «job system» has an impact on the possibility of access to public service employment; the notion of public service itself varies from one Member State to another as well as over time.

1.2 Statistical data

An input matrix has been agreed upon at the initiative of the Mobility Group members. The data received can be found on a country-by-country basis in annex 3.

2. NATIONALITY CONDITION

2.1 General status

The constant interpretation of Art. 39 (4) EC by the ECJ and the corresponding, systematic action in this area by the Commission[2] together with the debate and the developments at all levels in the Member States have led to a fairly wide opening of the public service to EU nationals. The Member States are authorised to reserve public service posts for their nationals only if they are directly related to the specific activities of the public service, namely those involving the exercise of public authority and the responsibility for safeguarding the general interest of the State including those of public bodies such as local authorities.

Based on these criteria, most Member States have thus opened their public service to all other Member States’ nationals.

There are different general approaches:

• In some Member States, access is generally open to EU nationals, but there are specific regulations (e.g. laws, presidential decrees) on sectors and/or posts reserved for nationals. Either the regulations include exhaustive lists (France, Sweden, Italy, Netherlands, Finland), or the regulations provide presumptions and/or criteria on sectors/posts reserved, but a case-by-case decision is still necessary (Greece, Spain, Ireland).

• In other Member States, access to EU nationals is also open, but posts reserved for nationals are decided on a case-by-case basis by the authority in charge of recruitment; sometimes criteria (guidelines) are given (Germany, Austria, Portugal, UK, Belgium, Denmark).

• One Member State (Luxembourg) opened to EU nationals only the sectors identified in the Commission’s 1988 action, all other posts are still reserved for nationals.

The remedies offered on the national level do not always allow the affected citizens to fully exercise their rights: besides the fact that retroactive annulment of entrance competitions is not always possible, the financial compensation that might be claimed depends on the problem of proving the damage.

2.2 Member States’ regulations - Specific problems and developments at the national level

The current situation in the various Member States is summarised as followed:

The legal basis is shown in annex 2. The table in annex 2 also shows for each Member State either a list or an indication of the categories of posts reserved for nationals.

Belgium

All public posts, on a contractual as well as statutory basis, are open to nationals of other Member States of the EU, subject to exceptions based on the criteria of public authority.

Denmark

In general, jobs in the public service are not reserved for Danish nationals. However, it has to be noted that the Danish constitution makes employment as a public servant conditional upon Danish nationality. Therefore EU nationals are employed on terms similar to those of public servants (in cases where Danish nationals are employed as public servants). Restrictions on access only apply to jobs involving the exercise of public authority and responsibility for safeguarding the general interest of the Danish State or other public authorities. No general rules exist on restrictions of posts for EU nationals. However, the Ministry of Finance has provided Ministries and agencies with a description of criteria in the Personnel Administrative Guidelines (ch. 17, par.11).

Germany

There are public servants' and employees' jobs in the German public service.

• Based on the «10th law on modification of provisions related to the public service» all EU nationals can become public servants. The exceptions to this assimilation in principle are limited to functions which by their own nature can only be fulfilled by German citizens. The federal authorities and the Länder have agreed a list of recommended criteria to determine the posts thus reserved. The recruitment authority decides on the application of criteria.
• Among the employees’ jobs there are no posts reserved for nationals.

Greece

Law No 2431/1996 gives EU nationals general access to the public sector. This opening of the public sector goes beyond the sectors envisaged in the Commission's 1988 Communication, at the level of central administration, bodies governed by public law and local and regional administrations. The majority of decrees foreseen by Law No 2431/1996 have already been adopted (research, all levels of teaching, health, organisations which manage commercial services, airline companies, post and telecommunications). The sectors or jobs in central, local or regional administration to which EU nationals may not have access will be set out in presidential decrees. Restrictions on access only apply to posts which involve the exercise of public authority and responsibility for safeguarding the general interests of the State or other public bodies. It should however be noted the regulatory measures and administrative practices under which, even though a presidential decree has not been adopted in the area concerned, the administration may recruit an EU national based on the responsibilities involved in the individual case (case by case decision).

Spain

Based on Law 55/1999 of 29 December 1999 (in application since 1.1.2000) EU nationals (including spouses and children) can have access on the same conditions as Spanish citizens to all public service jobs, excluding those which imply the exercise of public authority. This opening is established for the central public service and regional and local administrations. The government, or the corresponding bodies of autonomous communities, or the other public administrations determine what corps, cadres, posts or jobs are to be excluded from the opening to other Member States’ nationals.

France

Law 91-715 of 27 July 1991 sets out the principle of the progressive opening of all public service posts by way of decrees that would modify each particular statute; all the decrees have not yet been adopted. Also, with the exception of information officer, librarians and of posts within the sectors identified by the Commission in its 1988 Communication, all category A posts are excluded, even where they do not imply the exercise of public authority. Regulatory measures are under preparation to open more posts to EU nationals, in particular for category A basic levels; their adoption is planned before the end of 2001.

Ireland

The Irish public sector can be divided into the following principal constituent parts:

-Civil Service

-Health Services

-Defence Forces

-Education Sector

-Police (Garda Siochana)

-Local Authorities

-Commercial and Non Commercial State Bodies

In the Civil Service (i.e. central government), recruitment to professional posts is fully open to nationals of other EU Member States. Recruitment to administrative posts is generally open to nationals of other EU Member States; the only exceptions which are made are in the case of certain posts in some areas which are considered to be essential to the national interest including:

-Department of the Taoiseach (Prime Minister)

-Office of the Revenue Commissioners

-Department of Defence

-Department of Justice, Equality and Law Reform

-Department of Foreign Affairs

There are no absolute nationality restrictions on recruitment in the wider public sector (i.e. outside the Civil Service).

