Background to the complaint

1. The complainant is an Italian citizen. His complaint concerns the European Commission’s interpretation of the Directive on the recognition of professional qualifications (‘the Directive’)^[1].

2. The Directive provides for a system of automatic recognition of qualifications for doctors, nurses, dental practitioners, veterinary surgeons, pharmacists, and architects among the Member States. According to the Directive, a Member State shall accept evidence of formal qualifications obtained in another Member State as if they were obtained on its territory^[2]. Where the system of automatic recognition does not apply (when, for example other professions are concerned)^[3], the Directive foresees an alternative, general system. Under this system, Member State authorities can require applicants who obtained their qualifications in another Member State^[4] to complete an adaptation period or take an aptitude test^[5], for example.

3. On 23 April 2015, the Commission sent a letter to the Italian Ministry of Health about the automatic recognition of dental practitioner qualifications obtained by Italian citizens in Romania. The Commission informed the Italian authorities that they could consider examining an application under the general system if, despite clarifications provided by the Romanian authorities, they still had doubts about the compliance of the training received in Romania with the minimum requirements laid down in the Directive^[6]. In particular, the Commission referred to graduates from the University of Apollonia, in Iași, noting that the Romanian Accreditation Agency had considered that its courses, including dentistry, were not compliant with the requirements set out in Romanian law^[7].

4. On 17 May 2017, the complainant complained to the Commission against Italy for breaches of EU law (the ‘infringement complaint’). He argued that the Commission’s opinion of 23 April 2015 was “not compatible with the acquis communautaire ^[8], and in particular with the judgments of the Court of Justice of the European Union (CJEU) in cases such as Tennah-Durez^[9] and Ordre des architectes^[10].

5. The Commission closed the infringement complaint and, on 7 December 2017, the complainant turned to the European Ombudsman.

The inquiry

6. The Ombudsman first asked the Commission to reply to the complainant’s claim that the Commission’s advice, contained in its letter of 23 April 2015 to the Italian authorities, was contrary to EU law as interpreted by the CJEU.

7. The Ombudsman received the Commission’s reply on the complaint and the complainant’s comments on that reply. The Ombudsman then asked the Commission for a further reply, which the Commission provided and on which the complainant also commented.

Arguments presented to the Ombudsman

8. The complainant argued that the Commission’s interpretation of the Directive deprives the principle of automatic recognition of its purpose. According to the complainant, Italy has systematically breached EU law by denying automatic recognition of qualifications obtained in Romania on the basis of the Commission’s letter of 23 April 2015.

9. In support of his view, the complainant referred to the abovementioned CJEU rulings. He said that, in those cases, a Member State refused automatically to recognise qualifications obtained in another Member State and questioned the compliance of the qualifications obtained with the minimum standards set out in the Directive. He pointed out that, according to the CJEU, Member States cannot question the decisions taken by the competent authorities of other Member States^[11] or impose requirements for the recognition of qualifications for which the Directive provides for automatic recognition^[12]. Where a course satisfies the training requirements established by the Directive, which is for the authority of the Member State which issues the proof of formal qualifications to verify, the authorities of the other Member States cannot refuse recognition^[13]. In the complainant’s view, the Member State being asked to recognise qualifications cannot check whether there are any reasons why it should not apply the automatic recognition system as this would undermine that very system. In this case, the Romanian authorities had confirmed compliance of the qualifications awarded by the University of Apollonia with the standards set out in the Directive.

10. In its replies, the Commission first said that, in cases of justified doubts about the compliance of the relevant qualifications with the minimum standards, the Directive^[14] leaves to Member States the possibility of choosing between simply refusing recognition under the automatic recognition system and applying the general system to request additional training. In the Commission’s view, the second option is favourable to applicants, as it avoids recognition simply being refused. The Directive does not address what happens when a Member State, in which an individual is trying to have qualifications recognised, requests clarifications from the Member State where the training was obtained and does not obtain convincing replies. The Commission is of the view that, in such cases, the Member State called upon to recognise the qualifications should be able to take proportionate measures.

11. The Commission also said that the case law referred to by the complainant did not apply to the situation in this case as it dealt with different issues^[15].

12. Finally, the Commission pointed out that it had been in contact with the Romanian authorities before sending its letter of 23 April 2015. As a result of these contacts, the Romanian authorities agreed to check the programme of the University of Apollonia to ensure that it met the minimum requirements of the Directive. At the same time, the Italian authorities agreed to assess every situation on a case by case basis and to apply the general system of recognition in cases where it still had doubts. In its second reply to the Ombudsman, the Commission said that it was not aware of any general statement of the Romanian authorities concerning the compliance of the qualifications issued by the University of Apollonia with the standards of the Directive. It added that the complainant has not brought forward any evidence of such a statement from the Romanian authorities either.

