Provisional text

delivered on 10 March 2022 (1)

Case C-577/20

intervening party:

Sosiaali- ja terveysalan lupa- ja valvontavirasto

(Request for a preliminary ruling from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland))

( Reference for a preliminary ruling – Free movement of persons and services – Recognition of professional qualifications – Conditions of access to the right to use the professional title psychotherapist on the basis of a diploma in psychotherapy from another Member State – Assessment of the equivalence of the training )

1.Directive 2005/36/EC (2) on the recognition of professional qualifications is the cornerstone of the internal market structure, in that it allows nationals of Member States to pursue a profession in a Member State other than the one in which they have obtained their professional qualifications. It thus gives concrete expression to the provisions of the Treaty on freedom of establishment.

2.It is also at the heart of the present case, which gives the Court the opportunity to delineate its scope.

II. Legal framework

3. Recitals 1, 3, 6, 11 and 17 of Directive 2005/36 are worded as follows:

‘(1) Pursuant to Article 3(1)(c) of the Treaty, the abolition, as between Member States, of obstacles to the free movement of persons and services is one of the objectives of the Community. For nationals of the Member States, this includes, in particular, the right to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they have obtained their professional qualifications. In addition, Article 47(1) of the Treaty lays down that directives shall be issued for the mutual recognition of diplomas, certificates and other evidence of formal qualifications.

…

(3) The guarantee conferred by this Directive on persons having acquired their professional qualifications in a Member State to have access to the same profession and pursue it in another Member State with the same rights as nationals is without prejudice to compliance by the migrant professional with any non-discriminatory conditions of pursuit which might be laid down by the latter Member State, provided that these are objectively justified and proportionate.

…

(6) The facilitation of service provision has to be ensured in the context of strict respect for public health and safety and consumer protection. Therefore, specific provisions should be envisaged for regulated professions having public health or safety implications, which provide cross-frontier services on a temporary or occasional basis.

…

(11) In the case of the professions covered by the general system for the recognition of qualifications, hereinafter referred to as “the general system”, Member States should retain the right to lay down the minimum level of qualification required to ensure the quality of the services provided on their territory. However, pursuant to Articles 10, 39 and 43 of the Treaty, they should not require a national of a Member State to obtain qualifications, which they generally lay down only in terms of the diplomas awarded under their national educational system, where the person concerned has already obtained all or part of those qualifications in another Member State. As a result, it should be laid down that any host Member State in which a profession is regulated must take account of the qualifications obtained in another Member State and assess whether they correspond to those which it requires. The general system for recognition, however, does not prevent a Member State from making any person pursuing a profession on its territory subject to specific requirements due to the application of professional rules justified by the general public interest. Rules of this kind relate, for example, to organisation of the profession, professional standards, including those concerning ethics, and supervision and liability. Lastly, this Directive is not intended to interfere with Member States’ legitimate interest in preventing any of their citizens from evading enforcement of the national law relating to professions.

…

(17) In order to take into account all situations for which there is still no provision relating to the recognition of professional qualifications, the general system should be extended to those cases which are not covered by a specific system, either where the profession is not covered by one of those systems or where, although the profession is covered by such a specific system, the applicant does not for some particular and exceptional reason meet the conditions to benefit from it.’

4. Article 1 of that directive, which is entitled ‘Purpose’, provides:

‘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.

This Directive also establishes rules concerning partial access to a regulated profession and recognition of professional traineeships pursued in another Member State.’

5. Article 2 of that directive, which is entitled ‘Scope’, provides, in paragraph 1 thereof:

‘This Directive shall apply to all nationals of a Member State wishing to pursue a regulated profession in a Member State, including those belonging to the liberal professions, other than that in which they obtained their professional qualifications, on either a self-employed or employed basis.

…’

6. Article 3 of that directive, which is entitled ‘Definitions’, provides, in paragraph 1 thereof:

‘For the purposes of this Directive, the following definitions apply:

(a) “regulated profession”: a professional activity or group of professional activities, access to which, the pursuit of which, or one of the modes of pursuit of which is subject, directly or indirectly, by virtue of legislative, regulatory or administrative provisions to the possession of specific professional qualifications; in particular, the use of a professional title limited by legislative, regulatory or administrative provisions to holders of a given professional qualification shall constitute a mode of pursuit. Where the first sentence of this definition does not apply, a profession referred to in paragraph 2 shall be treated as a regulated profession;

(b) “professional qualifications”: qualifications attested by evidence of formal qualifications, an attestation of competence referred to in [Article 11(a)(i)] and/or professional experience;

(c) “evidence of formal qualifications”: diplomas, certificates and other evidence issued by an authority in a Member State designated pursuant to legislative, regulatory or administrative provisions of that Member State and certifying successful completion of professional training obtained mainly in the Community. Where the first sentence of this definition does not apply, evidence of formal qualifications referred to in paragraph 3 shall be treated as evidence of formal qualifications;

(d) “competent authority”: any authority or body empowered by a Member State specifically to issue or receive training diplomas and other documents or information and to receive the applications, and take the decisions, referred to in this Directive;

(e) “regulated education and training”: any training which is specifically geared to the pursuit of a given profession and which comprises a course or courses complemented, where appropriate, by professional training, or probationary or professional practice.

