EUROPEAN FEDERATION OF TOURIST GUIDE ASSOCIATIONS

5th September 2011 ANSWERS TO THE GREEN PAPER QUESTIONS FOR DIRECTIVE 2005/36 AMENDMENT

Registered organisation
Name/company name: EUROPEAN FEDERATION OF TOURIST GUIDE ASSOCIATIONS Acronym: FEG Legal status: EUROPEAN REPRESENTATIVE OF TOURIST GUIDES

Interest Representative Register ID number: 62223963956-70 Contact details of organisation's head office: 5 RUE FOURNIER CLICHY F-92110 FRANCE Telephone number: +34 609 061 551 / +34 690 807 822 / +34 928 943 668 Other contact information: E-MAIL ADDRESSES: FEG SECRETARIAT: secretariat@feg-touristguides.org FEG EX.CO.PRESIDENT: chairman@feg-touristguides.org FEG PRESIDENT PERSONAL: carlosortega@infonegocio.com

Question 1: Do you have any comments on the respective roles of the competent authorities in the Member State of departure and the receiving Member State?

Answer 1:
The host Member State must retain the right to check first of all whether the professional exercises the same profession in his home member state, regardless of whether one submits papers for establishment or temporary provision of services, that hes a holder of the correct professional qualifications, his legality to exercise a profession. The host member state authority must also to be able to ask questions for clarification, in order to determine whether the applicant fulfils the requisites to practise the same profession in
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the host country. In addition, the home and host Member States must keep the complete database on the professionals moving in a repository for future use and update, ideally via IMI system. Due consideration should be given to data protection issues. Above all, the amended Directive 2005/36 must ensure high quality of services and consumer protection. Question 2: Do you agree that a professional card could have the following effects, depending on the card holder's objectives? a) The card holder moves on a temporary basis (temporary mobility): - Option 1: the card would make any declaration which Member States can currently require under Article 7 of the Directive redundant. - Option 2: the declaration regime is maintained but the card could be presented in place of any accompanying documents. b) The card holder seeks automatic recognition of his qualifications: presentation of the card would accelerate the recognition procedure (receiving Member State should take a decision within two weeks instead of three months). c) The card holder seeks recognition of his qualifications which are not subject to automatic recognition (the general system): presentation of the card would accelerate the recognition procedure (receiving Member State would have to take a decision within one month instead of four months).

Answer 2:
As tourist guides are always trained and qualified for a specific area (country, region, city) according to tourism services standards EN13809:2003 and EN15565:2008, they are not a highly mobile profession and given that the European Federation of Tourist Guide Associations representing around 60.000 tourist guides does not wish to have a professional card issued, we do not see any of these scenarios as viable for tourist guides. Furthermore, please find enclosed in attachment the training systems of tourist guides across Europe, as evidence of their diversity of knowledge and their area-specificity. Question 3: Do you agree that there would be important advantages to inserting the principle of partial access and specific criteria for its application into the Directive? (Please provide specific reasons for any derogation from the principle.)

Answer 3:
In the case of the profession of tourist guide there would be no advantage in inserting the principle of partial access into the Directive. A tourist guide has the area-specific qualification for his/her area of operation as issued and/or recognised by the appropriate authority. It would be not only impractical but misleading to consumers and damaging to the high quality tourist guiding services and standards having e.g. a tourist guide from Germany allowed partial access to guide in say, the Louvre Museum or at Versailles, but not elsewhere in France. Anyone who is not a fully qualified professional is, by definition, unqualified, whether established or a temporary provider of services. It must be stressed that in the tourism industry there are issues of transparency for consumers and of liability, made explicit for example under the Package Travel Directive. The Commission might wish to explore other ways of facilitating mobility for unqualified graduates. Generally, inserting the principle of partial access could be detrimental to legal certainty.
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In the absence of specific national legislation indicating what constitutes a part of a profession, it would be extremely difficult in practice to establish the equivalence between a particular profession in a member state and the (undefined or, often, even indefinable) part of a profession in another member state. Thus, partial access may be feasible in the highly regulated and relatively homogenous European engineering sector (as in the case examined by the Court in the Colegio de Ingnieros judgment) but seems inappropriate for tourist guides, since their area-specific character renders the very notion of the part meaningless (or, to put it differently, the profession of the tourist guide in a member state is per definitionem, at the very best, partial in relation to the profession of the tourist guide in a different member state). Question 4: Do you support lowering the current threshold of two-thirds of the Member States to one-third (i.e. nine out of twenty seven Member States) as a condition for the creation of a common platform? Do you agree on the need for an Internal Market test (based on the proportionality principle) to ensure a common platform does not constitute a barrier for service providers from non-participating Member States? (Please give specific arguments for or against this approach.)

