[1]        See 5084/02 MIGR 1.

[2]        Recalling its concern on the legal basis of the Directive, A entered a reservation on Article 1.

         In the framework of the examination of this Article, D raised the question whether this Directive would prevent Member States from introducing some changes in their legislation, with a view to attracting labour forces from third-countries. Pointing out the need to fill the gaps in their labour market, this delegation considered that Member States should be granted some discretion. For that reason it said that it would be advisable to introduce, in this Directive, further exceptions to the rules it establishes.

         Cion observed that the approach followed in the Directive is different from other systems, such as the Canadian, to which D referred, which seeks to attract people for demographic reasons. On the basis of the approach suggested in the Directive, entry and residence in the European Union, with a view to exercising an economic activity, are only allowed when there are gaps to be filled and under the conditions that it establishes.

[3]        The question as to whether this directive - which provides for rules on entry and residence of third-country nationals for labour purposes - would affect the visa requirements to which the person concerned may be subject, was raised by E, F and I. These delegations especially referred to the fact that, for his/her first entry, the third-country national may be requested, under the applicable Community legislation, to possess a visa issued by the Member State concerned. For that reason, E and EL wanted a reference to the visa regulations to be introduced in paragraph 1. Pres suggested adding a wording such as without prejudice to the rules concerning visas.

         Cion pointed out that this Directive is not intended to infringe the rules concerning visas. It explained that, as a worker, the third-country national is granted entry and residence in the Member State concerned in order to exercise an economic activity there. However, the third-country national is only entitled to enter the territory of the Member State concerned after being issued the relevant permit by its authorities. It is up to the Member State concerned to issue the permit, either abroad or in its territory. Where the Member State concerned only provides for the issue of the permit within its territory, the third-country national needs to possess, if required, a visa for the first entry. Cion finally said that it would not oppose the introduction of an appropriate clarification, if delegations feel it necessary.

         I entered a reservation on Article 1.

         In the framework of the discussion on visa requirements, B drew attention to the need for addressing the question of entry (directly from country of origin or after a transit in the territory of other Member States) of the third-country national into the territory of the Member State concerned.

[4]        E suggested adding the words and access to work after the words conditions of entry and residence.

[5]        S entered a linguistic reservation (the words residence and reside in points a) and b) were not translated in the same way).

[6]        E suggested adding the words for employment purposes after the words to enter and to reside.

[7]        NL wanted a definition of employer to be introduced in this provision.

         D drew attention to the fact that the categories of au pair and youth exchange, mentioned in Article 16, are not defined in this provision.

         Cion observed that the category of au pair is defined in Article 16 and that points g), h) and i) have to be examined in close connection with the Articles 13 and 14.

[8]        Concerning this point, as well as point i), F wondered whether these definitions would be consistent with the corresponding definitions, as used in its national legislation.

         Cion pointed out that, since the definitions referred to in Article 2, as well as in the other relevant Articles are only intended to be used in the context of the application of this Directive, the Member States may maintain the definitions adopted in their national legislation.

[9]        I found the definition contained in point d) not particularly clear and specific.

         EL, I and NL entered a reservation on this point, linked with the question of visa requirements (see footnote 1 on page 5).

[10]       Feeling that the persons concerned should be in possession of an authorisation in order to exercise the intended economic activity, prior to the issue of the residence permit, E, EL, NL and A entered a reservation on point d), as well as on point e).

[11]       EL, I and NL entered a reservation on point e), linked with the question of visa requirements (see footnote 1 on page 5).

[12]       In reply to a question concerning points d) and e), Cion observed that the said points make reference to different permits, subject to different conditions. If, for example, a worker wishes to become a self-employed person, in order to be granted the corresponding permit he/she will then have to fulfil the relevant conditions.

[13]       E, supported by A, wanted the words at least once a week to be deleted. A drew attention to the fact that its legislation, in addition to the transfrontier workers, also takes into account the category of commuters (persons who remain more than one day in its territory). However, this specific category of workers is limited to the nationals of the neighbouring countries.

[14]       D and A pointed out that this definition may give rise to some difficulties with respect to their vocational and training systems.

         D also queried what the relation would be between the provisions of this Directive and the proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of studies, vocational training or voluntary service, which is currently being examined by the competent Council body.

         In reply to this query, Cion observed that a distinction should be introduced between paid and unpaid trainees, based on the criterion of remuneration. If learning is the predominant function of the traineeship, the person concerned will fall within the scope of the above students Directive. Where in the traineeship the element of remuneration is prevailing, the rules of this Directive will apply. However, it admitted that in the practice it would be not so easy to make such a distinction.

         Moreover, it suggested adding in point i) a wording such as who are paid.

         Pres considered that this suggestion may be appropriate, while D wondered whether such an addition would cover its concern.

         Cion felt that the German version of this point needs to be checked in more detail.

[15]       In reply to a question from A, Cion observed that the Member States will be entitled to conclude, in the future, bilateral and multilateral agreements with third countries containing more favourable conditions. However it pointed out that these agreements must be compatible with the provisions of this Directive.

[16]       D wondered whether transfrontier workers should be excluded from the scope of this Directive.

[17]       NL wanted refugees, as recognised under the rules of the Geneva Convention, to be mentioned in point b).

         Cion took the view that refugees are already covered in paragraph 1 (a).

         Observing that the persons under temporary protection should be granted the same treatment as refugees, FIN entered a scrutiny reservation on this point.

[18]       NL noted that in its national legislation, the list of categories of persons which may be entitled to be granted more favourable treatment is wider than the list contained in paragraph 4. It further added that some of these categories may also be subject to certain restrictions.

