An EU member state cannot arbitrarily refuse to recognise a qualification which is obtained in another member state and which permits its holder to exercise a profession in the latter state. Such a refusal would be in breach of every EU citizen’s right to enjoy freedom of establishment in any EU state of his or her choice, the Court of Justice of the European Union recently affirmed.
This particular case revolved around the following facts.
A Greek national obtained in Germany, after a two and a half years training period, a qualification entitling him to exercise the profession of medical masseur-hydrotherapist. Such a profession is not regulated in Greece and the closest profession to it is that of physiotherapist which, however, necessitates a minimum training period of three years. On this basis, the Greek Ministry of Health rejected the application made by the Greek national for access in Greece to the profession of physiotherapist.
The national court made a preliminary reference to the CJEU requesting guidance as to whether EU law permits a member state to refuse to recognise a qualification which would entitle the applicant to exercise a profession in the state in which he has obtained it and which partially qualifies the applicant to exercise some of the activities for another profession in the state refusing recognition. The CJEU noted that since the conditions for access to the profession of physiotherapist have to date not been harmonised at EU level, member states are free to define the conditions for access to this profession. In doing so, they must, however, respect the fundamental freedoms guaranteed by the EU Treaty. The court observed that the exclusion of any partial access to a regulated profession is liable to hinder or make less attractive the exercise of freedom of establishment.
Such an approach may only be justified by overriding reasons relating to the public interest, for example, consumer protection and health protection, without going beyond what is necessary to achieve such objectives.
The court acknowledged that member states must ensure that consumers are not misled as to the scope of the qualifications associated with the profession of physiotherapist. However, in accordance with previous jurisprudence on the matter, the court affirmed that less restrictive means than the exclusion from partial access to the profession could be applied.
These could consist of, for example, the imposition of the obligation to use the professional title of origin both in the language in which it was awarded and in its original form and in the official language of the host member state.
The court also accepted that the protection of public health could constitute a valid reason for refusing access to a particular profession. However, in this particular case, the court observed that the profession of physiotherapist and that of masseur both fall within the paramedical sector and in both cases, the provision of the services consists of the implementation of a therapy prescribed, as a general rule, by a doctor who chooses the masseur or physiotherapist himself and acts in close liaison with him. The court ruled that the exclusion from partial access to the profession of physiotherapist goes beyond what is necessary for consumer protection and protection of public health.
The court observed that where, in the member state of origin and the host member state, the two professions may be regarded as comparable, one may make up for any shortcomings in the professional’s education or training, in relation to that required in the host member state, through the application of compensatory measures. The Court concluded that it is for the national authorities and the national courts in the host member state to determine, in each specific case, to what extent the content of the education and training required in that state is different from that obtained in the state where the training was given.
The mutual recognition of professional qualifications by EU member states is of utmost importance in a single market economy. Indeed, EU law in this field in constantly being modernised in order to ensure that there is in place an efficient and simple system for the recognition of qualifications in such a way as to encourage the mobility of qualified EU citizens and hence address any labour shortcomings that might arise in any one EU member state.
mariosa@vellacardona.com
Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law.