PROFESSIONAL QUALIFICATIONS DIRECTIVE

The European Parliament's Internal Market and Consumer Protection committee (IMCO) wants to make it easier for guides to accompany groups of tourists around Europe.  The proposal drafted by a German MEP, Andreas Schwab, will benefit guides based in countries where guiding is not a regulated profession and visiting other countries where it is.

This is one of many amendments drafted by MEPs to the European Commission's proposal for revising the EU's 2005 professional qualifications directive which promotes professional mobility around Europe. 

What are the current rules?

The 2005 directive is intended to ensure that EU citizens are able to exercise their professions in all member states.  It provides a mechanism for ensuring mutual recognition of qualifications and experience.

It makes special provision for professionals from non-regulated professions who want to work "on a temporary and occasional basis" in other EU countries where their profession is regulated.  To do so, they must be able to show that they have acquired at least two years' professional experience over the ten years before their move.  If the profession is regulated in the home country, the requirement for two years' experience does not apply.

What is the European Parliament proposing?

The relevant clause in the IMCO report was drafted by Andreas Schwab, a German MEP.  Drafted with tour guides in mind, it exempts them from having to demonstrate two years' professional experience when "the service provider is accompanying the service recipient, provided that the service provider provides his service in the host country solely for this recipient [….] ".

This is a big improvement on the European Commission's original draft, which, if implemented, would exempt only guides ("service providers") accompanying groups resident in their own country.  As Mr Schwab observed:

"The exception provided for in the Commission proposal should not be confined to cases where the service recipient and the service provider are habitually resident in the same member state of establishment.  Particularly in border regions, tour groups may be mixed, comprising different nationalities, or a tour operator may for practical reasons recruit a tour guide who is not resident in the same member states as members of the tour group."

Professional cards

An important part of the new directive will be the provisions for creating new European professional cards.  These are intended to make it easier for professionals to move across Europe and establish themselves permanently - or to work temporarily or occasionally - in countries other than their home country.  The cards will be voluntary for those professions which want them.  The directive sets out the rules/procedures to be followed in creating them.

Before publishing its proposal to revise the directive, the European Commission consulted a number of professional bodies on whether or not they would be interested in developing their own European professional card.

The Commission approached ETOA, ECTAA (the EU grouping of travel agents' and tour operators' associations) and FEG (the European federation representing local tourist guides) to see if there was an interest in developing a professional card for tour guides.  Several meetings were held but the initiative had to be abandoned in the face of opposition from FEG who refused to recognise any guides without local area-specific qualifications.

What happens now?

For the new directive to become law, both the European Parliament and the Council (the body representing national governments) have to agree on a final text.

Negotiations on the basis of the IMCO amendments will begin shortly between IMCO and Council representatives.  If these negotiations are successful, the text agreed will be put to the whole European Parliament and the Competitiveness Council for formal approval and adoption. This process could take several months.

If agreement proves impossible at this stage, the Parliament and the Council will pursue their own individual scrutiny processes before getting back around the negotiating table at a later date.

ETOA is working to represent the interests of tour guides to both the Parliament and Council.

WORKING-TIME DIRECTIVE

Plans to revise the EU's working-time directive have been delayed again. 

Negotiations between the European social partners (associations representing employers and workers) on the scope for reform broke up in December 2012.  Agreement between the two sides seems as far away as ever.

The European Commission must now decide whether (and how) to revive the reform process.  In the meantime, the existing directive continues to apply.

ETOA remains very concerned that this legislation could have a disastrous impact on companies’ use of guides on tour.

What is the Working-Time Directive?

It is the EU legislation that introduced the 48-hour working week.  The current version of the directive dates from 2003.

It covers "workers" in the tourism industry excluding the genuinely self-employed. (The term "worker" is not limited to employees.)  Member states are able to make exceptions in the case of certain categories of worker.

