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93
DOI: 10.33067/SE.2.2021.5
Stanisïaw Lipiec*
The Recognition of Professional QualiÞ cations
in the European Union
The Practice of Administration and European Courts
• The Ski Instructor Example
Abstract
The case of the English ski instructor Simon Butler working in France is
the best example of the malfunctioning of the professional-qualiÞ cations-
recognition system in Europe. The practice of European and national
administration as well as the jurisprudence of the CJEU and French courts
shows how important and complex the subject of qualiÞ cation recognition
is. A review of administrative practices and an analysis of case law show the
positive and negative sides of the EU$s qualiÞ cation recognition system.
The European Commission is carrying out numerous activities aimed at
improving said system. The latest solutions make the idea of qualiÞ cation
without borders a reality.
The most important task is to examine the changes and legislative proposals
of the European Union, analyse the case of Simon Butler and present
proposals for changes against the background of activities undertaken
throughout the Union. They should be realised through legal research
methods and non-reactive social methods.
Keywords: Professional QualiÞ cations, Ski Instructor, European Union,
Internal Market, Law, Jurisprudence, Court of Justice
* Stanisïaw Lipiec ! European University of Law and Administration, e-mail:
staszeklipiec@gmail.com, ORCID: 0000-0002-1014-1208.
Lipiec, Stanisław. ‘The Recognition of Professional Qualifications in the European Union. The Practice of Administration and European
Courts – The Ski Instructor Example’. Studia Europejskie - Studies in European Affairs 25, no. 2 (2021): 93–115. https://doi.org/10.33067/
SE.2.2021.5.
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Studia Europejskie ! Studies in European Affairs, 2/2021
Introduction
It is an ordinary winter morning in December 2013, in the French
Rhône-Alpes region. Young people practise skiing under the supervision of
a few ski instructors. They know those teachers because they have worked
in these mountains since 1982; they like working with them because they
are real blue-chippers, (highly valued sportspeople), and are people who
lead their own registered companies. However, some of them are slightly
different from the other instructors ! they are British citizens. They have
experience and certiÞ cates of competence gained in the United Kingdom;
they are also members of a British professional instructors$ association.
Though they are registered in France as residents, they pay taxes; they
have local, regional, and national authorisation to conduct business.
However, this typical day changed very quickly. A few hours after the
beginning of the day$s skiing lessons, the slope was suddenly swarming
with many police ofÞ cers on snowmobiles and skis. They immediately
arrested most of the ski instructors, as they had discovered that they were
working without national French ski instructor certiÞ cates. Eventually,
the police arrested six British instructors and charged them with working
in France without a French ski instructor$s licence. Moreover, one man
was accused of operating a ski instruction company without speciÞ c
French authorisation.1
He was called Simon Butler, and his story became quite famous in
Europe. Now his case serves to represent the situation of European
internal market policy regarding the Þ eld of the recognition of
professional qualiÞ cations, the freedom of workers$ movement, and the
right to establish companies. This man and his situation is only one
example of such misunderstandings, the primacy of (non-) EU law, poor
regulations, and the unfair practice of national administrations and courts.
Similar cases could also occur with lawyers, tour leaders, trade agents or
photographers, and all 5,500 professions where countries regulate the
provision of services.2
1 Simon Butler$s story was reconstructed on the basis of: P. Allen, Ski instructor
locked up for giving lessons in Alps wins court battle, "Mail Online#, 4.12.2016; H. Druce,
Ski instructor guilty: Simon Butler is not outside the law, "The Telegraph#, 5.02.2016; Is
Simon Butler a national hero ! or just a skier who ignores, "The Independent#, 20.06.2014;
H. Morris, British ski instructor sentenced to prison or a "30,000 Þ ne, "The Telegraph#,
16.06.2014; http://www.planetski.eu/news/8476 (access 26.10.2019); http://www.plan-
etski.eu/news/8493 (access 26.10.2019); https://www.j2ski.com/ski-chat-forum/posts/
list/0/16320/simon-butler-basi.page (access 26.10.2019).
2 Commission staff working document impact assessment accompanying the
document Proposal for a Regulation of the European Parliament and of the Coun-
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S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
Butler$s case serves as an example of breaking the EU$s internal market
rules. Thus, it is an important task to examine European Union national
Member States$ laws regarding the provision of services, the case law of the
Court of Justice of the European Union (CJEU) and some national courts in
this area. A comparison of these legal situations regarding the practice of
local administration and states should be the most important element. In
addition, it is necessary to investigate the European Union$s current work
on the system of recognising professional qualiÞ cations, and the freedom
to provide services, as well as other methods of qualiÞ cation recognition.
Proposals of speciÞ c solutions to this chaos should arise from these
considerations. The situation in France, the UK, Italy, Poland, Austria,
and the Czech Republic should serve as an example for the entire EU.
The current study was conducted using several research methods
combined as a part of the case study method.3 In short, the case study
focuses on the situation of Simon Butler and the people, situations, and
relationships associated with him. As part of the general case study method,
non-reactive research methods were used. In particular, the method of
content analysis and an analysis of statistical data, press releases, and
literature analysis were used.4 These research methods were supplemented
by methods belonging to the legal sciences: the functional5 method of
legal acts and applying the law as well as the comparative method. Legal
methods have been used mainly to analyse acts of European Union law
and national law, the jurisprudence of the CJEU and the jurisprudence of
national courts, as well as the analysis of opinio iuris.
