An adverse or restrictive recognition decision is not lawful merely because the foreign qualification does not fully correspond to the Swiss reference qualification. The decisive questions are which recognition framework applies, which specific requirement the authority considers not to be met, and whether that conclusion is based on a complete and individualised assessment of the qualifications actually demonstrated.
Depending on the applicable recognition regime, the equivalence of the qualification, substantial differences in education and training, professional experience, additional education and training, and possible compensation measures may all be relevant.
When can a refusal be legally problematic?
A legal review may be particularly appropriate where:
- the authority does not identify concretely which recognition requirement is said not to be met;
- qualifications, course content or professional experience have not been taken into account, or have only been considered in part;
- the foreign education is compared only formally with a Swiss training programme without examining the knowledge and competences actually demonstrated;
- alleged «substantial differences» are not specifically identified or substantiated;
- recognition is refused directly even though the applicable legal framework requires consideration of a compensation measure first;
- a less restrictive solution available under the applicable framework has not been considered;
- the wrong recognition route, reference profession or legal basis has been applied;
- the reasoning is insufficient to permit effective review of the authority's conclusions.
Where Articles 13 and 14 of Directive 2005/36/EC, or the corresponding recognition framework, apply, a substantial difference in training does not in itself automatically require refusal.
Article 14 provides, under its conditions, for an adaptation period or aptitude test as compensation measures.
The qualification must be assessed individually
Where the general EU-law principle of qualification comparison is applicable, the competent authority must take into consideration the applicant's diplomas, certificates and other evidence of formal qualifications as well as relevant professional experience, and compare the specialised knowledge and abilities thereby demonstrated with those required under the applicable national rules (CJEU, C-238/98, Hocsman, paras. 35–40).
The relevant question is therefore not merely whether two education programmes are identical, but which relevant knowledge and competences have actually been demonstrated and which legally material differences remain thereafter.
What should be examined in an adverse decision?
The review should in particular cover:
- the applicable recognition framework and the authority's competence;
- the exact operative part of the decision and its reasoning;
- the reference profession or reference qualification used by the authority;
- which differences in education and training were specifically identified;
- which submitted evidence was considered, disregarded or assessed only partially;
- whether professional experience and additional qualifications had to be taken into account;
- whether compensation measures, partial access or another less restrictive solution had to be considered before refusal;
- the available remedy, deadline and rules governing additional evidence.
A complete refusal should therefore be the result of the legally required assessment, not a substitute for that assessment.