Recognition of Professional Qualifications post-Brexit

Dáire McCormack-George*

*The author is a Ph.D. Candidate in Law and Scholar of Trinity College Dublin, the University of Dublin. This blog post is based on his presentation at the third Radboud University Economic Law Conference, ‘Upgrading Trade and Services in EU and International Economic Law’, 15 June 2018. The author would like to thank the conference participants and attendees for their intriguing and thought-provoking questions. All errors remain the author’s.

Introduction

The present terms of the draft withdrawal agreement between the UK and the EU substantially envisage the provisional application of Directive 2005/36/EC (‘the Recognition Directive’) until the end of the transition period. They also guarantee the continued recognition of qualifications recognised before that date. But what might any post-Brexit agreement on the recognition of professional qualifications between the UK and the EU look like in the light of the EU’s current agreements with its regional and international partners? This post briefly canvases the options and suggests that a CETA or ‘CETA plus’ approach would be a good starting point for any future agreement.

Four Models of Qualification Recognition

The ideal approach in international economic law and EU external relations law is for contracting states to agree to the mutual recognition of professional qualifications obtained in either state. This approach, like the equivalent Single Market system incorporated in the Recognition Directive, provides for automatic and/or certain lesser forms of recognition, thus facilitating, to differing degrees, the free movement of persons and services. In the context of the EU’s international agreements, the EEA Agreement and EC-Swiss Agreement provide the best examples of such an approach insofar as those agreements substantially incorporate and apply the entirety of the EU qualification recognition acquis to nationals of those respective states. Such a position, of course, reflects the highest degree of mutual economic integration possible.

A second approach is evident in CETA. According to the terms thereof, the EU and Canada are obliged to ‘encourage’ professional organisations and representative bodies in their jurisdiction to draw up ‘Mutual Recognition Agreements’ or ‘MRAs’. CETA provides a rough template of what such MRAs should address, such as, amongst other things, the verification of equivalency; evaluation of substantial differences; compensatory measures; and the identification of the conditions for recognition. While the MRA template is non-binding, it nonetheless provides a helpful starting point for professional organisations in their negotiations. CETA therefore leaves it to the responsible authorities of each state to encourage professional organisations to draw up a MRA and, consequently, the domestic, regional and international market for mobility in each such profession. At present, no MRAs have been adopted, although the Architects’ Council of Europe has expressed a desire to develop a MRA with its equivalent Canadian body in the coming years.

The third approach is very similar to CETA, but one step down—‘CETA minus’. This approach requires the contracting parties to encourage professional organisations in the respective states to develop MRAs but, unlike CETA, no such MRA template is set out in the terms of any such agreement. Terms of this kind are found in some of the EU’s stabilisation and association agreements (eg, Bosnia and Herzegovina Stabilisation and Association Agreement, EC-Kosovo Stabilisation and Association Agreement, EC-Montenegro Stabilisation and Association Agreement, EU-Ukraine Association Agreement), as well as its international trade and economic partnership agreements (eg, EU-Andean Trade Agreement, Economic Partnership Agreement with CARIFORUM states, EU-Korea Free Trade Agreement, EC-Singapore Agreement, EC-South Africa Trade, Development and Cooperation Agreement). The fact that no MRA template is included in these agreements is indicative of the fact that such MRAs are unlikely to be negotiated whereas, under CETA, such agreements are readily envisaged and, in some cases, negotiation is already under way.

The final approach is the least obvious but most interesting. This approach is found not in any term concerning the mutual recognition of professional qualifications but in equal treatment guarantees in respect of workers or service providers. Given the need to treat third-country workers or service providers equally in accordance with such terms, EU member states are, in principle, thereby obliged to recognise the qualifications of third-country nationals in the same manner in which those qualifications of its own nationals or nationals of another EU member state are recognised. Whether the recognition of professional qualifications falls under such equal treatment guarantees has yet to be addressed specifically by the Court, but in principle same could fall within the scope thereof. Equal treatment clauses of this kind are found in the EC-Turkey Agreement, the Cotonou Agreement, EU-Ukraine Association Agreement, EC-Russia Partnership and Cooperation Agreement, as well as in several other stabilisation, association and partnership agreements with countries in the Neighbourhood and Mediterranean. This approach is, however, the least stable for two reasons. First, the scope of application of equal treatment clauses in such agreements is generally unclear. Second, and relatedly, the distinction between workers and service providers tend to affect their scope.

Two cases of recent vintage before the CJEU illustrate this point most clearly. In Case C-265/03 Simutenkov, a Russian professional football player was required to hold a ‘non-Community’ licence to play football, a requirement which the Court of Justice concluded constituted unlawful discrimination under the terms of the EC-Russia Partnership and Cooperation Agreement. By contrast, in Case C-101/10 Petkov the Court held that equal treatment in working conditions does not include access to a profession itself. Specifically, the Court held that as the equal treatment clause at issue was contained in the workers title of the EC-Bulgaria Agreement but not in the title on service provision, the scope of the equal treatment clause therein did not apply to certain regulated professions. Problematic here is the unclear distinction between workers and service providers, a distinction which is, increasingly, being challenged by researchers in the area of service and labour migration. And further, the approach which the CJEU takes depends very much on the specific wording and location of the equal treatment guarantee in the relevant agreement. The context, thus, is vital.

Post-Brexit Realities

To recap, there are essentially four approaches to qualification recognition presently evident in the EU’s external relations: full, automatic recognition; no recognition by default but recognition likely in future; no recognition by default and recognition in future unlikely; and uncertain recognition. Of these, CETA or a ‘CETA plus’ approach seems to me to be most appropriate for any post-Brexit agreement. Why so? My reasons (three) are as follows. First, CETA suggests that the contracting parties are ready and willing to recognise qualifications in the near future. It does not require total or partial qualification recognition across all sectors but is rather driven by market demand. At present, it is of course difficult to assess precisely what the labour and service market demands will look like in the EU and UK post-Brexit. But it is certainly plausible that at least some professions will want and need to mutually recognise qualifications so as to (i) maintain the highest of professional standards and (ii) satisfy domestic labour and service market demand. As such, the provision of a template for MRAs in CETA is most helpful and would be a good starting point for any post-Brexit agreement.

Second, insofar as international agreements reflect certain socio-economic and cultural preferences of the parties, CETA would be a good model for any post-Brexit EU-UK agreement because the UK and Canada are relatively similar in those dimensions. For example, services, professional and otherwise, increasingly constitute both Canada and the UK’s export markets and their domestic labour markets. We therefore see similar domestic demand in both countries for low-skilled and high-skilled labour manifested in these countries’ well-documented labour migration regimes. This is surely linked to the broadly liberal economic policies that both the UK and Canada have adopted over the course of their recent (and distant) histories. And in social and cultural terms, the UK and Canada share a linked culture and history given the imperial relationship of dominium between the former and the latter.

A third and final reason is pragmatic. Given that CETA has already been negotiated, and given the length of time it took to negotiate that agreement, it would be quite sensible and convenient for the UK and the EU to rely on their existing work. It is for these reasons, therefore, that the CETA model is, out of those approaches previously negotiated between the EU and its international partners, a most appropriate model for any post-Brexit deal, insofar as it relates to the mutual recognition of professional qualifications.

Barnard & Peers: chapter 27, chapter 14

Photo credit: Mirror.co.uk