Tag: free movement of persons

Andrea Redondo

LL.M in European Law and Economic Analysis, College of Europe; BSc in Economics and Finance, LSE; LLB, Université Paris 1 Panthéon-Sorbonne and Universidad Complutense of Madrid

 

On 20 November 2013 the Council of the European Union adopted Directive 2013/55/EU on the modernisation of Directive 2005/36/EC on the recognition of professional qualifications.[1] As Commissioner Barnier had predicted,[2] the Council adopted the Directive at first reading, following an agreement with the European Parliament which had itself voted in favour of the text at its plenary session of 9 October 2013. This article analyses the historical background and key features of the modernised Professional Qualifications Directive and provides an answer to the question of whether this modernised Directive will bring an end to crisis-induced unemployment in the EU.

 

Historical background

Long have the days passed where a fully-qualified professional of one Member State was strongly dissuaded from moving to a different country as they would most likely fail to satisfy the requirements to practice their profession in the host Member State and would, consequently, have had to complete, again, an entire training course in the host country. Proof of this blatant restriction to free movement of persons and services is the abundant case law of the Court of Justice in this respect, like the Vlassopoulou,[3] Klopp[4] and Gebhard[5] cases, just to name a few.

In order to overcome this serious hurdle to the achievement of the internal (then common) market, Member States introduced, and subsequently enhanced, rules on mutual recognition of qualifications to reduce the burden for professionals wishing to work in a Member State different from the one where they had acquired their professional qualification.

In 2005, the Professional Qualifications Directive entered into force,[6] which consolidated the acquis communautaire – composed of 15 Directives – in this field of EU law and included some additional innovative aspects. This Directive provided for the following:

• Automatic recognition for a limited number of professions on the basis of harmonised minimum training requirements. This automatic recognition entailed that the host Member State could only check whether the qualifications were in line with the minimum required by the Directive. Automatic recognition applied to doctors, dentists, nurses, midwives, pharmacists, veterinary surgeons and architects.
• A general system for the recognition of evidence of training, applicable to a large majority of professions. On this basis, access to regulated professions was granted to any professional demonstrating that s/he is a fully-qualified professional in the Member State where he or she obtained the professional qualification. It is only in the cases where the qualifications of a professional substantially differ from those required by the host Member State or in those cases where the length of the time spent in the profession falls short of those of the host Member State that the latter may impose compensatory measures in order to close the gap and thus grant the professional full access to the relevant field of expertise. These compensatory measures can be of two kinds: (i) an adaptation period which takes the form of a period of supervised practice; or (ii) an aptitude test.
• A new system of free provisions of services on a temporary and/or occasional basis. With the exception of professionals involved in the public health and safety sector, professionals can, in principle, provide their professionals on a temporary and/or occasional basis without a prior check of professional qualifications.  In this respect, Member States can only gather information on the status of the temporary or occasional workers in an annual declaration which covers detailed information about the establishment, insurance and professional competences in another Member State.

Given that the 2005 Professional Qualifications Directive already seemed like a big step forward, it is legitimate to ask the following question: why did the Directive require a modernisation so shortly after its entry into force? The answer, which was already identified in the Single Market Act of April 2011,[7] is that modernisation is required to reflect the changes and evolutions that have occurred recently in EU labour markets, to bring the Directive into the twenty-first century – in particular in light of the great importance of modern technologies – and to respond to the need of simplification by having a smoother system of recognition of qualifications supporting the mobility of professionals across the EU. According to the Single Market Act, modernising the legislation applicable to the system of recognition of professional qualifications was the key action to improve mobility of EU citizens in the single market. And this is precisely what the modernised Professional Qualifications Directive seeks to achieve.

