2 March 2023 (*1)

(Reference for a preliminary ruling – Freedom of movement for workers – Recognition of professional qualifications in a Member State – Directive 2005/36/EC – Right to exercise the profession of nursery school teacher – Regulated profession – Right of access to the profession on the basis of a diploma issued in the home Member State – Professional qualification obtained in a third country)

In Case C‑270/21,

REQUEST for a preliminary ruling under Article 267 TFEU from the Korkein hallinto-oikeus (Supreme Administrative Court, Finland), made by decision of 14 April 2021, received at the Court on 27 April 2021, in the proceedings

other party:

Opetushallitus

THE COURT (Fourth Chamber),

composed of C. Lycourgos, President of the Chamber, L.S. Rossi, J.-C. Bonichot (Rapporteur), S. Rodin and O. Spineanu-Matei, Judges,

Advocate General: N. Emiliou,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after considering the observations submitted on behalf of:

–the Finnish Government, by M. Pere, acting as Agent,

–the Estonian Government, by M. Kriisa, acting as Agent,

–the Spanish Government, by L. Aguilera Ruiz, acting as Agent,

–the Netherlands Government, by M.K. Bulterman and A. Hanje, acting as Agents,

–the European Commission, by L. Armati, M. Huttunen, M. Mataija and I. Söderlund, acting as Agents,

after hearing the Opinion of the Advocate General at the sitting on 8 September 2022,

gives the following

1This request for a preliminary ruling concerns the interpretation of Article 3(1)(a) and (3) and Article 13(1) of 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), 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’).

2The request has been made in proceedings brought by A concerning the decision of Opetushallitus (Finnish National Agency for Education (EDUFI)) rejecting A’s application for recognition of A’s professional qualification as a nursery school teacher.

Legal context

European Union law

Recitals 1 and 14 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.

(14)The mechanism of recognition established by [Council Directive] 89/48/EEC [of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years’ duration (OJ 1989 L 19, p. 16)] and [Council Directive] 92/51/EEC [of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25)] remains unchanged. ...

As provided in Article 1 of Directive 2005/36:

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.

Article 2(1) and (2) of that directive provides:

Article 3 of that directive provides:

“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; ...

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

“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;

“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;

“professional experience”: the actual and lawful … pursuit of the profession concerned in a Member State;

Evidence of formal qualifications issued by a third country shall be regarded as evidence of formal qualifications if the holder has three years’ professional experience in the profession concerned on the territory of the Member State which recognised that evidence of formal qualifications in accordance with Article 2(2), certified by that Member State.

As provided in Article 4, entitled ‘Effects of recognition’, of Directive 2005/36:

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.

2.For the purposes of this Directive, the profession which the applicant wishes to pursue in the host Member State is the same as that for which he is qualified in his home Member State if the activities covered are comparable.

…

Article 13 of that directive, 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.

2.Access to, and pursuit of, a profession as described in paragraph 1 shall also be granted to applicants who have pursued the profession in question on a full-time basis for one year or for an equivalent overall duration on a part-time basis during the previous 10 years in another Member State which does not regulate that profession, and who possess one or more attestations of competence or evidence of formal qualifications issued by another Member State which does not regulate the profession.

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.

…

Article 59(1) of that directive provides:

Member States shall notify to the [European] Commission a list of existing regulated professions, specifying the activities covered by each profession, and a list of regulated education and training, and training with a special structure, referred to in point (c)(ii) of Article 11, in their territory by 18 January 2016. Any change to those lists shall also be notified to the Commission without undue delay. The Commission shall set up and maintain a publicly available database of regulated professions, including a general description of activities covered by each profession.

Finnish law

Laki ammattipätevyyden tunnustamisesta (1384/2015) (Law on the recognition of professional qualifications (1384/2015)) provides, in the first subparagraph of Paragraph 1, that that law governs the recognition of professional qualifications and the freedom to provide services in accordance with Directive 2005/36. Paragraph 6 of that law specifies the conditions for such recognition.

Estonian law

The qualification requirements for nursery school teachers in Estonia are laid down by the haridusministri 26. augusti 2002. aasta määrus ‘Koolieelse lasteasutuse pedagoogide kvalifikatsiooninõuded’ (RTL 2002, 96, 1486; RT I, 03.09.2013, 36) (Regulation of the Minister for Education on qualification requirements for nursery school teachers) of 26 August 2002 (‘Regulation on qualification requirements for nursery school teachers’).

Paragraph 1(1) of that regulation provides:

The employer shall assess the worker’s ability to occupy the post and compliance with the qualification requirements laid down in this Regulation. ...

