The abolition, between Member States, of obstacles to the free movement of persons and services is one of the objectives of the European Union (Article 2 TEU). For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications. After the elimination of apparent discriminations, in accordance with the letter and the spirit of the Treaty, there could remain other obstacles to the freedom of establishment, i.e. the numerous requirements of the Member States with regard to the training of employed and self-employed persons, and the detailed arrangements for pursuing industrial and commercial activities. Even though these requirements were not in themselves discriminatory, they could impede the free establishment, if they differed from country to country and obliged the interested person to take a new examination for the recognition of his or her professional competence. That is why Article 53 of the Treaty on the functioning of the EU (ex Article 47 TEC) empowers the Parliament and the Council to issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of national provisions concerning the taking up and pursuit of activities as self-employed persons. Such directives have in fact been adopted for certain professions, notably those of nurses, doctors, architects and lawyers; but they have been abolished by the general directive on the recognition of professional qualifications examined below.
Indeed, the Directive on the recognition of professional qualifications applies to all nationals of a Member State, including those belonging to the liberal professions, wishing to pursue a regulated profession in a Member State other than that in which they obtained their professional qualifications, on either a self-employed or employed basis [Directive 2005/36]. This Directive establishes rules according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (the host Member State) should recognise professional qualifications obtained in one or more other Member States (the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession. This directive applies also to activities connected, even occasionally, with the exercise of official authority, activities excluded from the general provisions of the right of establishment by Article 51 of the TFEU (ex Article 45 TEC).
According to this directive, "regulated profession" is a professional activity or group of professional activities, access to which or the pursuit of which is subject to the possession of specific professional qualifications; in particular, the use of a professional title. "Professional qualifications" are qualifications attested by evidence of formal qualifications, an attestation of competence and/or professional experience. "Evidence of formal qualifications" means diplomas, certificates and other evidence issued by an authority in a Member State. "Aptitude test" is a test limited to the professional knowledge of the applicant, made by the competent authorities of the host Member State with the aim of assessing the ability of the applicant to pursue a regulated profession in that Member State. The aptitude test must take account of the fact that the applicant is a qualified professional in the home Member State or the Member State from which he comes and should cover subjects the knowledge of which is essential in order to be able to pursue the profession in the host Member State.
The recognition of professional qualifications by the host Member State allows the beneficiary to gain access in that Member State to the same profession as that for which he is qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals. It also allows the free provision of services in case the service provider moves to the territory of the host Member State to pursue, on a temporary and occasional basis, the regulated profession. In this case, the host Member State should exempt service providers established in another Member State from the requirements which it places on professionals established in its territory relating to authorisation by, registration with or membership of a professional organisation or body. However, the exercise of a regulated profession is subject to the professional and disciplinary rules of the host Member State relating to professional qualifications. In order to define the mechanism of recognition under the general system, the various national education and training schemes are grouped into five levels, ranging from a training course not forming part of a certificate or diploma to a diploma certifying that the holder has successfully completed a post-secondary course of at least four years' duration.
The general system for recognition does not prevent a Member State from making any person pursuing a profession on its territory subject to specific requirements due to the application of professional rules justified by the general public interest. Rules of this kind relate, for example, to organisation of the profession, professional standards, including those concerning ethics, and supervision and liability. However, directive 2005/36 contains a provision aimed at preventing the circumvention of national requirements by having qualifications recognised in another Member State and then asking the country of origin to recognise them in turn.
In order to promote the free movement of professionals, while ensuring an adequate level of qualification, various professional associations and organisations or Member States are able to propose common platforms at European level. A common platform is a set of criteria which make it possible to compensate for the widest range of substantial differences which have been identified between the training requirements in at least two thirds of the Member States including all the Member States which regulate that profession. These criteria may, for example, include requirements such as additional training, an adaptation period under supervised practice, an aptitude test, or a prescribed minimum level of professional practice, or combinations thereof.
Freedom of movement and the mutual recognition of the evidence of formal qualifications of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives, pharmacists and architects are based on the fundamental principle of automatic recognition of the evidence of formal qualifications on the basis of coordinated minimum conditions for training. Directive 2005/36 adopts the principle of automatic recognition for medical and dental specialisations common to at least two Member States, but restricts new medical specialisations eligible for automatic recognition to those that are common to at least two fifths of the Member States.
The recognition of professional qualifications for lawyers for the purpose of immediate establishment under the professional title of the host Member State is covered by Directive 2005/36. This Directive does not affect, however, the operation of Directive 77/249 tending to facilitate the effective exercise by lawyers of freedom to provide services or of Directive 98/5 aiming to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained. To the extent that they are regulated, Directive 2005/36 includes also liberal professions, which are, according to this Directive, those practised on the basis of relevant professional qualifications in a personal, responsible and professionally independent capacity by those providing intellectual and conceptual services to clients and/or the public.