Explanatory Memorandum to COM(2016)378 - Conditions of entry and residence of third-country nationals for the purposes of highly skilled employment

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dossier COM(2016)378 - Conditions of entry and residence of third-country nationals for the purposes of highly skilled employment.
source COM(2016)378 EN
date 07-06-2016


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

This proposal forms part of the EU’s efforts to develop a comprehensive migration management policy, based on Article 79 of the Treaty on the Functioning of the European Union (TFEU), and in particular of a new policy on legal migration, and contributes to the EU Growth Strategy, in line with Europe 2020 priorities 1 . The 2009 “EU Blue Card” Directive 2 intended to facilitate the admission and mobility of highly qualified third-country national workers, and their family members, by harmonising entry and residence conditions throughout the EU and by providing for a set of rights. It aimed at making the EU more competitive in attracting highly qualified workers from around the world, thereby contributing to addressing labour and skills shortages within the EU labour market, and strengthening the EU’s competitiveness and economic growth. However, the 2009 Directive failed to achieve these objectives.

The current EU Blue Card Directive has demonstrated intrinsic weaknesses such as restrictive admission conditions and very limited facilitation for intra-EU mobility. This, combined with many different sets of parallel rules, conditions and procedures for admitting the same category of highly skilled workers which apply across EU Member States, has limited the EU Blue Card's attractiveness and usage. This is neither efficient, as such fragmentation entails a burden for employers and individual applicants, nor effective, as shown by the very limited overall number of highly skilled permits issued.

For this reason, Commission President Jean-Claude Juncker declared his intention to address the shortcomings of the EU Blue Card Directive and substantially broaden its impact in attracting more highly skilled workers to the EU 3 . The European Agenda on Migration 4 announced a review of the EU Blue Card, as part of the new policy on legal migration, to make it more effective in attracting talent to Europe. The Commission Work Programme 2016 announced that “to meet Europe's future demographic and labour market needs, [the Commission] will present a renewed approach on legal migration, including measures to improve the EU Blue Card Directive”. This proposal represents the outcome of this review process.

The Communication of 6 April 2016 5 highlighted the need of sustainable, transparent and accessible legal pathways to Europe as a part of successful migration management. The Commission reinstated its intention to propose changes to the EU Blue Card Directive with the purpose of strengthening it as the single EU-wide scheme for admitting highly skilled workers. In the follow-up discussions the European Parliament has called for the creation of new legal avenues into Europe and urged the Commission to be ambitious in this regard. In its report of 23 March 2016 6 the Parliament recalled that the revision of the EU Blue Card Directive should be both ambitious and targeted, and notably aim to remove the existing inconsistencies regarding e.g. the parallel national schemes.

The EU already faces structural skills shortages and mismatches in certain sectors that have the potential to limit growth, productivity and innovation (e.g. healthcare, ICT and engineering) and thus slow down Europe’s continued economic recovery and limit its competitiveness. Activation, training and up-skilling of the existing labour force must all play a role in countering these shortages, especially at a time when overall unemployment is high. However, these measures are unlikely to be sufficient to fully meet the needs and, in any case, it will take time for them to have an actual effect on the labour market and on productivity. In the future, structural changes in the EU’s economies will continue to increase the demand for skills that are not immediately available in the labour market, creating further skills shortages.

The EU’s current immigration system for highly skilled workers is not well equipped for the current and future challenges. The overall inflow of highly skilled third-country national workers to the participating Member States 7 under both the EU Blue Card and national schemes for highly skilled workers was 23 419 in 2012, 34 904 in 2013 and 38 774 in 2014 8 . When compared to the projected needs for highly skilled workers in certain sectors, these numbers are by far insufficient to address the existing and projected future labour and skills shortages in the EU in highly skilled occupations. Moreover, while surveys on intentions of highly educated potential migrants indicate a relatively strong attractiveness of the EU, the EU is not effective enough neither in converting this into higher numbers of highly skilled workers, nor in retaining talents educated in the EU, when compared with other developed economies. Figures show that of all non-EU migrants coming to OECD countries, 48% of low-educated migrants and 31% of high-educated migrants choose an EU destination 9 .

This proposal, which replaces the existing EU Blue Card Directive (2009/50/EC), aims to improve the EU’s ability to attract and retain highly skilled third-country nationals, as well as to enhance their mobility and circulation between jobs in different Member States. The objective is to improve the EU’s ability to effectively and promptly respond to existing and arising demands for highly skilled third-country nationals, and to offset skill shortages, in order to increase the contribution of economic immigration to enhancing the competitiveness of the EU economy and addressing the consequences of demographic ageing.

• Consistency with existing policy provisions in the policy area

The European Agenda on Migration confirmed the need to use the EU Blue Card for setting up an attractive EU-wide scheme for highly skilled third-country nationals. In the Communication of 6 April 2016 it was further specified that this would be achieved by developing a harmonised EU common approach, which would include more flexible admission conditions, improved admission procedures and enhanced rights, including intra-EU mobility.

