Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities
BACKGROUND
A. Mandate - History:
1. Mandate: According to the mandate given by the Tampere European Council of October 1999 and in line with the “Scoreboard to review progress on the creation of an area of “freedom, security and justice” in the European Union”, the Commission was due to adopt in 2001 a proposal for a Directive dealing with “the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities”. – We have responded to that mandate in time.
2. November 2000 Migration Communication: In its November 2000 Communication on a Community Immigration Policy (COM(2000) 757 of 22 November 2000) the Commission has suggested to follow a “two–tier approach”: To define a common legal framework on admission of economic migrants and to launch simultaneously a wider open coordination mechanism on Community immigration policy. This Communication already set out the main aims and principles upon which the common legal framework should be based:
Transparency and rationality; Differentiating rights according to length of stay; Clear and simple procedures; Preference for the domestic labour market; Availability of information; Assist industry
3. Study: In June 2000, a comparative study on the admission of third country nationals for paid employment and self-employed activities was submitted to the Commission services. It illustrates that currently the rules on admission of third country nationals to work in the EU differ from Member State to Member State. Both third country nationals wishing to be admitted to work in the EU and EU employers in need of third country workers are confronted with sometimes highly complex national administrative rules and procedures and there are only a few common rules and principles applicable in all Member States.
4. Existing “acquis”: In 1994, the Council adopted – legally not binding –
resolutions on the admission of third-country workers and self-employed
persons. These resolutions provided helpful technical input for the drafting of
this proposal. It needs to be stressed, however, that the political climate has
changed since 1994 and that the proposed Directive does not copy the rather
restrictive ”spirit” of these Resolutions - Further inspiration
could be drawn from the 1997
Commission proposal on a Convention on rules for the admission of third-country
nationals to the Member States.
5. Bilateral Consultations with MS: In March-May 2001 a series of informal bilateral talks were conducted between DG JAI services and representatives of 13 MS (Greece and Italy could not arrange for scheduling these talks), on the basis of an informal discussion document which already contained most of the elements of the proposed draft Directive. The results of these bilateral consultations have been taken aboard when drafting the proposal.
6. Compatibility with other JHA initiatives: The proposal has been drafted to be fully compatible with and complementary to the recently proposed draft Directive on long-term resident third country nationals. Whilst workers and self-employed persons newly arrived in the EU will be covered by the specific legal regime proposed in this proposal, the “horizontal” provisions of the proposed Directive on long-term resident third country nationals would apply if these third country workers have fulfilled the conditions and have applied for long term resident status in accordance with the proposed long-term residents Directive. In accordance with the “Scoreboard”, further legislative initiatives concerning the conditions of entry and residence for the purpose of study or vocational training and unpaid activities are to be prepared and to be adopted by the Commission shortly.
7. Link to the proposed open co-ordination mechanism on immigration policy: The issues addressed in this proposal will be the subject of further policy consideration and complementary action within the context of an open coordination mechanism on Community immigration policy. This mechanism is being made operational in the Commission Communication on an open method of coordination for the Community immigration policy, presented in parallel with this proposal..
B. “Philosophy” of the proposal
1. Gradualist approach: Access of third country nationals to work is a highly sensitive issue, lying at the very heart of national sovereignty. A successfully operating Community policy in this field needs to be put in place progressively. The proposed Directive on conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities should therefore be conceived as a first step, facilitating a gradual and smooth move from traditionally national to Community rules.
2. Avoid re-inventing the wheel: In drafting the proposal care was taken to follow a “best-of Member States practice” approach. The proposal was drafted on the basis of a comparative overview of the current rules in Member States and it is its intention to provide for a coherent legal framework, based on concepts, which have already been successfully applied in Member States.
3. Giving a common legal frame to Member State discretion: The proposed Directive determines common definitions, criteria and procedures regarding the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities, whilst leaving a high level of discretion with Member States. This common legal frame is a starting point. It should be the basis for further harmonisation in the future.
