Test Case: Erzieher – Childcare Workers

Cross border work can provide a solution in situations where one Member state is dealing with a shortage of professionals on the labour market while there is an abundance in another Member state. A recent example of this is the case of Dutch childcare workers looking to work in Germany. In the past years, North Rhine Westphalia was confronted with shortages of individuals who work in childcare (known as Erzieher/innen).[1] This increase in German demand was accompanied by a decrease in childcare jobs in the Netherlands. A proposed solution has been the cross border employment of Dutch childcare workers in Germany. However, the recognition of qualifications has proven to be an obstacle for the cross border mobility of these professionals.

In this specific case, the professionals, who were qualified childcare workers in the Netherlands, wanted to access the North Rhine-Westphalian labour market to work as Erzieher/in. However, their application for recognition was rejected. The main issue for this was the existence of substantial differences in education and training between the Dutch and German childcare workers.

The procedure regarding recognition of qualifications is laid down in the Professional Qualifications Directive[2]. The basic principle of this Directive is that a person fully qualified for the exercise of a profession in the home state should also be seen as having the required qualifications to work in that profession in another Member state. This is the principle of mutual recognition underlying the directive. However, recognition is not obligatory in cases where substantial differences exist between the received education and training in the home Member State and the training required in the host Member State. In those cases, the host Member state is allowed to make an individual’s application for recognition of his professional qualifications conditional upon the completion of so-called compensation measures.

In the present case, it was established that the nature of the activities of Dutch childcare worker and German Erzieher/in were substantially different. Where the Dutch childcare workers were qualified to work with the age categories of 0 to 13 years, the German equivalent covered a broader range of activities relating to the age categories of 0 to 27, thereby covering other fields of activity apart from childcare (e.g. social work). These differences in the nature of the activities were considered ‘substantial’ so that access to the North Rhine Westphalian labour market could only be granted if compensation measures were completed. Nevertheless, there was an area of overlap: the activities carried out by the German Erzieher/innen and Dutch childcare workers overlapped where the area of childcare was concerned.

Despite this area of overlap, compensation measures were imposed. In particular, the Dutch childcare workers were offered the possibility to complete an adaptation period or take an aptitude test. Both options meant a significant delay as the process to complete the measures could take 1,5 to 2 years. The adaptation period involved a year of work accompanied by a programme of education and training at a Berufskolleg. Whereas the aptitude test meant that, the Dutch Childcare workers would have to engage in a 16-week Praxisstelle followed by a practical examination and oral examination. In both cases, the compensation measures had to relate to one of the areas of the Erzieher/in profession for which they were not yet qualified (i.e. other than the field of childcare).

Considering the fact that the imposed compensation measures could impede cross border mobility, several parties, including ITEM and the Service Grensoverschrijdende Arbeidsbemiddeling (SGA), started a complaint procedure. In this procedure, it was questioned why the possibility of partial access was not made available for the Dutch childcare workers as a solution to deal with the differences in education and training between the Netherlands and Germany.

In some situations, the scope of activities covered by a profession differ significantly among Member States. This can make it

difficult for professionals willing to establish themselves in other Member States. In cases where the full exercise of the profession in another Member state differs to the extent that that a full programme of education and training is needed to compensate for shortcomings it is possible for a Member states to grant partial access.[3] The principle of partial access provides a professional with the opportunity to access only part of a particular profession in another Member State. It is beneficial for professionals, such as the Dutch childcare workers, who engage in a genuine economic activity in their home Member State, which does not exist in its own right in the Member state where they wish to work.

Partial access is granted on a case-by-case basis and upon fulfillment of the following criteria: (1) the person is fully qualified to exercise in his home country the profession for which he is seeking partial access, (2) the differences between the professional activity in the home Member State and the host member state are so significant that a full programme of education and training is required in the host state to have access to the full regulated profession in the host Member State, and (3) the professional activity can be separated from other activities falling under the regulated profession in the host Member State.

Whereas the first and third criteria were fulfilled in the present case, the second criterion poses as an obstacle to the application of partial access. In the present situation, the professionals found themselves in a grey area where compensation measures were disproportionate while full recognition was also not possible. In order for EU law to function optimally in the present case, the second criterion laid down in the PQD’s article on partial access needed to be disapplied. In the present case, it appears that a decision was made on the North Rhine-Westphalian side not to apply the restrictive criterion requiring a full programme of education and training to be imposed (instead of compensation measures). Such a decision renders the application of partial access possible for professionals seeking to exercise part of the Erzieher/in profession and therefore benefits cross-border mobility.

The latest message received in the case confirmed that the possibility of partial access was made available for individuals wanting to work as childcare workers in North Rhine Westphalia (i.e. access part of the Erzieher/in profession). In the present case, application of this principle means that any person who is fully qualified in the Netherlands to work in childcare is able to work as Erzieher/in only in childcare in North Rhine-Westphalia. Nevertheless, before partial access can be granted professionals must provide proof of their language skills to actually gain access to the profession.

[1]See WDR, ‘GEW: in NRW fehlen 15.000 Kita-Fachkräfte’.

[2]Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, [2005] OJ L 255/22 as amended by Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’), [2013] OJ L 354/132.

[3] Article 4(f) Professional Qualifications Directive.