         A took the view that the list of categories referred to in paragraph 4 should be regarded as an indicative and not as an exhaustive one, since other categories of persons may be envisaged.

         Concerning the NL remark, Cion felt that its concern might be met by replacing the words more favourable with the words more specific.With respect to the A observation concerning the possibility of adding further categories of persons in this paragraph, it expressed some doubts about the opportunity of setting a list containing too many categories.

[19]       D pointed out that in the German legislation a legal definition of highly qualified workers is used, which goes beyond the categories of persons referred to in point a). It also noted that these highly qualified workers are granted preferential treatment. S also noted that a different terminology is used in its legislation, which makes reference to persons with special skills. These persons, who do not need to be involved in academic activities, are granted more favourable treatment.

         Cion said that it could support the introduction of a new category covering highly qualified persons in this paragraph, if delegations deem it appropriate.

[20]       A suggested replacing the word journalists with media workers.

[21]       EL, I and NL entered a reservation on paragraph 1, linked with the question of visa requirements (see footnote 1 on page 5).

[22]       Stressing that in its legislation the work permit is not a right, but a concession, IRL suggested replacing the word shall with may. D, I and A supported this suggestion, which also applies to paragraph 1 of this provision.

         Cion drew attention to the fact that, in accordance with Article 26, Member States may apply some restrictions to the issue of the 'residence permit - worker'.

         IRL felt that the reference to Article 26 is not sufficient to cover its concern.

         Pointing out that this Directive is not intended to create a right for the worker to be granted the said permit, Cion took the view that in the logic of Article 4 it seems more appropriate to maintain the word shall in paragraph 1 and to use the word may in paragraph 2.

[23]       B, EL, F and A recalled that, under the applicable rules of their national law, third-country nationals need to be granted two different permits, which are not necessarily issued at the same time.

         Cion insisted in the fact that one of main objectives of this Directive is the simplification of the existing national procedures.

[24]       Irrespective of the question of the existence of two different procedures for the issue of the residence permit and of the work permit, various delegations pointed out that the general rule contained in paragraph 1 - according to which the application is to be submitted by the employee - is not consistent with the approach followed in their national legislation.

         I, supported by B, E, EL and F, felt that this provision should consider both possibilities on the same footing and therefore clearly state that the application may be submitted either by the employee or by the employer. For that reason, it suggested adding a wording such as or the future employer of a third-country national in the first sentence of paragraph 1 and to delete the second sentence of this paragraph accordingly.

         These delegations, as well as D, FIN, IRL and S entered a scrutiny reservation on paragraph 1. NL further noted that in accordance with paragraph 1 the employee is always offered the possibility of submitting an application, although the application for a work permit, under the applicable Dutch legislation, may be presented by the employer only if certain conditions are fulfilled.

         According to Cion, a fundamental distinction needs to be made between the applicant for a permit and the holder of a permit. It expressed its preference for the solution adopted in the current text of this provision, which in its view is more in line with an approach aimed at taking into account the rights of the workers. However, it took the view that the entitlement for submitting the application may also be extended to the employer, as long as the principle, according to which the employee is the holder of the permit, is maintained.

[25]       Noting that in its national legislation some categories of persons are not issued a residence permit, D wondered whether some exceptions may be introduced to the general rule according to which the possession of a permit is an essential requirement.

         Cion noted that in particular cases (such as for diplomats, referred to in Article 3 (1) (a), as well as for some categories of persons listed in Article 3(4)) the Directive provides for exceptions to the general rule.

[26]       Various delegations (E, EL, I, NL and A) opposed the fact that an application may be presented by a person who has already entered the territory of the Member State concerned. These delegations felt that, without prejudice to some exceptional circumstances, the application may exclusively be presented abroad, via the diplomatic representation of the Member State concerned.

         In addition, some concern was expressed by a number of delegations on the fact that, on the basis of the second part of paragraph 1, which refers to persons legally present, third-country nationals who entered the territory of the Member State concerned as tourists will be entitled to apply.

         E, I, NL and A entered reservations on the whole of paragraph 2. FIN and UK entered reservations, and D, EL, P and S scrutiny reservation on the second part of paragraph 2.

         S also entered a linguistic reservation on paragraph 2.

         Cion observed that in the perspective of a more liberal immigration policy, persons entered as tourists should be granted the possibility of submitting the application in the territory of the Member State concerned. It also drew attention to the fact that submitting an application does not entitle the third-country national to stay in its territory. With respect to a L remark concerning the relation between paragraph 2 and Article 6 (f), it said that the last provision refers to the persons who may reside for a period of three months in the territory of the Member States of the Union, in accordance with the applicable Community law.

[27]       E, I, NL (which made reference in particular to point d), P and A observed that the list referred to in paragraph 3 contains documents which should be submitted by the employer, as well as documents which should be submitted by the employee. E wanted a clear distinction between the two categories of documents to be introduced in this provision. I said that a system could be envisaged whereby the application and the documents the employee is requested to provide are submitted by the employer, while the employee integrates the application with the remaining documents.

         EL noted that the documents and particulars referred to in paragraph 3 correspond to the particulars and documents which, under the legislation of the Member States, are requested for the issue of the residence permit and of the work permit.

         FIN welcomed the fact that this paragraph contains a comprehensive list of documents. However, according to D, this provision is too detailed and needs to be simplified.

         B entered a scrutiny reservation on paragraph 3.

         Noting that objective of this provision is to establish an integrated and simplified issue for the issue of a single permit, Cion expressed its favour for setting an exhaustive list of documents in paragraph 3.

[28]       A suggested to add in the list referred to in paragraph 3 the requirement of the ability and commitment of the third-country national to integrate himself/herself in the society of the Member State concerned.

