principle of mutual recognition

The modernised Professional Qualifications Directive – The end of crisis-induced unemployment in the EU?

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.

[1] Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (“the IMI Regulation”), available here: http://www.parlament.gv.at/PAKT/EU/XXV/EU/00/29/EU_02996/imfname_10423779.pdf

[2] Statement by Commissioner Barnier, available here: http://europa.eu/rapid/press-release_MEMO-13-866_en.htm?locale=en

[3] Case C-340/89, Irène Vlassopoulou v Ministerium für Justiz, Bundes- und Europaangelegenheiten Baden-Württemberg, [1991] ECR I-2357.

[4] Case 107/83, Ordre des avocats au Barreau de Paris v Onno Klopp, [1984] ECR 2971.

[5] Case C-55/94, Reinhard Gebhard v Consiglio dell’Ordine degli Avvocati e Procuratori di Milano, [1995] ECR I-4165.

[6] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.9.2005, p. 22), available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2005:255:0022:0142:EN:PDF

[7] Single Market Act – Twelve levers to boost growth and strengthen confidence, SEC(2011) 467 final, available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0206:FIN:EN:PDF

[8] Modernisation of the Professional Qualifications Directive – frequently asked questions (point 5), available here: http://europa.eu/rapid/press-release_MEMO-13-867_en.htm?locale=en

[9] It should be noted, however, that although the Directive creates the EPC as a concept, the introduction of the EPC for a particular profession requires the adoption of further implementing acts by the European Commission.

[10] More information concerning IMI is available here: http://ec.europa.eu/internal_market/imi-net/index_en.html

[11] In this respect, see the Communication of the Commission of 2 October 2013 on evaluating national regulations on access to professions, SWD(2013) 402 final, available here: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2013:0676:FIN:EN:PDF

Radu judgment: A lost opportunity and a story of how the mutual trust obsession shelved human rights

Ermioni Xanthopoulou

PhD Candidate, King’s College London

On 29^th January 2013, the Court of Justice of the European Union (CJEU) delivered its judgment in the Radu case.[i] In this case the Court was asked to interpret the Framework Decision on the European Arrest Warrant (FDEAW) through the prism of the Charter of Fundamental Right of the European Union (the Charter) and the European Convention of Human Rights (ECHR).

While this judgment was expected to open the door to a more human rights-enshrined interpretation of the European Arrest Warrant (EAW), the Court seems to have skipped this chance.

European Arrest Warrant basics

The EAW is the first EU criminal law instrument based on the principle of mutual recognition, the so-called cornerstone of European Criminal Law. Having provoked constitutional concerns for abolishing the requirement of double criminality for a list of offences, after ten years it is still here accompanied by the never-ending debate.

The EAW is in fact a judicial decision, issued by the judicial authorities of one Member State (MS), requesting the arrest and surrender of a person from the judicial authorities of another MS for the purposes of (a) conducting a criminal prosecution (b) executing a custodial sentence or (c) detention order. It replaced a slow and politicised mechanism of interstate cooperation in view of the need of faster extradition in the EU internal market. This mechanism is based on the assumption of advanced confidence between the Member States.

Therefore, the state executing the EAW is under the obligation to arrest the wanted person and surrender him to the issuing state, except where the grounds for refusal listed in the FDEAW exists. What usually strikes lawyers is that there is no specific ground for refusal for human rights violations by the issuing authority, which gives no choice to the executing authority but to arrest and surrender the requested person even in the case that the act he committed does not constitute an offence in the executing state and even if his fundamental rights were not observed by the issuing state or there is a high risk of them being violated in view of the bad human rights protection record of this state.

Hence, a new argument has emerged in the light of the de-pillarisation of EU criminal law after the Lisbon Treaty and after the binding effect was given to the Charter. This new argument attempts to establish that the interpretation of the FDEAW should be enriched by the respect for fundamental rights as illustrated by the Charter. Also, the Commission in its latest implementation report[ii] states that ‘the framework decision does not mandate surrender where an executing judicial authority is satisfied…that such surrender would result in breach of a requested person’s fundamental rights arising from unacceptable detention conditions’.

This view is further supported considering the recent N.S. judgment of the CJEU. This case concerns the EU asylum system which is also based on the same principle of mutual recognition as the EU extradition system. The Court ruled that the Member states may not transfer an asylum seeker to the Member State responsible, where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.