Simon Butler!s Story
Simon Butler is an ordinary citizen of the United Kingdom. Skiing is
his great hobby; he has competed in FIS ski tournaments, was a highly
competitive sportsperson in his childhood and decided to teach skiing in
cil introducing a European services e-card and related administrative facilities
(SWD/2016/0439 Þ nal-2016/0403 (COD)), Brussels 10.01.2019; Communication from
the Commission to the European Parliament, the Council, the European Economic
and Social Committee and the Committee of the Regions on reform recommendations
for regulation in professional services (COM(2016) 820 Þ nal), Brussels 10.01.2019.
3 A.B. Starman, The case study as a type of qualitative research, "Journal of Contem-
porary Educational Studies#, no. 1/2013, pp. 28!43.
4 E.R. Babbie, Podstawy badañ spoïecznych, Warszawa 2008, pp. 349!369; C. Frank-
fort-Nachmias, D. Nachmias, Metody badawcze w naukach spoïecznych, Poznañ 2001,
pp. 320!350.
5 D. KÚdzierski, Metodologia i paradygmat polskich szczegóïowych nauk prawnych,
%Transformacje Prawa Prywatnego#, no. 3/2019, pp. 34!51; R. Tokarczyk, Komparaty-
styka prawnicza, Warszawa 2008, pp. 67!80.
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Studia Europejskie ! Studies in European Affairs, 2/2021
the early 1980s. Thus, he became a member of the British Association of
Snowsport Instructors (BASI), a private British organisation, and took
instructors$ courses. BASI awarded him the highest-class instructor$s
diploma at an international level (level 4, ISTD).6
Shortly after obtaining the ISTD, Butler went to the French Alps, where
he found excellent geographic and economic conditions for ski tuition. He
also found a home there. He began to run a sole proprietorship, registered
in the UK, in the Rhône-Alpes region. For the next 20 years, the Briton
taught skiing on the alpine slopes. He was a valued instructor who mainly
taught his fellow citizens, increasingly spending time in the highest
mountains of Europe. He ran a UK-registered company, employed other
British ski instructors, paid taxes, and met insurance requirements.7
Twenty years passed, during which Butler and his staff trained thousands
of people. They settled in France, and obtained the right of residence
or citizenship. They Þ tted into the landscape of instructors in the Alps.
However, this entirely normal situation changed during the 2004/2005 ski
season. Unexpectedly, Simon Butler was summoned to the prefecture of
the Haute-Savoie department, where he was informed that he was running
business without the permission of the authorities. The prefect issued Butler
with a 10,000 euros administrative Þ ne, and the administration indicated
that the instructor should re-register his activity because the previous
registration was incorrect. They underlined that he had inadequate civil
liability insurance and lacked French qualiÞ cations for teaching winter
sports. Butler did not appeal against the administrative penalty; he promptly
paid the penalty, and it seemed that the case was over.
However, these events of the 2004/2005 season were merely the
beginning of Simon Butler$s problems. He was regularly summoned to the
authorities of Haute-Savoie department, and to the police. Administrative
and criminal penalties were imposed on him, on the grounds of running
a company without appropriate permits, and provision of ski instructor
services without appropriate French professional qualiÞ cations. Each time,
however, Butler emphasised that he was a professional ski instructor, with
a certiÞ cate issued by the British BASI instructor association. Moreover,
as a citizen of the European Union, he had the right to provide services,
migrate, and run a company in other EU countries without any obstacles.
In the years 2005!2013, 11 administrative and penal Þ nes were
imposed on Butler for practising the profession of instructor without
6 https://www.basi.org.uk/ (access 11.03.2021); https://www.j2ski.com/ski-chat-
forum/posts/list/0/16320/simon-butler-basi.page (access 26.10.2019).
7 https://www.sbski.com/ (access 3.08.2019); https://beta.companieshouse.gov.uk/
company/05211662 (access 3.08.2019).
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S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
French certiÞ cation, employing instructors without French licences, and
running a business without a French instructor$s licence. Demand for
his services was growing from year to year, and he became increasingly
involved in his instruction activity. He already employed six British ski
instructors in the winter season 2013/2014.
Simon Butler and his instructors certainly did not expect a raid by the
gendarmerie and ofÞ cials. On one ordinary day, they were training their
students on the alpine slopes in Megève. The arrival of dozens of gendarmes
stunned the instructors and other skiers; the gendarmerie detained Butler
and six other instructors employed by him. The British were subjected to
criminal charges of running a regulated ski instructor profession without
permission, and failure to comply with penalties from previous years. In
addition, Butler was charged with employing instructors who did not have
the proper certiÞ cates. Simultaneously, the administrative authorities of
the Haute-Savoie department imposed on him an administrative penalty
of 30,000 euros, because of his running a business without permission. The
police and administrative authorities set forth reasons for the judgement
that the British did not have French instructor licences, on the basis that
British licences are not recognised by the French authorities.8
The real problems of Simon Butler and his employees were only just
beginning in the winter of 2014. The Briton was accused of employing
people without appropriate qualiÞ cations and providing instructor
services without appropriate French certiÞ cates. In addition, the prefect
of the Haute-Savoie department issued the next administrative penalty
for running an enterprise without permission to conduct regulated
activity. The instructor strongly disagreed with this interpretation of
the law by the French authorities and emphasised that he had been
running a legal company for 30 years, had an English certiÞ cate of
qualiÞ cation, and employed only people who had similar certiÞ cates.