Answer 4:
Yes, FEG believes that lowering the current threshold to the participation of 1/3 out of 27 Member States where a profession is regulated would facilitate the creation of Common Platforms for professionals as long as this 1/3 of the Member States include these countries which regulate the profession with regard to qualifications. In cases where European Standards on training and professional qualifications exist no Internal Market test is necessary. Already existing standards must be taken into account, as encouraged by the EU Commission, according to paragraph 11 in Dir. 2005/36 introduction, such as EN 15565:2008 Requirements for the provision of professional tourist guide training and qualification programmes. Question 5: Do you know any regulated professions where EU citizens might effectively face such situations? Please explain the profession, the qualifications and for which reasons these situations would not be justifiable.

Answer 5:
No

Question 6: Would you support an obligation for Member States to ensure that information on the competent authorities and the required documents for the recognition of professional qualifications is available through a central on line access point in each Member State? Would you support an obligation to enable online completion of recognition procedures for all professionals? (Please give specific arguments for or against this approach).

Answer 6:
FEG fully supports the obligation of both home and host Member States to ensure that
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information and documents required for the recognition of professional qualifications are available via the IMI system, as well as online completion of all procedures for all professionals. Documents should be submitted via IMI system both in the home Member State language and in the English language. The above is necessary in order to safeguard the clarity of the competent authorities in charge of the professionals and documents required by the host Member State, the transparency of the market, the protection of consumers and clients, the right of a professional to exercise the specific profession he/she has been trained for and the right to be able to submit applications and documents online. Question 7: Do you agree that the requirement of two years' professional experience in the case of a professional coming from a non-regulating Member State should be lifted in case of consumers crossing borders and not choosing a local professional in the host Member State? Should the host Member State still be entitled to require a prior declaration in this case? (Please give specific arguments for or against this approach.)

Answer 7:
No. FEG believes that the two years professional experience requirement must be maintained in the amended Directive 2005/36. Furthermore, the two years experience must be proved by official authorities of the home Member State, for example via taxation, insurance and social security payment and documents providing evidence of formal qualifications (according to Directive 2005/36, Article 13.2). In no case should such professional experience of two years be proven by any meanse.g. by a certificate issued by the employer. In the past, there have been many cases - in several professional fields - where such experience certification issued by an employer has been forged/falsified in order to facilitate the sometimes illegal provision of services frequently to the detriment of the health and safety of consumers and other individuals. The Commission and the EU Parliament should not support the case for a lighter Professional QualificationsDirective and must bear in mind that the problems related to high mobility of any professional coming from the non-regulated Member States to the regulated Member States will always exist. On the other hand, the frequent complaints of professionals established and working in the regulated Member States about those professionals coming from the non-regulated Member States could be avoided. More specifically, the tourist guide profession is not a highly mobile one and it is often confused by the EU Commission, Parliament and consumers with the highly-mobile activity of the tour manager/tour leader/escort, as it is clearly stated in the Commissions Working Paper COM 2000/17 final (3 February 2000) VI. F. 3 item 273. Tourist guiding (and its training) is always characterised as an area-specific profession (see CEN standards EN 13809:2003 and EN 15565:2008). The activity of the tour manager/tour leader/escort is not regulated and therefore it does not fall under the scope of Directive 2005/36 and the Green Paper Public Consultation at all. Other non-official existing or nonFEG answer to the Green paper questions for directive 2005/36 Amendments Page 4

