Legal framework of professional mobility in the EU

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Legal framework of professional mobility in the EU

Senada Reci*

Doctor of Law, Lecturer

Gasper Kokaj

Doctor of Law, Professor

The internal market of the European Union (EU) is a common market where people are free to travel around as workers, independent contractors, or employees. In the Gaston Schul decision 15/81, the Court of Justice of the European Union (CJEU) ruled that the purpose of the Common Market concept is to remove trade obstacles between communities to merge national markets into a Single Market that is as close to an open internal market as is practical (Luigi, 2012). According to this interpretation, the actuality of the Internal Market still needs to guarantee the lack of obstacles even after it was established twenty years ago because national laws in the Member States still place numerous limits on it. The European Union Treaty on the Functioning of the European Union guarantees a freedom to engage in professional activities in the Single Market as an employee or independent contractor (Consolidated Version..., 2012).

Over time, public institutions' views on the acceptance of professional qualifications have evolved. This shift is the result of two things: first, public organizations' evolving views on the acceptance of professional credentials. Two factors have impacted this change: first, the mutual recognition principle was established and its application was extended beyond the free movement of goods by the CJEU's previously reviewed case law, which looked at the adoption of directives to allow the effective exercise of the right of establishment. Virtually all prior legislation was replaced in 2005 by a single Directive 2005/36/EC (2005) on the recognition of professional qualifications, which maintained the same approach and guiding principles as the prior mutual recognition legislation. The original legislation consisted of the three Mutual Recognition Directives of 1989, 1992, and 1999 as well as twelve sectoral directives, excluding the two Lawyers Directives (Craig & de Burca, 2020).

The unique characteristics of the legal systems in European nations have been extensively researched by academics. Consequently, L. Pech (2022) evaluated whether an East-West gap is developing on this subject and talked about the current challenges to the idea of the rule of law in the EU. The scholar noted that the public demands for the EU to be more assertive in defending the rule of law against those who seek to undermine it, and it is worrying that the EU Commission and Council are not doing so. The peculiarities of the application of autonomy by the European Court of Justice (ECJ) in case law were assessed by C. Eckes (2020). The scholar described the peculiarities of the Court's concept of autonomy and described the reasons for its criticism based on various reasons, for example - its focus on the abstract conceptual quality of law, potentially ignoring the actual pressures that may affect its interpretation.

An interesting study was conducted by E. loriat- ti (2021), who described the peculiarities of law interpretation among European Union countries depending on their linguistic properties. In other words, the work explains one of the main reasons for the different approaches to the formation of the law of the European Union. J. Sota (2021) in turn described the peculiarities of education and labour markets in the EU and in Albania. The academics discussed the significant adjustments made to the nation's educational system to comply with EU regulations and the degree to which it is currently ready for unification. X. Tataj and E. Akba§ (2021) in turn gave examples of brain drain from Albania to the EU countries. In their research, the experts emphasized the value of human capital and how it relates to the labour market. The authors pointed out that international cooperation is necessary to address this issue. The scholars described in detail the difficulties faced by Albanians in this country and suggested some actions that could improve the situation in such conditions.

The research aimed to analyse the changes in EU Directives 2005/36/EC and 2013/55/EU related to the extension of the rights of employees and self-employed persons to carry out professional activities in different EU Member States.

Materials and methods

A qualitative approach to legal analysis was applied: the relevant EU directives, the case law of the CJEU, which are the primary sources of information, and another relevant legal sources were analysed. The analysis of CJEU case law has been crucial in interpreting the principles of recognition and proportionality, and in addressing the obstacles and challenges faced by professionals seeking recognition in other EU Member States. In addition, selected secondary sources of information have also been utilised for additional context and analysis. These included academic articles, reports and official EU publications on the topic. The study also referred to relevant legal literature and commentaries on specific EU directives and their implementation. During the investigation, reports and research about the acquis Communautaire's implementation as well as the difficulties experienced by professionals in the domestic market were taken into account. Recent EU Commission infringement proceedings against Member States imposing restrictions on professional services are also analysed.

The research is based on a systematic approach, which allows to analyse different situations related to vocational qualifications in the EU within a unified system, considering influencing factors. Analysis was the main method used in the study. It was used to conclude the main data concerning the process and features of vocational qualifications in the EU internal market (in particular, on various cases characterising past situations that have arisen in the framework of legal interactions concerning the recognition of vocational qualifications). A historical method was also used to assess changes in the rules and conditions for the EU internal market's recognition of professional qualifications. Thus, the study includes a chronological approach, starting with an examination of Directive 2005/36/EC (2005) and its provisions on regulated and unregulated professions, mutual recognition, and automatic recognition of qualifications. A shift was then made to the analysis of subsequent directives such as Directive 2013/55/EU (2013) and Directive (EU) 2018/958 (2018), which introduced new features and practical tools such as the European Professional Card (EPC) for the recognition of certain professions.

