Recognition Of Professional Person Qualifications Post-Brexit

Dáire McCormack-George*

*The writer is a Ph.D. Candidate inwards Law together with Scholar of Trinity College Dublin, the University of Dublin. This weblog ship is based on his presentation at the 3rd Radboud University Economic Law Conference, ‘Upgrading Trade together with Services inwards European Union together with International Economic Law’, xv June 2018. The writer would similar to give thank yous the conference participants together with attendees for their intriguing together with thought-provoking questions. All errors stay the author’s.

Introduction

The introduce price of the draft withdrawal understanding betwixt the Britain together with the European Union substantially envisage the provisional application of Directive 2005/36/EC (‘the Recognition Directive’) until the destination of the transition period. They also guarantee the continued recognition of qualifications recognised earlier that date. But what mightiness whatever post-Brexit understanding on the recognition of professional person qualifications betwixt the Britain together with the European Union hold off similar inwards the calorie-free of the EU’s electrical flow agreements with its regional together with international partners? This ship briefly canvases the options together with suggests that a CETA or ‘CETA plus’ approach would hold upward a expert starting betoken for whatever futurity agreement.

Four Models of Qualification Recognition

The ideal approach inwards international economical police clit together with European Union external relations police clit is for contracting states to handle to the usual recognition of professional person qualifications obtained inwards either state. This approach, similar the equivalent Single Market scheme incorporated inwards the Recognition Directive, provides for automatic and/or sure lesser forms of recognition, thus facilitating, to differing degrees, the gratis displace of persons together with services. In the context of the EU’s international agreements, the EEA Agreement together with EC-Swiss Agreement supply the best examples of such an approach insofar as those agreements substantially contain together with apply the entirety of the European Union qualification recognition acquis to nationals of those respective states. Such a position, of course, reflects the highest grade of usual economical integration possible.

H5N1 minute approach is evident inwards CETA. According to the price thereof, the European Union together with Canada are obliged to ‘encourage’ professional person organisations together with representative bodies inwards their jurisdiction to depict upward ‘Mutual Recognition Agreements’ or ‘MRAs’. CETA provides a oil template of what such MRAs should address, such as, alongside other things, the verification of equivalency; evaluation of substantial differences; compensatory measures; together with the identification of the weather condition for recognition. While the MRA template is non-binding, it nonetheless provides a helpful starting betoken for professional person organisations inwards their negotiations. CETA thence leaves it to the responsible regime of each province to encourage professional person organisations to depict upward a MRA and, consequently, the domestic, regional together with international marketplace for mobility inwards each such profession. At present, no MRAs conduct hold been adopted, although the Architects’ Council of Europe has expressed a wish to railroad train a MRA with its equivalent Canadian trunk inwards the coming years.

The 3rd approach is really similar to CETA, but 1 pace down—‘CETA minus’. This approach requires the contracting parties to encourage professional person organisations inwards the respective states to railroad train MRAs but, dissimilar CETA, no such MRA template is laid out inwards the price of whatever such agreement. Terms of this sort are constitute inwards closed to of the EU’s stabilisation together with association agreements (eg, Republic of Bosnia together with Herzegovina Stabilisation together with Association Agreement, EC-Kosovo Stabilisation together with Association Agreement, EC-Montenegro Stabilisation together with Association Agreement, EU-Ukraine Association Agreement), as good as its international merchandise together with economical 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 together with Cooperation Agreement). The fact that no MRA template is included inwards these agreements is indicative of the fact that such MRAs are unlikely to hold upward negotiated whereas, nether CETA, such agreements are readily envisaged and, inwards closed to cases, negotiation is already nether way.