C. Objectives:
With the proposal - which needs to be understood as a first step towards harmonisation - the Commission is pursuing the following aims:
1. laying down common criteria for admitting third country nationals to employed activities and self-employed economic activities (“economic needs test” and “beneficial effects test”) and opening different options for demonstrating compliance with these criteria;
2. providing procedural and transparency safeguards, in order to assure a high level of legal certainty and information for all interested actors on Member State rules and administrative practice in the field of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities;
3. providing a single national application procedure leading to one combined title, encompassing both residence and work permit within one administrative act, in order to simplify and harmonise the diverging rules currently applicable in Member States;
4. providing rights to third country nationals whilst respecting Member States discretion to limit economic migration: If third country workers and self-employed persons fulfil all the conditions set out in Chapters II and III they shall be admitted, unless Member States impose limitations in accordance with Chapter IV (e.g. national ceilings or limitations based on reasons of public policy, public security or public health);
5. providing a flexible framework allowing all interested parties, including Member States, to react quickly to changing economic and demographic circumstances and opening the possibility of having an exchange of views on the experiences of Member States in the application of this Directive within the open coordination mechanism on Community immigration policy.
D. Structure and substance of the proposal:
Chapter I - general provisions:
Purpose of the Directive (Article 1): The proposal provides for a general legal framework determining the basic conditions and procedures applied by Member States for granting “residence permits” (allowing the exercise of employed activities (“residence permit – worker”) or the exercise of self-employed activities (“residence permit – self employed person”). Taking into account that the Directive will be a first step towards gradual harmonisation, these permits are designed as national administrative acts, allowing access to economic activities in the territory of one Member State (and not in the entire EU).
Scope (Article 3): In the interest of clarity and legal certainty, the proposal follows a horizontal approach and covers the conditions of entry and residence of any third country national exercising employed or self-employed activities (for more than 3 months) in the territory of a Member State. This broad horizontal approach is a general starting point. Within the detailed provisions of the Directive, specific provisions and derogations ensure that the situation of certain groups of persons (such as seasonal or transfrontier workers, intra-corporate transferees, trainees, artists, academic specialists,…) is properly taken into account. Account is also being taken of more favourable provisions under under international law (EEA Agreement, Association agreements, ..) and attention is being paid that there is no incompatibility with other pieces of Community law or other ongoing legislative initiatives (in the field of asylum, in the field of detached workers (DG MARKT), ..)
Chapter II – entry and residence for the purpose of paid employment:
Economic needs test (Article 6) The proposal lays down the general principle that third country
nationals may only accede to the EU labour market, if a post cannot be filled
by EU-nationals (principle of “preference for the domestic labour
market”) or by privileged third country nationals. This principle
reflects the rules already in force in most Member States, which require for
the admission of third country workers a thorough assessment of the domestic
labour market situation
The draft foresees several possibilities to
demonstrate that there is an “economic need” for a third country
worker:
Article 6(2): A possibility for an “individual assessment” is designed to provide a practical tool for employers who do not succeed to fill a specific job vacancy within a given period. If employers have published a job vacancy via the employment services of several Member States, e.g. by means of the European Employment Services Network (EURES) for at least four weeks and if they have not received an acceptable application from within the EU labour market, they are allowed to recruit from abroad and the chosen third country national would normally (if all conditions for a residence permit in accordance with the Directive are met) qualify for a permit.
Article 6(3): A possibility for a “generalised assessment” is designed to provide Member States with a flexible tool to react to worker shortage in a specific sector, like, for instance, national “Green-card programmes” for the recruitment of ICT specialists. This provision is formulated in a very general manner, allowing “green card” or similar programmes in any sector where a labour shortage might arise.
Article 6(4): A possibility for Member States to fix – at national level – appropriate income thresholds. If the annual income offered to a third country national would exceed this defined threshold, fulfilment of the economic needs test would be deemed to be fulfilled. The reasoning behind this model – which is already current practice in at least two Member States (B, Lux) – is the idea that the high-income sector of the European labour market needs less protection and can afford to be more open to global competition.
Article 6(5): A possibility for Member States to adopt national provisions according to which the fulfilment of the economic needs test is deemed to be fulfilled for a specific third country national, if a defined amount of money has been paid by the future employer of that person to the competent authorities (“employers contribution”). The money received from the employer must be spent for measures promoting the integration of third country nationals or for vocational training purposes. The reasoning behind this model – which is currently being discussed at political level in several Member States – is the idea that the willingness of an employer to pay an extra premium for recruiting a third country national can be taken as an implicit proof that there is a shortage at the EU labour market.
