A practical issue which arises in exercising the right to establish in another member state is the recognition of qualifications. In 2005 the EU adopted a general Qualifications Directive on the mutual recognition of professional qualifications. The Directive applies to regulated professional activities.
The recognition of professional qualifications under EU law has been modernised by Directive 2013/55/EU which amended Directive 2005/36/EC on the recognition of professional qualifications.The European Union (Recognition of Professional Qualifications) Regulations 2017 (the Regulations) S.I No 8 2017, consolidated and transposed the Directive into Irish law.
The Qualifications Directive is aimed at both the freedom to provide services and the freedom of establishment. The freedom to provide services is exercised when services are provided cross-border from the home state. Freedom of establishment arises where a branch or subsidiary is formed in the host country.
The general system relates to a wide range of professions and businesses which are regulated. The general principle is that the Member States are to recognise the qualifications of individuals qualified in the other Member States unless there is a very good reason not to do so.
Cross-Border and Temporary Basis
An individual established in one member state is entitled to provide services on a temporary and occasional basis in another member state under his original home state professional title without having to apply for recognition of their qualification.
Nationals of EU Member States can provide services on the basis of a temporary presence in another State under their original professional title without having to apply for recognition of qualifications.
If they relocate outside of their Member State of establishment in order to provide a service/profession that is regulated (subject to specific professional qualifications and requirements) the authority in the host Member State must allow access to the profession on the same conditions that apply to its own nationals, provided that the person concerned holds training qualification in the home State which attests a level of training at least equivalent to that immediately below that required in the host state.
If the service/profession in question is not regulated in the host Member State then if the person concerned relocates outside his Member State of establishment in order to provide the service, he must provide evidence of two years professional experience.
Regulated and Unregulated Professions
A regulated profession is one where access to it is regulated and subject to specific qualifications. Each Member State must provide and update information on its regulated professions for the benefit of outside applicants and must designate a contact point within its administration.
If access to a profession is regulated (i.e. subject to specific professional qualifications) the Authority in the host Member State must allow access to the profession in question under the same conditions as for its own nationals, provided the applicant holds a training qualification obtained in another Member State which attests a level of training at least equivalent to the level immediately below that which is required in the host Member State.
Where the profession is not subject to specific professional qualifications the applicant must provide evidence of two years full-time professional experience within the preceding ten years as well as the equivalent of any required training and qualification that does apply.
The Qualifications Directive requires EU Member States to establish a procedure to examine and recognise professional qualifications. The host state must compare the migrant’s qualifications and abilities with those required by the national system.
It allows the application of compensatory measures by the host state if there are substantial differences between the training acquired by the migrant and the training required by the host. The compensatory measures may take the form of an adaption period or an aptitude test. The choice is generally up to the migrant unless specific derogations exist.
If the comparison reveals that the holder has knowledge and qualifications identical or, at least, equivalent to the national qualification, the host state is obliged to recognise the qualification. If the comparison reveals the applicant only partly fulfils the necessary qualifications, the host member state can require compensatory tests or training to demonstrate he has acquired the relevant knowledge and qualifications.
Where access to a regulated profession requires completion of a professional traineeship, the competent authority must recognise professional traineeships carried out in another Member State (provided that the traineeship is in accordance with published guidelines) when considering an application for recognition of a professional qualification. There is an obligation on competent authorities to publish guidelines on and recognition of professional traineeships carried out in another Member State, or in a State other than a Member State.
General Systems of Recognition of Qualifications
The general system of recognition applies on a fall-back basis to all professions not covered by specific rules on recognition. The system is based on mutual recognition of qualifications by the EU Member States.
Where access to a profession is regulated in the host state (i.e. subject to requirements for qualifications) the regulatory body in the host state must allow pursuit of the profession under the same conditions as for nationals provided the applicant holds qualifications obtained in the home member state which shows a level of training at least equivalent to the level required in the host state.
There are five levels of qualification ranging from attestation of competence through to university degrees and completed professional training.
- an attestation of competence which corresponds to general primary or secondary education or
- an attestation of competence issued by an authority in the home States on the basis of a training course not forming part of a certificate or diploma;
- a certificate which corresponds to training at secondary level of a technical and professional nature or which is general in character and supplemented by a professional course;
- a diploma certifying successful completion of training at post-secondary level of at least one-year duration or comparable professional training;
- a diploma certifying the successful completion of training at university level of a duration of at least three years and less than four years;
The host state may make recognition of the qualification subject to the applicant completing compensatory measures if
- the training is one year shorter than required by the host Member State or
- the training covers substantially different matters to that covered by the evidence of formal training required in the host Member State or
- the profession as defined 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 State and the difference consists of specific training which covers different matters from those covered by the migrant.
Aptitude tests or adaptation periods of up to three years may be required if the training is one year shorter than that required in the host state, if the training received covers substantially different matters from that in the host state, or if the profession in the host state comprises one or more regulated professional activities which do not exist in the corresponding profession in the applicant’s home state and the difference consists of specific training which covers substantially different matters than those completed by the migrant.
The host Member State must generally offer the applicant a choice between an adaption and aptitude test. Host Member States can vary this requirement with the EU Commission’s consent.
Procedures for Recognition
An individual application must be made to the regulatory authority in the host state accompanied by the required documents and certificates. The competent authority has one month to acknowledge receipt and draw attention to any missing documents. A decision must be taken within three months of the date on which the application was received.