         I, supported by L and P, wanted the requirement of an appropriate accommodation to be introduced in this paragraph.

         Concerning the requirement of integration, Cion expressed some doubts about the opportunity of introducing such a criterion, due to the practical difficulties that it might rise. With respect to the requirement of an appropriate accommodation, it took the view that the condition of possessing sufficient resources referred to in point h) should also cover this requirement.

         Moreover I, supported by EL, wanted another requirement to be introduced in this provision, which is established in their national law: the commitment of the employer to pay the travel expenses - by appropriate means, such as a bank deposit or guarantee - of the employee in order to ensure that he/she return to his/her country when the work contract is ended or broken.

         Cion noted that, as far as seasonal workers are concerned, this requirement is expressly stated in Article 12 (2).

[29]       Observing that its new immigration law follows an approach similar to that adopted by Canada (there is a selection of persons, but without a specific job offered), D entered a scrutiny reservation on point b).

[30]       FIN, supported by L, wanted the requirement of submitting the criminal record to be included in this point.

         P stressed that the requirements referred to in this provision should be compulsory.

         According to B, the person should also prove that he/she does not constitute a danger or a threat to public order. Moreover, it wanted the requirement of 'health certificate' to be specified.

         With respect to the suggestion from FIN and L Cion took the view that the notion of certificate or adequate proof of good conduct covers the criminal record. Concerning the health certificate, it observed that it is up to the Member State concerned to decide what type of document it will request. In general terms, it noted that this point, which is introduced by the words if required, allows for a certain amount of discretion to the authorities of the Member State concerned.

[31]       In reply to a query from L, Cion observed that the diploma/certificate obtained by the person concerned in a third-country needs to be formally recognised in the EU.

[32]       Observing that the level of sufficient resources should be determined on the basis of an individual assessment, rather than on the basis of general criteria as established in this provision, D entered a scrutiny reservation. EL felt that some discretion should be allowed to Member States in determining the level of resources which they consider sufficient.

         Concerning resources, Cion observed that this provision follows an approach similar to that adopted in the proposal for a Council Directive on the right of the citizens of the Union and their family members to move freely within the territory of the Member States, which is actually being examined by the competent Council bodies. It also added that regarding in particular the checks of the financial resources this Directive makes reference to the Council Directive on the status of third-country nationals who are long-term residents. This Directive enables the persons who have been granted the status of long-term resident in a Member States to move to a second Member States and to maintain this status, under certain conditions. It said that Article 16 is very similar to Article 15 of the said Directive, which concerns the checks carried out in the second Member State.

[33]       Feeling that the payment of fees should fall within the competence of the Member States, A wanted point i) to de deleted.

         Cion observed that this Directive does not intend to regulate fees. The objective of this point is simply to state that, if the Member State requires the payment of fees for handling the application, the person concerned shall submit the proof that he/she has met this requirement.

[34]       NL entered a reservation and I a scrutiny reservation on Article 6.

[35]       FIN entered a scrutiny reservation on Article 6(1).

         A felt that mention should be made the persons drawing an employment benefit in the list referred to in Article 6(1).

         Cion felt that this concern from A is met, insofar as this provision covers all persons entitled to exercise an economic activity.

         Cion further took the view that points b), c), d) and g) of Article 5(3) should be moved to the list contained in this provision, insofar as they set requirements that need to be checked by the competent authorities.

[36]       D felt that third-country nationals should not be granted treatment equivalent to that of EU citizens. For that reason it suggested separating points a) and b) from the points of paragraph 1, and moving them to a new paragraph. In its view the Directive should only apply to the categories referred to in points a) and b), while the categories covered in points c)-f) should remain subject to the provisions of the national legislation.

[37]       In reply to query from L, Cion said that the family members referred to in this provision are those defined in Regulation 1642/68.

[38]       According to FIN, supported by NL, which felt that refugees should be covered by this provision, point c) should not only refer to Article 3(1), but also to Article 3(3).

         Cion noted that in accordance with the provisions of the Geneva Convention, which is a multilateral agreement as defined in Article 3 (1), refugees are granted access to the labour market. Therefore, the provisions of Article 6(1)(c) cover this category of third-country nationals.

[39]       Feeling that this provision is redundant, D wanted point b) to be deleted.

         Cion favoured maintaining this provision, for reasons of consistency with the principle of Community preference, which was already affirmed in the Council resolution of 20 June 1994 on limitations on admission of third-country national to the territory of the Member states for employment.

         Concerning a query from FIN, it said that this provision would cover persons admitted under family reunification rules and asylum seekers whose access to their labour market has been granted on the basis of the relevant national provisions or of applicable Community legislation.

[40]       D, E, EL and NL entered a scrutiny reservation on this provision. D, supported by E and L, wanted a time limit of three years instead of five years to be set in this provision.

         Cion felt that three years is an average and reasonable period.

[41]       E, EL and NL entered a scrutiny reservation on this provision. D and A wanted this point to be deleted. In particular D felt that, if a time-period of five years replaces the deadline of three years referred to in point e), this provision would no longer be necessary.

         Stressing the linking of Article 6(1)(f) with Article 5(4), Cion took the view that such a preferential treatment should be maintained, in order to favour the mobility of third-country nationals workers between the Member States of the EU and their countries of origin. It felt that a certain flexibility for allowing the person concerned to temporarily leave the territory of the EU and subsequently re-enter it, is appropriate and necessary, in particular with a view to reducing the risks of 'brain drain'.

[42]       OJ L 274, 6.11.1993, p. 32.