 

Key features of the modernised Professional Qualifications Directive

Whilst the modernised Directive builds on the achievements of the existing Directive, it also incorporates new features. As the European Commission very elegantly puts it, “the modernisation of the Directive reaffirms the underlying philosophy of mutual recognition and mutual trust between Member States, whilst exploring innovative ways to better reflect it in practice”.[8]

In a nutshell, the key features of the modernised Professional Qualifications Directive are as follows:

• Creation of the European Professional Card (“EPC”):[9] this is actually one of the major features of the modernised Directive. The EPC, which will not take the form of a physical card due to the risk of falsification or outdating, will be an electronic certificate to allow the cardholder to obtain the recognition of his or her qualifications in a simplified and accelerated manner. In particular, this electronic certificate will be exchanged between competent national authorities through the Internal Market Information System “(IMI”).[10] The competent authority of the home Member State will communicate any requisite information about the professional at stake to the competent authority of the host Member State via IMI, thereby significantly reducing the administrative burden and costs for professionals.
• Modernisation of the definition for harmonised minimum training requirements for the professions which benefit from automatic recognition. For example, for doctors, the modernised Directive clarifies that the basic medical education ought to be based on 5,500 training hours done within a minimum of 5 years.
• Mutual evaluation of regulated professions: in order to limit as much as possible the number of regulated professions, Member States will have to provide a detailed list of the professions that are regulated and the activities that are exclusively reserved to these professionals, as well as to justify the need to regulate these professions. There shall be a subsequent mutual evaluation of these professions which shall be facilitated by the European Commission.[11]
• Common training principles: the currently existing system of automatic recognition will be further extended to new professions on the basis of the common training framework or tests. If in at least one third of Member States access to a particular profession is regulated, a common training framework or test can be established. The qualifications obtained under such frameworks or tests would then be automatically recognised in all the participating Member States.
• Language skills: the verification of language skills at the host Member States can only take place once the latter has recognised the professional qualification of the individual concerned, although it can, however, take place before the professional accesses the profession. Quite importantly, language verifications – which must be proportionate to the activity pursued and free of charge for the professional – must be limited to the knowledge of only one official language of the host Member State, the choice of which is left to the person concerned in case of multilingual Member States.
• Training abroad: young professionals wanting to access regulated professions will have the opportunity to do part – or even the entirety – of the traineeship in another Member State.
• Alert mechanism: the modernised Professional Qualifications Directive is not only intended to enhance the free movement of professionals. It also aims to strengthening the protection of patients and consumers by means of an alert mechanism for education and health professions. More concretely, the competent authority of the home Member States must inform the competent authorities of all other Member States via IMI of any identified professional from these specific sectors who has been – temporarily or permanently – suspended or prohibited from practising his or her professional activity, or who has made use of falsified documents.

 

Conclusion

It is undeniable that the modernised Professional Qualifications Directive is a very important step forward in reducing – perhaps even significantly – unemployment in the EU as an enhanced mobility of professional will allow labour markets to work more efficiently. The new features contained in the modernised Directive are so far-reaching that new generations of professionals will enjoy from a greater exposure to foreign potential employers which will undoubtedly reduce the currently exorbitant levels of youth unemployment. This will have positive consequences not only on professionals, but also on customers and patients who will equally benefit from the internationalisation of free movement of professionals.

However, whether the modernised Professional Qualifications Directive will have specifically such a positive impact on crisis-induced unemployment is much more questionable. In particular, crisis-induced unemployment has most severely affected people in a difficult age range who, following a long period of unemployment, have seen their employability drastically plummet. Furthermore, and rather unfortunately, these people may lack the necessary linguistic skills and have too strong ties holding them back for them to seek job opportunities outside their national borders. This is a reality which Member States and EU institutions seem to have deliberately obviated in order not to face the cruel reality which results from such a floor-shaking crisis as the one we have been experiencing in the European Union for over 5 years now.

Consequently, this modernised Professional Qualifications Directive is certainly to be applauded as it gives a great leeway to future generations of professionals and enhances the protection of consumers and patients, but this does not mean that Member States and EU institutions – and, in particular, the European Commission – can feel relieved from their obligations vis-à-vis current generations of professionals. They must still work hard to put forward tangible and palatable initiatives which will alleviate the current unsustainable situation.