Under Paragraph 18 of that regulation, the qualification requirements for nursery school teachers are a higher education qualification and pedagogical competences. Paragraph 37 of that regulation provides that the qualification requirements do not apply to teachers who worked as nursery school teachers before 1 September 2013 and who, under the provisions of the Regulation on qualification requirements for nursery school teachers in force before that date, are qualified or deemed to be appropriately qualified for a similar role.

Following the accession of the Republic of Estonia to the European Union on 1 May 2004, Vabariigi Valitsuse 6. juuni 2005. a määrus nr 120 ‘Eesti Vabariigi kvalifikatsioonide ja enne 20. augustit 1991. a antud endise NSV Liidu kvalifikatsioonide vastavus’ (RT I 2005, 32, 241; RT I, 28.07.2020, 6) (Government Regulation No 120 on the correspondence between diplomas of the Republic of Estonia and diplomas of the former USSR awarded before 20 August 1991) of 6 June 2005 establishes the correspondence between the qualifications that were recognised by the former Union of Soviet Socialist Republics and awarded before 20 August 1991 and the general education and higher education levels of the education system of the Republic of Estonia.

The dispute in the main proceedings and the questions referred for a preliminary ruling

A applied to EDUFI for recognition of A’s professional qualifications as a nursery school teacher on the basis of the following documents:

a certificate attesting to the attainment of a ‘Koolieelsete lasteasutuste kasvataja’ (Early Childhood Education) qualification in the Estonian Soviet Socialist Republic in 1980;

a certificate attesting to the attainment of a ‘Rakenduskõrghariduse tasemele vastava hotellimajanduse eriala õppekava’ (Specialised Curriculum for Hotel Management corresponding to the higher education level) qualification in 2006;

a certificate attesting to the attainment of an ‘Ärijuhtimise magistri kraad – Turismiettevõtlus ja teeninduse juhtimine’ (Master of Business Administration – Tourism and Service Management) qualification in 2013; and

a document entitled ‘Kutsetunnistus “Õpetaja, tase 6”’ (Professional Certificate ‘Teacher, Level 6’), issued by the Estonian Teachers’ Association in 2017.

It is, moreover, common ground that A worked as a nursery school teacher in the Estonian Soviet Socialist Republic between 1980 and 1984 and then again in a private crèche in Finland in 2016 and 2017.

By decision of 8 March 2018, EDUFI rejected A’s application.

By judgment of 18 April 2019, the Helsingin hallinto-oikeus (Administrative Court, Helsinki, Finland) dismissed A’s appeal against EDUFI’s decision. That court held that A’s qualifications and professional experience did not meet the requirements for recognition of a professional qualification under the Law on the recognition of professional qualifications (1384/2015).

A brought an appeal against that judgment before the referring court, the Korkein hallinto-oikeus (Supreme Administrative Court, Finland).

In the first place, the referring court is uncertain whether the profession of nursery school teacher is a ‘regulated profession’ in Estonia, within the meaning of Directive 2005/36.

21It notes that there are several indications that that profession may indeed be a regulated profession in Estonia. The qualification requirements for a nursery school teacher, set out in the Regulation on qualification requirements for nursery school teachers, are the attainment of a higher education qualification and pedagogical competences. The latter competences are attested to by a document issued, on request, by the Estonian Teachers’ Association on the basis of the applicant’s file and after an interview.

22The referring court also notes that the Republic of Estonia has had the profession of nursery school teacher entered into a database of regulated professions set up at the Commission.

23However, other factors lead the referring court to doubt whether the profession of nursery school teacher is a regulated profession in Estonia.

24It observes that, unlike Finnish law, the Estonian legislation does not require the higher education qualification referred to in paragraph 21 of the present judgment to be in the field of early childhood education.

25It also notes that an employer recruiting such a teacher has a discretion in assessing whether the candidate for the post of nursery school teacher satisfies the conditions of the Regulation on qualification requirements for nursery school teachers. In particular, the certificate of pedagogical competence is optional and does not bind the employer. The employer would assess independently whether the candidate has the required pedagogical competences.

26Therefore, according to the referring court, two different employers might assess the same candidate’s pedagogical competences differently.

27In those circumstances, the referring court is uncertain whether, under Estonian legislation, the profession of nursery school teacher is in fact reserved for persons who satisfy certain conditions, and access to that profession is prohibited for others.

28In the second place, on the assumption that the profession in question is to be regarded as being regulated in Estonia, the referring court queries whether the certificate issued to A by the Estonian Teachers’ Association in 2017, referred to in paragraph 15 of the present judgment, may be regarded as an attestation of competence or evidence of formal qualifications, within the meaning of Article 13(1) of Directive 2005/36, when the professional experience which it recognises was acquired at a time when the home Member State was a Soviet Socialist Republic.