The structure and level of the professional training, probationary or professional practice shall be determined by the laws, regulations or administrative provisions of the Member State concerned or monitored or approved by the authority designated for that purpose;

…’

7. Article 4 of that directive, which is entitled ‘Effects of recognition’, provides:

‘1. The recognition of professional qualifications by the host Member State shall allow beneficiaries to gain access in that Member State to the same profession as that for which they are qualified in the home Member State and to pursue it in the host Member State under the same conditions as its nationals.

…’

8. Article 13 of that directive, which is entitled ‘Conditions for recognition’, provides:

‘1. If access to or pursuit of a regulated profession in a host Member State is contingent upon possession of specific professional qualifications, the competent authority of that Member State shall permit applicants to access and pursue that profession, under the same conditions as apply to its nationals, if they possess an attestation of competence or evidence of formal qualifications referred to in Article 11, required by another Member State in order to gain access to and pursue that profession on its territory.

Attestations of competence or evidence of formal qualifications shall be issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State.

Attestations of competence and evidence of formal qualifications shall satisfy the following conditions:

(a) they are issued by a competent authority in a Member State, designated in accordance with the laws, regulations or administrative provisions of that Member State;

(b) they attest that the holder has been prepared for the pursuit of the profession in question.

The one year of professional experience referred to in the first subparagraph may not, however, be required if the evidence of formal qualifications which the applicant possesses certifies regulated education and training.

…’

B. Finnish law

9. Pursuant to point 2 of Paragraph 2(1) of the laki terveydenhuollon ammattihenkilöistä (559/1994), ammattihenkilölaki (Law on healthcare professionals, No 559/1994), in the version applicable to the facts of the dispute in the main proceedings, a healthcare professional means, inter alia, a person who, on the basis of that law, has the right to use the professional title of a healthcare professional regulated by government decree (professional with a protected professional title). Pursuant to the second subparagraph of Paragraph 2 of that law, an authorised or licensed professional or a professional with a protected professional title is entitled to work in the profession concerned and to use the professional title concerned. Other persons who have sufficient education, experience and professional skills may also work in the profession of a professional with a protected professional title.

11. Pursuant to the second subparagraph of Paragraph 5 of the Law on healthcare professionals, a person who has completed training in Finland for a profession regulated by government decree has the right to use the professional title in question.

12. Pursuant to Paragraph 1 of the asetus terveydenhuollon ammattihenkilöistä (564/1994) (Decree on healthcare professionals, No 564/1994), the professional titles of healthcare professionals within the meaning of point 2 of Paragraph 2(1) of the Law on healthcare professionals include ‘psychotherapist’.

13. Pursuant to Paragraph 2a(1) of the Decree on healthcare professionals, the use of the protected professional title of psychotherapist is subject to the person concerned having completed psychotherapist training organised by a university or by a university together with another training establishment.

3. Law on the recognition of professional qualifications

14. Pursuant to Paragraph 6(1) of the Law on the recognition of professional qualifications, recognition of a professional qualification is based on an attestation of competence, a single document providing evidence of formal qualifications or a combination of such documents issued by a competent authority in another Member State. Recognition of a professional qualification is subject to a person having the right in his or her home Member State to work in the profession for the pursuit of which he or she is applying for the decision concerning recognition of the professional qualification.

15. Pursuant to Paragraph 6(2), recognition of professional qualifications also applies to applicants who, during the last ten years, have pursued their profession on a full-time basis for one year or on a part-time basis for an equivalent period in another Member State in which the profession in question is not regulated and who possess one or more attestations of competence or documents providing evidence of formal qualifications. Those attestations or documents must attest that the holder is qualified for the pursuit of the profession in question. However, the one year of professional experience is not required where the evidence of formal qualifications which the applicant possesses certifies regulated professional training.

III. The facts giving rise to the dispute in the main proceedings, the questions referred and the procedure before the Court

16. A completed training in Finland and in Finnish organised by the Helsingin Psykoterapiainstituutti Oy (Helsinki Psychotherapy Institute), a Finnish company limited by shares which operates in Finland, in cooperation with the University of the West of England, Bristol in the United Kingdom (‘UWE Bristol’).

17. Following the award of a diploma in psychotherapy issued on 27 November 2017 by the UWE Bristol, A applied to Valvira for the right to use the professional title of psychotherapist which is protected under the applicable national law.

18.

During 2017, Valvira was contacted by individuals who had participated in that training programme and who expressed their concerns regarding a number of shortcomings in the actual content and practical implementation of the training with regard to the learning objectives. Valvira contacted other individuals who had participated in that training programme who described similar experiences.

19.By decision of 29 June 2018, Valvira rejected A’s application for the right to use the protected professional title of psychotherapist, in essence on the ground that A had not provided Valvira with sufficient information on the content of the training.