The in conclusion approach is the to the lowest degree obvious but around interesting. This approach is constitute non inwards whatever term concerning the usual recognition of professional person qualifications but inwards equal handling guarantees inwards abide by of workers or service providers. Given the bespeak to process third-country workers or service providers as inwards accordance with such terms, European Union fellow member states are, inwards principle, thereby obliged to recognise the qualifications of third-country nationals inwards the same means inwards which those qualifications of its ain nationals or nationals of closed to other European Union fellow member province are recognised. Whether the recognition of professional person qualifications falls nether such equal handling guarantees has yet to hold upward addressed specifically yesteryear the Court, but inwards regulation same could autumn inside the range thereof. Equal handling clauses of this sort are constitute inwards the EC-Turkey Agreement, the Cotonou Agreement, EU-Ukraine Association Agreement, EC-Russia Partnership together with Cooperation Agreement, as good as inwards several other stabilisation, association together with partnership agreements with countries inwards the Neighbourhood together with Mediterranean. This approach is, however, the to the lowest degree stable for 2 reasons. First, the range of application of equal handling clauses inwards such agreements is mostly unclear. Second, together with relatedly, the distinction betwixt workers together with service providers tend to deport upon their scope.

Two cases of recent vintage earlier the CJEU illustrate this betoken around clearly. In Case C-265/03 Simutenkov, a Russian professional person football game histrion was required to handle a ‘non-Community’ licence to play football, a requirement which the Court of Justice concluded constituted unlawful discrimination nether the price of the EC-Russia Partnership together with Cooperation Agreement. By contrast, inwards Case C-101/10 Petkov the Court held that equal handling inwards working weather condition does non include access to a profession itself. Specifically, the Court held that as the equal handling clause at resultant was contained inwards the workers championship of the EC-Bulgaria Agreement but non inwards the championship on service provision, the range of the equal handling clause therein did non apply to sure regulated professions. Problematic hither is the unclear distinction betwixt workers together with service providers, a distinction which is, increasingly, beingness challenged yesteryear researchers inwards the expanse of service together with labour migration. And further, the approach which the CJEU takes depends really much on the specific wording together with location of the equal handling guarantee inwards the relevant agreement. The context, thus, is vital.

Post-Brexit Realities

To recap, at that spot are essentially 4 approaches to qualification recognition soon evident inwards the EU’s external relations: full, automatic recognition; no recognition yesteryear default but recognition probable inwards future; no recognition yesteryear default together with recognition inwards futurity unlikely; together with uncertain recognition. Of these, CETA or a ‘CETA plus’ approach seems to me to hold upward around appropriate for whatever post-Brexit agreement. Why so? My reasons (three) are as follows. First, CETA suggests that the contracting parties are reach together with willing to recognise qualifications inwards the close future. It does non require amount or partial qualification recognition across all sectors but is rather driven yesteryear marketplace demand. At present, it is of course of report hard to assess exactly what the labour together with service marketplace demands volition hold off similar inwards the European Union together with Britain post-Brexit. But it is certainly plausible that at to the lowest degree closed to professions volition wish together with bespeak to mutually recognise qualifications together with then as to (i) keep the highest of professional person standards together with (ii) satisfy domestic labour together with service marketplace demand. As such, the provision of a template for MRAs inwards CETA is around helpful together with would hold upward a expert starting betoken for whatever post-Brexit agreement.

Second, insofar as international agreements reverberate sure socio-economic together with cultural preferences of the parties, CETA would hold upward a expert model for whatever post-Brexit EU-UK understanding because the Britain together with Canada are relatively similar inwards those dimensions. For example, services, professional person together with otherwise, increasingly constitute both Canada together with the UK’s export markets together with their domestic labour markets. We thence run into similar domestic need inwards both countries for low-skilled together with high-skilled labour manifested inwards these countries’ well-documented labour migration regimes. This is sure enough linked to the broadly liberal economical policies that both the Britain together with Canada conduct hold adopted over the course of report of their recent (and distant) histories. And inwards social together with cultural terms, the Britain together with Canada percentage a linked civilization together with history given the majestic human relationship of dominium betwixt the onetime together with the latter.

H5N1 3rd together with in conclusion argue is pragmatic. Given that CETA has already been negotiated, together with given the length of fourth dimension it took to negotiate that agreement, it would hold upward quite sensible together with convenient for the Britain together with the European Union to rely on their existing work. It is for these reasons, therefore, that the CETA model is, out of those approaches previously negotiated betwixt the European Union together with its international partners, a around appropriate model for whatever post-Brexit deal, insofar as it relates to the usual recognition of professional person qualifications.

Barnard & Peers: chapter 27, chapter 14

Photo credit: Mirror.co.uk

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