Unfortunately, his explanations were deemed unacceptable to the
authorities. Butler decided to Þ ght back, on the grounds of both criminal
and administrative law. Over the years, he did everything possible to
convince the courts and institutions of his freedom to provide services,
migrate, and run a business in another EU country. His legal team of
lawyers, Jean-Yves Lapeyrère and Philippe Planes, would support him
in his campaign.9
8 Decision of the Tribunal Administratif de Lyon, 1403050, Lyon 22.11.2016;
H. Druce, op.cit.
9 http://ec-oe.eu/press-release-simon-butler-the-eu-forerunner-wins-the-fin-
al-slalom/ (access 11.03.2021); Decision of the Tribunal Administratif de Lyon, op.cit.;
https://www.planetski.eu/news/8476 (access 3.08.2019).
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Studia Europejskie ! Studies in European Affairs, 2/2021
Here we can observe two kinds of proceedings ! criminal and
administrative. The prosecutor accused Butler of pursuing the regulated
profession of ski instructor without the proper qualiÞ cations required in
France, and employing people without appropriate training. The Briton
was accused according to Article 446-1 ! 446-4 of the French Penal Code.10
The prosecutor recommended punishing the Briton with a Þ ne of 30,000
euros and one year$s imprisonment. The court of Þ rst instance complied
with the demands of the prosecutor, but limited the prison sentence to six
months. However, the execution of the prison sentence was suspended. At
the same time, Butler appealed against the administrative decision of the
Haute-Savoie department prefect to the Minister of Sport, but this appeal
was also dismissed.
In both cases, the instructor was accused also of violating Article
212!184 of the Sports Code: performing the regulated profession
of instructor without professional qualifications.11 To explain the
judgement, it was emphasised that only the French Minister of Sport
defines what kind of certificates must be held by people providing
regulated professions; at that time, Eurotest certification was required
for ski instructors.12
Butler and his lawyers highlighted that he himself was a highly qualiÞ ed
person; he had a top-rated British certiÞ cate issued by the BASI association
(ISTD, level 4). Based on Directive 2005/36/EC (implemented as Article
212!90 of the Sports Code), a person with a qualiÞ cation obtained in one
Member State should be able to work as an instructor in France without
any problems.13 Moreover, the lawyers pointed out that Articles 45, 49,
and 56 of the Treaty on the Functioning of the European Union (TFEU) allow
people to work, provide services, migrate, and operate companies in other
EU countries without any obstacles.14
10 Code pénal, Paris 11.03.1994.
11 Code du sport de la Republique Francaise, Paris 15.07.2019.
12 Arrêté du 11 avril 2012 relatif à la formation spéciÞ que du diplôme d$Etat de
ski ! moniteur national de ski alpin; Arrêté du 25 octobre 2004 Þ xant les conditions
d$obtention de la partie spéciÞ que du brevet d$Etat d$éducateur sportif du premier
degré, option ski alpin; https://www.thefrenchsnowsportsacademy.com/euro-test-
training (access 11.03.2021); Mapping of professional qualiÞ cations and relevant trai-
ning for the profession of ski instructor in the EU-28, EEA and Switzerland, Brussels
2015, pp. 14!16.
13 Directive 2005/36/EC of the European Parliament and of the Council of 7 Sep-
tember 2005 on the recognition of professional qualiÞ cations, L 255/22, OJ L 255,
Brussels 7.09.2005.
14 Treaty on the Functioning of the European Union, C 326, OJ C 326, Brussels
26.10.2012.
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S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
The verdict of the criminal court and the decision of the Minister of
Sport were legally invalid. A criminal verdict appeal was entered to the
court of second instance in Chambéry, and an administrative complaint
was Þ led with the Administrative Court of Lyon. The arguments from the
Þ rst instances were repeated.
The appellate criminal hearing was held at the district court in
Chambéry in April 2015. The court upheld all the arguments of the
Briton and his legal team, and freed him from all imputations. He
was also awarded high procedural costs from the French Republic.
The court stated that he could now provide his instructor services
wherever he wanted in France. The judge stressed that the British
instructor had appropriate British professional qualifications that
were recognised in France and went on to unequivocally emphasise
that EU law requires the recognition of professional qualifications
obtained in other countries. Directive 2005/36/EC was implemented
incompletely in the French legal system, omitting the Penal Code.
In addition, the interpretation of criminal law and sports law by the
court of first instance, prosecution and gendarmerie was not a pro-EU
interpretation. Individuals who have vocational qualifications based
on Eurotest and persons with foreign qualifications have the same rights
to practise in France, but only after meeting the conditions presented
in the French Sport Code.
The failure of the French justice system was signiÞ cant. Butler$s
lawyers immediately complained to the Lyon Administrative Court about
the Ministry$s decision. The hearing took place in November 2016. The
court$s verdict was unequivocal: cancel all sentences and penalties imposed on
Butler. The activity of ski instructors in France is possible under EU rules.