20.By decision of 10 September 2018, Valvira also rejected the objection which A had lodged, considering that the training in question had been completed by A in a foreign education system. Valvira had not been able to ascertain whether the training had been carried out in such a way as to meet the requirements imposed on psychotherapy training in Finland.

21.By decision of 25 April 2019, the Helsingin hallinto-oikeus (Helsinki Administrative Court, Finland) dismissed the action brought by A at first instance. That court held that the training must be regarded as having been completed in the United Kingdom, irrespective of the fact that it was actually organised in Finland and in Finnish. The provisions of the general system for recognition of professional qualifications provided for by Directive 2005/36 did not require the application to be granted, because A had not practised the profession of psychotherapist in the United Kingdom, in which the profession of psychotherapist and the training for that profession are not regulated, or in another Member State with a similar system.

22.The Helsingin hallinto-oikeus (Helsinki Administrative Court) considered that it had been established that there were considerable shortcomings and differences in the training in question compared with Finnish psychotherapy training. It found that Valvira was therefore entitled to assume that it had not been proven that A’s knowledge and qualifications were equivalent to those of a person who had completed the Finnish psychotherapy training.

23.In his appeal brought against that judgment before the referring court, A submits that the training must be regarded as having been completed in Finland and that UWE Bristol, as the competent authority, has declared that the training complies with the Finnish Decree on healthcare professionals. The training must therefore be recognised as leading to the protected professional title of psychotherapist in Finland.

24.According to A, if the training is not recognised as having been completed in Finland, its equivalence must be assessed on the basis of the documents submitted by A and the training providers concerning the programme specification, the studies and the quality of those studies. Valvira did not carry out a comparison based on those documents, but assessed the training on the basis of anonymous letters, an expert report obtained from a university which is to be regarded as a competitor of UWE Bristol, and interviews that it conducted itself. However, the principle of loyalty under EU law requires Valvira not to call into question the content of a document issued by UWE Bristol, which is to be regarded as the competent authority of another Member State.

25.Valvira takes the view that psychotherapy training completed in another Member State must be compared with the training provided by Finnish universities. According to Valvira, A’s training does not meet the requirements of psychotherapy training in Finland in terms of content and quality and is not such as to lead to the entitlement to use the protected professional title of psychotherapist. Valvira adds that, in principle, it recognises the certificates and information regarding the content of training that are provided by universities in other Member States and by other training providers and does not investigate the content or practical implementation of training to an extent greater than is necessary to ascertain whether there are differences between the training completed and the Finnish training.

26.The referring court states that it has already held, in another case, that the training at issue in the main proceedings cannot be regarded as training completed in Finland within the meaning of Paragraph 5 of the Law on healthcare professionals.

27.That court notes that, in Finland, the profession of psychotherapist must be regarded as a regulated profession within the meaning of Article 3(1)(a) of Directive 2005/36, since only a person who satisfies the conditions for professional qualifications under relevant Finnish law is entitled to use the professional title in question. The profession of psychotherapist is subject to the general system for the recognition of evidence of training laid down, in particular, in Articles 10 to 14 of that directive. In so far as the profession of psychotherapist is not a regulated profession in the United Kingdom, Article 13(2) of that directive is relevant.

28.The referring court states that since A has not pursued the profession of psychotherapist in another Member State in which the profession in question is not regulated, A is not entitled, on the basis of the provisions of Directive 2005/36, to take up that profession.

29.The referring court asks whether, notwithstanding the provisions of that directive, the situation at issue in the present case should also be assessed in the light of the fundamental freedoms enshrined in Articles 45 and 49 TFEU and the relevant case-law of the Court of Justice. If it is found that the case is to be assessed from the point of view of the fundamental freedoms, the referring court will have to determine what significance is to be attributed to A’s diploma. In that context, it would also be necessary to take a position on whether the competent authority of the host Member State, when seeking to ascertain that a foreign diploma attests that the holder possesses the same or at least equivalent knowledge and qualifications as those attested by a national diploma, could also base its assessment on other information obtained from other sources concerning the implementation of the training, or whether, also in the specific circumstances of the present case, it would have to rely on the information provided in that regard by a university of another Member State.

In those circumstances, the Korkein hallinto-oikeus (Supreme Administrative Court, Finland) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

‘(1) Are the fundamental freedoms guaranteed by the Treaty on European Union and Directive 2005/36 to be interpreted as meaning that the competent authority of the host Member State must assess an applicant’s right to pursue a regulated profession in accordance with Articles 45 and 49 TFEU and the relevant case-law (in particular, judgment of 7 May 1991, Vlassopoulou, C‑340/89, EU:C:1991:193, and judgment of 6 October 2015, Brouillard, C‑298/1, EU:C:2015:652), even though the conditions for the pursuit of a regulated profession are supposed to be standardised in Article 13(2) of Directive 2005/36/EC, and, under those conditions, the host Member State must permit the pursuit of a profession by an applicant who holds evidence of formal qualifications from a Member State in which the profession is not regulated, but who does not satisfy the requirement for the pursuit of the profession laid down in that provision of the directive?