A comparative method was also applied to assess the effectiveness and correctness of the functioning of the different Directives, finding on this basis their positive and negative components. The method of expert opinion was used to assess real-life situations and then to conclude based on them as to whether the Directives fulfil their obligations. The method of interpretation was used to analyse the texts, which allowed for their interpretations of the texts of legal provisions and court decisions to determine their practical meaning and application.

Results

Directive 2005/36/EC (2005) is generally responsible for the recognition of qualifications in the internal market. It applies to all European Economic Area (EEA) countries as well as Switzerland. It divides professions into regulated and unregulated professions: regulated professions are those for which there are specific national rules dictating the conditions for practising a profession, often requiring a diploma or qualification certificate. Examples include lawyers, accountants, and doctors. Notably, some regulated professions may also be practised as salaried occupations where professionals work as employees of larger firms: doctors, engineers, lawyers, pharmacy assistants, nurses. Unregulated occupations, by contrast, cover activities not directly related to commerce, industry, crafts, or agriculture, but include intellectual or artistic work for which remuneration is in the form of fees or gratuities. Unregulated occupations can be practised without special restrictions. From this point of view, this makes it easier for all those interested in achieving the scope of recognition of qualifications and potentially increases the possibility of integration and work in the internal market.

The Directive 2004/38/EC (2004) applies to EU citizens exercising their right and freedom of movement as well as their family members. However, the question often arises as to how family members from non-EU countries can also benefit from these provisions. Under this directive, family members of EU citizens living in third countries can also take advantage of conditions pertaining to the free movement of services. Consider the case of an American doctor with a French-issued diploma who is married to a French citizen living in France but later decides to move to Germany and wants to work there as a doctor. In this situation, the French diploma of the American doctor would be recognised in Germany under the terms of Directive 2005/36/EC (2005) on the mutual recognition of qualifications. Similarly, if a person is a refugee, they should be treated in the EU Member State that granted them refugee status and enjoy the same benefits as specified in the Directive. For example, an Iraqi national with a Dutch diploma in pharmacy who has been authorized as a refugee in Belgium must have a diploma recognised under the rules of Directive mentioned. However, if the same person decides to move to Denmark, they may not enjoy the same benefits of these specific rules (European Commission, 2020).

The Directive introduces a distinction between free professions according to the duration of their establishment and the provision of services. For services provided temporarily, the service provider does not need to seek recognition of their qualifications. Instead, they can offer services under their original name, while complying with certain conditions aimed at protecting service users. The rules governing the temporary mobility of self-employed or employed persons in other EU country, as outlined in Chapter II of Directive 2005/36/EC (2005), affect over 800 different regulated professions in EU Member States. This Directive addresses labour market access in other EU member states for professionals working in regulated professions. However, the EU has no specific procedures for recognizing the qualifications of practitioners of non-regulated professions. In general, professionals in unregulated professions have free access to these professions. Nevertheless, professionals wishing to practise unregulated professions in another EU country may still have to fulfil certain qualification requirements. An example is the Penarroja Fa case (Judgment of the Court..., 2011), where the Court of Justice clarified that certain duties, although not classified as regulated professions under Directive 2005/36/EC (2005), may still be subject of the Article 57 of the Treaty on the Functioning of the European Union (TFEU). As a result, professionals interested in being recognised in another Member State may directly benefit from the rights conferred by Article 57 TFEU, based on the CJEU decision in that case. Three methods for qualification recognition are outlined in Directive 2005/36/EC (2005) (Table 1).

Table 1. Description of the three main systems for the recognition of qualifications in the EU

There are two ways to recognise these activities: firstly, through Directive 2005/36/EC (2005), which defines the minimum duration and nature of experience required for the different professions on the list, and secondly, if the conditions are not met, professionals can request mutual recognition through a common system, as the Directive does not apply in this case. This allows each professional to choose the most appropriate option to access an occupation in another Member State upon the applicable system.

