The TFEU guarantees the right to free movement not only of employed workers but also of those who supply services as self-employed persons or seek the right of establishment in other Member States (Articles 49-53 TFEU). The activity in question may not be clearly that of a worker or a person supplying services or seeking the right of establishment, but the Treaty and the Court have sought to extend the same freedoms equally to all three categories of economic activity. With specific regard to the latter categories, it was provided in Article 53 TFEU that the Council shall:
1.(…) act in accordance with the ordinary legislative procedure, issue directives for the mutual recognition of diplomas, certificates and other evidence of formal qualifications and for the coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons.
2. In the case of the medical and allied and pharmaceutical professions, the progressive abolition of restrictions shall be dependent upon coordination of the conditions for their exercise in the various Member States.
However, progress towards a general system allowing for the free movement of professionals was slow, due to the obstacles posed by national systems of qualifications and regulation of professional activity. A first step was Council Resolution of 6 June 1974 on the mutual recognition of diplomas, certificates and other evidence of formal qualifications, which set the tone for the drafting of sectoral directives in various professions. These covered doctors (Council Directive 75/362/EEC of 16 June 1975 on the mutual recognition of diplomas in medicine), other major health care professions (nurses, dentists, veterinary surgeons, midwives, pharmacists), which followed the broad lines of the provisions on doctors (Council Directives 77/452/EEC and 77/453/EEC; 78/686/EEC and 78/687/EEC; 78/1026/EEC and 78/1027/EEC; 80/154/EEC and 80/155/EEC; and 85/432/EEC and 85/433/EEC), architects (Council Directive 85/384/EEC) and lawyers (Council Directive 77/249/EEC). In the period during which these directives were being considered and adopted, the Court of Justice established further important principles regarding the recognition of diplomas and the interpretation of the directives.
The Single European Market programme of the mid-1980s generated a momentum which overtook this piecemeal, sectoral and casuistic approach. A proposal for a Council Directive was formulated on 9 July 1985, and a directive was finally adopted on 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 (Council Directive 89/48/EEC of 21 December 1988). The directive follows the principle of ‘mutual recognition’ applicable to the free movement of other factors of production which underlay the Commission’s White Paper setting out the Single European Market programme.
A Communication presented by the Commission on 28 February 2001 states the aim of presenting proposals for the creation of a more uniform, transparent and flexible system for the mutual recognition of professional qualifications, based on the existing system but including ways of promoting more widespread automatic recognition. A Commission Communication of 11 December 2002 on ‘Free movement of workers – achieving the full benefits and potential’ points out that a system of mutual recognition of qualifications and diplomas has been put in place. However, automatic recognition of diplomas is provided for only in a few professions, mainly in health. Further, in some cases, where the field of activity is substantially different, a period of adaptation or an aptitude test may be required.