Lost in the Nacional Parliament’s Hallways: The Directive 2005/36/EC and the difficult path until its proper application in Portugal

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by Rita de Sousa Costa, law student at UMinho
and Tiago Sérgio Cabral, law student at UMinho

The precedence of EU law over the law of the Member States is one of the fundamental principles of the Union. The Member States must comply with the European dispositions and shall not issue legislation contradicting EU law. To do so would be a breach of the principle of loyalty (art. 4(3) TEU). However, the states do not always legislate with the proper rigour and responsibility and when this occurs the principle of direct effect is key to assure a uniform application of the European Law and the protection of the European citizens.  In this short essay we shall study how the Portuguese legislator after correctly implementing the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (through the Law n. 9/2009, of 4th March) proceeded to change the Portuguese legal framework (through the Law n. 31/2009, of 3rd July[i]) putting our law in direct contradiction with the Directive and how the solution, still in force, came in the form of the direct application of the Directive’s provisions.

Introduction – The Legal Framework

The Directive establishes the 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 (…) 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”.

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