Case No: 83859 Document No: 1192778 Decision No: 125/21/COL

EFTA SURVEILLANCE AUTHORITY DECISION

of 16 June 2021

closing a complaint case against concerning recognition of Hungarian architect qualifications and the freedom to provide services

THE EFTA SURVEILLANCE AUTHORITY

Having regard to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice, in particular Article 31 thereof,

Whereas:

1 Introduction

On 25 June 2019, the EFTA Surveillance Authority (“the Authority”) received a complaint against Norway concerning an administrative practice of municipality in the context of the provision of architectural services in the building sector and in relation to projects that have a central building authorisation.

The complainant alleged that, when receiving documentation for the architectural background of the person responsible for a public procurement project, the municipality required architect qualifications from other EEA States to be formally certified as equivalent to Norwegian qualifications by the Norwegian Agency for Quality Assurance in Norway (NOKUT) or other specified competent institution.

In the complainant’s view, such a practice is not in line with Directive 2005/36/EC on the recognition of professional qualifications1 (“the Professional Qualifications Directive” or “PQD”), Directive 2006/123/EC on services in the internal market2 (“the Services Directive”), and Article 36 of the EEA Agreement.

More specifically, the complainant argued that the practice is in breach of Article 21 PQD, concerning the principle of automatic recognition of qualifications listed in the annexes to that directive, and Article 5 of the Services Directive, concerning simplification of procedures applicable to a service activity.

2 Correspondence

On 24 July 2019, the Internal Market Affairs Directorate of the Authority (“the Directorate”) sent a request for information to the Norwegian Government (Doc No 1078238). The deadline for reply was set to 24 August 2019.

The Authority received no reply within the deadline. Following several reminders by the Directorate, the Norwegian Government informed the Authority in June 2020 that the

1 Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L 255, 30.09.2005, p. 22), incorporated into the EEA Agreement at point 1 of Annex VII to the EEA Agreement by Decision of the EEA Joint Committee No 142/2007 of 26 October 2007. 2 Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36), incorporated into the EEA Agreement at point 1 of Annex X to the Agreement by Decision of the EEA Joint Committee No 45/2009 of 9 June 2009.

Avenue des Arts 19H, 1000 Brussels, tel: +32 2 286 18 11, www.eftasurv.int

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request had, for various reasons, unfortunately been left unattended and unanswered. It apologised for the lack of a reply and stated that the Authority would receive a response as soon as possible.

By letter dated 20 October 2020 (Doc No 1158777), the Norwegian Government replied to the Authority’s request for information. It stated that Lenvik municipality’s requirement of NOKUT certification of professional qualifications is not part of a general practice in Norway. Furthermore, there is no such requirement following from Norwegian law. The approval mechanism by NOKUT is a mere voluntary scheme for those who hold qualifications obtained outside of Norway.

The case was subsequently discussed at the package meeting on 27 October 2020.

At the meeting, the representatives of the Authority stated that the requirement placed by Lenvik municipality on EEA service providers did not appear to be in compliance with EEA law, in particular the principles of non-discrimination, equal treatment, and proportionality applicable under the procurement rules, the provisions on the freedom to provide services, and general principles of EEA law. The representatives of the Norwegian Government were therefore advised to take the necessary measures to inform Lenvik municipality and other municipalities of this view so that they could adjust their practices, where necessary.

In a follow-up letter to the meeting (Doc No 1161672), the Norwegian Government was invited to inform the Authority of the measures taken as part of the follow-up to the meeting and to provide copies of any letters or guidance provided to the municipalities and relevant parties. The Norwegian Government was invited to provide the requested information as soon as the measures had been put in place.

On 18 March 2021, the Norwegian Government provided the Authority with copies of two letters sent to Senja3 municipality and to KS, the Norwegian Association of Local and Regional Authorities (Docs No 1188500 and 1188499). The letter to KS encouraged KS to make available the letter and its content to all municipalities in Norway.

3 The Authority’s assessment

According to the complaint, Lenvik municipality required foreign architects to have their qualifications certified by NOKUT or another relevant institution in Norway in order for them to be approved as documentation in a procurement process. The Authority found that such a practice raised questions under EEA law, in particular the principles of non- discrimination, equal treatment, and proportionality applicable under the procurement rules, the provisions on the freedom to provide services, and general principles of EEA law.

In order to assess whether the practice constituted a breach of EEA law to be looked further into by the Authority, the Authority issued a request for information to Norway with several questions concerning the municipality’s practice, the general procurement practice in Norway, and the legal situation for recognition of professional qualifications of architects.