standardised terms, such as local guide, tour guide, travel guideetc create further confusion in the market and deliberately mislead consumers. The EU Commission and EU Parliament must take into consideration that only a qualified tourist guide, coming from a non-regulated Member State in order to exercise the same profession (guiding visitors) in a regulated Member State, can prove his/her two years experience in the home Member State by official documentation. If such official documentation of two yearsexperience in the home Member State cannot be pro vided to the host Member State, this professional might have exercised another tourism services activity, such as tour manager/tour leader/escort, which can be complementary to the tourist guiding profession, but it usually does not require any qualification. The acceptance of such differently defined documentation of experience cancels the whole scope of this very Directive. A Tourist Guiding qualification is rarely obtainable in another Member State than ones home Member State, for the very reason that the training and qualification of tourist guides is inherently area-specific. The question of consumer choice in the case of tourist guiding simply does not address the rights of the consumers, because the consumer usually does not know and does not have the opportunity to choose who is going to guide him in a visiting Member State. The choice is that of the tour organiser/operator and it is clearly a choice to a very large degree based on commercial interest and financial profit. It should also be stressed, generally, that the notion of professionals accompanying consumers crossing borders is novel and not sufficiently elaborated here. An apparent problem is that there is practically no way of guaranteeing that the professional will only confine himself to the accompanying consumers rather than offering his/her services to other consumers as well. The prior declaration requirement for the temporary providers of services is absolutely necessary and must be maintained as in current Directive 2005/36. Question 8: Do you agree that the notion of "regulated education and training" could encompass all training recognised by a Member State which is relevant to a profession and not only the training which is explicitly geared towards a specific profession? (Please give specific arguments for or against this approach.)

Answer 8:
No FEG does not agree. Member States can freely choose to have a regulated education and training geared towards a specific profession, e.g. vocational studies and this choice supports the fact that such an education and training programme prepares the professional to exercise a specific job, taking into account the needs of the market, the consumer, the clients, the protection of cultural heritage, health and safety issues etc. In this manner, the Directive 2005/36 does not address the recognition of relevant professions under the title of another standardised profession. This would cancel the national educational systems as a whole and would also question the freedom of the Member States to decide on the way they provide education to their citizens.
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If regulated professional qualification and training is obtained in some Member States not by geared vocational training, but by relevant assessment, it can also be accepted as a certification, as far as it is the decision of the Member State itself to certify professionals by such a geared professional assessment. The EU Commission and EU Parliament must not amend the Directive by introducing a lighter temporary mobility regime or interfere with the national educational systems, as they cannot decide whether for example a nurse or midwife would exercise a different medical profession when moving into another Member State, if that Member State has specific regulations for a certain profession. In the case of tourist guides, training exists in all EEC countries, from Iceland to Cyprus (see attachment with training systems), be they non-regulated or regulated. The tourist guide profession is clearly defined by EN 13809:2003 and all countries, tourist guide training institutions and professional organisations find it absolutely necessary to train and certify these professionals for its exercise, due to the overriding reasons of cultural heritage protection, consumer protection, market demand and provision of high quality services. Just as FEG has always understood that it has never been the intention of the EU to harmonise educational systems of Member States, it can hardly be the intention of the EU to harmonise professions individually or collectively. Instead the system of equivalence of professional qualifications has emerged and by definition each profession must establish its own criteria. It is clearly not the aim of the Directive to allow individuals who practise one particular profession (tour manager/tour leader) in one European country, to go to a different EU member country and practise a different profession (tourist guide), according to art. 4 of Directive 2005/36/EC. Moreover, generally speaking, the definition in Art. 3 (1) b of the Directive (regulated education and training is any training which is specifically geared to the pursuit of a given profession) expresses common traditions and understandings of the Member States. Any deviation from this definition would be to the detriment of legal certainty. In the absence of legislation indicating which education and training is just relevant to the profession and not specifically geared to the pursuit of a given profession no competent authority would be in a position to decide with certainty which education falls within that category and which does not. In addition, this would potentially open a seemingly endless flow of legal actions and litigation procedures against the relevant decisions of competent authorities, since anyone disallowed as a result of not having the relevant education might understandably contest that decision before the courts or other relevant bodies.

Question 9: Would you support the deletion of the classification outlined in Article 11 (including Annex II)? (Please give specific arguments for or against this approach).

Answer 9:
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FEG agrees that the level classification system and Annex II is not per se a relevant tool for compensatory measures for all professions. The duration of studies is not necessarily proof that the professional has in the home Member State completed a training programme equivalent or even similar to the host Member State to qualify him for the exercise of a specific profession. In the case of some professional qualifications e.g. the tourist guide qualification (whether in regulated or unregulated member states) the area - specific nature of a large part of the content indicated by the European standard CEN 15565: 2008 - already adopted by numerous member states - would constitute the relevant basis for compensatory measures. In other words, it is not primarily the difference in the level if education that differentiates the tourist guide qualification from one member state to another but its area - specific nature, most modules being directly related to the interpretation of the heritage and culture of an area delimited and defined by the qualification itself. Having said this, we think that as long as we have no knowledge of which system or how the future system (that will regulate the qualifications and will replace the current system) will look like, Article 11 should be maintained to discourage a possible loophole that may generate a further damage and create uncertainty in the market. Question 10: If Article 11 of the Directive is deleted, should the four steps outlined above be implemented in a modernised Directive? If you do not support the implementation of all four steps, would any of them be acceptable to you? (Please give specific arguments for or against all or each of the steps.)

