E-4/20
EFTA-case
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Deadlines: Motivation ministry: 12 June 2020 Written observations: 31 July 2020
Keywords : recognition of professional qualifications;
Subject :
- Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice (SCA)
- Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications; incorporated into the EEA Agreement by Decision No 142/2007 of the EEA Joint Committee.
Facts of the case:
The case concerns the validity of a decision of the Norwegian Directorate of Health and the Norwegian Appeal Board for Health Personnel rejecting an application for an authorisation/licence. The appellants have Master’s degrees in psychology from universities in Hungary. Until the spring of 2016, the authorities in Norway granted a licence and subsequently authorisation as a psychologist (psykolog) on the basis of the Hungarian Master’s degree. These authorities changed their practice in the spring of 2016 because they had received new information about the profession of psychologist in Hungary in an IMI report. Candidates holding a Hungarian Master’s degree had their applications for a licence as a psychologist rejected. Persons who were already working on the basis of a licence had their applications for authorisation as a psychologist rejected. On 14-06-2018 the Appellants brought proceedings against the Norwegian Government seeking to have the decisions rejecting their applications declared invalid and themselves awarded compensation. They claimed that they were entitled to an authorisation/licence under both national law and under EEA law. The Oslo District Court concluded that the health authorities’ decisions were valid. The Appellants appealed the judgment to Borgarting Court of Appeal.
On 12-06-2018 ESA (EFTA Surveillance Authority) initiated infringement proceedings against Norway on grounds of the stated infringement of the Professional Qualifications Directive and Articles 28 and 31 of the EEA Agreement. By reply of 26-09-2018, Norway disputed that it had infringed its Treaty obligations. ESA issued a reasoned opinion on 29-04-2020, in which it found that Norwegian recognition practice for psychologists trained in Hungary is contrary to the EEA Agreement and gave the Norwegian authorities a time-limit of four months in which to remedy the recognition scheme.
Request for an advisory opinion:
1. In connection with the assessment of “same profession”, see Articles 1 and 4 of the Directive, answers are requested to the following questions:
a. What is the legal assessment and what are the legally relevant factors in the determination of whether a profession in the State where the qualification was obtained and that in the host State constitute the “same profession”?
b. In the determination of “same profession”, must the host State take account of professional activities which the applicant in question may pursue in the State where the qualification was obtained, only under supervision and on the condition that the applicant has commenced a course of further education and training or undertaken to commence such a course of education and training within two years? If so, is it of any consequence that the applicant has opted not to commence or undertake to commence such a course of further education and training?
c. What importance does differences in degree of independence in pursuing a profession and responsibility for patients have in the determination of whether it is the “same profession”?
2. Does the possibility of requiring compensation measures, see Article 14 of Directive 2005/36/EC, have any bearing on the interpretation of what constitutes “same profession”? If so, what importance does this have?
3. What is the specific legal assessment under Article 2(1)(e)6 of Directive 2005/36/EC, which provides that regulated education and training must be “specifically geared to the pursuit of a given profession”?
4. In connection with Articles 28 and 31 of the EEA Agreement, answers are requested to the following:
a. Where an applicant does not fulfil the requirements for having qualifications recognised under Article 13 of the Professional Qualifications Directive, read in conjunction with Article 14, may the applicant rely on Articles 28 and 31 of the EEA Agreement as a basis for pursuing the regulated profession in the host State?
b. If question a is answered in the affirmative, what is then the legally relevant assessment for the examination under Articles 28 and 31?
Cited (recent) case-law: C-330/03; C-125/16; C-313/01; C-238/98; C-31/00; 283/81 CILFIT; C-575/11; C ‑ 424/09
Policy Area: OCW