(2) If the first question referred is answered in the affirmative: In the light of the statements made in the judgment of 6 October 2015, Brouillard, C‑298/1, EU:C:2015:652 (paragraph 55 of the judgment) concerning the exclusive criteria for assessing the equivalence of certificates, does EU law preclude the competent authority of the host Member State, in a situation such as that at issue in the present case, from also basing its assessment of the equivalence of training on information other than that obtained from the training provider or the authorities of the other Member State regarding the precise content of the training and the manner in which it is implemented?’

31.Written observations were submitted by A, Valvira, the Finnish, French, Dutch and Norwegian Governments, and the European Commission. The aforementioned parties, with the exception of the Dutch Government, participated at the hearing on 2 December 2021.

32.By its first question, the referring court asks, in essence, whether Articles 45 and 49 TFEU and Article 13(2) of Directive 2005/36 must be interpreted as meaning that an application for access to and pursuit of a regulated profession within a host Member State must be assessed in the light of the provisions of the Treaty where the applicant does not satisfy the conditions laid down in Article 13(2) of Directive 2005/36 granting such access.

33.By its second question, the referring court asks, in essence, whether Articles 45 and 49 TFEU preclude the competent authority of the host Member State from basing its assessment of the equivalence of the applicant’s training on information regarding the precise content or practical implementation of that training, where that information was provided by sources other than the organisers of that training or the competent authorities of the home Member State.

34.Those two questions are founded on the premiss that A’s application for access to the profession of psychotherapist is based on professional qualifications obtained in another Member State. A’s situation thus falls, in principle, within the scope of Directive 2005/36, and in particular Article 13(2) thereof, or, if that is not the case, the provisions relating to the fundamental freedoms guaranteed by the Treaty.

35.The referring court states that it has already held that the training at issue in the main proceedings cannot be regarded as having been completed in Finland. However, on the basis of the factual findings of the order for reference, I take the view that it is reasonable to doubt the relevance of the provisions of EU law relied on in a situation such as that at issue in the main proceedings.

36.I will therefore make some preliminary remarks relating to the relevance of Directive 2005/36 and the provisions of the Treaty on the freedom of establishment in a host Member State of a national who has obtained a diploma from a university of another Member State to the facts at issue.

37.Directive 2005/36 contributes to the abolition of obstacles to the free movement of persons and services within the EU by granting nationals of Member States the right to pursue a profession in a Member State other than the one in which they have obtained their professional qualifications. (3)

38.More specifically, Directive 2005/36 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 is to recognise professional qualifications obtained in one or more other Member States for access to and pursuit of that profession. (4)

39.For that purpose, in its Title III, Directive 2005/36 provides for three systems of recognition of professional qualifications: automatic recognition for professions for which the minimum training conditions have been harmonised (Chapter III); recognition on the basis of professional experience (Chapter II); and a general system for all other professions which are not covered by Chapters II and III (Chapter I). (5)

40.As provided for in Article 2(1) of Directive 2005/36, those provisions apply to all nationals of a Member State wishing to pursue a regulated profession in a Member State other than the one in which they obtained their professional qualifications.

41.That element seems to me to be decisive.

42.Directive 2005/36 thus covers situations in which an individual has obtained, in a Member State, certain professional qualifications allowing access to and pursuit of a certain activity in that Member State, and subsequently wishes to have those qualifications recognised in another Member State in order to have access to or pursue a profession with the same rights as nationals of the host Member State.

43.It is therefore a question of ensuring, in Member State A, the recognition of professional qualifications obtained in Member State B, in order to guarantee the freedom of establishment of the holder of the professional qualifications in Member State A, even though his diploma predestined him, in theory, to pursue a profession in Member State B.

44.However, the situation at issue in the main proceedings differs from those covered by Directive 2005/36.

45.The diploma held by the applicant in the main proceedings was issued following training in Finland and in the language of that State, organised in cooperation with an institution established in that Member State. The referring court further states that the university in the United Kingdom issuing the diploma maintains that the training complies with the requirements of the Finnish Law on healthcare professionals.

46.On the basis of that information, it can be concluded that the training was aimed exclusively at enabling the pursuit of the profession of psychotherapy in Finland. The fact that the diploma in question was issued in cooperation with an institution of another Member State cannot affect the finding that in such a situation, the home Member State and the host Member State are one. In reality, it is not a question of the applicant exercising his right of freedom of establishment on the basis of professional qualifications obtained in a Member State other than his home Member State. In those circumstances, such a situation falls, in my view, outside the scope of Directive 2005/36, such that it cannot be analysed in the light of its provisions.

47.It is also apparent from those elements that A’s situation, as set out by the referring court, has no connecting factor with the provisions of the Treaty relating to the fundamental freedoms. (6) The mere fact that the diploma at issue was issued in cooperation with a university of another Member State does not make it possible to establish a sufficient connecting factor with A’s situation when it was issued following training completed in the host Member State, in the language of that Member State, aimed exclusively at enabling access to training for psychotherapists in Finland. From A’s point of view, the involvement of the foreign university is, in my view, purely incidental. (7) In such circumstances, Articles 45 and 49 TFEU, which are intended to protect persons making actual use of the fundamental freedoms, are not capable of conferring rights on A. (8) A cannot rely on those provisions in the context of his request for access to and pursuit of the profession of psychotherapist.