The administrative court based his arguments almost entirely on the
same principles as the criminal court. He emphatically foregrounded
the insufÞ cient implementation of the directive, that it was not a pro-
EU interpretation, and underlined numerous errors in the administrative
procedure. He also drew attention to ensuring the freedoms of the EU$s
internal market, even when the implementation and interpretation of EU
law are insufÞ cient. The court also speciÞ ed when a person migrating
for work must undergo an adaptation period or meet other conditions
to recognise qualiÞ cations. The Lyon court also noted the problem of
recognising professional qualiÞ cations when the speciÞ c profession is
regulated in the country of arrival, but not in the immigrant$s country of
origin.15
15 Decision of the Tribunal Administratif de Lyon, op.cit.
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Studia Europejskie ! Studies in European Affairs, 2/2021
Butler$s victory was complete; his instructors also obtained similar
judgements. The Briton$s case became famous throughout Europe,
because many famous Britons had spent their holidays in the Alps and met
Butler. The instructor also decided to bring an action against the French
government and the British ski association BASI. He argued that he was
excluded from BASI because of inappropriate behaviour. Fortunately,
both cases ended amicably.16 We are indebted to the British ski instructor
for promoting the recognition of professional qualiÞ cations. As a result,
Europe realised the importance of recognising professional qualiÞ cations
in the internal market.17
Simon Butler still lives in Megève, but runs his company in the UK.
He employs UK citizens who are ski instructors with BASI qualiÞ cations
and Butler and his instructors can still be found on the Alpine slopes,
teaching young Britons to ski.
Simon Butler$s case is typical. Thousands of specialists in Europe are
victims of the inadequate system of recognising professional qualiÞ cations.
Representatives of the sport and tourism, education, construction,
Þ nancial industries and others, regularly face problems in providing
services outside their country of origin, and recognition of qualiÞ cations.
The French case is only one example of these problems in Europe. Despite
the growing mobility of people providing free services, we still rarely hear
about such spectacular problems as Butler$s.
The Court of Justice (CJEU) of the EU still deals very rarely with
matters related to the freedom to provide services and the recognition of
professional qualiÞ cations. In fact, the European Union and its Member
States have not yet developed a coherent system for this. Butler$s case
features two main problems: the lack of recognition of professional
qualiÞ cations, and the illogical system of obtaining and recognising
vocational qualiÞ cations and education in Europe.
16 Andriana, Press Release Simon Butler: The EU $forerunner% wins the Þ nal slalom,
http://ec-oe.eu/press-release-simon-butler-the-eu-forerunner-wins-the-Þ nal-slalom/
(access 11.03.2021); J. Peele, GB ski instructor wins historic case in France, https://www.
planetski.eu/news/8476 (access 3.08.2019).
17 Commission Delegated Regulation (EU) 2019/907 of 14 March 2019 - establish-
ing a Common Training Test for ski instructors under Article 49b of Directive 2005/
36/ EC of the European Parliament and of the Council on the recognition of the profes-
sional qualiÞ cations (L 145/7); EU law regarding ski instructors in France P-005974/2019,
http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=P-2019-
005974&format=XML&language=EN (access 26.10.2019); Mapping of professional
qualiÞ cations and relevant training for the profession of ski instructor in the EU-28, EEA
and Switzerland.
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S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
The System of Recognising Professional QualiÞ cations
in Europe
The recognition of professional qualiÞ cations is the cornerstone of the
common market of the European Union. Without mutual recognition
of professional qualiÞ cations in the Union, it is impossible to create
a common market for services in Europe. The issue of recognising
qualiÞ cations mainly concerns free professions and people providing
services on their own account or in small enterprises, such as lawyers,
doctors, sports instructors, builders or guides. Therefore, it inß uences
small entities that require special public protection, and whose services
are also highly desirable in the market.
The topic of the recognition of qualiÞ cations has been present in public
discourse since the 1980s. Originally, the European Commission wanted
to establish a common, single market for services and employment.
Unfortunately, Member States started to oppose this, claiming that many
migrating professionals and small enterprises do not know the language
and regional culture, or that they provide low-quality services. However,
the real reason for the opposition was to protect domestic markets against
a surge of equally good competition. European Union states have begun to
increasingly regulate their internal markets. Nowadays, more than 5,500
kinds of professions in Europe must meet special conditions in order to
provide services.18
Certainly, this system of regulations is targeted mainly at the internal
state markets; however, it has mostly limited the migration of European
foreigners. This behaviour of the States resulted in an artiÞ cial increase
in the demand for services, increased prices, and numerous system
distortions. The best example of this absurdity might be the situation of
ski instructors in France; the Republic decided to protect the domestic
market of ski services, and to inhibit the migration of instructors from
Switzerland, Austria, and Germany. For that reason, the regulated
profession of ski instructors was created.19
18 T. Heremans, Professional Services in the EU Internal Market: Quality Regulation
and Self-Regulation, Oxford 2012, passim; https://ec.europa.eu/growth/single-mar-
ket/services/free-movement-professionals/qualifications-recognition_en (access
27.10.2020); http://ec.europa.eu/growth/tools-databases/regprof/index.cfm?newlang=en
(access 4.04.2019).
19 L. de Haan, J. Snijders, Easing legal and administrative obstacles in EU border re-
gions. Case Study No. 9, Labour mobility : obstacles in the recognition of professional qualiÞ -
cations (Germany ! Luxembourg ! France ! Belgium), Brussels 2019, pp. 6!20; L. Mous-
takas, H. Smulders, C. Collins, Provision and Use of QualiÞ cations in Active Leisure,
Brussels 2020, pp. 8!19.
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Studia Europejskie ! Studies in European Affairs, 2/2021
After many such examples of protectionism, the topic of regulated
professions grabbed the headlines; thus, it has become present in EU
and state law. The consequence of this strategy was limitations on many
professions in Europe, and barriers to the migration of specialists. The
European institution did not have enough power to encourage countries
of the European community to adopt the professional deregulation.