Source: compiled by the authors based on data of Directive 2005/36/EC (2005), European Commission (2020; 2023), D. Luigi (2012)

The implementation of Directive 2005/36/EC has imposed obstacles regarding national procedures and bureaucratic deadlines for professionals seeking labour migration in a Member State. In response to this situation and the Market's need for free movement of professions, some of which are highly demanded by the EU labour market, a new directive, Directive 55, was adopted in 2013. Directive 2013/55/EU (2013) introduced new features and a practical digital tool such as the European Professional Card (EPC). The EPC is an electronic card that facilitates automatic recognition at the level of individual vocational and general training frameworks in accordance with the existing European Qualifications Framework (EQF). It also signalled enhanced cooperation between national authorities using the IMF (Internal Market Framework) system (Craig and de Burca, 2020).

The EPC, which only applies to the following five professions: nurse, pharmacist, physiotherapy, mountain guide, and estate agent, enhances collaboration between relevant authorities. The EPC works for two purposes: establishment and temporary/accidental provision of services. In both situations, the national government of the professional's home country assists them in completing the appropriate application and verifies the legitimacy of all submitted documentation. Within three months, a final decision will be made. Otherwise, tacit recognition will occur, and an electronic EPC will be available to the applicant. The authorities of the host country may require an aptitude test or adaptive internship if they determine that the candidate's education, training or work experience does not meet the requirements in that country. However, despite this modernisation and simplification of online procedures for any interested citizens wishing to migrate to another state due to unemployment or low income in their home country, language remains a solid barrier due to language skills. Studying abroad is an option to balance the language barrier (Directive 2013/55/ EU..., 2013). Curriculum agreement on the basis of “standardised sets of knowledge, skills and competencies” is essential for each Member State to assess to erase the differences between diplomas and qualifications obtained in different states. It is about the purpose of academic recognition: pursuing studies, establishing qualification levels, and assessing skills against Member States' competencies and national procedures for ENIC/NARIC centres.

Specialists in each situation must have the necessary linguistic abilities, but control must be reasonable and limited to what is required. The Court of Justice of the European Union in the case of European Commission v Kingdom of Belgium held that Belgium hadn't complied with the requirements of Regulation (EU) No. 492/2011 and Article 45 of the TFEU. This was due to Belgium's requirement that candidates for local services situated in French- or German-speaking regions present documentation of their language competency in the form of a particular kind of certificate. The idea of limited access to specific professional activities is adopted case-by-case in the host state (Directive 2013/55/ EU..., 2013). This follows from the Colegio de Ingenieros case, in which the applicant Mr Imo, who had qualified as a hydraulic engineer in Italy, was not allowed to work in the same profession in Spain. The court held that he should in principle be entitled to do similar work in Spain, even though hydraulics was included in Spain in the more general civil engineering qualification.

The free movement of professionals may face obstacles and Member States may use justifications based on national measures, public order, official powers, and legal exceptions (non-exhaustive) to impede the freedom to establish and provide services (Art. 51, 52 TFEU). These exceptions should follow the principle of proportionality introduced by Cassis de Dijon and adopted for services and institutions. Nevertheless, EU countries must consider the specific proportionality criteria established by the CJEU in each case concerning requests for the recognition of a diploma/quali- fication by professionals seeking to work in a profession in a Member State, to prevent the abuse of professional rights. Recently, national legislation has imposed a number of restrictions and difficulties on issues related to the recognition of diplomas and certificates. Directive (EU) 2018/958 (2018) sets out guidelines for Member States to assess proportionality to avoid undue restrictions on the ability to enter or practise regulated professions. These rules set out the criteria to be applied when new rules or amendments to existing ones are adopted by Member States.

Numerous problems related to the application of the acquis before and after the entry into force of Directive 2005/36/EC (2005) have been highlighted in CJEU case law. For example, in the case of Vlassopoulou (Irene Vlas- sopoulou..., 1991), Germany refused mutual recognition of a Greek lawyer's qualifications and prevented her from practising the profession in the host country. The CJEU emphasized the significance of the equivalency criterion and the necessary conditions for diploma acceptance, both of which are crucial. The Court's rulings in Kraus and Gebhardt set guidelines that forbid any kind of discriminatory or non-discriminatory limitations on the freedom of establishment of professionals, so long as national initiatives serve justifiable objectives supported by the public interest and don't exceed appropriate boundaries (Janssens, 2013).

The modern development of CJEU case law confirms that the broad principles of recognition formulated by the Court in previous judgments are still relevant and provide valuable information. These principles are now part of an extensive framework that allows novice lawyers who are not fully qualified to utilize the Court's rulings. In the Mor- genbesser case, the CJEU ruled against Member States that prevented trainee lawyers from moving freely within the EU and having their qualifications and experience recognized outside their home countries (Christine Morgenbess- er v Consiglio., 2003). In the Nasiopoulos case, the CJEU adopted a broad approach to mutual recognition (Elefthe- rios-Themistoklis Nasiopoulos., 2013). It was considered excessive to deny a professional, even partially, access to the profession of physiotherapy in their home State on the basis of qualifications obtained in the host State. This was particularly relevant when the degree of similarity between the qualifications of physiotherapists and hydrotherapists under Article 4(2) of Directive 2005/36/EC (2005).