48.Such a conclusion certainly does not mean that EU law is irrelevant in a situation such as that at issue in the main proceedings. However, it seems to me that the situation falls solely under provisions relating to the freedom to provide services or the freedom of establishment of UWE Bristol, as an institution of a Member State entering into a partnership with an institution of another Member State to provide training in the latter Member State. The possible obstacle to the provisions relating to the fundamental freedoms enshrined in the Treaty should therefore be considered mainly with regard to the foreign university.

49.However, I take the view that that question goes beyond the scope of the questions referred for a preliminary ruling and requires a different analysis which the Court is not, in the light of the elements set out in the order for reference, in a position to undertake.

50.The factual context underpinning the second question referred also indicates that A’s situation does not fall within either the scope of the provisions of Directive 2005/36 or the provisions of the FEU Treaty relating to the fundamental freedoms. In the context of the second question, it is a question of establishing whether Valvira, as the competent authority, could carry out an in-depth examination of the professional qualifications on which the applicant relies in order to determine whether those qualifications grant him access to the profession of psychotherapist in Finland.

51.The very fact of relying on information relating to the precise content and practical implementation of the training indicates, in my view, that, independently of those elements, that training grants, in theory, access in Finland to the training of psychotherapist. If the training in question had a completely different purpose, or if it was clear that the training complied only in part with the requirements under Finnish law, such a finding would be sufficient to reject the application for access to that profession.

52.It is therefore only because the purpose of the training is to train psychotherapists in Finland that Valvira carried out such an in-depth examination, aimed at verifying that the training complies, in practice, with the requirements under Finnish law.

53.On the basis of information relating to the precise content and practical implementation of the training, Valvira does not therefore seek to verify the equivalence of training provided by an institution of another Member State to that provided in Finland, but rather to check that the training provided in Finland complies with the requirements under Finnish law to grant access to the profession of psychotherapists.

54.In those circumstances, I take the view that the training at issue should be considered as having been provided in Finland within the meaning of EU law, such that A’s situation cannot be analysed in the light of the provisions of Directive 2005/36 or the provisions of the Treaty relating to his freedom of establishment.

55.Accordingly, having regard to the foregoing considerations, I consider that it is appropriate to answer the questions referred that the application for access to and pursuit of a profession brought by a student who obtained a diploma issued in cooperation with a university of another Member State following training completed exclusively in the host Member State, in the language of that State, for the purpose of pursing the profession in question in that Member State cannot be analysed in the light of Directive 2005/36 or Articles 45 and 49 TFEU.

56.However, in the event that the Court were to take the view that Directive 2005/36 and the provisions relating to A’s freedom of establishment are applicable in a situation such as that at issue in the main proceedings, I will proceed to analyse the questions referred.

B. The first question

57.By its first question, the referring court asks, in essence, whether Articles 45 and 49 TFEU and Article 13(2) of Directive 2005/36 must be interpreted as meaning that an application for access to and pursuit of a regulated profession within a host Member State must be assessed in the light of the provisions of the Treaty where the applicant does not satisfy the conditions laid down in Article 13(2) of Directive 2005/36 granting such access.

58.Within the general system provided for by Directive 2005/36, Article 13(2) thereof regulates the conditions under which a host Member State may provide access to and pursuit of a regulated profession where the applicant is a holder of a formal qualification issued in another Member State which does not regulate that profession.

59.As the referring court points out, the profession of psychotherapists is not covered by the system of automatic recognition and is therefore subject to the provisions of the general regime. Furthermore, it is apparent from the legal and factual context set out by the referring court that the profession of psychotherapists is a regulated profession in Finland within the meaning of Directive 2005/36, unlike in the United Kingdom, where it is not contingent upon possession of specific professional qualifications.

60.It is, however, common ground that the applicant in the main proceedings does not meet the conditions laid down in Article 13(2) of Directive 2005/36. The question thus arises as to whether access to and pursuit of the profession of psychotherapist could nevertheless be granted on the basis of the fundamental freedoms enshrined in the FEU Treaty.

61.As the French and Finnish Governments submit, the answer to that question depends on the level of harmonisation achieved by Directive 2005/36. It is settled case-law that a national measure in an area which has been the subject of exhaustive harmonisation at EU level must be assessed in the light of the provisions of that harmonising measure and not those of the Treaty. However, that effect of supersession of the provisions of the Treaty in favour of the act of secondary legislation occurs only when the European Union legislative act governs a subject exhaustively.

62.In other words, if the harmonisation achieved by Article 13(2) of Directive 2005/36 were found to be exhaustive, an application for access to the profession of psychotherapist in a host Member State on the basis of professional qualifications obtained in another Member State could no longer be assessed in the light of primary law.

