–

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,

1

This 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’).

2

The 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.

3

Recitals 1 and 14 of Directive 2005/36 are worded as follows:

…

4

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.

…’

5

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

‘1.   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.

…

2.   Each Member State may permit Member State nationals in possession of evidence of professional qualifications not obtained in a Member State to pursue a regulated profession within the meaning of Article 3(1)(a) on its territory in accordance with its rules. …’

6

Article 3 of that directive provides:

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

…

…

3.   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.’

7

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.

…’

8

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:

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.

…’

9

Article 59(1) of that directive provides:

‘1.   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.’

10

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.

11

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’).

12

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. …’

13

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.

14

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.

15

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

16

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.

17

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

18

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).

19

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

20

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.

21

It 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.

22

The 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.

23

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

24

It 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.

25

It 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.

26

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

27

In 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.

28

In 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.

29

In 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.

30

The 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.

31

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:

32

As 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.

33

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

34

In 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.

35

If 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.

36

By 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.

37

Accordingly, 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.

38

By 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.

39

Under 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’.

40

In 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.

41

In 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’.

42

As 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.

43

Admittedly, 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.

44

Such 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.

45

The 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.

46

In 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.

47

Consequently, 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.

48

That 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.

49

First, 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).

50

Consequently, 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.

51

Secondly, 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.

52

In 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.

53

The 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.

54

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

55

In that situation, as has been noted in paragraph 36 of the present judgment, it follows from the first subparagraph of Article 13(2) of Directive 2005/36 that access to and pursuit of the profession must be granted by 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 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 one year’s professional experience in another Member State during the previous 10 years falls away if the evidence of formal qualifications which the applicant possesses certifies regulated education and training.

56

In the present case, A did not pursue the profession of nursery school teacher in a Member State other than the host Member State during the 10 years preceding A’s application, as required by the first subparagraph of Article 13(2) of Directive 2005/36.

57

In those circumstances, the referring court asks whether the early childhood education qualification which A obtained in the Estonian Soviet Socialist Republic in 1980 may be regarded as evidence of formal qualifications certifying regulated education and training within the meaning of the third subparagraph of Article 13(2) of that directive.

58

Under Article 3(3) of Directive 2005/36, ‘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’.

59

It follows that, by its third question, the referring court must be considered to be asking, in essence, whether Article 3(3) of Directive 2005/36 must be interpreted as meaning that that provision is applicable where the evidence of formal qualifications presented to the host Member State was obtained on the territory of another Member State at a time when that other Member State existed not as an independent State but as a Soviet Socialist Republic, and where that evidence of formal qualifications was regarded by that Member State as evidence of formal qualifications issued by that Member State after it had regained its independence.

60

It is apparent from the wording of Article 3(3) of Directive 2005/36 itself that that provision concerns any evidence of formal qualifications issued by a third country and recognised by a Member State in accordance with Article 2(2) of that directive.

61

It must be stated that the qualification obtained by A in the Estonian Soviet Socialist Republic in 1980 cannot be regarded as having been issued by a third country within the meaning of that provision.

62

As is apparent from the explanations given to the Court by the referring court, that qualification was treated by the Republic of Estonia – after it had regained its independence and following its accession to the European Union – by virtue of Government Regulation No 120 of 6 June 2005 on the correspondence between diplomas of the Republic of Estonia and diplomas of the former USSR awarded before 20 August 1991, as a diploma obtained in the Republic of Estonia after that Member State had regained its independence.

63

Consequently, that diploma must be regarded as evidence of formal qualifications issued by a Member State and not by a third country, contrary to the provisions of Article 3(3) of Directive 2005/36.

64

Accordingly, Article 3(3) of Directive 2005/36 is not applicable in circumstances such as those of the dispute in the main proceedings.

65

It follows from all of the foregoing that Article 3(3) of Directive 2005/36 must be interpreted as meaning that that provision is not applicable where the evidence of formal qualifications presented to the host Member State was obtained on the territory of another Member State at a time when that other Member State existed not as an independent State but as a Soviet Socialist Republic, and where that evidence of formal qualifications was regarded by that Member State as evidence of formal qualifications issued by that Member State after it had regained its independence. Such evidence of formal qualifications must be regarded as having been obtained in a Member State and not in a third country.

66

It must be added that, in view of the answers given in paragraphs 52 and 65 of the present judgment, from which it follows that the application for recognition of professional qualifications does not fall within the scope of Directive 2005/36, it is for the competent authorities of the host Member State, as the Advocate General explained in points 90 to 93 of his Opinion, to examine A’s situation in the light of the provisions of Articles 45 and 49 TFEU, in accordance with the case-law of the Court (see, to that effect, judgment of 3 March 2022, Sosiaali- ja terveysalan lupa- ja valvontavirasto (Basic medical training), C‑634/20, EU:C:2022:149, paragraphs 38 to 46 and the case-law cited).

67

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Fourth Chamber) hereby rules: