The Architects (Recognition of European Qualifications etc and Saving and Transitional Provision) Regulations 2008

Explanatory Note

(This note is not part of the Regulations)

M1 These Regulations implement, in part, Directive 2005/36/EC (“the Directive”) on the recognition of professional qualifications. The Directive is designed to remove obstacles to free movement of persons and services within the Community, so that nationals of the Member States have the right to pursue a profession in a Member State other than the one in which they have obtained their qualifications. This is achieved by the Directive providing for the automatic recognition of certain specified qualifications, and for a procedure for assessing other qualifications for the purpose of giving access to a profession. There is also a procedure to allow those wishing to provide services on a temporary and occasional basis to practise a profession on this basis.

M2 The Directive replaces various other Directives which dealt with the recognition of professional qualifications for different professions, including the one which related to architects, Directive 85/384/EEC . The Directive restates the majority of the provisions contained in that Directive, but adds new provisions and makes many minor changes to the existing regime.

M3 The Regulations implement, in part, the aspects of the Directive which concern architects. Those provisions of the Directive relating to architects which are not implemented by these Regulations are implemented by the European Communities (Recognition of Professional Qualifications) Regulations 2007 (“the General Systems Regulations”).

The Regulations apply in relation to the Member States of the European Community and also in relation to the other European Economic Area States, Iceland, Liechtenstein and Norway (as Directive 2005/36/EC has been extended to the European Economic Area through Decision of the EEA Joint Committee No. 142/2007 on 26^th October 2007). The Regulations use the term “relevant European State” to describe the Member States of the European Community plus Iceland, Liechtenstein and Norway.

M4 The legislation which governs the regulation of architects and the use of the title “architect” in the United Kingdom is the Architects Act 1997 (“the Act”), and these Regulations amend the Act in order to give effect to the Directive. The Architects Registration Board (“the Board”) is designated as the competent authority for the purposes of the Directive (regulation 3), and therefore the Board (or the Registrar where he is exercising functions of a competent authority, see regulation 4) is responsible for deciding whether the qualifications of nationals of relevant European States are to be recognised in the United Kingdom so as to allow access to the profession of architect.

Only persons registered in the Register of Architects (“the Register”) may use the title of “architect” (see section 20 of the Act). The Register is, by these Regulations, split into two Parts, Part 1 and Part 2 (regulation 5). Part 2 is for those persons wishing to exercise their rights under the Directive to provide services as an architect on a temporary and occasional basis only.

The amendments to sections 4 and 5 of the Act (regulations 6 and 7) have the effect that nationals of a relevant European State relying on their rights under the Directive for recognition of their qualifications must make their applications for registration under new section 4(2A). Those persons entitled to automatic recognition of their qualifications under the Directive (set out in Chapter III of Title III) must rely on section 4(2A)(a) or (b), and those who wish to use the “generals systems” route to recognition under the Directive (set out in Chapter I of Title III) must rely on section 4(2A)(c) (and the process with which they must comply is that set out in the General Systems Regulations). Persons satisfying the appropriate part of section 4(2A) are to be treated as having an equivalent level of competence as a person applying for registration on the basis of possessing the qualifications and having gained the practical experience that the Board has prescribed under section 4(1)(a). Section 4A is substituted for section 5, and subsection (1) specifies the descriptions of the evidence of qualifications or training which must be given automatic recognition by Member States. By section 4(2A)(a), a person may only rely on this evidence to give automatic recognition where that person is lawfully established as an architect in his home State, or is eligible to practise as an architect in his home State.

New section 5A and Schedule 1A (regulation 8) provide for, among other things, who is entitled to be registered in Part 2, the procedure for registration (including the provision of a declaration by the person wishing to provide services), the duration of entitlement to be registered, and provision for deemed registration. Deemed registration is necessary because once a person has complied with the Directive and given the necessary documentation to the competent authority, that person is entitled to provide services regardless of whether or not the competent authority has completed assessing those documents and given effect to them by, in the case of architects, registration in the register. These provisions give effect to Title II of the Directive, on the free provision of services. New section 5B makes provision for the title which a person in Part 2 of the Register is entitled to use, and new section 5C provides for certain information to be given by a person registered in Part 2 of the Register to a recipient of any services as an architect provided by that person. Section 5D provides for there to be administrative co-operation by the Board with other competent authorities from other relevant European States.

New section 6A (regulation 10) makes clear that the Board has the power to issue certificates of architectural education in relation to a person's training as an architect, and provides for a fee to be prescribed. The amendments to section 7 (regulation 11) extend that provision so that it is an offence for a person to become or attempt to become recognised as entitled to practise as an architect in a relevant European State that is not the United Kingdom by making any false or fraudulent representation or declaration.

The amendments to section 9 (regulation 13) have the effect that the competence to practise of anyone seeking to be registered in Part 1 of the Register can be assessed by the Board.

Section 12 is omitted (regulation 16), as Part 2 of the Register has replaced the list of visiting EEA architects. Section 19 is omitted (regulation 18) as it is unnecessary, as any person providing services temporarily is now entitled to be registered in Part 2 of the Register and therefore is subject to the disciplinary provisions which apply to all registered persons.

Amendments have been made to section 20 (regulation 19) so that only a person registered in Part 1 of the Register may practise or carry on business under the title of “architect”. Provision has also been made so that a person registered in Part 2 may use the title recorded for the person in that Part, or any other title that could have been recorded for that person (a person registered in Part 2 who satisfies the Registrar that he would be entitled to automatic recognition of his qualifications if he were to apply for registration in Part 1, is entitled to be registered with the title of “architect”).

Amendments have been made substituting new section 22 for sections 22 and 22A (regulation 20) to give effect to the new requirements of the Directive in relation to appeals. A new appeal right to a county court or, in Scotland, to the sheriff has been given to a person claiming to be entitled to be registered in Part 2, but whose name is not entered in that Part.

New sections 22B and 22C have been inserted (regulation 21). New section 22B requires the Board to co-operate with the competent authorities of relevant European States. Section 22C prohibits the disclosure of documents submitted to the Board and the Registrar and their staff and agents, subject to exceptions.

Section 25 is amended to include new definitions (regulation 22). Aspects of the definition of “the Directive” has been made ambulatory, to allow account to be taken of future amendments to the technical Annexes. The definition of “Directive-rights national” encompasses those who are entitled to rely on the rights in the Directive, namely nationals of relevant European States other than the United Kingdom, United Kingdom nationals who have an enforceable Community right (for example, because they have exercised their right to free movement and undertaken parts of their training in another relevant European State), and third country nationals who are entitled to be treated as if they were a national of a relevant European State because of an enforceable Community right (for example, third country spouses of relevant European State nationals).

Schedule 1 is amended so that only persons in Part 1 of the Register may elect, or be elected as, members of the Board (regulation 23).

Regulation 24 makes transitional provision for applications for registration made but not determined before 20^th June 2008 (when these Regulations come into force), and for the names of persons in the list of visiting architects to be transferred to Part 2 of the Register.

M5 Regulation 25 revokes certain provisions of the Architects' Qualifications (EC Recognition) Order 2002 .

M6 Regulation 26 makes savings in respect of the implementation of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the Free Movement of Persons signed at Luxembourg on 21st June 1999 and which came into force on 1st June 2002 ) so far as it relates to the rights of persons under Directive 85/384/EEC, as the Agreement has not been amended so as to extend to the Directive. The procedures under the Architects Act 1997 for entitlement to registration in the Register and enrolment on the list of visiting EEA architects for persons reliant on rights under the Agreement are also preserved, although the entitlement will now be to registration in Part 1 or 2 of the Register respectively.