29In the third place, with regard to the qualification which A obtained in the Estonian Soviet Socialist Republic in 1980 and the experience acquired there between 1980 and 1984, the referring court queries whether that qualification and that experience must be regarded as attesting to professional qualifications acquired in a third country, for the purposes of Article 3(3) of Directive 2005/36, and whether, consequently, those qualifications might be recognised only if the person concerned also provides proof of three years’ professional experience in the home Member State in the period after it had regained its independence.

30The referring court observes, however, that by virtue of an Estonian law of 2005, qualifications obtained in the Estonian Soviet Socialist Republic were treated as qualifications obtained in Estonia after it had regained its independence.

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

(1)Is Article 3(1)(a) of Directive [2005/36] to be interpreted as meaning that a regulated profession is to be regarded as a profession for which, on the one hand, the qualification requirements are laid down in a regulation adopted by the Minister for Education of a Member State and the content of the pedagogical competence required of a nursery school teacher is regulated in a professional standard and the Member State has had the profession of nursery school teacher entered in the database of regulated professions set up at the Commission, but for which, on the other hand, according to the wording of the regulation concerning the qualification requirements of that profession, the employer is granted discretion in assessing whether the qualification requirements are met, in particular as regards the requirement of pedagogical competence, and the nature of the evidence regarding the existence of pedagogical competence is not regulated either in the regulation in question or in any other laws, regulations or administrative provisions?

(2)If the first question is answered in the affirmative: Can a certificate relating to a professional qualification and issued by the competent authority of the home Member State, the award of which is subject to work experience in the profession in question, be regarded as an attestation of competence or other evidence of formal qualifications within the meaning of Article 13(1) of [Directive 2005/36] if the professional experience on which the certificate is based originates from the home Member State during the period in which it was a Soviet Socialist Republic and from the host Member State, but not from the home Member State in the period after it had regained its independence?

(3)Is Article 3(3) of [Directive 2005/36] to be interpreted as meaning that a professional qualification which is based on a qualification obtained at an educational establishment situated in the geographical territory of a Member State at a time when that Member State did not exist as an independent State but as a Soviet Socialist Republic and on professional experience gained on the basis of that qualification in the Soviet Socialist Republic in question before the Member State had regained its independence is to be regarded as a professional qualification obtained in a third country, with the result that the assertion of that professional qualification requires, in addition, three years’ professional experience in the home Member State in the period after it had regained its independence?

Consideration of the questions referred

Preliminary observations

32As is apparent from recital 1 of Directive 2005/36, the aim of that directive is to promote the recognition of professional qualifications in order to enable nationals of the Member States to pursue a profession, in a self-employed or employed capacity, in a Member State other than the one in which they obtained their professional qualifications, and thus to contribute to the free movement of workers within the European Union.

33Under Articles 1 and 2, that directive is to apply only if the profession in question is regulated in the host Member State.

34In the present case, it is apparent from the information provided by the referring court that the profession of nursery school teacher is a regulated profession in Finland. Consequently, access to that profession and its pursuit in that Member State by nationals of another Member State are governed by the provisions of Directive 2005/36.

35If the profession concerned is also regulated in the home Member State, the host Member State must, pursuant to Article 13(1) of Directive 2005/36, permit access to or pursuit of that profession by nationals of other Member States under the same conditions as its own nationals, if they possess an attestation of competence or evidence of formal qualifications required by the home Member State.

36By contrast, where the profession at issue is not regulated in the home Member State, it follows from Article 13(2) of Directive 2005/36 that access to and pursuit of the profession must be granted in the host Member State if the applicant has pursued the profession in question on a full-time basis for 1 year or for an equivalent overall duration on a part-time basis during the previous 10 years in another Member State, and if that applicant possesses one or more attestations of competence or evidence of formal qualifications issued by the home Member State. However, the third subparagraph of Article 13(2) of Directive 2005/36 provides that the requirement relating to professional experience does not apply if the applicant possesses evidence of formal qualifications which certifies regulated education and training.

37Accordingly, the application for recognition of A’s professional qualifications as a nursery school teacher submitted by A in the host Member State, the Republic of Finland, must be assessed in the light of the conditions laid down in Article 13(1) of Directive 2005/36 if that profession is regulated in the home Member State, the Republic of Estonia, and in the light of the conditions laid down in Article 13(2) of Directive 2005/36 if it is not.

The first question

38By its first question, the referring court asks, in essence, whether Article 3(1)(a) of Directive 2005/36 must be interpreted as meaning that a profession in respect of which national legislation imposes qualification requirements for access to and pursuit of the profession, but leaves employers a discretion in assessing whether those requirements are met, must be regarded as a regulated profession within the meaning of that provision.