Answer 10:
1) Article 14 (1) of the Directive: FEG disagrees on this Article 14 to be deleted. On one hand, imposing compensation measures to a professional, because of a difference in the training duration may sometimes be justified, on the other hand, deleting the whole Art. 14 will lead the member states to complete confusion. Even if the levels of classification system and Annex II regarding training duration are deleted, compensation measures in general will still be an essential tool to measure the equivalence in the training and professional qualifications as in Art. 14, par. (b) saying that the host member state can require from the applicant to go through compensation measures if: the training he has received covers substantially different matters than those covered by the evidence of formal qualifications required in the host Member State; 2) Article 13 (2) of the Directive: FEG disagrees to delete the Article 13 (2). For justification see answer to Question 7 above. It does not seem unreasonable to us to demand two years of professional experience from someone coming from an non-regulated member state wishing to exercise a profession which is regulated in another member state. Surely this is a reasonable minimum requirement to safeguard good practice standards for the consumer whatever the profession. 3) FEG can answer on tourist guides behalf that, given the area-specificity of the
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training and the profession itself, that there are always justified substantial differences in the training of tourist guides trained and coming from different Member States, therefore automatic recognition is impossible for tourist guides. If the directive is modernised, it must be done in a way that remains fair to both the mobile and resident professional; compensatory measures must reflect the differences in qualification from one member state to another and be fair to the mobile professional but equally, professionals of a host member state must not be disadvantaged by professionals from a different country of origin being able to access employment based on less stringent requirements than those demanded from the residents of the host member state itself. Compensation measures are never introduced lightly. It is unfortunate if such measures are seen by the Commission as a deterrent, always provided that they are proportionate to the requirements of ensuring that equivalence is achieved. In the field of tourist guiding it would be useful to refer to standard EN15565: Tourism Services Requirements for the provision of professional tourist guide training and qualification programmes. 4) We agree that annual aptitude tests could be made mandatory; there would, in our view, be unsustainable cost implications, if more frequent aptitude tests were demanded especially for the smaller professions. Having a mandatory offer of an aptitute test twice a year for each and every profession can be too costy for the Member States or training Institutions. The Code of Conduct cannot be made mandatory anyway; it has to be a nonbinding suggestion to Member States.

Question 11: Would you support extending the benefits of the Directive to graduates from academic training who wish to complete a period of remunerated supervised practical experience in the profession abroad? (Please give specific arguments for or against this approach.)

Answer 11:
Yes, as long as the professionals academic qualifications are considered by the host Member State as being equivalent to those of the home Member State and provided that the supervised practical training is offered to the national of the host Member State and it is followed under the same conditions as the nationals recieve in their Member State in order to be qualified to exercise a certain profession. Nevertheless, it is far from clear whether such a measure could be inserted within the scope of the Qualifications Directive, as a matter of competence. The Directive regulates solely the recognition of professional qualifications between member states, while it has no authority to regulate issues of education or vocational training of the member states. In many cases, however, the supervised practical experience (whether remunerated or not) does not amount to exercise of a profession but rather to vocational training.
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This may not be the case for certain legal professions (as with avvocati and practicanti in the case judged by the Court in the Morgenbesser judgement), but this is so only because practicanti have certain defined professional rights (in a sense, they are partial avvocati). But it certainly is the case in professions where the practical training is not accompanied by professional rights. In these cases - and the profession of tourist guide seems to fall amongst them - a legal basis from Art. 165 TFEU (ex 149 TEC) may be necessary, which the Qualifications Directive lacks Question 12: Which of the two options for the introduction of an alert mechanism for health professionals within the IMI system do you prefer? Option 1: Extending the alert mechanism as foreseen under the Services Directive to all professionals, including health professionals? The initiating Member States would decide to which other Member States the alert should be addressed Option 2: Introducing the wider and more rigorous alert obligation for Member States to immediately alert all other Member States if a health professional is no longer allowed to practise due to a disciplinary sanction? The initiating Member State would be obliged to address each alert to all other Member States.