[43]       E and S entered a scrutiny reservation on this provision. Several delegations (D, EL, E, FIN, F, I, NL, S and UK) felt that the system and the procedure referred to in paragraph 3 appear to be quite complicated, bureaucratic and difficult to manage. FIN noted that this system should allow for more flexibility. A, which considered the system as utopian and unrealistic, pointed out that the compliance with the principle of the Community preference could only be checked if the job offer was published by the national employment authorities. D wanted the last two sentences of this provision to be deleted. Making reference to the fact that, according to the current wording, the published job vacancy shall contain realistic, reasonable and proportionate requirements, L wanted clear and concrete requirements to be provided for in this provision. Observing that EURES network was not particularly successful in practice (only 15% of the job vacancies were filled by using this system), NL said that a different mechanism should be envisaged in which the employer should play a more active role. D, E, EL and UK drew attention to the difficulties in applying this system, in particular in view of the enlargement. According to D, the clause concerning citizens of countries with which accession negotiations have been started should be deleted.

         Cion explained that the system envisaged in this provision aims at putting into practice the principle of Community preference referred to in paragraph 1 while simplifying the procedure. It stressed the difficulties of finding a mechanism that needs to be quick and efficient while allowing, at the same time, for appropriate checks. Concerning the question of the enlargement, it felt that a distinction should be introduced between the free movement of the citizens of the acceding countries, which in its view should be addressed separately, and the issue of the preference to be granted, under the terms of this Directive, to the citizens of these countries.

[44]       It was generally felt that the system outlined in this paragraph - which allows Member States to introduce, under certain conditions, "green card" programmes - is quite complex and bureaucratic and difficult to manage. For that reason it was considered that such a system needs to be simplified and made more flexible. In particular, opposing the introduction of a quota system, which would restrict access to the labour market to a maximum fixed amount of persons, F wanted the reference to a specific number of jobs to be deleted. Moreover, according to F and supported by B, the first sentence of this paragraph should be further simplified and make exclusive reference to a specific sector, while the other requirements (for a limited time-period and, if appropriate, in a specific region) should be deleted. However I, which applies a quota system in its national legislation, suggested only maintaining the requirement of a specific number of jobs and deleting the other requirements. Taking the view that a green card programme is a mechanism that should be as flexible as possible, D considered that this paragraph is a very restrictive provision. It also stressed its preference for a system, such as that adopted in its new immigration law. On the basis of this system, the person concerned will receive a certain number of points, depending on various criteria, such as qualifications - which is considered as being an essential element -, age, knowledge of the language, etc. Observing that its legislation provides for the access of a limited number of persons with high qualifications, A recalled that it did not favour the system outlined in paragraph 2, which, in its view, should be abandoned. It considered that the mechanism for the admission of third-country nationals for work purposes should be a combination of the systems referred to in paragraphs 3 and 4. Noting the existence of a general agreement on the need for opening the labour market, F wondered whether it might be possible to find a compromise solution between the different approaches followed in the Member States, taking also into account the different positions concerning the introduction of quotas. It felt that one possibility could be admitting certain categories of third-country nationals to a green card programme, without establishing a fixed number of eligible persons.

         Cion stressed that this paragraph is an optional provision. In its view it provides for a more flexible system than that referred to in paragraph 2, which is subject to further requirements and conditions. However, it added that for reasons of transparency, a certain number of requirements also needed to be introduced in the framework of the system envisaged in paragraph 3. Concerning in particular the remarks from D and A – in whose legislation there is a preference for the access of highly qualified third-country nationals to their labour market - Cion said that it favoured setting a general rule and introducing, if appropriate, some specific exceptions, which might cover, for instance, the above-mentioned category.

         In this context D observed that a different approach might be followed, which would consist of admitting only highly qualified persons to the labour market, but at the same time, giving Member States the possibility of extending access to other categories.

         Pointing out that this Directive should aim at regulating access to the labour market irrespective of the qualifications of the persons concerned, I opposed the D suggestion.

[45]       B, D, F and FIN wanted the second sentence of paragraph 3 to be deleted.

[46]       B, D and I wanted the third sentence of paragraph 3 to be deleted. D opposed the fact that, by means of this provision, nationals of acceding countries are granted treatment that is comparable to that of EU nationals. It further noted that the system outlined in paragraph 3 should be based on the qualifications of the persons concerned, irrespective of their nationality.

[47]       Observing that this paragraph is an optional provision, Cion said that the system it refers to has been applied in two Member States.

         B, which is one of the Member States concerned, noted that, in practice, this system was quite successful. A drew attention to the fact that in Austria, under the new immigration law, the threshold will become the basic requirement for access to the labour market, together with the qualifications.

[48]       A entered a reservation and E, EL, F, I and FIN entered a scrutiny reservation on this provision. As stressed in particular by F, these delegations felt that this provision may lead to some distortions of the competition and favour large enterprises vis-à-vis small and medium enterprises, which might have difficulties in using such a procedure. A drew attention to the risk of the possible abuse of the system, insofar as the money to be paid to the competent authorities for measures promoting the integration of third-country nationals could be deducted from the salary of the person concerned. According to NL, this procedure might prove to be useful only in exceptional cases.

         While in its view this system is not an ideal one, Cion said that it wanted to leave this possibility open to the Member States that wished to apply it. In this context, recalling that paragraph 5 is an optional provision, it observed that this system has been applied in countries outside the European Union, such as South Africa. It also took the view that this system should not lead to any distortion of competition, insofar as it is open to all enterprises. For that reason, it added, the use of this procedure is not subject to a defined amount of money.

[49]       Feeling that the provision contained in the second sentence should not be mandatory, D and IRL wanted the word shall to be replaced by may. D further wanted the words for vocational training purposes to be deleted, insofar as it felt that such purposes are already covered by the general notion of integration.