Therefore, the European Commission designed the system of mutually
homologating other professionals. Finally, this legislation took the form
of the system of recognising professional qualiÞ cations in Europe.20
Directive 2005/36/EC, on the recognition of professional qualiÞ cations,
indicates that if a person wants to work or provide services in a country
other than their country of origin, in a profession regulated in a new
country, that person must have appropriate qualiÞ cations. They can do it
in two ways: fulÞ l requirements in the new country by obeying the same
rules as the citizens, or through the recognition of qualiÞ cations from other
European countries. However, the host country has the right to say that
qualiÞ cations acquired in another Member State are incomplete (different
from national requirements). They may request the person arriving to
complete their qualiÞ cation by passing a language exam, competence exam
or an adaptation internship. However, after undergoing such a procedure, the
newcomer has the right to provide services in a regulated profession under
the same conditions as nationals. If the profession is not regulated in the
country of arrival or both countries, then it is permitted to provide services
without recognition. When the profession is not regulated in the country
of origin but is regulated in the second country, the immigrant has to fulÞ l
the new country$s requirements. The speciÞ c recognition procedures may
vary slightly according to whether the provision of services is temporary or
permanent. Additionally important is where the qualiÞ cations have been
acquired: in member countries, or outside the European Union.21
The Practice of the CJEU and Administration
The case of the British ski instructor was very famous; however, it
is not the only case of this type in Europe. Since June 2016, we have
20 https://ec.europa.eu/internal_market/scoreboard/performance_per_policy_
area/professional_qualiÞ cations/index_en.htm (access 27.10.2020); Study evaluating
the Professional QualiÞ cations Directive against recent educational reforms in EU Member
States, London 2013, pp. 7!31.
21 Directive 2005/36/EC of the European Parliament and of the Council of 7 Sep-
tember 2005 on the recognition of professional qualiÞ cations, L 255/22, OJ L 255,
Brussels 7.09.2005.
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S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
heard about ski instructors$ problems in Tyrol and Styria in Austria. The
administrations of these provinces have doubts regarding the arrival of
ski instructors from other EU countries; they dispute their rights to teach
skiing in the Alps, due to those instructors having foreign qualiÞ cations.
Austrians emphasise that foreigners do not know the speciÞ cities of skiing
and safety in Tyrol and Styria. However, the authorities of these regions
already know the outcome of the case of Simon Butler; they are aware
that they cannot punish foreign-qualiÞ ed instructors. Consequently, local
governments have introduced rules that foreign instructors can only
train foreign clients. Moreover, advertising and promotion directed at
Austrians is prohibited, with administrative Þ nes and the prohibition of
work in Tyrol and Styria.
The European Commission noted this practice of the Austrian
authorities in 2014. The Commission warned the federal government
twice that the implementation of such regulations by Tyrol and Styria
violates the freedoms of the EU internal market and the principles of
recognition of professional qualiÞ cations. The Austrian government
was in discussion with the Commission for nearly 2.5 years. Fortunately,
at the beginning of 2017, Austria recognised its mistake and withdrew
these rules. The monitoring conducted by the European Commission was
effective. Today, throughout the Alps, ski instructors can work freely.22
Ski instructors are only one example of the Member States and
European Union$s approach to the liberalisation of internal market
freedoms and the recognition of professional qualiÞ cations. Incidents
such as those in Austria and France occur regularly in Europe. They
concern many professions, usually those related to mobility (e.g. in the
tourism, transport, maritime, and sports industries). From the point of
view of the European administration and the CJEU, these are marginal
issues. However, over the past decades, they have appeared as an object of
interest for the Luxembourg court.23
Matters considered by the Tribunal should be divided into two kinds:
non-implementation or wrong implementation of the Directive on the
recognition of professional qualiÞ cations, and the recognition procedure itself.
22 https://www.snowinstructors.info/magazine/austria-to-eu-court-because-of-
foreign-ski-instructors (access 26.10.2019); http://europa.eu/rapid/press-release_IP-
16-2493_en.htm (access 26.10.2019); C. Weakley, European Commission takes Austria to
court over discrimination against foreign ski instructors, "The Telegraph#, 1.08.2016.
23 V. Donlevy et al., Study on obstacles to recognition of skills and qualiÞ cations, Lux-
embourg 2016, pp. 40!62; Proposal for a Regulation of the European Parliament and
of the Council introducing a European services e-card and related administrative
facilities ({SWD(2016) 439 Þ nal} {SWD(2016) 442 Þ nal}), Brussels 10.01.2019.
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The second type of cases also concern the recognition of professional
qualiÞ cations before the adoption of Directive 2005/36/EC and some time
before its transposition into national law (20 October 2007).
Many countries have had problems with implementing the directive,
mainly due to extending the protection of their own national markets
against the inß ow of professionals from other countries. The European
Commission decided to bring complaints to the CJEU against seven
countries because of transposition failure. One of those countries was
France, which had a long discussion with the Commission on the
purpose of implementing the directive. The court upheld all Commission
complaints; each time the Tribunal stated that the member country had
not transposed the directive in a timely or relevant manner. The court
charged France with omitting the rules of the directive and only partially
implementing its rules in the national legal system. Unfortunately,
despite the verdict, France did not fully adapt its law to the European
principles of recognising professional qualiÞ cations. It was only in 2016,
after the British instructor scandal, that the Republic fully accepted the
European principles and completed implementation of the directive$s
principles.
