European Business Law, the fourth volume in our series, shows how the European authorities simultaneously abolish all restrictions on access to and exercise of economic activities and support the growth of domestic markets, through the harmonization the internal legislation or the enactment of genuinely unified regulations.

European Business Law

The abolition of restrictions requires the mutual recognition of diplomas. The freedom of establishment or the provision of services would otherwise have no meaning for the so-called closed professions which require a high-level technical or professional qualification. Article 53 TFEU has thus required the European Parliament and the Council to adopt directives for the recognition of diplomas in o …

Recognition of qualificiations directive

The abolition of restrictions requires the mutual recognition of diplomas. The freedom of establishment or the provision of services would otherwise have no meaning for the so-called closed professions which require a high-level technical or professional qualification. Article 53 TFEU has thus required the European Parliament and the Council to adopt directives for the recognition of diplomas in order to facilitate access to the activities of self-employed persons and for the coordination of national laws concerning the access and pursuit of the professions at issue.

After initially opting for specific directives specifying the conditions under which qualifications were awarded in each Member State, the EU has now chosen a general principle of the mutual recognition of diplomas, certificates and other formal qualifications. Directive No 2005/36 of 7 December 2005  thus allows any national of a Member State wishing to pursue a regulated profession in another Member State for which he/she is qualified in the home Member State, to do so under the same conditions as its nationals (Art. 4) . In a situation which does not fall within the scope of Directive 2005/36  but which falls within the scope of Article 45 TFEU or Article 49 TFEU,  the authorities of a Member State to which an application has been made  by an EU national for authorization to pursue a profession, access to which depends, under national legislation, on the possession of a diploma or professional qualification or on periods of practical experience, are required to take into consideration all the diplomas, certificates and other evidence of formal qualifications of the person  concerned and his or her relevant experience, by comparing the  specialized knowledge and abilities so certified, and that experience, with the knowledge and qualifications required by the national  legislation . The Member States do however retain the possibility to impose conditions of pursuit, as long as they are not discriminatory and are objectively justified and proportionate (recital 3). The text lays down conditions that differ depending on whether the citizen wishes to take up establishment in another Member State or simply to provide a service, with regard to the occasional and temporary nature of the provision of the service.

In the case of establishment, if access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State must permit access to and pursuit of that profession, under the same conditions as apply to its nationals, to applicants possessing the attestation of competence or evidence of formal qualifications required by another Member State in order to gain access to and pursue that profession on its territory (Art. 13) . The Mutual Recognition Directive precludes the host Member State from verifying compliance with the condition that the overall duration, level and quality of part-time training are not lower than those of continuous full-time training, provided that, where a course satisfies the training requirements established by the directive  - the individual concerned has pursued part-time training or more than one course simultaneously or during periods which partially overlap - the authorities of the host Member State may not refuse recognition of that evidence of formal qualifications . The host Member State may require the applicant to complete an adaptation period of up to three years or to take an aptitude test if: (1) the duration of the training received is at least one year shorter than that required by the host Member State; (2) the training received covers substantially different matters than those covered by the evidence of formal qualifications required in the host Member State; (3) the regulated profession in the host Member State comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant's home Member State and that difference requires a specific training in the host Member State which covers substantially different matters (Art. 14). The setting up of common platforms, defined as a set of criteria of professional qualifications which are suitable for compensating for substantial differences which have been identified between the training requirements existing in the various Member States for a given profession, is however provided in Article 15. For medical and paramedical professions in particular, the directive establishes a principle of automatic recognition on the basis of coordinated minimum conditions for training (Art. 21 et seq.). 

When a national of a Member State intends to pursue his/her activity in a Member State other than the one in which he/she is established, Article 5 of the directive provides that the freedom to provide services cannot be restricted for reasons relating to professional qualifications if the service provider is legally established in one Member State to practice the same profession and, where the service provider moves, if he has pursued that profession in the Member State of establishment for at least two years during the 10 years preceding the provision of services when the profession is not regulated in that Member State . Where a service provider moves, he/she is subject to rules of a professional, statutory or administrative nature which are directly linked to professional qualifications, such as the definition of the profession, the use of titles and serious professional malpractice which is directly and specifically linked to consumer protection and safety, as well as disciplinary provisions which are applicable in the host Member State to professionals who pursue the same profession. Service providers established in another Member State are on the other hand exempt, pursuant to Article 6, from the requirements imposed on professionals established in the territory of the host Member State such as authorization by, registration with or membership of a professional organization or body. Where the service provider first moves from one Member State to another in order to provide services, he/she may be required to inform the competent authority in the host Member State in a written declaration to be made in advance which is renewable once a year if the service provider intends to provide temporary or occasional services in that Member State during that year (Art. 7). The declaration must be accompanied by certain documents, notably providing proof of: nationality, the person's establishment in another Member State and his/her professional qualifications.

Codifying the previously adopted directives relating to the medical and paramedical professions and to architects and Directive No 99/42 on the general system for the recognition of qualifications in respect of professional activities.

National legislation may nevertheless allow for the possibility of partial access to one of the  professions covered by the mechanism for the automatic recognition of professional qualifications insofar as the activities allowed in the context of partial access to a regulated profession are to be exercised under the  professional title of the home Member State and under the condition that the professionals concerned clearly indicate to the service recipients the scope of their professional activities: Case C-940/19 Les Chirurgiens-dentistes de France and others, Judgment of 25 February 2021, LawLex202100004394JBJ.

Case C-634/20 Sosiaali- ja terveysalan lupa- ja valvontavirasto, Judgment of 3 March 2022, LawLex202200001304JBJ.

The fundamental purpose of mutual recognition is to allow the holder of a professional qualification giving access to a regulated profession in the holder’s home Member State to gain access, in the host Member State,  to the same profession as that for which he or she is qualified in the  home Member State and to pursue that profession in the host Member State under the same conditions as its own nationals: Case C-634/20, Sosiaali- ja terveysalan lupa- ja valvontavirasto, Judgment of 3 March 2022, LawLex202200001304JBJ.

Case C-675/17 Ministero della Salute v Hannes Preindl, Judgment of 6 December 2018, LawLex201900001251JBJ.

Case C-502/20 TP v Institut des Experts en Automobiles and others, Judgment of 22 September 2021, LawLex202100005499JBJ: holding that Article 5(2) of the directive precludes legislation of the host Member State, within the  meaning of that provision, which, as interpreted by the competent  authorities of that Member State, does not allow a professional  established in another Member State to pursue, on a temporary and occasional basis, his or her profession in the territory of the host  Member State, on the grounds that that professional has had, in the  past, an establishment in that Member State, that the services that he  or she provides are to a certain degree recurrent or that he or she has  equipped him or herself, in that Member State, with infrastructure, such as an office; Case C-166/20 BB v Lietuvos Respublikos sveikatos apsaugos minisrerija, Judgment of 8 July 202, LawLex202300003727JBJ, which holds that where the person concerned does not hold the evidence attesting to his or her professional qualifications but has acquired professional skills relating to that profession both in the home Member State and in the host Member State, the competent authorities of the latter are  required, when they receive an application for recognition of  professional qualifications, to assess those skills and compare them  with those required in the host Member State for the purposes of gaining  access to the profession in question and, if those skills correspond to those required by the national provisions of the host Member State, they must recognize them.

European Business Law

103. Recognition of qualificiations directive

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103. Recognition of qualificiations directive

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise