Requirements of Workers’ Mobility Within 17 Schengen Countries

25 Jun 18

This article is aimed to provide a summary of current EU provisions regulating the mobility for third-country nationals (“TCNs”) performing working activities within the Schengen Area. Published on Global Journal of Human Resource Management, Vol.5, No.2, pp.1-7, February 2017 (ISSN 2053-5686); Online published by European Centre for Research Training and Development UK (ISSN 2053-5694), full-text avalible here on www.eajournals.org


WORKERS MOBILITY WITHIN SCHENGEN: A COMPARATIVE STUDY OF 17 COUNTRIES REQUIREMENTS

MARCO MAZZESCHI

 

Most immigration provisions implemented by the EU are Directives. While EU Regulations automatically apply across the EU and do not need any act of implementation by the Member States, Directives are a legislative act that sets out a goal and objectives that all EU countries must achieve. Each individual Member State will then decide on how to devise its own laws on how to reach these goals. Therefore, each Member State will need to adopt local legislation to implement the provisions set forth in the Directive.

For business or tourism stays up to 90 days in any 180-day period, TCNs who hold a valid residence permit or visa have the right to move freely within the Schengen area. Working activities are on the other hand regulated by specific provisions of each Schengen country and therefore it will be necessary to check local regulations if TCN wants to work in a different country also for short periods (i.e. less than 90 days).

The right to extend the stay for more than 3 months, work and eventually obtain permanent residency in another country is subject to specific conditions and provisions set forth in the national legislation. The most important EU Directives that contain mobility provisions for TCNs and their families are:

  1. Long-term residents (Directive 2003/109)
  2. Blue Card permits for highly qualified workers (Directive 2009/50)
  3. Workers transferred in the framework of an intra-company transfer (Directive 2014/66)
  4. Workers temporarily ‘posted’ to perform work from one Member State (so-called “van der Elst permits”) (Directive 1996/71 and 2014/67)
  5. Researchers (Directive 2005/71)

 


1. Long-term residents in another Member State

Under Directive 2003/109, TCNs who hold long-term resident permits in one EU Member State have the right to reside for more than three months in a second Member State to exercise an economic activity, to pursue studies or for any other purpose, subject to certain conditions being met.

A TCN holding a long-term residence in another Member State can apply for a residence permit in another Member State without applying for a new visa. The right extends to their family members as long as the family was already constituted in the first Member State and they can present evidence they have stable and regular resources which are sufficient to maintain themselves without recourse to the social assistance of the Member State concerned.

Directive 2003/109 provides the Member States with greater discretion to apply additional measures to regulate the numbers of mobile TCNs entitled to be granted the right of residence. These areas of discretion include the possibility of applying a labour market test, apply quotas, required to show evidence to have “appropriate accommodation”, to comply with integration measures and also to provide evidence that they have stable and regular financial resources and sickness insurance.

Subject to meeting the applicable conditions, long-term residents can obtain a residence title following simplified procedures as compared to the procedures that would apply to TCNs arriving to the EU for the first time, and may apply from within the territory of the second Member State without holding a visa if an application is made within three months of entering the host country.

 

LABOUR
MARKET
TEST
QUATAS HOUSING LANGUAGE
TEST
PROOF OF
FINANCIAL
RESOURCES
POLICE
CLEARANCE
FAMILY
MEMBERS
CAN WORK
SOCIAL
SECURITY+
HEALTHCARE
Austria YES YES YES YES YES YES YES YES
Belgium NO NO YES NO NO YES YES YES
Czech Rep YES NO YES NO YES UPON REQUEST YES YES
Denmark(**)
France YES NO YES YES YES YES YES YES
Germany POSSIBLE NO YES NO YES NO YES YES
Greece NO YES YES YES YES YES YES YES
Holland YES NO NO POSSIBLE YES NO YES YES
Hungary NO NO YES NO YES YES NO YES
Italy NO YES YES YES YES YES YES YES
Malta NO YES YES YES YES YES YES YES
Poland YES NO NO NO YES NO NO YES
Portugal YES NO YES NO YES YES NO YES
Romania YES YES YES NO YES YES YES YES
Slovakia NO NO YES NO YES YES YES YES
Spain NO NO YES NO YES NO YES YES
Sweden NO NO NO NO YES NO YES NO

Table 1 – Long-term residents in another Member State- answers may be subject to conditions and/or limitations
(**) Denmark opted out

 


 

2. Highly Qualified Workers: EU Blue Card holders

Directive 2009/50/EC sets out the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment (i.e. EU Blue Card holders), and of their family members, for stays of more than three months in the territory of an EU Member State. Denmark, Ireland and the United Kingdom are not bound by the Directive.