The CJEU dealt with several legal questions and Commission
complaints, concerning recognition of the right to work in a foreign
country based on foreign qualiÞ cations. However, these cases had arisen
prior to the introduction of the directive on the recognition of professional
qualiÞ cations. The case presented in the tribunal in 2009 is particularly
interesting, because it is related to Butler$s case in France. The European
Commission charged France with non-implementation of Directive 92/51/
EEC, on the recognition of professional qualiÞ cations (the second system
of recognition). The case strictly concerned the provision of services by
snowboard instructors from Germany and the UK. Previously, France
had also built obstacles to foreign ski instructors: the Republic denied
ski instructors the ability to work providing services to people from
Germany and the UK because those instructors did not possess French
Eurotest qualiÞ cations. The French and British ski associations, which
held opposing positions, took part in the court proceedings. For the Þ rst
time, more than Þ ve years before Butler$s case, the British BASI and
the topic of recognising British skiing qualiÞ cations arose. Eventually,
this case was withdrawn from the list at the request of the Commission,
because of the agreement with France. However, the Advocate General
conÞ rmed that all ski instructors from the UK and Germany may legally
work in France. The case is very interesting because in 2009, the same
issue as Butler$s case came under the deliberations of the tribunal, and
105
S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
similar actors took part in it. The British ski instructor would never have
encountered trouble if all the parties had complied with the agreement
and the opinion of the Advocate General.24
Meanwhile, the CJEU dealt with two substantively similar issues. The
basis of these proceedings was another issue. The court found that obtaining
the right to exercise a regulated profession in another Member State must
not be based on the issue of recognising professional qualiÞ cations, but
the recognition of education under Directive 89/48/EEC.25
Thus, it appears that there are two ways of obtaining the right to
work or provide services in other EU states. The Þ rst is the recognition
of professional qualiÞ cations, while the second is the recognition of
education. The apparent problem is the existence of two systems of
recognition, and the lack of a clear link between them. Unfortunately,
both the institutions of the EU and the CJEU do not acknowledge the
issue of double recognition. Nevertheless, in both cases, the court found
that a person holding a relevant vocational training diploma has the right
to take up employment or provide services in regulated professions in
another Member State, under the same conditions as nationals.
The EU Court of Justice also worked on the recognition of professional
qualiÞ cations in the context of the 2005 directive. However, it seems
that this topic was not popular in cases pending before the Tribunal.
Nonetheless, the conclusions were similar; a foreigner who acquired
professional rights in one European state has the right to exercise
a regulated profession or provide services in another Member State, on
the same provisions as citizens of that country. Building any barriers or
improper implementation of the directive is a violation of principles of
the EU internal market, as indicated in the Treaty on the Functioning of the
European Union (TFEU).26
The case law of the Luxembourg Tribunal is unambiguous. Nevertheless,
the cases of Butler and Tyrol point to the fact that European countries and
local administrations have different opinions on the provision of services
by foreigners and the recognition of professional qualiÞ cations. This
24 Commission vs France (CJEU, C-200/08).
25 Colegio de Ingenieros de Caminos, Canales y Puertos vs Administración del Es-
tado (CJEU, C-330/03); Ingeborg Beuttenmüller vs Land Baden-Württemberg (CJEU,
C-102/02); 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, L 019, 31989L0048, Brussels
21.12.1988.
26 P. Craig, G. de Búrca, EU Law: Text, Cases, and Materials, Oxford, New York 2020,
pp. 860!882; European Commission vs Portuguese Republic (CJEU, C-458/08); Trea-
ty on the Functioning of the European Union, C 326, OJ C 326, Brussels 26.10.2012.
106
Studia Europejskie ! Studies in European Affairs, 2/2021
happens despite the clear European law, correct transposition, and the
unequivocal position of CJEU.
National governments, regional authorities, and even private
entities build challenging formal and informal barriers for migrating
professionals. Bureaucracy, document translation, disorganisation,
information in foreign languages, the necessity of personal appearance in
ofÞ ces, insurance obligations, and many more, are the main examples of
informal barriers to the provision of services by foreigners. The biggest,
semi-formal barrier designed by countries, cities, and organisations is the
meretricious raising of access requirements to occupations. For instance,
a candidate is legally required to take multi-annual training only in places
indicated by the national legislator. Formally, this does not violate the
2005 directive, because every foreigner can apply for the recognition
of his or her native qualiÞ cations. However, the administration of the
host country always forces newcomers to complete an examination or
adaptation internship. Requirements are set so that the foreigner cannot
pass the exam or take an internship; often, is also difÞ cult for immigrants
to take part in internships.
Seemingly, the law of the country is fully adapted to the directive on
the recognition of professional qualiÞ cations. The state, the regional and
local administration do not impose any barriers against foreigners if they
are professionals. Internal regulations of the activity, place, time, and
organisation are the greatest problems. Only people who satisfy internal
conditions have the right to provide services in those places, and in most
cases, foreigners with non-local qualiÞ cations do not satisfy these rules.
Countries where the professions are not legally regulated or are poorly
regulated support such practices, often creating them through a network
of dependent entities.27
The French and Austrian situations provide only one set of examples.
The basic problem arises in a situation when a profession is not legally
regulated; in a case such as this, the recognition procedure is not possible.
However, the Member State protects the domestic market from foreigners
providing their professional services.