         Taking note of these remarks, Cion observed that the objective of this provision is to establish a link between the use of such a system and the promotion of integration measures.

[50]       P entered a scrutiny reservation on paragraph 1. D, F, I, NL and A entered reservations on paragraph 1, concerning the maximum period of validity - three years - of the "residence permit - worker". In particular D, F, I and A expressed some concern about the fact that after three years persons with a contract of unlimited duration, who met the requirements established for their admission, should be submitted to a new economic - needs test. Stressing that such a restriction could lead to situations of legal uncertainty, on both sides of employee and of employer, these delegations opposed the introduction of a new - needs test in cases where the permit is renewed. Moreover, according to D and S, the Member States should be allowed the possibility of issuing, to the person concerned, a permanent residence permit. Drawing attention to the fact that in their legislation the maximum period of validity for a permit is five years, NL and UK took the view that the deadline referred to in this provision is too short. EL supported the deadline of three years indicated in the proposal.

         Taking note of the delegations' remarks, Cion considered that two different approaches might be envisaged in the framework of this provision. The first possibility, which is reflected in the current text, is that the person concerned is issued a permit with a limited duration and has to be submitted to a new economic - needs test when his/her permit is renewed. This approach may imply that the third-country national is obliged to return to his/her country if he/she no longer meets the requirements established in the Directive (if, for instance, the economic situation of the Member State concerned has changed). A different approach could consist of issuing the person with a permit of a longer duration, without requesting a new economic -needs test in case of renewal. Pointing out that the Commission is open to take into account both solutions, it invited the Working Party to consider this question and to reach an agreement on the approach to be followed.

         D, F, I and A insisted that the first approach appears to be unrealistic and that a more flexible system needs to be found. In this context NL drew attention to the fact that, in accordance with its legislation, a permit cannot be renewed: after three years the person concerned has no restrictions on the labour market, but if, for example, he/she was issued a permit for one year, once this period has elapsed he/she must return to his/her country.

[51]       FIN, NL and S drew attention to the need of establishing a link between Article 7 and the provisions of the Directive on the status of third-country nationals who are long-term residents.

[52]       Various delegations (D, E, FIN, NL, A, S and UK) felt that the requirement of submitting the application at least three months before the expiry date of the permit might give rise to some difficulties. In particular NL, S and UK took the view that this provision should not set any deadline, insofar as the person concerned should be entitled to submit his/her application until the expiry date of the permit. E wondered what the consequences would be in cases of late applications. A drew attention to the fact that a similar system was applied in Austria and abandoned, due to the problems it created (loss of access to the labour market and of the residence permit). EL found the three - month deadline reasonable, insofar as the competent authorities need to be allowed a certain period of time for examining the application.

         According to Cion, the introduction of such a deadline aims at avoiding that, in the moment between the expiry of the permit and its renewal, the person concerned could fall in a sort of 'grey area'.

[53]       D and A entered a reservation on paragraph 2.

         According to P, this provision needs to specify that the period of residence to be taken into account should be uninterrupted.

         Cion supported the introduction of such a clarification.

[54]       Taking the view that this provision should be optional, B, D, E, EL, F, IRL and I entered a reservation on Article 9. NL entered a reservation linked with its reservation on Article 6(2). It also suggested adding at the end of the first sentence the words with a specific employer at the end of the first sentence.

         Cion said that the question of whether this provision should be mandatory or optional depends on the approach that the Working Party considers the most appropriate. Two different approaches are possible: either a more restrictive one, which is reflected in the current text, or a more liberal one, which would imply that the Member State should not be bound to apply the restrictions provided for in Article 8.

         Concerning the remark from NL, it observed that in some national legislation the work authorisation refers to a specific employer. However, it expressed its preference for granting to the employee the possibility of working for another employer (for example, a nurse should be able to move from one hospital to another).

         Pres noted that the majority of delegations preferred to adopt a more flexible approach in Article 8.

[55]       D and A entered a reservation and F entered a scrutiny reservation on this provision. These delegations felt that, if Article 8 is considered as being an optional provision, Article 9 should be amended accordingly. In particular D, which found this provision over-restrictive, and F, which found it too detailed, took the view that such rules should not be contained in a Directive.

         FIN wondered what changes in the information provided in accordance with Article 5(3) should be subject to the requirement of the notification referred to in this Article. It further took the view that it should be clarified when and how the approval of the competent authorities of the Member State concerned is to be given.

         Pres felt that the controls referred to in this provision are only justified if the restrictions provided for in Article 8 are maintained. It also noted that this provision should allow for more flexibility.

[56]       E, FIN, F and S wondered how a permit might be suspended. These delegations felt that the notion of suspension is not clearly defined in this provision.

         Cion said that, if delegations deem it appropriate, the reference to the suspension of a permit might be deleted.

[57]       P felt that if the particulars supporting the application are simply incorrect, the permit should not be suspended or revoked.

         In reply to a question from EL concerning mistakes and negligence, Cion said that it is up to the Member States to decide whether the provisions of this paragraph concerning incorrect information will apply in such cases. In cases of fraud, the provisions of paragraph 1 are applicable.

[58]       F wanted the words in accordance with Article 9 to be deleted.

[59]       EL wondered why Article 10(2) does not refer to public health, while this criterion is mentioned in Article 27.

         Cion said that Article 10(2) does not contain a reference to public health, which is mentioned in Article 27, insofar as this reason may not be invoked for revoking the permit once the permit has been issued.