The main requirements to obtain a Blue Card permit, according to article 5 of the Directive are:

(i) a work contract or binding job offer with a salary of at least 1.5 times the average gross annual salary paid in the Member State concerned (the Member States may lower the salary threshold to 1.2 for certain professions where there is a particular need for third-country workers);

(ii) for regulated professions, documents establishing that the worker meets the legal requirements of the country;

(iii) for unregulated professions, documents establishing the relevant higher professional qualifications. Higher professional qualifications can be attested by a higher education qualification (i.e. diploma attesting the completion of a post-secondary higher education program of at least three years) or by having at least five years of professional experience in a level comparable to higher education qualifications and which is relevant in the position offered in the job contract.

Blue Card holders can move to another Member State once they have legally resided in a first Member State for a minimum period of eighteen months, and in practical terms, all of the conditions set out in Article 5, which are determined in national legislation, must be reassessed and met in the second Member State. The mobility of EU Blue Card holders is also restricted to employment with one specific employer.

EU Blue Card holders are however allowed to accumulate periods of residence in different Member States, which count towards fulfillment of the requirements for long-term resident status. The conditions for admission under Article 5 are governed by the national laws and the Directive has been implemented with variable conditions amongst the Member States.

 

LABOUR
MARKET
TEST
MINIMUM
SALARY
THRESHOLD
HOUSING UNIVERSITY
DEGREE
VALIDATION OF
PROFESSIONAL
QUALIFICATION
EXPERIENCE
Vs
DIPLOMA
FAMILY
MEMBERS
CAN WORK
Austria YES  €59,718 NO YES YES NO YES
Belgium NO  €51,882 YES YES NO NO YES
Czech Rep YES  €17,640 YES YES UPON REQUEST DIPLOMA YES
Denmark(**)
France NO  €53,836 YES YES YES YES YES
Germany YES  €50,800 YES YES YES NO YES
Greece YES  €18,000 YES YES YES NO YES
Holland NO  €60,792 NO YES YES NO YES
Hungary YES  €14,400 YES NO YES YES NO
Italy YES  €24,789 YES YES YES NO YES
Malta NO  €24,123 YES YES YES NO NO
Poland YES  €16,800 YES YES YES YES YES
Portugal NO  €17,695 YES NO YES NO NO
Romania NO  €28,596 YES YES YES YES YES
Slovakia YES  €11,376 YES YES YES NO YES
Spain YES  €33,908 YES YES NO YES YES
Sweden NO  €57,000 NO YES YES YES YES

Table 2 – Highly Qualified Workers: EU Blue Card holders –  Answers may be subject to conditions and/or limitations; salary can be subject to variable conditions
(**) Denmark opted out

 


 

3. Intra-company transfers

Directive 2014/66 set forth the conditions of entry and residence of TCNs in the framework of an intra-corporate transfer. The Directive’s goal is to make it easier and quicker for multinational companies to temporarily assign highly skilled employees to subsidiaries situated in the EU. Moreover, the Directive aims to facilitate mobility of intra-corporate transferees between the Member States during their assignments and lays down a common set of rights for intra-corporate transferees when working in the EU in order to avoid their exploitation and distortion of competition.

