The free movement of archaeologists in the European Union

The Flanders Heritage Agency is currently under negotiations with the European Commission on the effective implementation of Directive 2013/55/EU into national legislation. This European directive amends Directive 2005/36/EC on the recognition of professional qualifications. The two-year transposition period has now ended and the amended Directive was to be implemented by Member States by January 2016. The issue raised by this directive to heritage competent authorities is very complex and that is why Flanders sought advice from the European Heritage Legal Forum.
 
In each EU country, workers are required to obtain special qualifications to perform regulated professions. Different requirements across the EU may make it difficult for qualified professionals to apply for jobs in other EU countries. In this context, the Directive brings a comprehensive modernisation of the EU system for recognition of professional experience and it helps make labour markets more flexible. The recognition of professional qualifications is of a major importance for the effective exercise of the fundamental freedoms of EU citizens in the internal market and for facilitating mobility within the EU. 
 
The profession of archaeologist is a regulated profession under Directive 2005/36/EC (Article 3) whenever, to work as an archaeologist in an EU country, you have to hold a specific degree, sit special exams, or register with a professional body. The European Convention on the Protection of the Archaeological Heritage (Valletta Convention, 1992) reinforces this statement as the Convention has been ratified by almost every member state and obliges the Parties to ensure that archaeological excavations are conducted by qualified and specially authorised persons. EU countries have consequently to adapt their national legislation and procedures concerning the profession of archaeologist and make sure they abide by the rules set out in the Directive. 
 
After an inquiry among the members of the EHLF, it has been observed that national legislations vary greatly in terms of qualifications and requirements needed to work as an archaeologist and that very few legislations contain an exhaustive provision on the mobility of archaeologists. In Flanders for instance, the Heritage Act states that accredited archaeologists from another country must be first assessed by the Flemish competent authority before being able to practice on the territory in order to make sure that their accreditation is equivalent to the Flemish one. However, the Act does not give any information for archaeologists coming from a country where the profession is not regulated (i.e. accreditations and licenses do not exist). Moreover, the Flemish authority may compare the migrant’s qualifications with the ones required in Flanders to decide whether or not to grant an accreditation, but nothing is foreseen for applicants whom qualifications would not be sufficient. That is why the Flanders Heritage Agency is currently dialoguing with the European Commission to provide compensatory measures in its legislation. 
 
The Directive 2005/36/EC is based on the principle of mutual trust. This means that when, in the host Member State, access to a profession requires the possession of professional qualifications, the competent authorities in that Member State may not deny a person who is a national of a Member State, on the grounds that that person lacks the necessary qualifications, access to or the right to pursue that profession on the same terms as its own nationals if the applicant possesses the professional qualifications which are required by another Member State. The principal of mutual trust does not, however, preclude the host Member State from requiring, pursuant to Article 14(1) of the Directive, that the applicant completes an adaptation period (up to three years) or takes an aptitude test where there are substantial differences. The conditions under which a compensatory measure can be required are set out in Article 14(1) of the Directive – the choice between an aptitude test or an adaptation period being left to the migrant. 
 
The EHLF recommends state heritage authorities to effectively transpose the ‘Directive on the recognition of professional qualifications’ into national heritage acts and to ensure compensatory measures for migrating archaeologists are adequately formulated. Member States are encouraged to take contact with DG Grow (European Directorate-General for Internal Market) or their national points of contact if they need specific assistance on the subject. The aim of the Single Market is to give professionals the freedom to settle and work in any EU Member State without any obstacles. Recognition of other countries’ qualification systems is therefore essential.