13. The Commission thus rejected the complainant’s view that it gave wrong information to the Italian authorities, arguing that it had simply outlined the possibilities foreseen in the Directive^[16].

14. The complainant argued that the Commission could not be unaware of the fact that, when it sent the letter to the Italian authorities, the Romanian authorities had already confirmed compliance of the qualifications awarded by the University of Apollonia with the standards set out in the Directive. He said that all University of Apollonia graduates possess a document stating that the training received is compliant with the Directive.

The Ombudsman's assessment

15. The purpose of the Ombudsman’s inquiry was to ensure that the Commission provided sufficient explanations about its position to the complainant.

16. The Commission explained to the complainant that, in cases of justified doubt, the Directive leaves to the Member States the possibility of choosing between simply refusing recognition under the automatic system and applying the general system to require additional training. The Commission also took the view that the CJEU’s judgments referred to by the complainant do not apply to the situation at hand as they concern different issues.  

17. The complainant does not agree with the Commission’s interpretation of the relevant rules. However, it is only the Court of Justice that can provide an authoritative interpretation of EU law. In this case, the Ombudsman is satisfied that the Commission has addressed the points raised and provided explanations that may be reasonably regarded as sufficient to convey its position to the complainant.

18. In its reply to the Ombudsman’s specific question about the complainant’s argument that the Romanian authorities have confirmed compliance of the University of Apollonia’s qualifications with the requirements of the Directive, the Commission said that it was not aware of any such position taken by the Romanian authorities and that the complainant has not provided any evidence of this position.

19. The Ombudsman notes that the complainant’s infringement complaint of 17 May 2017 included two documents, among the list of documents, entitled “several communications from the Romanian authorities reaffirming the validity of the qualifications” and “letter from Romania clarifying that the reliability of the University of Apollonia had finally been confirmed”^[17]. The Commission makes no reference to these documents. It does say, however, that the complainant had himself stated, in his infringement complaint, that “the concerned universities have even introduced compensation measures for certain graduation periods, as the requirements of [the] Directive... were not met”. In light of the above, the Ombudsman considers the Commission’s overall position on this matter to be reasonable. She also considers that prolonging her inquiry to obtain a specific response from the Commission on the above documents is not justified. She therefore closes the case. This, of course, does not prevent the complainant from contacting the Commission himself to obtain greater clarity on this specific point.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:

No further inquiries are justified into the complaint.

The complainant and the Commission will be informed of this decision.

 

Emily O'Reilly

European Ombudsman

Strasbourg, 02/07/2019

 

[1] Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, OJ 2005 L 255, p. 22, available here: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32005L0036

[2] Article 21 of the Directive.

[3] Article 10 of the Directive.

[4] Title III, Chapter I of the Directive.

[5] Article 14 of the Directive.

[6] In accordance with Title III, Chapter II of the Directive.

[7] The Commission referred to: “[t]he recent decision of the Romanian Accreditation Agency propos[ing] the liquidation of this University and especially its dental program on the basis of being “unreliable” under national law...”

[8] The ‘acquis communautaire’ is the body of EU law.

[9] Judgment of the Court of Justice in case C-110/01, Tennah-Durez, ECLI:EU:C:2003:357, available here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=47939&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4962103

[10] Judgment of the Court of Justice in case C-365/13, Ordre des architectes, ECLI:EU:C:2014:280, available here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=151527&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4962261

[11] Paragraph 75 of Tennah-Durez

[12] See Article 21 of the Directive and paragraphs 21 and 22 of Ordre des architectes  

[13] The complainant referred also to the Judgment of the Court of Justice in case C-675/17, Preindl, ECLI:EU:C:2018:990, paragraphs 36 and 40, available here: http://curia.europa.eu/juris/document/document.jsf?text=&docid=208556&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=4965962

[14] The Commission referred to Article 50(2) of the Directive.

[15] The Commission said that no issues covered by Article 50(2) of the Directive had been raised in the cases mentioned by the complainant.

[16] The Commission said it had “[s]olely offered an explanation on how and under which conditions Article 50(2) of Directive 2005/36/EC could be applied by the national competent authorities.”

[17] In the original Italian: “Varie comunicazioni della Romania in cui ribadisce validità dei titoli” and ”Lettera della Romania in cui si chiarisce che l'Università Apollonia, a seguito di riesame della situazione, era stata definitivamente riabilitata”.