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 to 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.
Harmonised Sectors I
In some sectors, the training requirements have been harmonised and there is automatic recognition of professional qualifications. In order to get over the practical difficulties in determining equivalence, the EU has defined minimum standards in these sectors in various sector-specific directives. The general Qualifications Directive does not apply.
There are Directives in relation to doctors, nurses, dentists, vets as well as a wide range of skills and qualifications in manufacturing, processing, food, and building industries. There is automatic recognition of qualifications for the specified trades and professions.
There is a system of automatic recognition of qualifications attested by professional experience. This approach applies to certain industrial, craft and commercial activities. Activities in this category cover various sectors ranging from textiles to chemical industry including printing manufacture and construction.
The automatic recognition of qualifications is attested by professional experience. Conditions of duration and the form of professional experience must be met. Recognition is based on the duration and form of professional experience in a self-employed or employed category in the relevant sector. Previous training is also taken into account and this may reduce the amount of experience required.
Harmonised Sectors II
Minimum training conditions are prescribed which cover the doctors, nurses, other healthcare professionals, dentists, dental practitioners, vets, midwives, pharmacists, and architects. The Directives lay down the minimum standards of training. Once these standards are met, recognition is automatic. The host state must accept the qualifications as equivalent.
There is automatic recognition of certain qualifications including doctors, nurses, dentists, vets, midwives, pharmacists, and architects. Member states must ensure that health sector professionals update their knowledge skills and competence through continuous professional development. This applies to doctors, nurses, midwives, dentists, pharmacists, architects and veterinary surgeons.
The substantive qualifications for lawyers are not harmonised in view of the significant differences in the Member States’ legal system There are special rules for lawyers providing services and establishing in the other Member States.
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 to 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 the 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.