Facts of Radu

So, in our story, Mr Radu was a Romanian national, subject to four arrest warrants, issued by the German judicial authority for the purpose of conducting criminal prosecutions in respect of acts of robbery. As he did not consent to his surrender, he claimed that the contested warrants were issued without him having been summoned or having had a possibility of hiring a lawyer or presenting his defense, in breach of Articles 47 and 48 of the Charter and Article 6 of the ECHR.

He argued that the FDEAW and the law implementing it should be interpreted in view of the provisions of both the Charter and of the ECHR. If the judicial authorities of the executing Member State discovered that the fundamental rights were not observed by the issuing authorities, they would be justified in refusing to execute the EAW concerned, even if FDEAW does not expressly provide for that ground for non-execution.

In a nutshell, the questions raised highlight three main issues. Firstly, they involve the different interpretation of the FDEAW in light of the Treaty of Lisbon and the Article 6 TEU and question whether the Charter and the ECHR form part of the primary EU law. Secondly, the questions concern the issue of deprivation of liberty of the requested person, as part of the procedure leading to the execution of the EAW. Since it interferes with the right to liberty and security of a person (Article 6 Charter and Article 5 ECHR read in conjunction with Articles 48 and 52 Charter) the CJEU was asked whether if this is actually necessary and proportionate to the objective pursued in a democratic society. Thirdly, they ask whether, through the prism of this new interpretation, the executing judicial authority can refuse to execute the EAW in the event of breaches of human rights legislation.

Opinion of Advocate General

The Advocate General Sharpston in her well reasoned opinion[iii] interestingly claimed with regard to the first issue that rights emanating from the Charter constitute part of the primary EU law, while the rights originating from the ECHR constitute general principles of EU law.

In respect of the second issue, the Advocate General argued that the deprivation of liberty and the forcible surrender of the person, following the execution of the EAW, especially issued for the purpose of criminal prosecutions, constitute interference with the person’s right to liberty as it is safeguarded by the Article 5 ECHR and Article 6 Charter. For this reason, it should not be arbitrary. The factors which should be taken account include the good faith in which the detention should be performed, the fact that it should be interrelated to the ground of the detention (suitability and effectiveness), the place should be appropriate and the length reasonable (necessity and least restrictive measure test).

With reference to the third point, the Advocate General Sharpston argued that the executing judicial authority could refuse to execute a warrant, when it is demonstrated that the rights of the requested person have been infringed or will be infringed and, in the current case with regard to Articles 6, 47 and 48 Charter, the infringement should be such fundamental that would destroy the fairness of the process.

Judgment

The judgment did not follow the structure of the questions or the conceptual structure given by the Advocate General, confusing its reader despite its short length. However, this is the least, considering that it limited the scope of the preliminary reference and that certain questions remained unanswered.

The CJEU appeared to accept that the Charter constitutes primary law but, according to the Court, the observance of rights enshrined in Articles 47 and 48 of the Charter does not require that the executing authority could refuse the execution of the EAW (Para 39). The Court attempted to clarify in advance that the Radu case related to an EAW issued for the purpose of conducting criminal prosecutions and not for the execution of a custodial sentence (Para 28). Then, it reiterated that the EAW was adopted so that it would simplify the extradition and for its operation which is based on the principle of mutual recognition, states should have mutual trust. Therefore, states cannot flee from an EAW request (Para 33-35).

With respect to grounds of refusal it remained loyal to the letter of the instrument. It left no space for any interpretation enlightened by the Charter sun or even by the Article 1(3) of the Framework Decision on EAW, read in conjunction with Article 6 TEU and the corresponding Charter provisions. Moreover, in an attempt to deepen this view and further justify it, it claimed that if the person was to be heard before the issuing authority, this would inevitably affect the effectiveness of the instrument. This is because the EAW is based on surprising the wanted person so that he could not catch a flight and flee (!) (Para 41). Finally, pursuant to the Court there is always the executing authority to hear the requested person.

Regarding the issue of whether the deprivation of the person’s liberty accompanying the process of arrest interferes disproportionately with the right to liberty and security, the Court just ruled that it is related to the debate on the defense rights. Thus the Court claimed that the issue does not necessitate special attention, tackling the request to address the breach of those articles (Para 30).

