THE BACKGROUND TO THE COMPLAINT

1. The complainant's wife, who has a nursing diploma issued in one Member State (A), wishes to attend specialised nursing studies in another Member State (B). However, she cannot access these studies directly. The competent authority of Member State B does not recognise her diploma obtained in Member State A and will only grant her access to these studies provided she attends a one-year programme to obtain the nursing diploma of Member State B.

2. The complainant contacted the Commission, arguing that Member State B was not complying with Community law. The Commission refused to deal with the complaint against Member State B. Therefore, the complainant turned to the Ombudsman.

THE SUBJECT MATTER OF THE INQUIRY

3. The complainant alleged that, following his letter dated 28 July 2008, the European Commission failed to investigate properly whether Member State B had discriminated against his wife.

4. He claimed that, in accordance with Article 226 of the EC Treaty, the Commission should bring proceedings against Member State B.

THE INQUIRY

5. The complaint was submitted to the Ombudsman on 17 November 2008. On 18 December 2008, the Ombudsman opened an inquiry and forwarded the complaint to the Commission, which sent its opinion to the Ombudsman on 4 March 2009. The opinion was forwarded to the complainant with an invitation to make observations, which he submitted on 11 May 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

Preliminary remarks

6. The Ombudsman would like first to present his understanding of the background to the complaint. When one refers to mutual recognition of diplomas, a distinction should be drawn between recognition for professional purposes and recognition for academic purposes.

7. Mutual recognition of diplomas for professional purposes aims at ensuring that a national from one Member State wishing to pursue his/her occupation in another Member State may do so on an equal footing with a national of that country. Hence, access to the work market within the Community is facilitated. Within the European Community, various systems of mutual recognition were organised under different directives. This first occurred in connection with particular regulated professions relating to the health sector and architecture. Then, a general system of mutual recognition was gradually set up for all other regulated professions in the Member States. These various directives were later replaced by general Directive 2005/36/EC[1]:

"This Directive establishes rules according to which a Member State which makes access to or pursuit of a regulated profession in its territory contingent upon possession of specific professional qualifications (referred to hereinafter as the host Member State) shall recognise professional qualifications obtained in one or more other Member States (referred to hereinafter as the home Member State) and which allow the holder of the said qualifications to pursue the same profession there, for access to and pursuit of that profession...

Each Member State shall make access to and pursuit of the professional activities of doctors, nurses responsible for general care, dental practitioners, veterinary surgeons, midwives and pharmacists subject to possession of evidence of formal qualifications referred to in Annex V ..., attesting that the person concerned has acquired, over the duration of his training, and where appropriate, the knowledge and skills ..." (emphasis added)

8. Mutual recognition of diplomas for academic purposes concerns a national from one Member State wishing to pursue his/her studies in another Member State. It aims at promoting and facilitating the mobility of students within the European Union. According to Article 149 of the EC Treaty:

"1. [t]he Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. 2. Community action shall be aimed at ... encouraging mobility of students and teachers, inter alia by encouraging the academic recognition of diplomas and periods of study." (emphasis added)

This means that Member States are principally responsible in this matter and the competence of the Community is limited. The decision regarding the diploma of the national from another Member State is taken in the host Member State by its competent national authorities. Paragraph 4 of Article 149 only refers to incentive measures and excludes any harmonisation of the laws and regulations of the Member States. Some examples of Community measures, which have contributed to encouraging academic recognition of diplomas, are the Erasmus programme and the European Credit Transfer System.

9. In conclusion, these two types of mutual recognition are clearly distinct. Notably, the instruments available (directives on the one hand and incentive measures on the other) are different.

A. Allegation of the Commission's failure to investigate properly whether Member State B discriminated against the complainant's wife and related claim

Arguments presented to the Ombudsman

10. The complainant's wife has a nursing diploma issued in Member State A, which she obtained after three years of studies. She would like to access specialised nursing studies in Member State B and, with this aim in mind, addressed several requests to the national authorities to recognise her diploma issued by Member State A. However, the Qualification Assessment Service of Member State B will only grant her access to these studies provided she attends a one-year programme to obtain the nursing diploma issued by Member State B. This means that she would have to stop working to attend this programme, which the complainant finds disproportionate and discriminatory.

11. The complainant considered that his wife was being discriminated against and that Member State B does not comply with EU law and the case-law of the Court of Justice[2]. He found this situation to be unjust, especially considering the promotion of the free movement of workers in the European Union. Consequently, the complainant considered that the Commission should intervene in the case. He outlined that he had contacted the Commission on several occasions in this regard (23 April 1993, 28 December 1999, 29 February 2000, 12 January 2003 and 28 July 2008). The Commission replied that the academic recognition of diplomas falls within the competence of the national authorities. In his complaint, the complainant considered that the Commission should have investigated whether Member State B was discriminating against his wife and, in accordance with Article 226 of the EC Treaty, should have launched appropriate proceedings against Member State B.