Member states are to make available all information about the recognition of qualifications including a list of competent authorities and documents required through the national single points of contact created under the Services Directive. Professionals must be given the possibility of completing recognition procedures online. The national point of contact is to provide advice and assistance in individual cases.
In cases where services are provided under the professional qualification of the Member State of establishment, the regulatory authority in the host State may require the service providers to furnish the recipient of the service with certain information including information regarding insurance cover and professional liabilities.
The host Member State may require that the service provider make a declaration prior to providing any services and renew it annually. The host country may also require that the application be accompanied by certain documents listed in the Directive such as proof of nationality, legal establishment, indemnity insurance and professional qualification.
If the host Member State requires registration with a professional association, this must occur once the relevant authority receives a declaration with the applicant’s file. For professionals whose role has health or safety implications, the host Member State may carry out a prior check of the service providers professional qualifications.
Member States may require migrants to have knowledge of languages necessary for practising the profession. The evaluation of language skills is separate from recognition of professional qualifications. It must take place after recognition of an actual access to the profession is sought.
Decision and Appeal
EU member states are obliged to give reasons for decisions in the area of mutual recognition of qualifications, so that European Commission and in the event of a dispute, the European Courts, can verify their compatibility with European law.
Most decisions of the competent authority in relaiton to recognition of qualifications may be appealed. The person concerned may appeal to the High Court not later than 42 days from the date of the notice of that decision or the expiry of the period within which the decision or acknowledgement should have been made. In this regard, the decision of the High Court is final and conclusive.
The competent authority may reverse a decision to recognise evidence of professional qualification where it is satisfied that information on which the competent authority relied on in order to make the decision was not correct.Where the competent authority proposes to reverse a decision, it must provide the person concerned with notice in writing stating the intention to reverse the decision and the reason for this, identify the incorrect information pertaining to the decision and invite the person to make representations within a period of two weeks from the date of the notice.
The competent authority will consider any representations made and if it remains of the view that the decision should be reversed, then the competent authority may provide the person concerned with notice in writing reversing the decision and provide the reasons for the reversal. The competent authority must also inform the individual of their right to appeal.
EU States Co-operation
The authorities in Member States are required to exchange information as necessary for complaints by a recipient of a service against the service provider to be pursued. The host Member State can ask the Member State of establishment for information regarding a service provider’s legal status and freedom from penalties.
The Directive provides for representative associations at both national and EU level to establish common platforms to determine measures to compensate for substantial differences identified between the requirements of different Member States. The purpose is to make recognition of professional qualification easier.
The EU Commission may submit implementing measures to the Member States. Once they are in place the Member State must waive the imposition of compensatory measures on applicants who meet the relevant conditions.
The 2013 amendment to the Qualifications Directive provided for a European professional card in a view to facilitating temporary mobility of the provision of services in the EU.It is contemplated that card may be made available in respect of particular professions, under implementing acts adopted by the Commission according to needs expressed by the professions. It is an electronic certificate which facilitates professional in providing services or becoming established in another EU state.
This digital procedure is based on the Internal Market Information System.The ECP is currently available for members of the following professions who can now pursue their professions more freely as the EPC simplifies the procedure for having professional qualifications recognised in another EU country:
- general care nurses,
- mountain guides; and
- real estate agents.
The list of professions to which the ECP applies may be expanded over time.
There are different timelines set out for the consideration of applications for ECPs. The competent authority shall acknowledge receipt of an application within one month of receipt and inform the applicant of any missing documentation. The procedure for examining an application must be completed as quickly as possible and result in a duly substantiated decision by the competent authority within 3 months after the date of the submission of the completed applies.
The revised Professional Qualifications Directive included changes in the definition of minimum training requirements for professions which benefit from automatic recognition under EU Directives.The harmonised minimum training standards were revised..
The revised directive allows the possibility of establishing up common training frameworks and common training tests aimed at offering a new method of automatic recognition. The common training frameworks should be based on a common set of skills, knowledge and competences as necessary to pursue the particular profession.
The common training framework or test may be established if the profession concerned or the education and training leading to the profession is regulated in at least one-third of the member states.
Evaluating Other EU Qualifications and Training I
The mutual evaluation of the exercise of regulated professions is a mechanism which seeks to to ensure greater transparency and justification for regulated professions. Member states must provide a list of the regulated professions and activities reserved for them and justify the regulation.
There are rules on partial access to a regulated profession. This is access to part of the activities reserved to the profession. It may benefit professionals who engage in a genuine economic activity in the home state which does not exist in its own right in the member state to which they wish to move.
The directive applies to professionals whose traineeship is carried out in another state. Professionals who have completed their professional traineeship in another state are entitled to have that traineeship acknowledged by the competent authority of the host state.
Evaluating Other EU Qualifications and Training II
The 2013 amendements to the Qualifications Directive reduced the professional experience requirement for professionals coming from non-regulating member states and clarifies the documentary requirements and procedural steps. It amends the classification of education levels. This classification of qualifications is based on five levels of education and the requirements for compensatory measures.
The revised legislation clarifies the checking of language knowledge of a professional, should take place only after the host member state has recognised the qualification. It might intervene before the profession has accesses to the profession.
In the case of professions with implication for patient safety, states may apply systematic language controls. An alert mechanism is established for professions with patient safety implications and for professions involved in the education of minors, child care and early child care education.
Competent authorities must inform other competent authorities through the internal market information system about professionals who have been prohibited, even temporarily, from exercising professional activity or who have made use of falsified documents.