This initiative is complementary to other instruments adopted in the area of legal migration. In particular, it is complementary to the Directive on intra-corporate transferees 10 , which facilitates the entry and intra-EU mobility of highly skilled employees (managers, specialists) employed by non-EU companies who are temporarily assigned to subsidiaries situated in the EU. It is also complementary to Directive (EU) 2016/801, which regulates admission and rights for students and researchers, as well as e.g. for trainees and volunteers under the European Voluntary System. The proposal also complements and derogates from Council Directives 2003/86/EC of 22 September 2003, which lays down the conditions under which the right to family reunification can be exercised, and 2003/109/EC of 25 November 2003, concerning the status of third-country nationals who are long-term residents. The present proposal goes further than these Directives in that it provides for more favourable conditions for family reunification and more facilitated access to long-term resident status. Moreover, it complements Directive 2011/95/EU (“Qualification Directive”) 11 to the extent that the scope of this proposal is extended to highly skilled beneficiaries of international protection. They will be able to take up employment across Member States in accordance with their skills and education and fill occupational shortages in particular regions. This allows them to be active in the labour market also in cases where there are no vacancies in their specific field in the Member State that granted them protection.

This proposal is consistent with the Action Plan on the integration of third-country nationals 12 providing a common policy framework which could help Member States as they further develop and strengthen their national integration policies for third-country nationals, including highly skilled ones.

The format of residence permits for third-country nationals is laid down in Regulation (EC) No 1030/2002 and applies to this proposal.

• Consistency with other Union policies

This proposal aims to provide an attractive EU-wide scheme for highly skilled workers in line with the EU policies aiming at deepening and upgrading the Single Market 13 . A policy on attracting highly skilled workers is consistent with and also complementary to policies to facilitate the mobility of EU nationals within the EU supported by Regulation 492/2011 14 , Regulation 2016/589 ('EURES') 15 and the forthcoming Labour Mobility package as regards the coordination of social security. It also complements policies improving and upgrading the skills of EU workers, and the recognition of qualifications, in view of their better labour market integration. A larger pool of available talent benefits the EU economy as a whole and the displacement effect of EU workers is expected to be low in the case of highly skilled workers. The forthcoming New Skills Agenda for Europe 16 deals with the broad issue of recognition of qualifications and is thus also relevant for the admission of highly skilled workers under the EU Blue Card, as these persons often face barriers and high costs when getting qualifications obtained in third countries recognised. All of these initiatives contribute to the EU Growth Strategy, in line with Europe 2020 priorities.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

This proposal concerns conditions of entry and residence for third-country nationals and procedures for issuing the necessary permits linked to highly skilled work. It also lays down the conditions under which a third-country national may reside in a second Member State. Consequently, the appropriate legal basis is Article 79(2)(a) and (b) of the Treaty on the Functioning of the European Union (TFEU), in connection with Article 79(1) of the same Treaty.

According to Protocol 21 annexed to the Treaties, the United Kingdom and Ireland may notify the Council, within three months after a proposal or initiative has been presented, or at any time after its adoption, that they wish to take part in the adoption and application of any such proposed measure. Neither Member State has exercised their right to opt into the EU Blue Card Directive. According to Protocol 22 annexed to the Treaties, Denmark is not taking part in the adoption of measures based on this Article 17 .

The admission of economic migrants is a shared competence between the EU and its Member States. In particular, any measure proposed in the area of legal migration “shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed” (Article 79(5) TFEU).

• Subsidiarity

The challenge of improving the capacity to attract and retain talent from outside of the EU has increased and is common to all Member States. Although each Member State could continue to have its own national system for highly skilled workers, this would not increase the attractiveness of the EU as a whole. Especially when comparing the EU to other major destinations with a more uniform approach, Member States acting alone, particularly smaller ones, are not adequately equipped to compete in the international competition for highly skilled workers.

The current fragmented situation with diverging and parallel national rules for the same category of third-country nationals across Member States is neither effective nor efficient for any party involved. Applicants and employers have to navigate a complex regulatory framework which creates costs and administrative burden, which weighs especially heavily on SMEs. Furthermore, it would be easier and more cost-efficient for Member States' authorities to apply a single, clear and straightforward set of rules for examining applications of highly skilled workers to stay and work.

The EU, acting as a single player towards the outside world, can create economies of scale and hence better compete with other major destinations for the limited supply of highly skilled workers. This proposal aims to increase the EU’s overall attractiveness by providing a single, transparent, flexible and streamlined scheme for highly skilled workers across the EU. It sends a clear message to highly skilled workers that the EU welcomes them by offering clear and quick admission procedures combined with attractive residence conditions for them and their families.