Coach drivers (including self-employed drivers) are covered by the separate working-time directive for "persons performing mobile road transport activities".  This dates from 2002 and is not being revised.

"Working time" means any period during which the worker is working, at the employer's disposal and carrying out his activity or duties.    

THE OPT-OUT

The 48-hour week, usually calculated over a reference period of four months, is the maximum average working week that may be worked within the EU.  EU member states may give workers the opportunity to opt out of this maximum working week if they wish.  Several countries do so. 

This is a controversial provision.  Employers say that it gives them flexibility in dealing with fluctuations in demand and meeting the needs of their customers. They add that individual workers should have the opportunity to work more than 48 hours a week, if they wish to do so.

Workers' representatives want to see it repealed completely, saying that employers pressure their workers into opting out against their wishes. 

WHAT ELSE DOES THE DIRECTIVE COVER?

There are also provisions covering, for example, rest periods (including time spent on call), annual leave, work patterns, night work and shift work.

Plans to revise the directive - 2004 to 2011

The European Commission tabled plans to revise the directive in 2004. 

The new directive is needed to implement rulings made by the European Court of Justice (ECJ), an independent body responsible for ensuring that EU law is understood and interpreted in the same way in all member states across the European Union.  It is also needed to fulfil the commitment made in the 2003 directive to review the opt out, which was seen by many as a temporary arrangement made to secure agreement on the directive as a whole.

The draft directive was debated for years by the European Parliament and the  Employment, Social Policy, Health and Consumer Affairs Council (representing national governments).  Agreement between the two institutions proved impossible and the proposal was withdrawn in 2009. 

Following two public consultations by the European Commission in 2010 and 2011, the EU's social partners agreed in late 2011 to try and negotiate a new draft directive themeselves.

Social partners mechanism

The EU treaties recognise the role of employers and unions as "social partners" in labour relations and European social dialogue. This means, among other things, that if the Commission is intending to propose legislation in this area, the employers and unions can themselves work to draft that new legislation.  If they succeed in this, their text is submitted to the Council for approval.  The European Parliament is not involved in this process.

Where the social partners cannot agree among themselves, it is up to the Commission itself to propose the legislation and forward it to the Council and European Parliament for detailed scrutiny.

The three main social partners representing European employers are BusinessEurope (private sector), CEEP (public sector) and UEAPME (small and medium-sized enterprises).

Social partners fail to reach agreement

The social partners' efforts came to nothing.  The main problem areas were the following:

• The extent to which the time spent on call by workers is counted as working time.  This is not made clear in the 2003 directive and rulings by the ECJ have made it essential to tighten and clarify the current legislative provisions.

Employers believe that only the time actually worked should count.  Time not worked (inactive on-call time) should not.  The unions want all on-call time to count as working time.

• The future of the opt-out from the 48-hour working week.  Employers want to retain it, as do several national governments.  Unions want the opt-out to be repealed and are supported in this by the European Parliament.

• Paid annual leave and sick leave.  Representatives of European employers say that recent ECJ rulings have created problems and costs for companies, and could harm workers' interests.

What happens now?

The ball now passes back to the European Commission, who must decide whether to produce a new proposal of their own and submit it to the Council and European Parliament for scrutiny.  This will be a long process.

VISAS

The rules governing the issuing of visas for the EU's Schengen area could be implemented better.  Changes to the rules in future could make it easier for tourists to obtain visas for travel to the area while essential security and migration safeguards are maintained.

These are the conclusions of a new policy document ("communication") published by the European Commission in November 2012.  They follow efforts made by ETOA and industry colleagues to raise officials' awareness of the impact of visa procedures on tourism traffic to the EU.

The communication highlights the increasing importance attached to tourism in the EC.  It is a joint initiative by the commissioner in charge of the EU's tourism policy, Antonio Tajani, and Cecilia Malmström, the commissioner responsible for home affairs.

ETOA's 2010 report on the implementation of the visa code in origin countries is quoted in the communication.