Italy

The Italian regulations (art.2 DPR n° 487 of 9.5.1994) set out the general rule that Italian nationality is never required for access to public service, except for posts which involve the exercise of public authority. Such posts are formally listed by the DPCM n° 174 of 7.2.1994.

Luxembourg

Based on the Law of 17 May 1999 about EU nationals’ access to the public service, jobs in the following sectors are open to Community nationals unless they involve the exercise of public authority: research, teaching, health, land transport, mailand telecommunications, distribution of water, gas and power. All other posts are still reserved for nationals even if they do not involve the exercise of public authority.

A modification of the officials’ Statute is envisaged; however, it is still too early to know whether it will solve the issue.

Netherlands

In the public service of the Netherlands all posts are open to EU national unless otherwise stated in special regulations. These regulations exist for posts which have a direct or indirect link to national security and specific national interests.

Austria

The principles developed by the ECJ for the interpretation of Art. 39 (4) EC were incorporated into the public service legislation. There are no lists of positions open for EU nationals or of positions reserved for Austrian nationals. On the basis of the jurisprudence and of the responsibilities involved in a given case, recruiting authorities specify whether a post is open for EU nationals when advertising the vacancy.

Portugal

Based on Law DL n° 204/98 of 11.7.1998, art. 29 n° 1 and 2, interpreted pursuant to articles 15 n°1 and 59 n°1 of the Constitution, all public service posts are open to EU nationals except those which involve the exercise of power, public authority and safeguard of the State’s general interests. The law does not specify these posts, but the jurisprudence of the Portuguese Constitutional Court specifies the sectors and the posts reserved for nationals. The recruiting authorities take their decisions on a case-by-case basis.

Finland

The Constitution and the State Civil Servants’ Act lay down that as a general rule Community nationals have access to all established posts in the public service with several exceptions. There is no restriction on access to contractual posts in the public service.

Sweden

As a general rule EU nationals are admitted to all posts in the public service with several exceptions. The rules requiring Swedish nationality for certain posts are contained in the Constitution and the Public Employment Act. Under an authorization pursuant to that Act, the Government may also decide that only Swedish nationals may be appointed to certain positions.

In February 1999 the Government appointed a Member of Parliament to review the rules concerning Swedish nationality as a prerequisite for different positions in public life, including for posts within the Civil Service. Earlier this year the Government appointed a Parliamentary Committee to continue this work. The outcome of this review may result in proposals to amend the legislation in the long run.

United Kingdom

There is no specific legislation on the application of the jurisprudence of the ECJ on Art. 39 (4) EC. However, the Cabinet Office has issued indicative criteria to departments and agencies on posts which should be reserved for nationals. The criteria are only advisory and there is still a case-by-case decision necessary when deciding about a particular post.

The UK is seeking a change in its legislation to further increase the proportion of posts open to individuals from other Member States.

2.3 Conclusions and recommendations

Within the European Union the public sector is an important part of the employment market. This is clarified by the figures in Annex 3, which show that more than 25 million workers are employed in the Member States' public sectors. During the recent past all Member States have opened up large parts of their public sectors to EU nationals. This should be stressed as an important development for the free movement of workers in the public sector.

Nevertheless some problems concerning access to the public sector in compliance with Article 39 (4) EC, as it had been interpreted by the ECJ, remain.

Therefore the Group makes the following recommendations:

• Member States should open up all posts in the public service, including those in the A-category, which do not involve public authority, not only the sectors envisaged by the Communication of 1988.

• Member States should adopt all necessary rules of application (legislation, decrees, statutes etc.)

• Problems arising with the case-by-case approach:

Member States should control if the posts reserved for nationals really fall within the public authority exception.

3. CONDITIONS OF ACCESS TO THE PUBLIC SECTOR

3.1. Recognition of diplomas for access to the public sector

3.1.1. Legal problem

Directives 89/48/EEC and 92/51/EEC[3] are applicable only if the diploma required for the practice of a given profession attests to training that prepares specifically for the exercise of this profession. Posts within the civil service of a Member State (usually involving administrative tasks of a general nature) often call for a different type of diploma, i.e.:

- a diploma attesting to a certain level of education without the contents being specified (e.g. university degree, BAC+3, i.e. school-leaving certificate plus three years' higher education, etc.) or,

- a diploma attesting to a level of education that meets certain content-related criteria without the contents in question being deemed to constitute vocational training within the meaning of Directives 89/48/EEC and 92/51/EEC (e.g. diplomas in economics, political science, science, social sciences, etc.).

Neither of these cases falls within the scope of Directives 89/48/EEC or 92/51/EEC. As matters stand, only Article 39 of the EC Treaty as interpreted by the Court of Justice of the European Communities may be invoked.

In this case, EU workers who hold a diploma obtained in another Member State sometimes have difficulties in having it recognized.

3.1.2. Situation in the Member States

A questionnaire, raising various points (supporting documents, costs, deadlines, etc.), was sent to the Member States asking them what type of recognition procedure was applied when these types of diploma were required.

Most Member States replied to the questionnaire. The replies showed that each Member State has a procedure for recognising these types of diploma. This procedure generally provides nationals of other Member States with a number of safeguards in terms of deadlines, appeals, etc.

However, several Member States required candidates to support their applications with a number of documents referring to the content of the training course followed (e.g. course programme, timetable, details of subjects studied, etc.), and sometimes even the grades obtained. In other words, the competent authorities in the host country carry out a highly detailed examination of the training undertaken by the candidate.