39Under Article 3(1)(a) of Directive 2005/36, a ‘regulated profession’ is 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’.

40In addition, it is apparent from the case-law of the Court that a profession is deemed regulated, for the purpose of Directives 89/48 and 92/51, where access to the professional activity constituting that profession or its exercise is governed by laws, regulations or administrative provisions creating a system under which that professional activity is expressly reserved to those who fulfil certain conditions and access to it is prohibited to those who do not fulfil them (judgments of 1 February 1996, Aranitis, C‑164/94, EU:C:1996:23, paragraph 19, and of 8 May 2008, Commission v Spain, C‑39/07, EU:C:2008:265, paragraph 33). Having regard to the definitions set out in Directives 89/48 and 92/51, and taking into account recital 14 of Directive 2005/36, that case-law is applicable by analogy to the concept of ‘regulated profession’ within the meaning of that directive.

41In the present case, it must be noted that, in Estonia, the Regulation on qualification requirements for nursery school teachers provides in Paragraph 1(1) that ‘the employer shall assess the worker’s ability to occupy the post and compliance with the qualification requirements laid down in this Regulation’.

42As the referring court has pointed out, without being contradicted by the Estonian Government, Paragraph 1(1) of that regulation gives the employer a discretion in assessing whether the qualification requirements for access to the profession of nursery school teacher, particularly the requirement relating to pedagogical competence, are met, so that, by virtue of that provision, two different employers might assess differently the question as to whether the same applicant meets those requirements.

43Admittedly, the Estonian Government explained before the Court that, when presented with a certificate issued by the Estonian Teachers’ Association, the employer has no reason to doubt the candidate’s pedagogical competence. However, as the Advocate General noted in point 60 of his Opinion, the Estonian Government indicated that the Estonian legislation does not contain any rule to that effect. That confirms, therefore, the referring court’s reading of Paragraph 1(1) of the Regulation on qualification requirements for nursery school teachers, according to which it is for the employer to assess whether the qualification requirements are met.

44Such a discretion must be distinguished from the employer’s power to recruit or not to recruit a person who meets the qualification requirements for access to the profession in question and to choose between two candidates who meet those requirements.

45The situation that arises as a result of such a discretion is liable to blur the distinction between those who do possess the professional qualifications required by the national legislation for the pursuit of the profession in question and those who do not.

46In those circumstances, Estonian law does not guarantee that access to and pursuit of the profession in question are reserved to those who possess specific professional qualifications.

47Consequently, the profession of nursery school teacher, as organised in Estonia, cannot, it would appear, be characterised as a ‘regulated profession’ within the meaning of Article 3(1)(a) of Directive 2005/36.

48That assessment is not called into question by the fact that the Republic of Estonia considers the profession of nursery school teacher to be ‘regulated’, that it has included that profession on the list of existing regulated professions notified to the Commission and that that profession is mentioned in the database of regulated professions maintained by the Commission pursuant to Article 59 of Directive 2005/36.

49First, the definition of ‘regulated profession’ in Article 3(1)(a) of Directive 2005/36 does not refer to the law of the Member States. Thus, that definition within the meaning of the directive is a matter of EU law alone (judgment of 21 September 2017, Malta Dental Technologists Association and Reynaud, C‑125/16, EU:C:2017:707, paragraph 34 and the case-law cited).

50Consequently, the fact that the Republic of Estonia considers the profession of nursery school teacher to be ‘regulated’ and has included it on the list of existing regulated professions which it notified to the Commission is not sufficient for that profession to be characterised as a ‘regulated profession’ within the meaning of Directive 2005/36.

51Secondly, as the Advocate General noted in point 45 of his Opinion, Article 3(1)(a) of Directive 2005/36 also makes no reference to the content of the database maintained by the Commission, mentioned in paragraph 48 of the present judgment. That database is therefore only of indicative value.

52In the light of the foregoing considerations, the answer to the first question is that Article 3(1)(a) of Directive 2005/36 must be interpreted as meaning that a profession in respect of which national legislation imposes qualification requirements for access to and pursuit of the profession, but leaves employers a discretion in assessing whether those requirements are met, is not to be regarded as a ‘regulated profession’ within the meaning of that provision.

The second question

53The second question is expressly raised in case the profession in question is regulated in the home Member State within the meaning of Article 3(1)(a) of Directive 2005/36, and the answer to the first question is therefore in the affirmative. In view of the fact that the first question is to be answered in the negative, there is no need to answer the second question.

The third question

54The third question is raised in case the profession in question is not regulated in the home Member State.