The Directive’s main goals are:

(i) facilitation of intra-corporate transfers of managers, specialists and trainee employees to the EU. To be eligible for an intra-corporate permit, managers and specialists must have worked at least 3 up to 12 uninterrupted months for the multinational company immediately preceding their transfer. Member States retain the right to set the volumes of admission of intra-corporate transferees who apply to be admitted to their territory. The permit will be valid for a maximum of 3 years in the case of managers and specialists and 1 year for trainee employees;

(ii) intra-corporate transferees are exempted from the Schengen visa obligations. Subject to a number of conditions, they can enter, stay and work in the Member States other than the one to which they were initially admitted with little or no interruption to their assignments. The conditions for long-term mobility (more than 90 days) are stricter than those for short-term mobility (less than 90 days in any 180-day period);

(iii) family members will be able to accompany the intra-corporate transferee from the start of the assignment if they apply at the same time. They also have the right to be employed or self-employed in the host member state throughout the duration of the transfer;

(iv) The Member States must require, as a ground for admission, that the remuneration granted to the intra-corporate transferee is not less favorable than the remuneration granted to nationals occupying comparable positions. Equal treatment between intra-corporate transferees and nationals applies to branches of social security, in practice, in particular to benefits related to sickness, invalidity, and old age.

 

NEW VISA MINIMUM SENIORITY/
PREVIOUS EXPERIENCE
IN THE SAME SECTOR
QUOTA
LIMITATIONS
LABOUR
MARKET
TEST
DIPLOMA PERMISSION
TO WORK FOR
FAMILY MEMBERS
Austria YES YES NO NO NO YES
Belgium(*) YES NO NO NO YES YES
Czech Rep(*) YES NO NO YES POSSIBLE YES
Denmark(**)
France NO YES NO NO POSSIBLE YES
Germany(*) YES YES NO NO YES YES
Greece YES NO YES YES YES YES
Holland YES YES NO NO NO YES
Hungary YES NO NO NO NO NO
Italy NO YES NO NO YES YES
Malta YES NO NO NO
Poland YES NO NO NO NO NO
Portugal NO YES NO NO NO
Romania YES YES YES NO YES NO
Slovakia NO NO NO NO YES YES
Spain NO YES NO NO YES YES
Sweden YES NO NO NO YES YES

Table 3 – Intra-company transfers – – answers may be subject to conditions and/or limitations
(*) Directive not yet implemented
(**) Denmark opted out

 


 

4. Posted workers (Van der Elst permits)

A “posted worker” is an employee who is sent by his employer to carry out a service in another EU Member State on a temporary basis. The posting of workers in the framework of the provision of services is regulated by Directive 96/71 and 2014/67 which defines a set of mandatory rules regarding the terms and conditions of employment to be applied to posted workers. In particular:

(i) to guarantee that these rights and working conditions are protected throughout the EU;

(ii) to avoid “social dumping” where foreign service providers can undercut local service providers because their labour standards are lower.

These rules establish that, even though workers posted to another Member State are still employed by the sending company and therefore subject to the law of that Member State, they are entitled by law to a set of core rights in force in the host Member State.

A milestone decision of the European Court of Justice (the so-called Van der Elst case), established in 1994 the principle that Member States may not impose administrative formalities or additional conditions on posted workers who are TCNS when they are lawfully employed by a service provider established in another Member State.

The principle established by the ECJ has been incorporated and implemented in different ways by the Member States. In many of the Member States, posted TCNs are exempted from obtaining a new work permit but certain conditions can apply. These include: meeting the national wage and working conditions as well as social insurance provisions, have a lawful right to residence of over three months in the first Member State and must be legally authorised to work there and hold a regular employment contract, to undertake the same type of work as in sending Member State; to return to the country of residence (or origin) at the end of the period of posted employment.

 

NEW
WORK PERMIT
NEW
CONTRACT
SUBJECT TO
QUOTAS
PROOF OF
SUFFICIENT
INCOME
MINIMUM
QUALIFICATION
LEVEL
ADEQUATE
HOUSING
FAMILY
ALLOWED
Austria NO NO NO YES NO YES NO
Belgium NO YES NO YES NO YES YES
Czech Rep NO NO NO YES DEPENDS YES YES
Denmark YES YES NO YES DEPENDS YES YES
France NO NO NO YES NO YES NO
Germany NO NO NO YES NO YES YES
Greece NO YES YES NO YES YES YES
Holland YES NO NO YES NO NO YES
Hungary YES YES NO YES NO YES YES
Italy NO YES NO YES NO YES YES
Malta NO NO NO YES NO YES NO
Poland NO NO NO NO NO NO NO
Portugal NO NO NO YES DEPENDS YES YES
Romania NO NO NO NO NO YES YES
Slovakia NO NO NO NO NO YES YES
Spain NO NO NO YES NO NO NO
Sweden YES NO NO YES NO NO YES

