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



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