63.A and the French and Finnish Governments support that argument, while the Dutch Government and the Commission oppose it. They take the view that the fact that the conditions laid down in Article 13(2) of Directive 2005/36 have not been met does not mean that the application for access to the profession of psychotherapist cannot be examined in the light of the provisions of the Treaty.

64.I share that view. Article 13(2) of Directive 2005/36 does not, in my opinion, achieve exhaustive harmonisation and the fact that the conditions laid down in that provision have not been met does not preclude the examination of an application for access to and pursuit of a profession on the basis of the FEU Treaty.

65.It is apparent from the Court’s case-law that the extent of the harmonisation achieved by a directive must be assessed by taking into account not only its wording but also the context in which it occurs and the objectives of the rules of which it forms part.

66.The Court has held that directives on the mutual recognition of qualifications aim to facilitate mutual recognition of diplomas, certificates and other evidence of formal qualifications by establishing rules and common criteria. It is also clear from recital 40 of Directive 2005/36 that the objectives of that directive are ‘the rationalisation, simplification and improvement of the rules for the recognition of professional qualifications’, so that nationals of the Member States have the right to pursue a profession in a Member State other than the one in which they have obtained their professional qualifications.

67.To that end, Directive 2005/36 confers on persons having acquired their professional qualifications in a Member State a guarantee to have access to the same profession and pursue it in another Member State with the same rights as nationals.

68.Those objectives of simplifying and improving the recognition of professional qualifications, coupled with the idea of a guarantee conferred by Directive 2005/36, clearly indicate the intention of the EU legislature to protect the right of freedom of establishment of nationals of the Member States in host Member States where the conditions laid down by Directive 2005/36 are met. However, it does not follow that professional qualifications can be recognised only under those conditions.

69.In other words, in the light of the objectives of Directive 2005/36, if the recognition of professional qualifications is facilitated by the provisions of that directive and if the combination of conditions set out therein guarantees their holder the right to access a profession and to pursue it in another Member State, it cannot be inferred from this that that right is recognised only in those circumstances.

70.The wording of Article 13(2) of Directive 2005/36, which is entitled ‘Conditions for recognition’, also demonstrates this. Article 13(2) states that access to and pursuit of the profession ‘[is] granted’ to applicants who satisfy the relevant conditions. Such wording suggests that, where those conditions are satisfied, the host Member State is required to recognise the professional qualifications in question and to grant access to the profession. Article 13(2) of Directive 2005/36 is, to that effect, the expression of the guarantee set out in the recitals of Directive 2005/36.

71.However, it cannot be inferred from this that those conditions are the only conditions that grant access to and pursuit of a profession. By contrast, they are the only conditions that guarantee access to that profession.

72.The reading of the objectives of Directive 2005/36 and of the wording of Article 13(2) thereof indicates, in my view, that the directive does not achieve exhaustive harmonisation. While Article 13(2) of Directive 2005/36 thus sets out the conditions under which the Member States are required to recognise professional qualifications obtained in another Member State, it cannot be interpreted as requiring that Member States must systematically refuse access to and pursuit of a profession where those conditions are not met.

73.I note that the Court has already held that the principle inherent in the fundamental freedoms of the Treaty, and the legal effect of that principle cannot be reduced as a result of the adoption of directives on mutual recognition of diplomas. It is not the purpose of those directives to make recognition of such diplomas, certificates and other evidence of formal qualifications more difficult in situations falling outside their scope, nor may they have such an effect.

74.I point out that although the phrase ‘situations not covered’ seems to designate situations falling outside the scope of directives on mutual recognition of diplomas, that case-law has nevertheless been developed both in the context of such situations and in situations where the conditions set out in those directives were not met.

75.In other words, Directive 2005/36 harmonises the conditions for the recognition of professional qualifications in accordance with the conditions set out therein. By contrast, it does not lay down any rules for the recognition (or non-recognition) of professional qualifications in situations falling outside its scope, or in which the conditions provided for by the provisions of Directive 2005/36 are not met.

76.It follows, in my view, that the fundamental freedoms guaranteed by the FEU Treaty are therefore intended to apply in situations falling within the scope of Directive 2005/36 but in which the conditions set out in Article 13(2) thereof are not met.

77.I take the view that such an interpretation is strengthened by the Court’s recent case-law relating to the application of provisions of the FEU Treaty where Directive 2005/36 is not applicable in so far as, having not completed his training, the applicant does not have evidence of formal qualifications attesting to his professional qualification as a pharmacist, or where the applicant, although holding evidence of formal qualifications accompanying the evidence of qualifications is unable to provide the certificate of experience which is a prerequisite for the right to full registration with a licence to practise in a Member State.

78.It seems paradoxical to me that an application for access may be examined on the basis of provisions other than those of Directive 2005/36 where the applicant does not possess evidence of formal qualifications, whereas the opposite is true where the applicant does possess evidence of formal qualifications but does not meet the conditions set out in Directive 2005/36. An applicant who does not possess evidence of formal qualifications is thus in a better position than the holder of professional qualifications who does not, however, satisfy the conditions laid down in Article 13(2) of Directive 2005/36.