Table 4 – Posted workers (Van der Elst permits) – – answers may be subject to conditions and/or limitations

 


 

5. Researchers

Mobility provisions for TCN researchers are governed by Directive 2005/71 and Directive 2016/801. If the researcher stays only up to three months in the second Member State, research may be carried out on the basis of the hosting agreement concluded in the first Member State. If the duration of stay exceeds three months, then the Member State may require a new hosting agreement, subject to the fulfillment of the same conditions that the researcher was asked to fulfill when he applied in the first Member State.

 

NEW
WORK PERMIT
NEW
CONTRACT
MEDICAL OR
CRIMINAL
RECORD
PROOF OF
SUFFICIENT
INCOME
ADEQUATE
HOUSING
PERMISSION
TO WORK FOR
FAMILY MEMBERS
Austria NO YES YES YES YES NO
Belgium NO YES YES YES YES YES
Czech Rep NO YES UPON REQUEST NO NO YES
Denmark(**)
France YES YES NO NO YES YES
Germany YES YES NO YES YES YES
Greece YES YES YES YES YES YES
Holland YES YES NO YES NO YES
Hungary NO YES YES YES YES NO
Italy YES YES NO YES YES YES
Malta NO YES YES YES YES YES
Poland NO YES YES YES NO YES
Portugal YES YES YES YES YES NO
Romania NO YES YES YES YES YES
Slovakia POSSIBLE NO YES YES YES YES
Spain YES YES YES YES NO YES
Sweden YES YES NO YES NO YES

Table 5 – Researchers – – answers may be subject to conditions and/or limitations
(**) Denmark opted out

 


Acknowledgment

The country summaries were prepared thanks to the information provided by: Elmar Drabek (Austria); Bernard Caris (Belgium); Tommy Angermair (Denmark); Karl Waheed (France); Kalypso Kontogianni (Greece); Marcel Reurs (The Netherlands); Bettina Offer (Germany); David Kiss (Hungary); Jean Philippe Chetcuti (Malta); Karolina Schiffter (Poland); Ricardo Rodrigues Lopes (Portugal) Ileana Lucian (Romania); Veronika Pleskova (Czech Republic and Slovakia); Ana Garicano (Spain); Jonas Lindblad (Sweden)

References

⁻ Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents
⁻ Yves Pascouau (April 2013), Discussion paper on Intra-EU mobility of third-country nationals State of play and prospects - European Policy Centre
⁻ Behnam Balalimood - The capability of Directive 2003/109/EC in achieving the Tampere Programme's objectives
⁻ Mirna Romic – Obtaining long-term resident status in the EU (CYELP 6 [2010] 153-166)
⁻ Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment
⁻ Katharina Eisele - Why come here if I can go there? Assessing the ‘Attractiveness’ of the EU’s Blue Card Directive for ‘Highly Qualified’ Immigrants, CEPS No. 60 / October 2013
⁻ Lucie Cerna (2013): Understanding the diversity of EU migration policy in practice: the implementation of the Blue Card initiative, Policy Studies, 34:2, 180-200
⁻ Council Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer
⁻ Council Directive 96/71 of 16 December 1996 concerning the posting of workers in the framework of the provision of services
⁻ Council Directive 2014/67 of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System (‘the IMI Regulation’)
⁻ European Court of Justice - Judgment of 9 August 1994 - Raymond Vander Elst v Office des Migrations Internationales - Case C-43/93
⁻ European Migration Network - Ad-Hoc Query: interpretation of a judgment of the European Court in the case C-43/93
⁻ Anne Pieter van der Mei - Free Movement of Persons Within the European Community (2003)
⁻ Council Directive 2005/71 of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research

 

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