[60]       Various delegations pointed out that this provision gives rise to some difficulties (D, F, A and P entered reservations and EL, FIN, IRL and S entered scrutiny reservations). D and A felt that Article 10(3) may interfere with the provisions of the social law of the Member States concerning unemployment. In particular D considered that this issue should not be addressed in this Directive, since it falls within the competence of the Member State concerned. D, F and A suggested deleting this provision. FIN noted that this provision should state more clearly the reasons for which the person concerned has become unemployed. I and NL wondered why this provision covers both employed and self-employed persons. In particular I raised the question of determining when a self-employed person may be considered unemployed. According to NL, the reference to self-employed persons should be deleted, insofar as this category is already covered in Article 23.

         Concerning the time-periods referred to in points a) and b), NL and UK felt that this provision is too detailed and should not set deadlines.

         Finally, according to E, this provision should not only refer to unemployment, but also to social assistance benefits granted with a view to facilitating the social and/or professional reinsertion of the person concerned.

         Cion pointed out that, irrespective of being an employed or a self-employed person, this provision covers all cases in which the person concerned has made some payments to the services of the Member States which are responsible for the social security. It also clarified that this provision does not concern the entitlement to claim benefits, insofar as its objective is to determine what would be the consequences of a situation of unemployment for the holder of the permit.

         It finally observed that a clear distinction needs to be made between the situation of unemployment referred to in Article 10(3) and the condition of possessing sufficient resources, which is established in Article 5(3)(h). If the person concerned does not meet such a requirement, his/her permit will be revoked, irrespective of the fact that he/she is unemployed or not.

         Taking note of the delegations' comments, Pres felt that the text of this provision needs to be further considered.

[61]                  D entered a reservation and E, FIN, P and S entered scrutiny reservation on the whole of

     Article 11.

[62]           FIN, P and S entered a linguistic reservation concerning the translation of the word residence.

[63]   EL and NL raised the question of the visa requirement to which the entry of the person concerned may be subject.

     The Pres. drew attention to the fact that this issue, which was already addressed in the framework of the examination of Article 1 (see 7557/02, footnote 1 on page 4), is still being considered.

[64]   D and A entered a reservation and E entered a scrutiny reservation concerning point c). In particular D and A wondered whether this provision is consistent with the rules of the Schengen Convention. Also EL took the view that this question needs to be further considered.

[65]    Recalling that the Tampere conclusions called for an approximation of rights of third‑country nationals vis-à-vis EU nationals, without establishing the principle of equal treatment, D and A entered reservations on point f). According to EL, which entered a scrutiny reservation, the text should more clearly state that only in the areas listed in this point third‑country nationals enjoy equal treatment. While noting that point f) is not fully in line with the Tampere conclusions, FIN expressed its support to this provision. Supporting the principle of equal treatment, NL wondered whether it would more advisable to envisage a general provision, rather than identifying specific areas.

     With respect in particular to the D and A remarks, Cion observed that point f) does not establish a generalised equal treatment, since this provision covers a certain number of areas.

     Concerning the NL observation, it noted that the directive only sets minimum requirements and does not prevent Member States from extending equal treatment to other areas.

[66]   NL observed that, under the applicable Dutch legislation, a third-country national who exercises an economic activity in Holland may not use the services of the employment agencies to obtain another job.

     The Cion said that in such a case the provisions of paragraph 2 could apply.

[67]   D, which entered a reservation on this point, observed that the German legislation provides for rules concerning the priority in access to vocational training. It took the view that, if this provision only aims at covering vocational training for work purposes, the text of point ii) needs to be clarified. Noting that the notion of "vocational training" is used in many different ways, also UK felt that a clarification should be introduced in this provision.

[68]   D entered a reservation and E entered a scrutiny reservation on this provision. According to D, a distinction needs to be introduced between academic diplomas, certificates on the one hand and qualifications requested for work purposes, which do not fall within the Community competence on the other, feeling that this issue should be further addressed. D also referred to the question of reciprocity. I said that it could not support a system of automatic recognition of diplomas, certificates and other qualifications. EL and A took the view that this provision needs to be further clarified and considered, possibly with the assistance of experts in this area.

     The Cion felt that such a provision ‑ which was drafted after consultation of experts in this area - is necessary and appropriate in the framework of this Directive. It also wondered whether, on the basis of the case law of the Court of justice, the distinction among academic diplomas and certificates and qualifications for work purposes evoked by D may still be made.

[69]   D entered a reservation on point iv). According to FIN, which felt that this provision might rise significant problems, the question of social secutity should be further considered with the assistance of experts in this area. EL wondered whether this provision is consistent with Regulation 1408/71.

[70] D entered a reservation on point v).

[71] NL entered a scrutiny reservation on paragraph 2. EL, FIN and NL entered linguistic reservations. According to A, supported by EL, rather than setting fixed deadlines (one year in the first sub-paragraph and three years in the second sub-paragraph), this provision should refer to jobs with limited or unlimited duration.

Stressing its preference for the adoption of objective criteria, the Cion favoured maintaining the time-limits referred to in this provision.

[72]   B, D, EL, F, A and S entered reservations and E, I, L and NL, entered scrutiny reservations on paragraph 3. Various delegations pointed out that their national legislations do not provide for a system such as that referred to in paragraph 3. Taking the view that the implementation of this system is not realistic, D furter considered that such a possibility is not offered, under the applicable EU legislation, to EU nationals. The Cion observed that paragraph 3 is a sort of “safety net” to be applied in cases where the third-country national concerned did not make any payment and may not receive any benefit in his/her country of origin. Pres took the view that this provision might become clearer by specifying that the requirements referred to in points a), b), c) and d) are cumulative. To that purpose it should be sufficient to add the word and at the end of points b), c) and d).

[73]  A pointed out that all the reservations it entered for Section 1 also apply to Section 2.

[74]   D, I and A entered reservations and EL, F, NL and P entered scrutiny reservations on this provision.