12. On various occasions (10 February 2000, 16 March 2000, 23 January 2003, 24 September 2008), the Commission explained the situation to the complainant. In its letter of 10 February 2000, it first stated that the complainant's wife obtained her nursing diploma in Member State A, before the entry into force of Directives 77/452/EEC[3] and 77/453/EEC[4]. Her training is not compliant with the minimal norms laid down in Directive 77/453/EEC. However, she obtained the professional recognition of her diploma as a qualified nurse. The complainant's wife then obtained from the Ministry of Health of Member State B a second professional recognition of her diploma, giving her access to the nursing profession and the possibility to practise in the same conditions as the holders of the diploma of Member State B. The Commission stated that the professional recognition of diplomas enabled persons having a diploma from another country to work in the host Member State. However, this does not mean that the diploma is considered as being equivalent to the national diploma. It made reference to Case 71/1976 Thieffry[5], in which the Court of Justice made a distinction between the professional and academic recognition of diplomas. It underlined that Member States are responsible for the academic recognition of a diploma. This type of recognition is not covered by Community law. The Commission added that national authorities are entitled to set specific rules in this regard (since there are no Community rules requiring a Member State to recognise a foreign diploma for academic purposes).

13. In its opinion, the Commission explained that a complaint under Article 226 of the EC Treaty is admissible if there is a breach of Community law by a Member State. As regards education, Article 149 of the EC Treaty states that the Community shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the individual Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity. Therefore, the recognition of diplomas for academic purposes is the responsibility of Member States. In this field, the Commission must only check that the refusal to recognise a diploma is not based on a direct or an indirect discrimination based on nationality. Such discrimination did not exist in the present complaint.

The Ombudsman's assessment

14. The Ombudsman notes that, under Article 211 of the EC Treaty, the Commission, in its role as 'Guardian of the Treaty', has to ensure that Community law is applied.

15. In carrying out its duty, the Commission investigates possible infringements of Community law, which come to its attention largely as a result of citizens' complaints. If, as a result of its inquiry, the Commission considers that a Member State has failed to fulfil its obligations under the Treaty, Article 226 of the EC Treaty gives it the power to start infringement proceedings against the responsible Member State and, eventually, to bring the matter before the European Court of Justice.

16. The complainant's wife wishes to attend specialised nursing studies in Member State B. Therefore, the present case deals with mutual recognition for academic purposes of a diploma issued in Member State A in Member State B. In light of paragraphs 6 to 9 of the present decision, the Ombudsman considers that the Commission's explanation for not launching a procedure under Article 226 of the EC Treaty is appropriate. No provision of Community law deals specifically with mutual recognition of diplomas for academic purposes. Consequently, there cannot be a breach of Community law in this case.

17. As indicated by the Commission, even though mutual recognition of diplomas for academic purposes is the responsibility of Member States, the Commission still has to check whether there is no discrimination on the basis of nationality contained in Article 12 of the EC Treaty. The Ombudsman notes that, in his observations, the complainant did not challenge the Commission's statement that there was no element showing discrimination. Since the complainant failed to provide elements to defend his case, the Ombudsman can only conclude that the Commission's position is reasonable.

18. Therefore, the Ombudsman concludes that there has been no maladministration by the Commission in this case. Accordingly, the claim cannot be sustained.

B. Conclusion

On the basis of his inquiry into this complaint, the Ombudsman closes it with the following conclusion:

There has been no maladministration by the Commission.

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

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 26 November 2009

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[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.

[2] He referred to the following cases: Case 263/86 Belgian State v Humbel [1988] ECR 5365; Case 39/86 Lair v Universität Hannover [1988] ECR 3161; Case 197/86 Brown v Secretary of State for Scotland [1988] ECR 3205; Case 293/83 Gravier v Ville de Liège [1985] ECR 593; Case 222/86 Unectef v Heylens [1987] ECR 4097; Case C-308/89 Di Leo v Land Berlin [1990] ECR I-4185; Case C-340/89 Vlassopoulou v Ministerium für Justiz, Bundes- u. Europaangelegenheiten Baden-Württemberg [1991] ECR I-2357.

[3] Council Directive 77/452/EEC of 27 June 1977 concerning the mutual recognition of diplomas, certificates and other evidence of the formal qualifications of nurses responsible for general care, including measures to facilitate the effective exercise of this right of establishment and freedom to provide services (OJ 1977 L 176, pp. 1-7).

[4] Council Directive 77/453/EEC of 27 June 1977 concerning the coordination of provisions laid down by Law, Regulation or Administrative Action in respect of the activities of nurses responsible for general care (OJ 1977 L 176, p. 8-10).

[5] Case 71/76 Thieffry v Conseil de l'ordre des avocats à la cour de Paris [1977] ECR 765.