Public consultation on the visa code - Easter 2013

The extent of the rule changes needed will be influenced by a public consultation which is due to be launched by the European Commission at the end of March and will last for three months.

The visa code

More formally known as the Community Code on Visas, the current rules governing visas for short-stay visits to Schengen countries took effect in April 2010.  Commissioner Malmström said at the time:

"the conditions for issuing visas for the Schengen area to third-country nationals will become clearer, more precise, transparent and fairer. Getting an EU visa will become faster. The EU visa code will ensure that the application of EU visa law is fully harmonised."

Improvements possible under the current rules

The 2012 communication acknowledges industry concerns about the code, but says many of these can be addressed simply by ensuring that national consulates implement it correctly.  These concerns are:

• Enforcement of the 15-day deadline for granting an appointment to an applicant.

• Applications by commercial intermediaries such as travel agents.

• Respecting the 15-day time limit for visa decisions.

• The need for application forms to be available in the language of the applicant's home country.

• The need to have common agreement on a reduced list of supporting documents.

• The issuing of multiple-entry visas.

• Making consular offices more accessible to the public - and encouraging consulates to work together in "visa common application centres".

Possible future changes to the rules

The Commission is planning to publish a review this year (2013) of the implementation of the visa code in the three years since its introduction in 2010.  It intends to use this to look at ways of improving procedures and making them easier for travellers while still addressing "the risks posed for irregular migration or security by some travellers".  These include the following:

• Streamlining and shortening the procedures.

• Making clear which consulate should process the visa application.

• Simplifying the application form.

• Simplifying the requirement for supporting documents.

• Clarifying the rules on whether visa fees can be waived.

• Clarifying the rules on the issuing of multiple-entry visas.

• Improving consular co-operation, eg promoting the creation of "common application centres".

The public consultation

The consultation is part of the EC's commitment to review the operation of the visa code after three years.  It will take the form of a questionnaire on individuals' and organisations' experiences with the implementation of the code.

The starting point appears to be a recognition that changes are needed, but there is a genuine wish to see what interested organisations and individuals have to say before any proposals are put forward.

The report on the consultation's findings is due to be published by the end of this year along with the EC's proposals to revise the visa code.  The proposals will then have to be scrutinised by the European Parliament and the Council, although this may not begin in earnest until after the European parliamentary elections in mid-2014. .

Deciding who needs a visa to visit Europe

The list of countries whose citizens need visas to visit Europe is scheduled to be revised in 2013.

The criteria for deciding visa requirements have traditionally been based on assessments of such factors as security, "irregular immigration" and foreign policy.  The new list will be the first to take account of the economic impact of visa policy.

Local Schengen co-operation

A mechanism - "local Schengen co-operation" (LSC) - was created to promote the harmonised application of the 2010 visa code.  It brings together member states' consulates and the EC's own overseas delegations (embassies), and is written into the code itself. 

An EC report published in November 2012 highlighted a number of problems.  Some consulate officials criticised "the lack of structured training on the visa code in particular and on the common visa policy in general".  There were inconsistencies in visa fees charged in local currencies, leading to some evidence of visa shopping.

The report recognises that the "legal framework for structured LSC (…) has not yet delivered its full potential" and makes a number of recommendations for improving it further.  These are aimed at both EU and national authorities.  Find out more here: http://ec.europa.eu/dgs/home-affairs/what-is-new/news/pdf/local_schengen_cooperation_report_com_2012_648_en.pdf

It also explains that , "For many people, their first contact with 'Europe' is with a member state’s consulate when applying for a visa.  It is therefore very important to apply the visa code correctly so that the process improves, offering visa applicants transparent, fair and equal treatment.  LSC is the main tool to guarantee consistent implementation of the visa code (…).  Better co-operation between member states and the Commission and burden sharing within LSC will contribute to building trust in the process."

Source:ETOA