The Commission has decided today to refer Portugal to the Court of Justice of the European Union for breaching the EU rules on the freedom of movement of workers (Article 45 of the Treaty on the Functioning of the European Union, TFEU), freedom of establishment (Article 49 TFEU) and freedom to provide services (Article 56 TFEU) as well as the Directive on the recognition of professional qualifications (Directive 2005/36/EC as amended by Directive 2013/55/EU).
These EU rules have contributed to the creation of a modern system for the recognition of professional qualifications and experience across the EU. They make it easier for professionals to provide their services in different Member States, whilst guaranteeing an improved level of protection for consumers and citizens. According to EU legislation, specifically Annex VI to Directive 2005/36/EC, civil engineers whose diploma attest that their training started at the latest during the academic year 1987/1988 are entitled to continue carrying out architectural projects in Portugal. The diplomas are listed in Annex VI. It was agreed that those diplomas met sufficient standards to be conferred acquired rights. Consequently, other EU and EEA Member States as well as Switzerland must automatically recognise their qualification.
Portuguese legislation makes these acquired rights dependent upon meeting restrictive conditions going beyond the EU rules. As a result, numerous engineers who do not fulfil those new Portuguese conditions will see their rights to free movement be restricted.
The principle of acquired rights is a fundamental principal of law and Portugal has not provided any justification for these new restrictions.
The Commission launched this infringement procedure in January 2019, followed by a reasoned opinion in February 2020 and by a continued dialogue with the Portuguese authorities. However, the Portuguese authorities have still not addressed the grievances and this is why the Commission has decided to refer Portugal to the Court of Justice of the European Union.
Directive 2005/36/EC on the recognition of professional qualification provides for the automatic recognition of professional qualifications of engineers, accountants, nurses, doctors, pharmacists or architects, provided that their training meets certain conditions. The Directive also sets up specific rules as regards acquired rights for professionals who already detained qualifications before the entry into force of the EU rules. As far as Portugal is concerned, Annex VI to Directive 2005/36/EC states that civil engineers, who started their training in Portugal at the latest in the academic year 1987/88 and whose diploma is mentioned in this annex, have the right to carry out architectural projects in Portugal and consequently in other EU and EEA Member States as well as in Switzerland. Those engineers have the right to get automatic recognition of their qualification when they move to other Member States EEA countries or Switzerland.
The Portuguese legislation in question sets conditions that are not referred to in Annex VI of the EU professional qualifications Directive. In particular, the Portuguese law states that the training must have started only during the academic year 1987/1988; however, in accordance with Article 49(1) and Annex VI of the Directive, it may have started earlier. In addition, contrary to the Directive, Portuguese law requires that in order to be able to carry out architectural projects, engineers must prove that they have signed an architectural project that has been approved by the municipality between November 2009 and November 2017.