Dáire McCormack-George*

*The author, a Ph.D. Candidate in Law and Scholar of Trinity College Dublin, the University of Dublin, based this blog post on his presentation at the third Radboud University Economic Law Conference, ‘Upgrading Trade and Services in EU and International Economic Law’, on June 15, 2018. He thanks the conference participants and attendees for their engaging questions. All errors are his own.

Introduction

The current draft withdrawal agreement between the UK and the EU proposes the temporary application of Directive 2005/36/EC (the Recognition Directive) until the transition period ends, ensuring continued recognition of qualifications recognized beforehand. This post examines potential post-Brexit agreements for recognizing professional qualifications between the UK and the EU, considering the EU’s existing agreements with its regional and international partners. It suggests a CETA or “CETA plus” approach as a good starting point.

Four Models of Qualification Recognition

Ideally, contracting states should mutually recognize professional qualifications. This approach, like the EU’s Single Market system in the Recognition Directive, allows automatic or simplified recognition, facilitating the free movement of professionals and services. The EEA and EC-Swiss Agreements exemplify this with their near-complete incorporation of the EU qualification recognition acquis.

CETA presents a second approach, obligating the EU and Canada to encourage professional bodies to develop Mutual Recognition Agreements (MRAs). CETA outlines what these MRAs should cover, such as equivalency verification, difference evaluation, compensatory measures, and recognition conditions. While non-binding, it provides a framework for negotiations. No MRAs exist yet, but the Architects’ Council of Europe is interested in developing one with its Canadian counterpart.

A third, weaker approach (“CETA minus”) is found in some EU agreements. It encourages MRAs but lacks a template. Examples include agreements with Bosnia and Herzegovina, Kosovo, Montenegro, Ukraine, the Andean Community, CARIFORUM states, South Korea, Singapore, and South Africa. The absence of a template suggests MRAs are unlikely.

The final approach, found in equal treatment guarantees for workers or service providers, is indirect but significant. It obliges EU member states to recognize third-country qualifications similarly to those of their own nationals or other EU member state nationals. While not specifically addressed by the Court of Justice, it could apply to professional qualifications. Such clauses are in agreements with Turkey, Cotonou Agreement signatories, Ukraine, Russia, and others. However, their scope and the distinction between workers and service providers remain unclear.

Two recent Court of Justice cases highlight this ambiguity. In Simutenkov (C-265/03), requiring a Russian footballer to hold a “non-Community” license was deemed discriminatory under the EC-Russia Agreement. Conversely, in Petkov (C-101/10), the Court stated that equal treatment in working conditions does not automatically grant access to a profession. This depended on the specific wording and location of the clause within the EC-Bulgaria Agreement. Context is crucial.

Post-Brexit Realities

Four approaches to qualification recognition exist in EU external relations: full automatic recognition, potential future recognition, unlikely future recognition, and uncertain recognition. A CETA or “CETA plus” approach appears most fitting for a post-Brexit agreement for several reasons.

First, CETA signals willingness to recognize qualifications, driven by market demand, without requiring total recognition across all sectors. While post-Brexit labor and service market demands are uncertain, some professions may need mutual recognition to uphold standards and meet demand. CETA’s MRA template is helpful.

Second, international agreements reflect socio-economic and cultural factors. The UK and Canada have similar service-based economies and liberal economic policies, leading to comparable demand for skilled and unskilled labor. Their shared cultural and historical ties make CETA a suitable model.

Finally, using CETA is practical. Given the complexity and duration of its negotiation, building upon existing work would be efficient.

Therefore, the CETA model, with its emphasis on MRAs, offers the most suitable framework for a post-Brexit deal on mutual recognition of professional qualifications.

Barnard & Peers: chapter 27, chapter 14

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