Application procedure (Articles 4-10): According to the proposal, third country nationals will need to submit applications to the competent national authorities. In the case of a positive evaluation of the application, national authorities will grant a “residence permit”, which may be renewable upon application. In the framework of the application/renewal procedure, more favourable conditions will apply to persons who have already been holding a residence permit for 3 years. Residence permits may be suspended or withdrawn under certain circumstances.
Ancillary rights (Article 11): The existence of a valid residence permit will confer on its holder a set of rights, amongst which the right to enter, to stay (reside) and not to be discriminated against as regards working conditions. Enjoyment of some rights (in particular public housing) can be made conditional on a certain minimum stay. (Differentiation of rights according to the length of stay).
Special cases (Articles 12-16): Certain groups of persons are currently given special treatment by Member States. Whilst, as a matter of general principle, the rules of the Directive apply horizontally, the draft contains more specific provisions for specific cases such as seasonal workers, transfrontier workers, intra-corporate transferees, trainees,...
Chapter III – entry and residence for the purpose of self employed activities:
Beneficial effects test (Article 19):
As a matter of principle, a permit to exercise self-employed activities (“residence permit – self-employed person”) shall only be issued if the self employed activities of the third country national will have a beneficial effect on employment in the Member State or on the economic development of that Member State.
Article 19(2): In order to make this principle operational, Member States will have the possibility to adopt national provisions by which the fulfilment of this “beneficial effect “ will be deemed to be accepted for specific self-employed activities in specific sectors without the need for an individual assessment. (positive generalised assessment[1]). Member States may also decide to adopt national provisions by which the fulfilment of the above conditions will be deemed NOT to be accepted for specific self-employed activities in specific sectors without the need for an individual assessment. (negative generalised assessment).
Article 19(3): Member States may also decide to adopt national provisions by which the fulfilment of the above conditions would be deemed to be accepted for specific self-employed activities in specific sectors if a defined minimum amount of money is being invested. (financial threshold ).
Application procedure etc:
The procedures and general conditions on granting permits to exercise activities as self employed person are designed in parallel to the rules on granting residence permits – worker.
Chapter IV – Horizontal
provisions:
National ceilings/quota (Article 26)
The proposal does not intend to establish an automatic right of third-country nationals to immigrate. Currently, several Member States use quota or ceiling systems to regulate access of third country nationals to economic activities. These restrictions are applied in addition to the evaluation concerning an economic need or a beneficial effect and are designed to take into account the overall capacity to receive and to integrate third country nationals on their territory or in specific regions thereof. This proposal acknowledges this need and provides an option for Member States to adopt horizontal measures (e.g. national ceilings; temporary suspension of issuing residence permits) in order to limit the admission of third country workers if Member States consider this necessary for the reasons mentioned above. These national measures will have to be notified to the European Commission and they will also be subject of consideration within the open method of coordination for the Community immigration policy.
Chapter V – Procedure and Transparency (Article 29 and
30)
Economic operators, and in particular (future) employers of third country nationals have a legitimate interest to be informed and updated under which circumstances and in accordance with which procedures they may recruit third country nationals. They also have a legitimate interest that the administrative procedures leading to the issue of a work permit are handled within a reasonable delay. The same applies to third country nationals wishing to enter the EU labour market. If the EU (its Member States) consider that there is a need or an economic interest to allow third country nationals to exercise economic activities in the EU, potentially qualified candidates should not be deterred by excessive administrative red-tape. In addition, the Commission, Member States and the public have a legitimate interest to be informed and updated about what other Member States are doing in this area.
To this end, the proposal obliges Member States to make sure that individual decisions on an application for a residence card are adopted and communicated to the applicant within a certain time-limit (45 or 180 days), that these decisions should contain a statement of reasons based upon objective and verifiable criteria and that, there are legal remedies in place. (Article 29)
The proposal obliges Member States, whenever they adopt horizontal national provisions in accordance with this Directive (e.g. national “green card programs”, generalised assessments of self-employed economic activities, national ceilings/quota), to base these provisions on the criteria listed in the relevant provisions of the Directive and to include a statement of reasons based upon objective and verifiable criteria. Moreover Member States shall be obliged to regularly review these measures to ascertain that the economic/social conditions still justify the national provisions. Moreover the national measures have to be made public in advance of their entering into force. Annual national reports shall be submitted to the European Commission. These regular reports will be an important source of information for the Commission and Member States to be considered within the open method of coordination for the Community immigration policy. (Article 30)