Therefore, in contrast to the opinion of Advocate General Sharpston, according to the Court the FDEAW should be interpreted in such a way so as not to allow the executing authority to refuse the execution of a EAW issued for the purpose of criminal prosecution on the ground of violation of the requested person’s right to be heard.

Comment

The Radu judgment surprised EU criminal lawyers anticipating the post-Lisbon effect on the interpretation of the EAW for its minimalistic and narrow approach. It was an unexpectedly short judgment given the number and the significance of the questions. The Court avoided the substance of the burning issues and narrowed down the scope of the references, causing further questions.

Firstly, it should be noted that the judgment contradicted the Advocate General opinion and the previous CJEU ruling in N.S. case, where it had clarified that the EU asylum system cannot operate on the basis of a “conclusive presumption” that all EU Member States “observe the fundamental rights of the European Union” (Para. 105). In Radu, the Court, based on this conclusive presumption, repeated the need and the obligation of Member States to have mutual trust to each other, in contrast to the abovementioned N.S. judgment. One would wonder here, whether the fact that the issuing state was Germany in this case facilitated the Court to follow this ruling and whether it would have adjudicated differently if the issuing country was one of the so-called ‘non-safe countries’.

The first paragraph of the Court is also noteworthy, since the Court stated that the warrant was issued for the purpose of a prosecution and not for the execution of a custodial sentence. This triggers the question whether the ruling would be different if this was the case of an EAW issued for the execution of a custodial sentence and Mr Radu was requested for this purpose? Would the Court have defied the mutual trust obsession?

Moreover, the Court, after exposing the reasons leading to the adoption of the EAW, argued that if the issuing authority would be required to hear the requested person, this would lead to the failure of the system. The framework decision’s preamble articulates that the extradition procedures should be speeded up in respect of persons suspected of having committed an offence and trying to escape from justice. This is why the system’s key method is to surprise the requested person so as not to allow the possibility of run away (Paras 40, 41). This reasoning, realistic as it may sound in a Europe without internal borders, lacks the most principal constitutional ground. The principle of presumption of innocence, as enshrined in the Article 48 of the Charter and 6(2) ECHR, pronounces that ‘everyone who has been charged shall be presumed innocent until proved guilty according to law’. Isn’t surprising a suspect with the aim of arresting him, then surrendering him to another Member State in order to prosecute him, without any hearing at odds with the presumption of innocence?

The Court’s response was that the person can be heard by the executing judicial authorities. Someone would wonder at this point which the options of the judicial authorities really are, as the Court previously ruled that the states cannot flee from the EAW mechanism which does not provide a ground for refusal for human rights violations (Para 41) So, the scope of the person’s right to be heard is really limited to this point.

Finally, a question of constitutional importance was submitted which finally remained unanswered. The Court skipped the question on whether

the interference on the part of the State executing a EAW with the rights and guarantees laid down in Article 5(1) of the [ECHR] and in Article 6 of the [Charter] (:right to liberty), read in conjunction with Articles 48 (:presumption of innocence) and 52 thereof, with reference also to Article 5(3) and (4) and Article 6(2) and (3) of the [ECHR] (:fair trials rights), satisfy the requirements of necessity in a democratic society and of proportionality in relation to the objective actually pursued.

This could have been a chance for the Court to throw light on the ill-defined constitutional principle of proportionality in relation to the objective actually pursued through legislation in the context of European criminal law.

Due to those remaining question marks, the judgment was surprising and somewhat disappointing. Trying to explain the mystery of this analysis, we could hypothesize that the Court might have been aware of the domino effect of a different ruling on the principle of mutual recognition, the foundation of the whole mechanism. This effect, given the lack of a clearly delineated ground for refusal for the execution of EAW in the event of human rights breaches, could be an open-ended one, especially if there is no political will to reform the measure soon.

[i] Case C-396/11 Ciprian Vasile Radu [2013] judgment of 29 January 2013, ECR-0000.

[ii] Report from the Commission to the European Parliament and the Council, On the implementation since 2007 of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, Brussels, 11.4.2011 COM(2011) 175 final

[iii] Opinion of AG Sharpston in Case C-396/11 Ciprian Vasile Radu [2013] ECR-0000.