Many countries try to protect their own national markets from the
provision of services by foreigners. National authorities try to circumvent
and distort the law, in spite of the unambiguous European law and the clear
27 V. Donlevy et al., op.cit., pp. 62!102; M. Riemsdijk van, Obstacles to the Free
Movement of Professionals: Mutual Recognition of Professional QualiÞ cations in the Eu-
ropean Union, "European Journal of Migration and Law#, no. 15/2013, pp. 47!68;
https://ec.europa.eu/growth/content/effects-reforms-regulatory-requirements-access-
professions-country-based-case-studies-0_en (access 15.07.2020).
107
S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
jurisprudence of the CJEU. Typically, informal or semi-formal barriers to the
internal market and rules for the recognition of professional qualiÞ cations
are introduced. It is common for the public administration to cede the
alleged protection of local markets to local governments, subsidiaries or
private entities. Specialists such as tourist guides and sports instructors are
professionals working with people; they cannot Þ ght with local authorities
when working with clients. Therefore, their position is very weak when
faced with the negative practices of public authority. A universal system of
recognising qualiÞ cations, and a free internal market in Europe, cannot be
realised until such practices are abolished.
Conclusions
The situation of Simon Butler exempliÞ es the problems related to the
recognition of professional qualiÞ cations, the recognition of education,
and regulated professions in Europe. The British ski instructor$s case
shows the extent of the unpleasantness and costs that can be borne by
a representative of a freelance profession who provides services outside
their homeland. Fortunately, the French and European judicial system
has acted correctly here. Because of the pro-EU interpretation of the law,
the French courts accepted the instructor$s explanations and dismissed
the accusations of providing services without permission and running
a business without the authorities$ approval.
Regrettably, in most similar cases in Europe, the situation is worse:
foreign employees and service providers are often considered as pests in
other EU countries. However, their punishments are not as spectacular as
in Butler$s case. Usually, local governments impose small Þ nes on foreign
professionals, prevent them from working in certain places, or hinder the
process of recognising their professional qualiÞ cations. It is not proÞ table
for immigrants to start a court dispute with the authorities to contest these
Þ nes and impediments. It is better to pay 50 or 100 Euros in penalties,
move into the "grey area#, or avoid certain places and institutions, rather
than enter into long-term lawsuits. Such behaviour increases the grey
zone, reduces professional mobility, and leads to a decreased quality of
services. These are the visible negative effects of the hostile actions of the
Member States and the civic responses to them.28
The range of problems is very large and it is difÞ cult to Þ nd a single
solution, especially given that some European countries persistently make
28 http://www.romeÞ le.com/living/working-as-a-tour-guide-in-rome.php (access
3.08.2019); https://www.touristguides-ngreece.gr/info/ (access 13.03.2021); https://
sifnaiko-fos.gr (access 13.03.2021).
108
Studia Europejskie ! Studies in European Affairs, 2/2021
it difÞ cult for professionals to access their markets. Poland, Austria, Italy,
France, and Greece are the countries where it is most difÞ cult for foreigners
to provide their services in regulated professions, with recognition
of their foreign professional qualiÞ cations. At the opposite extreme,
there are dynamic Nordic countries, the Netherlands, and the United
Kingdom, where foreigners$ provision of services often does not require
the recognition of professional qualiÞ cations. It is also difÞ cult to present
an effective problem-solving scenario. The main stakeholders ! migrant
professionals ! are often unaware of the necessity to recognise professional
qualiÞ cations, or try to avoid requiring them. Simply, for the performance
of individual activities, no one tries to have their own qualiÞ cations
recognised, even when it is legally required. Unfortunately, in many
countries, professional mobility is very low; this topic of qualiÞ cations for
regulated professions is therefore marginal. From a cultural point of view,
the recognition of qualiÞ cations has little importance in countries such
as the Netherlands or those in Scandinavia, where mobility is a special
advantage. Thus, people highly interested in facilitating the provision of
services or taking up work abroad will not be advocates of facilitating the
recognition of professional qualiÞ cations. A lack of real support for the
idea of recognising professional qualiÞ cations and a lack of lobbying for
change is the result of this situation.29
From an objective and scientiÞ c perspective, the system of recognising
professional qualiÞ cations and facilitating the provision of services for
European foreigners must undergo radical reform. Certainly, it would be
desirable to deregulate as many professions as possible; the issue of the
recognition of professional qualiÞ cations would then be solved. It would
be highly beneÞ cial to simplify and harmonise the system of recognition
in Europe; to do so, it would be necessary to combine the recognition
of education and professional qualiÞ cations in one system. It is worth
assuming that every educational qualiÞ cation equates to a set of professional
qualiÞ cations with a speciÞ c scope. Working together with the Council of
Europe, one single European system of recognition should be created,
combining the EU and Council of Europe systems. During dialogue with
the member countries, it should be concluded that a single system of
recognition should be created, replacing all national and inter-state forms
29 Look at all national reports: https://op.europa.eu/en/search-results? (access
13.03.2021); E. Athanassiou et al., The effects of liberalisation of professional requirements
in Greece, Athens 2015; L.W. Chini et al., Effects of Liberalisation in Austria using the
Example of Liberal Professions, Wien 2016; M. Pagliero, The effects of recent reforms lib-
eralising regulated professions in Italy, Turin 2015; M. Rojek, M. Masior, The Effects of
Reforms liberalising Professional Requirements in Poland, Warsaw 2016.
