Nowadays many of us have some relative, friend or just a casual acquaintance who – whether on a permanent or temporary basis – find themselves carrying on a professional activity within the territory of a different State of the Union. This is quite common in a growing globalized society where personal interactions are no longer confined to our respective homelands. Sometimes this phenomenon occurs spontaneously or on our own initiative and, throughout the past decade, mobility across Europe has proven useful to help shrug off the setbacks arising from still stagnating national economies.
The lifting of internal borders between the Member States of the European Union has allowed us to move freely as well as to trade goods, provide services and exchange capital within the territory of the Union. As a matter of fact, this is the ultimate goal of the internal market, flagship of the European integration process, which is aimed directly at drawing a common framework of freedom for its citizens.
One of the clearest expressions of the solidarity inherent in the integration project itself lies precisely in the redistribution of unemployment rates from countries worst stricken by an economic crisis to those whose labour markets are capable of absorbing a fresh workforce. This phenomenon would be hindered if the mutual recognition of diplomas, training and experience were not guaranteed under EU law. In fact, any refusal by a Member State to accept a professional qualification (whose holder belongs to a different Member State) may amount to a restriction on the right of establishment and/or the freedom to provide services. In order for these rights to be freed of unnecessary burdens, it is vital for there to be harmonization of national legislation (as it has been the case for a number of professions).
For a long time, we have all been protected by the principle of mutual recognition, according to which the host Member State is bound to assess whether the qualifications and skills obtained by an individual in its home Member State, match the standards set by the authorities of the host State where such individual pursues an economic activity related to such qualifications. This principle was first enshrined by the Court of Justice in the famous case Vlassopoulou (C-340/89), under which the Court ruled the following: “National requirements concerning qualifications may have the effect of hindering nationals of the other Member States in the exercise of their right of establishment guaranteed to them by Article [49 of the Treaty on the Functioning of the European Union (TFEU)]”.
Nevertheless, there is also positive law on the matter in the form of directives. The legal basis for issuing such directives is to be found in Article 53 TFEU, this provision entitles the European Parliament and the Council to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the co-ordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
Under the express powers provided for under Article 53 TFEU, the European Parliament and the Council passed the Directive 2005/36/EC on the recognition of professional qualifications. This Directive is the most important legal text adopted under Article 53 TFEU and has come to be the backbone of EU legislation regarding the recognition of professional qualifications.
The Directive is applicable to EU citizens who pursue a regulated profession in a different Member State than that in which they obtained their professional qualifications, on both a self-employed and an employed basis. It basically develops the right conferred by Article 53 TFEU on persons having acquired their professional qualifications in a Member State to have access to the same profession and pursue it in another Member State, with the same rights as nationals.
The Directive grants automatic recognition of some specific qualifications upon the co-ordination of minimum training conditions for their exercise in each Member State. Among the professions that benefit from such an automatic recognition, one may find doctors, nurses, midwives, dental practitioners, veterinary surgeons, pharmacists and architects. The assessment of the appropriate evidence of the qualifications delivered to the competent national authority, will depend on the duration of the training and on the outcome of the comparison between the knowledge and skills acquired in the home Member State and those that could be acquired in the host Member State.
Within the same Directive, a group of qualifications may be found which have to be attested to by means of proof of professional experience in certain industrial, craft and commercial sectors. According to the Directive if, in a Member State, access to or pursuit of one of the activities listed in the Directive itself is conditional upon the possession of general, commercial or professional knowledge and skills, that Member State is to recognise the previous pursuit of the activity in another Member State as sufficient proof of such knowledge and skills.
Last but not least, the Directive recognises a third group of professions which is essentially applied as a fallback to all the professions not covered in the previous groups and, for exceptional reasons, to some professions that do not satisfy the conditions laid down in the text of the Directive. This general group is based on the principle of mutual recognition. Thus, the same conditions applied to nationals must be applied to applicants who are in possession of evidence that attests to their competence. The host Member State would be able to demand an additional aptitude test to compensate for differences in terms of duration or content in order to attain the qualification.
In addition to Directive 2005/36/EC, since 1 January 2016, the European Union has upgraded the mutual recognition of diplomas, training and experience through the introduction of the “European Professional Card” (EPC), a brand new procedure to have professional qualifications quickly recognised in another EU country. Within the Single Market Strategy, this initiative came into effect after almost five years from the publication of the European Commission’s Green Paper on “Modernising the Professional Qualifications Directive” in an attempt to capitalise on modern technology and on the pre-existing Internal Market Information System (IMI).
The IMI facilitates the co-ordination between the home Member State and that one where the professional seeks establishment, in such a way that the authorities in the host Member State do not need to engage in time-consuming administrative procedures when verifying all the information: instead, this task is completed beforehand by the authorities of the State of origin. Further, the multilingual communication channel between the regulatory authorities facilitates co-operation between them.
The fact that the EPC runs electronically evidently reduces red tape, streamlines the application process and enhances transparency for all the parties involved.
For the time being, Directive 2005/36/EC covers only a few professions: a nurse responsible for general care, a pharmacist, a physiotherapist, a mountain guide and a real estate agent. Nonetheless, it is expected to be expanded to include a wider array of professions in the near future.