79.This is particularly so since, with regard to such situations, I note that the boundary between what falls within the scope of the directive and what falls outside the scope can be difficult to determine. It could even be argued, in respect of a situation in which the applicant does not hold a diploma, that, although applicable, the conditions laid down in Article 13(2) are not met, in so far as the applicant does not possess documents providing evidence of formal qualifications within the meaning of Directive 2005/36.

80.I therefore take the view that it is difficult to deal with those two situations separately. In both situations, Directive 2005/36 does not provide for any specific provision and does not require the State to refuse recognition of the professional qualifications held by the applicant.

81.Furthermore, I add that, contrary to what the French Government claims, I fail to see why such an interpretation undermines the effectiveness of Article 13(2) of Directive 2005/36.

82.The conditions laid down in that provision remain the only conditions guaranteeing the applicant access to and pursuit of a profession, since, where those conditions are satisfied, the Member State is required to grant the request. The fact of allowing the applicant who does not meet those conditions to have his application examined on the basis of the FEU Treaty does not call that finding into question. In such a case, the applicant has no guarantee that the Member State will grant the request, since the examination of his professional qualifications for the purposes of granting access to a profession depends on other factors.

83.Accordingly, I am of the opinion that Articles 45 and 49 TFEU and Article 13(2) of Directive 2005/36 should be interpreted as meaning that an application for access to and pursuit of a regulated profession within a host Member State must be assessed in the light of the provisions of the FEU Treaty where the applicant does not satisfy the conditions set out in Article 13(2) allowing such access.

84.By its second question, the referring court asks, in essence, whether Articles 45 and 49 TFEU preclude the competent authority of the host Member State from basing its assessment of the equivalence of the applicant’s training on information other than that obtained from the training provider or the authorities of the home Member State regarding the precise content of the training and the manner in which it is implemented.

85.I will give a brief review of the case-law relating to the examination of applications for access to a profession in a host Member State on the basis of the provisions of the FEU Treaty, which establish a presumption of acquisition of knowledge and qualifications based on the diploma held by the applicant. I will then examine if and, where appropriate, under what conditions, that presumption may be rebutted.

It is settled case-law that in the absence of harmonisation of the conditions of access to a particular occupation the Member States are entitled to lay down the knowledge and qualifications needed in order to pursue it and to require the production of a diploma certifying that the holder has the relevant knowledge and qualifications.

However, the Member States must exercise their powers in this area in a manner which respects the basic freedoms guaranteed by the FEU Treaty.

Thus, according to settled case-law, the national rules establishing the conditions for national qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of those fundamental freedoms if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State.

In that context, the authorities of a Member State which receive a request for authorisation, submitted by an EU national, to pursue a profession to which access, under national law, depends upon the possession of a diploma or a professional qualification or periods of practical experience must take into consideration all of the diplomas, certificates and other evidence of qualifications and his relevant experience by comparing the specialised knowledge and abilities so certified and that experience with the knowledge and qualifications required by the national legislation.

That comparative examination procedure must enable the authorities of the host Member State to assure themselves, on an objective basis, that the foreign diploma certifies that its holder has knowledge and qualifications which are, if not identical, at least equivalent to those attested by the national diploma. That assessment of the equivalence of the foreign diploma must be carried out exclusively in the light of the level of knowledge and qualifications which its holder can be assumed, by virtue of that diploma, to possess, having regard to the nature and duration of the studies and practical training to which the diploma relates.

In other words, the authority of the host Member State must rely on the knowledge and qualifications which the applicant holder has, by virtue of the diploma, acquired. To that effect, that mechanism, based on trust between Member States, establishes a presumption that the applicant possesses knowledge and qualifications attested by the diploma in question, without the host Member State being allowed to check whether the knowledge and qualifications were actually obtained by the applicant.

While it is clear from the case-law that the comparative examination of diplomas carried out by the competent authority of the host Member State is based on the qualifications which the applicant holder can be assumed, by virtue of the diploma, to possess, I also consider that such a presumption may, in limited circumstances, be rebutted and it is then for the competent authority of the host Member State to carry out checks beyond the qualifications attested by the diploma held by the applicant.

In my opinion, such a possibility is inherent in the fundamental freedoms enshrined in the Treaty, which guarantee the freedom of establishment and the recognition of professional qualifications obtained in another Member State or following training provided by an institution in another Member State, while providing for exceptions to those principles in certain limited situations.

Thus, while it is clear, as the Court finds, that the national rules establishing the conditions for national qualifications, even when applied in an indiscriminate manner in relation to nationality, may infringe the exercise of those fundamental freedoms if the national rules at issue fail to take account of learning, skills and qualifications already acquired by the person concerned in another Member State, it seems to me, however, that such an infringement could be justified by overriding reasons in the public interest, provided that they are suitable for securing the attainment of the objective pursued and do not go beyond what is necessary in order to attain that objective.