     E, F, FIN and I called for the introduction of some flexibility in this provision, in particular with respect to the six - month deadline referred to in paragraph 1. In this context, various delegations noted that their national legislation take into account a different time-limit (4 months in Germany, 9 months in Italy and 24 weeks in Holland).

The Cion pointed out that a maximum period of six months for seasonal workers has been set in the Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment. In reply to a query from S it clarified that during the six month period the third-country national may enter and re-enter the territory of the Member State concerned, but after the expiry of the deadline his/her "residence permit ‑ seasonal worker" will not be renewed nor prolonged.

[75]   EL wondered why the provisions of Section 1 apply mutatis mutandis to the seasonal workers, as well to the other specific categories of workers covered in Section 2, since the situation of these persons is different from that of permanent workers.

[76]   E, EL, F and P expressed some concern regarding the "multi-annual residence permit ‑ seasonal worker". The said delegations felt that this provision may create some legal and practical difficulties. In particular it might be problematic to check whether the person concerned returned to his/her country of origin after the expiry of each period of six months.

The Cion drew attention on the optional nature of this provision, which was introduced upon request of the Confederation of European Industries. However, it said that it could not oppose its deletion, if delegations deem it appropriate.

[77]   FIN welcomed paragraph 2. While supporting it, E felt that it should be further developed. According to EL, this provision should clearly state that the security has to be deposited by the employer.

     Concerning the EL remark, the Cion noted that, on the basis of this provision, it is up to Member States to decide if the financial guarantee has to be deposited by the employee or by the employer.

[78]   D, E, EL and A entered reservations on this provision. Opposing the fact that transfrontier workers may enjoy the rights listed in Article 11, FIN and S entered scrutiny reservations.

Observing that the number of transfrontier workers is very limited, B suggested deleting this

provision. EL, I and A supported the B suggestion.

[79]   I, NL and A entered reservations and D and EL entered scrutiny reservations on the whole of Article 14. In particular, D wondered whether for this category of workers a work permit needs to be required. A took the view that, since intra-corporate transferees are granted special treatment on the basis of the GATS Agreement, it is not necessary to cover them in this provision.

The Cion drew attention to the fact that Article 14, which provides for a special treatment of intra-corporate transferees ‑ they are excluded from the economic - need test ‑ aims at implementing the committments undertaken by the Commission under the GATS Agreement.

[80]   L observed that the definition of "key personnel" is too wide. It also raised the question of the period during which the person concerned has worked for the company. E felt that a link should exist between the "key personnel, the "specialists" and the company concerned. It took the view that Article 14, and in particular paragraph 1, should be drafted in a clearer way and make reference to e.g. the seat of the company, the competent authorities and to other appropriate details.

With respect to the question of the link of the person concerned with the company, the Cion

pointed out that, according to Article 2 f), the person concerned must have worked for at least the 12-month period immediately preceeding the transfer. It also noted that this period is consistent with the undertakings in the framework of the GATS Agreement.

[81]   With respect to the specialists L and NL considered that point b) should set the requirement of a minimum wage.

The Cion opposed this suggestion, insofar as the requirement of a minimum wage might be assimilated to an - need test, to which this category of persons may not be subject. A felt that a distinction might be introduced between workers covered by the GATS Agreement and other workers, who could be subject to the requirement of a minimum wage.

The Cion took the view that, in such a case, Member State might apply the system referred to in Article 6(4). However, NL and A felt that this system would not be applicable.

[82] EL and E felt that five years is too long a period.

[83]   E and A entered reservations and D, I, NL and P entered scrutiny reservations on this provision. EL and F drew attention to the fact that the notion of 'trainee', according to the practices existing in the Member States and also within each Member State, may cover different cases. EL also took the view that there are risks of misuse of this provision by the employer. D wondered whether persons falling in the categories of 'trainees' and 'au pair' (referred to in Article 16) would be able to meet the requirement of having sufficient resources set in Article 5(3)(h). B took the view that, rather than covering unpaid trainees in the future Directive on students and paid trainees in the framework of this Directive, it would be more appropriate to address both categories in a specific instrument. EL supported the B suggestion.

With respect to the B suggestion, the Cion did not favour the approach of covering all trainees and students in a single instrument, insofar as, in its view, it would create some difficulties. It noted that not only paid trainees are considered as workers and sign a work contract, but also the controls that the competent authorities may carry out are different. L supported the Cion approach.

Feeling that this provision should not give rise to abuses, the Cion also observed that Article 15 is mainly intended to cover the cases of international traineeship within multinational companies. Finally, in reply to a query from EL concerning the link between traineeship and studies, it pointed out that it will be possible for a person who has been admitted as trainee to follow studies falling within the area of his/her training period. However, the opposite will not be allowed.

[84] According to FIN, rather than setting a deadline of one year, this provision should state that a residence permit, covering the entire duration of the training period, should be issued for the person concerned.

[85]       B and D suggested not to address at all the issue of access to self-employed activities in this proposal. D also questioned the Community competence on this issue. D, EL and A suggested to align the context and wording of this proposal with that of legal instruments, for which agreement has already been reached in this area.

         EL, supported by D and A, entered a reservation on the whole Chapter III, especially in regard to its legal basis. F also mentioned that the legal basis of this proposal may change after the Intergovernmental Conference for the revision of the EU Treaties. FIN entered a scrutiny reservation on the whole Chapter.