Answer 12:
FEG agrees with Option 1 Question 14: Would you support a three-phase approach to modernisation of the minimum training requirements under the Directive consisting of the following phases: -the first phase to review the foundations, notably the minimum training periods, and preparing the institutional framework for further adaptations, as part of the modernisation of the Directive in 2011-2012; -the second phase (2013-2014) to build on the reviewed foundations, including, where necessary, the revision of training subjects and initial work on adding competences useing the new institutional framework; and -the third phase (post-2014) to address the issue of ECTS credits using the new institutional framework?

Answer 14:
FEG is proud to present the recently published detailed European Standard EN 15565:2008 with the minimum training and professional qualifications for tourist guides in Europe, introducing minimum training hours, subjects to be taught, levels of language knowledge and many more details, according to paragraph 11 of the Directive 2005/36 introduction. All major stakeholders with long experience, e.g. tourist guide professional organisations, Ministries, tourist guide training institutes, consumers and tour operators organisations were consulted for three years (2005-2008) to create, till this European Standard on tourist guides training was decided with consensus and voted by all CEN members in Europe.
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Therefore and regarding tourist guides minimum training periods, the third phase could be implemented on the long term and ECTS credits could be applied to EN 15565.

Question 15: Once professionals seek establishment in a Member State other than that in which they acquired their qualifications, they should demonstrate to the host Member State that they have the right to exercise their profession in the home Member State. This principle applies in the case of temporary mobility. Should it be extended to cases where a professional wishes to establish himself? (Please give specific arguments for or against this approach.) Is there a need for the Directive to address the question of continuing professional development more extensively?

Answer 15:
FEG considers that it is necessary for the professionals to show that he/she has full freedom to exercise in their country of origin and he/she is not subject to any legal penalty or may be subject to any restrictions that could limit the exercise of their activity in a future. More over this should also be applicable not only in the country where he/she acquired his/her qualifications but in any other thirst country where they have been practicing. The reason expressed above is equally valid in case of a professional seeking establishment or in the case of temporary mobility.

Question 23: Which of the following options do you prefer? Option 1: Immediate modernisation through replacing the ISIC classification of 1958 by the ISIC classification of 2008? Option 2: Immediate modernisation through replacing Annex IV by the common vocabulary used in the area of public procurement? Option 3: Immediate modernisation through replacing Annex IV by the ISCO nomenclature as last revised by 2008? Option 4: Modernisation in two phases: conforming in a modernised Directive that automatic recognition continues to apply for activities related to crafts, trade and industry activities. The related activities continue to be set out in Annex IV until 2014, date by which a new list of activities should be established by a delegated act. The list of activities should be based on one of the classifications presented under options 1,2 or 3.

Answer 23:
Tourist guiding does not fall under any Directive 2005/36 Annex activities related to professional experience, therefore all four options above are irrelevant to tourist guide profession. On the other hand, FEG has been corresponding with the Commission with regards to the wrong and misleading terminology used by the ISCO classification, which does not always correspond to the European standards and the vocabulary used - in our case not using the right term for tourist guide and other tourism services activities as the standardised terminology in EN13809:2003.
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FEG asks the EU Commission and CEN to take steps to ensure that the essence of the European framework is contained in the revision of the ISCO-08 paper, the definitions of ILO and in all future papers on vocabulary, legislation, EU funding etc. We attach the relevant FEG letter and the Commissions answer to that. Therefore, we do not consider that the ISCO nomenclature is modernisation, even if it was last revised in 2008.

Question 24: Do you consider it necessary to make adjustments to the treatment of EU citizens holding third country qualifications under the Directive, for example by reducing the three years rule in Article 3 (3)? Would you welcome such adjustment also for third country nationals, including those falling under the European Neighbourhood Policy, who benefit from an equal treatment clause under relevant European legislation? (Please give specific arguments for or against this approach.)

Answer 24:
In the professional field of tourist guides theres no need for any change on that respect.

Carlos Ortega Chairman of Ex.Co. European Federation of Tourist Guide Associations Rue de Fournier 5 92110, Clichy, France
Chairman@feg-touristguides.org info@feg-touristguides.org

www.feg-touristguides.com Tel +34 609 061 551

FEG answer to the Green paper questions for directive 2005/36 Amendments

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