In the Pesla case, the CJEU noted that Article 45 TFEU does not prohibit Member States from reducing the necessary level of qualification requirements in the host Member State or requiring a reduction in this level of knowledge (Krzysztof Pesla v ustizministerium..., 2009). Similar circumstances were found in the Malta Dental case, where the court determined that the goal of safeguarding the public's health superseded a Member State's authority to impose cooperation requirements on dental technicians who sought to practice in the first Member State after receiving their education in another Member State (Case C-125/16..., 2017). Concerning obstacles in a general sense, a different situation emerges from recent CJEU case law. In the case of Ordre des Architects (Order des Architects v., 2014), the Court found that requiring additional examinations for foreign architects to practise their profession was in breach of the acquis and Directive 2005/36/EC (2005). However, the Court of Justice of the European Union (CJEU) in Les chirurgiens dentales de France concluded that Member States may allow some health professionals covered by Directive 2005/36/ EC (2005) to have partial access. Based on this analysis, the CJEU plays a decisive guiding role for all national legislations by facilitating the possibility for professionals to recognise qualifications in another country without undue obstacles and restrictions.

The EU Commission initiated infringement procedures against 10 Member States in October 2022 for putting limitations on specific professional services. These prevented the availability of competitive and innovative services to the internal market of the association. Consequently, Member States have introduced amendments to address these issues. A recent parliamentary study has identified four ways in which obstacles restrict business operations in the internal market. Firstly, some businesses are not allowed to provide goods or services. Second, businesses may face significant additional costs or burdens in finding basic information. Third, delays and uncertainty may arise due to administrative procedures or difficulties in accessing capital. Finally, certain barriers create an uneven playing field, giving some enterprises a competitive advantage over others.

In practical situations, both individuals and businesses may face problems related to qualification and procedural issues. To address these problems, EU citizens have access to various protection instruments. One such tool is the SOLVIT centre, which offers an informal mechanism to cooperate with national authorities to correct administrative decisions. Furthermore, in 2017, the Commission presented an Action Plan to strengthen SOLVIT and extend assistance to applicants. This plan includes a Single Digital Gateway connecting EU and national mechanisms to provide information and problem-solving services through a single and accessible entry point. In January 2022, SOLVIT and the European Labour Authority (ELA) entered a “cooperation agreement” to improve coordination in referrals and information sharing. Although there is currently no published case evidence in favour of the SOLVIT procedure, it is crucial to improve the system by examining cases where a SOLVIT complaint has prevented a timely judicial appeal due to an unfavourable decision. A potential fourth step could include the introduction of a Regulation or Directive to prevent bad faith delaying tactics (Galetta et al., 2022).

A recent study by the EU Commission showed that many professions are regulated by Member States, with accounting services being the most heavily regulated and engineering services having the fewest restrictions. Architectural services showed the most significant reduction in restrictions, followed by engineering services. Doctors and nurses were the most mobile-regulated professions in the EU from 1997 to 2019. The legal framework of the single market is influenced by both European and national legal traditions, leading to challenges in implementation and enforcement at the national level. These restrictions imposed by Member States can be linked to growing nationalism, economic fluctuations, and difficulties in implementing the acquis.

Discussion

S. Lipiec (2021) evaluated the case of Simon Butler, a British ski instructor. Whilst the French and European judicial system correctly dealt with his case, many similar situations in Europe resulted in fines and restrictions for foreign professionals. The paper proposed the establishment of European recognition system, simplifying procedures and removing the need for short-term providers to recognise their qualifications. The academics are convinced that the EU should coordinate reforms and various instruments such as SOLVIT and the European Occupational Chart could facilitate this process. Overall, the above study generated the same conclusion: the sheer number of difficulties faced by professionals is a significant obstacle to both the residents of the association and the macro processes occurring within the association. Although it should be recognised that the states have reasons to implement such policies (in particular, high unemployment due to various crises, in particular, COVID-19), the negative effects of the policy far outweigh the positive ones, which indicates the need for changes shortly.