109
S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
of recognition. It should also be assumed that all learning outcomes lead
to the acquisition of professional qualiÞ cations. Therefore, qualiÞ cations
and quasi-professional qualiÞ cations acquired in other education systems,
in non-formal and informal form, should be included in the recognition
system. The best solution would be a two-sided recognition of private and
other qualiÞ cations, Þ rst by an accredited state unit, then in the process
of European recognition. Alternatively, private institutions issuing their
certiÞ cates could obtain state accreditation directly.30
The recommendation to eliminate the need to recognise professional
qualiÞ cations for short-term service (work) is a natural consequence of
these changes. A ski instructor, lawyer, a doctor or a guide coming from
another country for a trial, consultation, or leading an international
group would not have to apply for recognition of their own qualiÞ cations
in a host country, but would use their own national qualiÞ cation. The
obvious consequences of these changes would be the decriminalisation of
providing services without the recognition of qualiÞ cations, building an
information policy in the area of qualiÞ cations, and reducing bureaucracy.
An effective form of the recognition process should be coordinated by
the EU institutions; moreover, a standardised procedure should be
constructed, which is accessible online (such as via the SOLVIT or ODR
platforms).31
Undoubtedly, the envisaged changes must have social support.
However, the European Union should be the organisation that coordinates
the reforms, as only this body has the necessary tools and overview of the
European situation. The European Commission$s activities in improving
the existing procedures for recognising professional qualiÞ cations should
be appreciated. Certainly, the Services Directive32 greatly facilitated the
provision of cross-border services; nevertheless, it did not change the
system of recognition. SOLVIT, a platform for resolving disagreements
30 E.M. Hoïuszko, Ekspertyza dotyczÈca uznawania Ăwiadectw, dyplomów zagranic-
znych uczelni oraz stopni tytuïów naukowych w Polsce, Warszawa 2014; Mapping of profes-
sional qualiÞ cations and relevant training for the profession of ski instructor in the EU-28,
EEA and Switzerland, pp. 6!16; M. Pilch, M. Ponikowska, E. Skibiñska, Prawne as-
pekty porównywania i uznawania kwaliÞ kacji w Unii Europejskiej, Warszawa 2015.
31 U. Jeretina, Consumer Online Dispute Resolution (ODR) ! As a key cultural change !
Mechanism for invoative Public Administration in EU, Kazan 2019; C.E. Koops, EU Com-
pliance Mechanisms: The Interaction between the Infringement Procedures, IMS, SOLVIT
and EU-Pilot, Rochester, NY 2011, pp. 4!38; M. Mikiel, System SOLVIT jako niefor-
malne narzÚdzie rozwiÈzywania sporów obywateli z administracjÈ pañstw EOG, %Metrolo-
gia i Probiernictwo ! Biuletyn Gïównego UrzÚdu Miar#, no. 2/2013, pp. 24!25.
32 Directive 2006/123/EC of the European Parliament and of the Council of 12 De-
cember 2006 on services in the internal market, L 376/36, Brussels 12.12.2006.
110
Studia Europejskie ! Studies in European Affairs, 2/2021
between the citizens and the administration of member countries, should
perform a speciÞ c role. Sadly, this tool is unpopular, but much of the
friction in the process of recognising professional qualiÞ cations could be
removed by this platform. There are also high hopes for using an e-card
(European Professional Card), which is a system to simplify the creation
and provision of business in other EU countries.33 It should be possible
to complete application procedures in one$s home country without the
need for the recognition of professional qualiÞ cations in a host country.
Unfortunately, during negotiations, it was established that this procedure
would only apply to real estate agents, mountain guides, and medical
professionals. In addition, work on this solution is still ongoing. The
Commission$s efforts to verify and encourage member countries to enact
professional deregulation are also highly valued, particularly as part
of studying the formal barriers in the recognition process (such as via
National Action Plans and a proportionality test).34
It is noteworthy to consider legislative activities aimed at unifying
the substantive conditions of access to professions and education, based
on the mutual recognition of learning outcomes. Particularly promising
from an educational and economic point of view are the European
QualiÞ cation Framework and the Common Training Principles.35 These
solutions lead to establishing a certain core, principles, and priorities for
vocational competences, courses and teaching units, for all countries. As
a result, European conÞ dence in professionals from other countries should
increase, due to the assumption that everyone has similar competences. It
will be problematic only if these solutions are not common in addressing
education and internal market issues.
33 Commission Implementing Regulation (EU) 2015/983 of 24 June 2015 on the
procedure for issuance of the European Professional Card and the application of the
alert mechanism pursuant to Directive 2005/36/EC of the European Parliament and
of the Council, OJ L 159, Brussels 25.06.2015; H. Horak, K. Dumancic, European Pro-
fessional Card-Dream Came True?, in: Conference Proceedings, SoÞ a 2016, pp. 603!610,
https://ec.europa.eu/growth/single-market/services/free-movement-professionals/
european-professional-card_en (access 22.10.2020).
34 https://ec.europa.eu/growth/content/consultation-regulation-professions-mem-
ber-states-national-action-plans-and-0_en (access 13.03.2021); Proposal for a Direc-
tive of the European Parliament and of the Council on a proportionality test before
adoption of new regulation of professions (COM/2016/0822 Þ nal-2016/0404 (COD)),
Brussels 10.01.2019.
35 Study evaluating the Professional QualiÞ cations Directive against recent educational
reforms in EU Member States, London 2013; https://europa.eu/europass/en/european-
qualiÞ cations-framework-eqf (access 6.03.2021).
111
S. Lipiec, The Recognition of Professional QualiÞ cations in the European#
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