As mentioned under point 2 above, the reply from the Norwegian Government clarified that the municipality’s practice is not part of a general practice in Norway, and nor is it prescribed by Norwegian law. EEA professionals are not required by law or other regulation to obtain NOKUT certification before making use of or seeking recognition of their professional qualifications in Norway. Norwegian law does allow for a voluntary

3 municipality now encompasses Lenvik municipality following a municipal merger on 1 January 2020.

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NOKUT certification, but this is merely intended as an aid for persons wishing to enter the Norwegian job market and where these persons find it useful to obtain certification before taking up their activities.

The Norwegian Government also clarified that the profession of “architect” is not a regulated profession in Norway and there are no restrictions or administrative requirements for architects laid down in law or regulations. At the package meeting in 2020, the Norwegian Government clarified that the formerly assigned title of “sivilarkitekt’ used to be protected, but neither that title, nor the general architect title or their activities are protected or regulated today.

Both “sivilarkitekt” and the Norwegian “Master i arkitektur” (which replaced “sivilarkitekt”) are listed under subheading 5.7.1 to heading V.7. ARCHITECT in Annex V to the Professional Qualifications Directive. However, this is to ensure that architects qualified at the three listed Norwegian educational institutions are able to go abroad and have their qualifications recognised. It does not follow that the profession of architect is to be considered a regulated profession in Norway within the meaning of the Directive.

As for work in the construction sector, the Norwegian Government, in its reply, stated that national regulations on building applications specify that any formal education from EEA States must be accepted on an equal footing with Norwegian education. Consequently, EEA nationals holding a qualification in architecture from another EEA State than Norway should be able to practice in Norway on the same conditions as Norwegian nationals and those holding qualifications in architecture from Norway.

On the basis of the information provided by the Norwegian Government, the Authority found that there was no need to look into the matter further. The Authority would generally only examine issues related to an EEA EFTA State's legislation or to an administrative practice contravening EEA law if that administrative practice is of a consistent and general nature. The requirement laid down by Lenvik municipality is neither prescribed by Norwegian law nor part of an administrative practice of a consistent and general nature.

However, it was not entirely clear from the Norwegian Government’s reply that it found the practice by Lenvik municipality to be in breach of EEA law.

For this reason, the Authority decided to discuss the matter with the Norwegian Government in the context of the package meeting to ensure that this isolated incident by one municipality would not be copied by other municipalities. The Authority emphasised the view that the requirement laid down by Lenvik municipality did not appear to be in compliance with EEA law. Furthermore, the Norwegian Government was advised to take the measures necessary to inform Lenvik and other municipalities of this view so that they could adjust their practices, if and where necessary.

On 18 March 2021, the Norwegian Government followed up on this request by sending letters to the municipality and to KS, with the letter to KS encouraging it to share the letter and its content with all municipalities in Norway.

In the letters, the Norwegian Government stressed the importance of complying with the obligations following from the EEA procurement rules and the EEA Agreement in general. The freedoms of establishment and to provide services must be respected also in the context of public procurement and it is not permitted to lay down qualification requirements that go against EEA law, including the rules on recognition of professional qualifications.

Furthermore, the Norwegian Government emphasised that diplomas or other architect qualifications obtained in other EEA States must be accepted on the same footing with

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diplomas or other architect qualifications issued in Norway. Where a municipality needs to assess qualifications obtained in the EEA, guidance may be found at point 5.7.1 in Annex V to the Professional Qualifications Directive and Annex VII to the EEA Agreement, which specify the qualifications that give a right to automatic recognition in all EEA States.

Following this, the Norwegian Government appears to have taken the measures necessary to ensure that municipalities will refrain from imposing a requirement of NOKUT certification of architectural qualifications obtained in another EEA State.

By letter dated 7 April 2021 (Doc No 1181505), the Directorate informed the complainant of its intention to propose to the Authority that the case be closed. The complainant was invited to submit any observations on the Directorate’s assessment of the complaint or present any new information by 7 May 2021. The complainant did not reply to that letter.

There are, therefore, no grounds for pursuing this case further.

HAS ADOPTED THIS DECISION:

The complaint case arising from an alleged failure by Norway to comply with the Professional Qualifications Directive and the Services Directive is hereby closed.

For the EFTA Surveillance Authority

Bente Angell-Hansen Frank J. Büchel Högni S. Kristjánsson President Responsible College Member College Member

For Carsten Zatschler Countersigning as Director, Legal and Executive Affairs

This document has been electronically authenticated by Bente Angell-Hansen, Catherine Howdle.