         F and A underlined that the provisions of this Chapter and especially Articles 17 and 18 are too detailed. In particular, A pointed out that due to the different administrative systems in force in the Member States, some detailed provisions might be redundant, while priority should be given to the regulation of the basic notions governing the framework of the third country nationals self-employed economic activities. F also underlined that more emphasis should be put to the criteria for the obtainment of the residence permit B stressed that the issues of non-remunerated work and volunteerism should be addressed in order to avoid abusive implementation of this Directive

[86]       IRL, supported by EL, A, stressed that emphasis should be put, throughout the proposal, to the fact that the granting of the residence permit to third country nationals for paid employment and self-employed economic activities lies to the absolute discretion of the Member States.

[87]       Scrutiny reservation by E, EL, FIN and I which pointed out that the current regime on the first-entry visa should remain unaltered, and that the scope of this proposal on this issue should be clarified.

[88]       Scrutiny reservation by EL, supported by E I, A, which underlined that in its national legislation the residence permit and the work permit are two separate documents.

[89]       E entered a reservation and D, A and FIN entered scrutiny reservations on the whole Article; S which preferred a simplified procedure, also entered a scrutiny reservation.

[90]       Scrutiny reservation by E, EL, FIN, IRL, L, P and S on the whole provision. These delegations pointed out that it should be made clear throughout this text that third country nationals entering with a tourist visa into a Member State, even if legally present under the applicable Community legislation; should not be entitled to apply the provisions of this directive.

[91]       D, EL, and FIN, supported by various delegations, entered a reservation on this provision considering it too technical and detailed, pointing out that its objectives should be clarified. A asked for the further clarification of the term self-employed.

[92]       B, IRL and L asked for the further clarification of the term sufficient financial resources, in order to avoid it being abusively invoked by third country nationals entering the Member States as unskilled labour force, who may be without any financial means. A felt that there might be some contradiction between points (c) and (h).

[93]       S expressed its concern in respect of the application of this provision in relation with Article 27. FIN that pointed out that, instead of a request for adequate proof of good character and conduct, the Member State concerned should demand a criminal record.

[94]       S took the view that the applicant should bear the cost of the health insurance.

[95]       D, supported by A, expressed their doubts on how evidence can be produced by the applicant for the activities referred to in this Article.

         IRL, supported by other delegations, reiterated its submission that a Member State should have absolute discretion in deciding whether a third country national would have beneficial effect or not on its economy.

         EL, entered a general reservation on this Article, considering that there may be some restrictions in certain areas in respect of the exercise of financial activities by the third country nationals, as well as that there may be extra administrative burden on the migration authorities by the implementation of this provision.

[96]       Given that Articles 20-24 essentially repeat the content of the already discussed Articles 7-11, the Working Party did not enter into debate on them and considered that all reservations maintained for Articles 7-11 also apply, accordingly, for Articles 20-24.

[97]       B and A suggested that the period of validity of the initial residence permit –self employed person should be valid for five years instead of three (in the light of the long term residents directive). EL opposed this suggestion.

[98]       It was suggested by several delegations to use in this Chapter the wording of similar provisions of directives on which agreement has already been reached (Council Directive on the right to family reunification and. Council Directive concerning the status of third‑country nationals who are long‑term residents). Attention was drawn however, by D and EL to the fact that this proposal deals with a special first – entry case which is rather different from the above legal instruments where some rights of the third country nationals may be involved.

         EL entered a general reservation on the whole Chapter and D entered a scrutiny reservation on Article 25 (second sentence).

[99]       FIN, supported by IRL, invoking the fact that this is a special first – entry case, entered a reservation on the proposed level of fees, which should be proportionate and may be based on the service actually provided. E entered a reservation on the possibility for the Member State to be obliged to return the fees paid by the third country national.

[100]     D entered a scrutiny reservation on Article 26. S entered a reservation on the second sentence of the provision.

         F entered a reservation towards a system of quotas, as provided for by this Article. The Pres took the view that no quotas on European level are introduced by this provision

[101]     Scrutiny reservation by D, IRL, FIN and S supported by various delegations. According to them, Member States should be allowed to refuse granting / renewal or to revoke a residence permit on grounds of public policy and public security which could based not exclusively on the personal conduct of the third country national concerned.

         Pointing out that this proposal does not create any right of immigration, D, supported by EL, queried the need to define criteria for rejecting applications.

[102]     IRL entered a general reservation on the whole Chapter, wondering why setting out deadlines where there is no actual right for the applicants. Several delegations argued that certain provisions in this Chapter add unnecessary administrative burden and therefore, should be deleted. IRL entered a general reservation on the whole Chapter, stressing that since this Directive does not create any right it would not be appropriate to set various deadlines in this Chapter.

[103]     L suggested the deletion of the whole Article.

[104]     A, supported by D, underlined the excessive burden that this provision, as well as that of Article 30 create for the administration of the Member States. It took the view that the provision of Article 31 should suffice.

         In respect of the deadlines set out in this provision, D, E, FIN, IRL, L, A and S considered them rather strict or even unnecessary.

[105]     EL, supported by D, entered its reservation on this provision which obliges Member States to provide a statement of reasons based on objective and verifiable criteria for the rejection of the application, since its refusal is on the unfettered discretion of the national administrations.

[106]     D and A for reasons stated in footnote 3 on page 45, suggested the deletion of this Article.

[107]     D deemed this provision as unnecessary.

[108]     D and L regarded this provision as not feasible from the administrative point of view.

[109]     D, FIN and IRL thought it would be cumbersome and unnecessary to provide information about the third country nationals’ employment perspectives to the general public. Moreover, IRL raised the question of determining how and to what extent the information provided may be exhaustive.

[110]     The Working Party agreed to move this provision to the Preamble as a recital.

[111]     The Working Party agreed to delete his provision.

[112]     The Working Party agreed, instead of setting a specific date of implementation of this draft Directive, to provide that this instrument shall be implemented within 24 months of its adoption by the Council.