L.S.J. Kortese (2016) investigated qualification recognition in the European Union for professional purposes. The scholar distinguished between academic and professional recognition, where academic recognition is related to courses of study, while professional recognition is required when fully qualified professionals move to work in another EU country. In addition, he covered the evolution of professional recognition laws in the EU, outlining how EU case law has protected professionals' freedom to move freely from the transitional framework of the 1960s and 1970s to the current legislation. His study emphasised the importance of promoting professional recognition of qualified professionals to ensure greater mobility of both students and professionals in the EU. L.S.J. Kortese (2020) also evaluated the process of qualification recognition in the EU. The author highlighted the complexity and lack of transparency in qualification recognition systems within the EU, which points to the need for clarity and order in the European recognition system. He proposes several activities and products to improve recognition practices. These include studies on administrative practices at the national level, comparative exercises to match training courses and professions, and improved provision of information on recognition and issuing qualifications in several languages.

The possibility of creating a Unified Training System for laboratory medicine professionals in the EU has been studied by G. Wieringa et al. (2020). In order to qualify for the framework, non-medical professionals must meet certain requirements regarding professional regulation and training in at least one third of EU Member States. Based on a bottom-up methodology, the EU Commission would consider suggestions from qualified authorities or professional associations that represent a minimum of one-third of EU Member States under the proposed framework. However, the challenge in its implementation is to determine the proportionality of professional regulatory frameworks in different Member States. Scholars believe that uneven consideration of the regulation of the profession hurts service provision and professional mobility in the EU market.

A study exploring the problems of the lack of a clearly defined and meaningful concept of human rights or justice in the EU was conducted by S. Douglas-Scott (2011). The study suggested that the transformation of the European Union into a human rights organisation cannot be achieved solely through treaty provisions or judicial decisions. The researcher finds it problematic that instead of emphasizing proportionality, fundamental rights are often established in CJEU decisions on a case-by-case basis, which doesn't allow for a creation of a meaningful fundamental rights statute. Overall, the author concludes that while fundamental rights are vital to the EU, a more sophisticated view of fundamental rights as an innate good is needed to ensure their robust protection. Nevertheless, an increased role for the EU in protecting fundamental rights may meet resistance from those who value state autonomy and democratic legitimacy.

The study has demonstrated that professional qualifications are not appropriately or significantly inefficiently recognized in the EU's internal market. This situation needs to be addressed, for which several methods can be proposed. Authorities (both associations and individual Member States) should strengthen the application of Directive 2005/36/EC (2005), in particular by ensuring the functioning of relevant bodies affecting the recognition of professional qualifications and harmonizing their procedures. Public authorities should also encourage mutual recognition of qualifications between Member States and establish cooperation mechanisms to address differences in training and requirements. In addition, simplifying recognition procedures and reducing bureaucratic difficulties and barriers for professionals seeking recognition of their qualifications can be effective. The use of the European Occupational Chart could be expanded to cover more professions and facilitate automatic recognition. Public authorities also should cooperate through mechanisms such as SOLVIT to resolve administrative issues and provide information to applicants.

Conclusions

Directives 2005/36/EC and 2013/55/EU, together with the proportionality measures in Directive (EU) 2018/958, aim to achieve this objective. Professionals may exercise their right to free movement temporarily or permanently. Member States are obliged to ensure easy and quick access to the profession for professionals based in another Member State without additional requirements. A general system of mutual recognition, automatic recognition for some professions, and recognition based on professional experience in industrial and commercial operations are all established under Directive 2005/36/EC. When this directive is not applied, recognition depends on TFEU provisions and case law, as seen in the Vlassopoulou case. Mutual recognition continues to be a challenge for professionals, as evidenced by the Malta Dental case. The EU has made efforts to increase labour migration and simplify academic recognition procedures through Directive (EU) 2018/589, digital means through the EPC and cooperation with the IMF and EQF. In practice, however, professionals often face obstacles such as language requirements, partial access to the profession and problems related to health professions. The existence of 24 official languages in the EU complicates the issue of recognition. Member states can implement the guidelines in comparable cases of qualification recognition by consulting CJEU case law. CJEU judgements are binding on national legislation.

The free movement of professionals in each EU member state has been affected by a number of factors, including the post-pandemic environment, economic crises and unemployment in various service sectors, despite the EU's overriding aim of creating a single market without barriers for professionals. These factors may raise concerns about competition and opportunities for citizens in the labour market. Nevertheless, the EU remains responsible for achieving its goal of creating a single market without restrictions for professionals. Future studies may examine in more detail the functions of the CJEU in the field of occupational mobility and qualifications recognition. In addition, it is crucial to assess the effectiveness of the EU Commission's enforcement and monitoring strategies in ensuring Member States' compliance with qualifications directives.

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