As the French and Finnish Governments observe, the profession at issue in the main proceedings is healthcare professionals treating patients. In those circumstances, the comparative examination carried out by the competent authority and going beyond the presumption based on the applicant’s diploma is intended to guarantee patient safety, and is therefore aimed at ensuring the protection of public health, which constitutes an overriding reason in the general interest capable of justifying a restriction of the freedom of establishment.

However, it is still necessary to verify that such an examination is suitable for securing the attainment of the objective of ensuring the protection of public health and does not go beyond what is necessary in order to attain that objective.

In my view, in order to comply with the requirements of proportionality and necessity, a comparative examination of professional qualifications taking into account factors other than just the professional qualifications which can be presumed from the diploma held in order to ensure the protection of public health can take place only in the event that there is an established risk to patient safety and public health if the applicant were to access the profession in question and pursue it.

The existence of such a risk must be established by the competent authority of the host Member State, relying on a body of consistent evidence relating to systemic shortcomings with regard to the training completed by the applicant. By contrast, it cannot rely solely on anonymous and isolated submissions, without carrying out other checks, especially where the training was actually completed in that Member State, and it thus has extensive means to do so.

In particular, as the French Government observes, the authority issuing the diploma at issue must be allowed to provide clarifications when the competent authority of the host Member State identifies a possible risk to public health on account of the training followed.

In other words, if the protection of public health can justify a comparative examination of diplomas which is not based solely on the professional qualifications that the applicant can be assumed, by virtue of the diploma, to possess, the competent authority is still required, in any event, to take into consideration not only the applicant’s professional skills, but also any relevant factor allowing access to and pursuit of a profession.

Therefore, I take the view that the answer to the second question is that Articles 45 and 49 TFEU do not preclude the competent authority of the host Member State from taking into consideration information relating to the precise content of the training and the manner in which it is implemented, where that information was provided by reliable sources other than the organisers of that training or the competent authorities of the home Member State, in order to determine the existence of an established risk to patient safety. The competent authority of the host Member State cannot, however, rely exclusively on such elements to refuse access to and pursuit of a profession to a national of a Member State who has obtained his diploma from a university in another Member State.

Conclusion

In the light of the foregoing considerations, I propose to answer the questions referred by the Korkein hallinto-oikeus (Administrative Supreme Court, Finland) as follows:

The application for access to and pursuit of a profession brought by a student who obtained a diploma issued in cooperation with a university of another Member State following training completed exclusively in the host Member State, in the language of that State, for the purpose of pursing the profession in question in that Member State cannot be analysed in the light of Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013. Articles 45 and 49 TFEU, which are intended to protect persons making actual use of the fundamental freedoms, are not applicable to the situation of such a student, with the result that the latter cannot invoke them in the context of his application for access to and pursuit of a profession.

* Language of the case: French.

Directive of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ 2005 L 255, p. 22), as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 (OJ 2013 L 354, p. 132) (‘Directive 2005/36’).

Recital 1 of Directive 2005/36. For a presentation of Directive 2005/36 and the systems of recognition it establishes, see my Opinion in Angerer (C‑477/13, EU:C:2014:2338, points 19 to 23).

Article 1 of Directive 2005/36.

For a detailed analysis of the systems of recognition of professional qualifications established by Directive 2005/36, see Barnard, C., The Substantive Law of the EU. The Four Freedoms, 6th ed., Oxford University Press, Oxford, 2019, p. 320.

Judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 57).

If A’s situation does not therefore have any connecting factors to the fundamental freedoms, they may nevertheless have an impact in the factual context as described by the referring court, with regard to the situation of the university of another Member State. See point 48 of this Opinion.

Judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 57).

Judgments of 12 October 1993, Vanacker and Lesage (C‑37/92, EU:C:1993:836); of 11 December 2003, Deutscher Apothekerverband (C‑322/01, EU:C:2003:664, paragraph 64); and of 11 June 2020, KOB (C‑206/19, EU:C:2020:463, paragraph 30).

Opinion of Advocate General Cruz Villalón in Commission v France (C‑216/11, EU:C:2012:819, point 35).

Judgment of 16 July 2015, UNIC and Uni.co.pel (C‑95/14, EU:C:2015:492, paragraph 35).

Judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija (C‑166/20, EU:C:2021:554, paragraph 36).

Recital 1 of Directive 2005/36.

Recital 3 of Directive 2005/36.

Judgments of 14 September 2000, Hocsman (C‑238/98, EU:C:2000:440, paragraphs 31 and 34); of 22 January 2002, Dreessen (C‑31/00, EU:C:2002:35, paragraphs 25 and 26); and of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija (C‑166/20, EU:C:2021:554, paragraphs 35 and 36, and of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training) (C‑634/20, EU:C:2022:149, paragraph 37).

Judgments of 22 January 2002, Dreessen (C‑31/00, EU:C:2002:35), of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija (C‑166/20, EU:C:2021:554) and of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training) (C‑634/20, EU:C:2022:149).

Judgment of 14 September 2000, Hocsman (C‑238/98, EU:C:2000:440, paragraph 34).

Judgment of 8 July 2021, Lietuvos Respublikos sveikatos apsaugos ministerija