In addition, only action at EU level can offer highly skilled workers the possibility to easily move, work and reside in several EU Member States. Intra-EU mobility helps to better respond to demands for highly skilled labour and offset skills shortages. On the contrary, national schemes cannot offer, by their own nature, this possibility to move easily from one Member State to another should labour shortages or work opportunities arise.

Even with a more harmonised EU-wide scheme and the abolition of parallel national schemes, Member States will retain competence on certain aspects, such as their Treaty-based prerogative of defining the volumes of admission of third-country nationals coming from third countries to their territory in order to seek work. Member States will also have the possibility to introduce labour market tests in circumstances where their labour market undergoes serious disturbances such as a high level of unemployment in a given occupation or sector. Moreover, Member States themselves will have control over the level of the salary threshold – even if it will be more harmonised with lower and upper limits – which will be calculated on a national average of the wages, and over the shortage occupations to which a lower threshold will apply.

Given all these considerations the proposal complies with the subsidiarity principle.

• Proportionality

This proposal concerns admission conditions, procedures and rights of third-country highly skilled workers, which are elements of a common immigration policy under Article 79 TFEU. EU-wide rules for this group of third-country nationals already exist, in parallel with national rules, yet they need to be modified to address the identified problems and fully achieve the objectives of the Directive, while the content and form of the Union action should remain limited to what is necessary to achieve these objectives.

The proposal offers a balance between, on the one hand, enhanced rights including intra-EU mobility through a higher level of harmonisation, and, on the other hand, a more inclusive scheme through further facilitation of admission procedures (including lower salary thresholds, thus enlarging the target group), with a certain flexibility for Member States to adapt the scheme to their national situation.

The administrative burden imposed on Member State in terms of change of legislation and added cooperation would be moderate as the EU Blue Card scheme already exists and as this burden would be outweighed by the benefits.

• Choice of the instrument

The instrument chosen is a new Directive to repeal and replace the current EU Blue Card Directive. This gives Member States a degree of flexibility in terms of implementation and application. A Directive is binding as to the result to be achieved but gives Member States flexibility in respect of the form and method for putting these objectives into effect in their national legal system and general context. No reason has been identified to move from a Directive to a directly applicable Regulation.

Contents

1.

Non-binding measures would have too limited an effect, as potential applicants and companies would continue to face an array of different rules for admission


3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Ex-post evaluations/fitness checks of existing legislation

The first implementation report of the EU Blue Card Directive 18 was presented in May 2014 and assessed the conformity of national legislations with the provisions of the Directive. It concluded that there are wide variations between Member States in the number of EU Blue Cards granted due to policy choices by Member States who apply and promote the EU Blue Card in considerably different ways and, in some cases, favour their parallel national schemes. The current EU Blue Card Directive only sets minimum standards and leaves much leeway to Member States through many discretionary provisions and references to national legislation. The report also found that there are a number of deficiencies in the transposition and, more specifically, that Member States have been neglecting their reporting obligations under the Directive. These concerns were discussed with Member States through the network of National Contact Points and in Contact Group meetings.

A further evaluation carried out by the Commission in 2015-2016 updated and expanded upon the first report. The conclusion is that the EU Blue Card in its current form does not achieve its potential for adding value to the competing and complementary national schemes for highly skilled workers 19 .

• Stakeholder consultations

Between 27 May and 30 September 2015, an online public consultation on the EU Blue Card and the EU’s labour migration policies was conducted. In total, 610 responses were received to the questionnaire and 15 written contributions from a wide range of actors representing all relevant stakeholders 20 . Contributions were sought and received from EU citizens, organisations and third-country nationals (residing inside or outside the EU) as well as employers (multinationals as well as SMEs), their associations, private and public employment organisations, trade unions, ministries, regional and local authorities, media workers, academics, international organisations, organisations or authorities of the countries of origin, social partners and other civil society actors. Various bilateral and group meetings have also been held with key Member States, business representatives, practitioners, social partners and international organisations (OECD, UNHCR, IOM). A specific workshop was organised with national social partners on 3 December 2015 in collaboration with the Labour Market Observatory (LMO) and the Permanent Study Group on Immigration and Integration (IMI) of European Economic and Social Committee. Several additional stakeholder consultation activities were conducted by an external contractor with selected national authorities, employer organisations, trade unions, and organisations in countries of origin.

The results have been taken into account throughout the review as reflected in the Impact Assessment report.

• Collection and use of expertise

A Commission Expert Group on Economic Migration (EGEM) 21 was established to support the future policy development in the field of economic migration. During the first EGEM meeting on 25 March 2015, the experts discussed ways to 'better manage Labour Migration at EU level' and the main subject for discussion was the review of the EU Blue Card. The focus of the second EGEM meeting on 7 December 2015 was on the “policy options for a revised Blue Card” 22 .

In addition, on 13 November 2015, a meeting of the EMN Skilled Migrants Expert Group — a sub-group of the European Migration Network — took place with experts from Member States for a technical discussion on issues related to the EU Blue Card, the parallel national schemes for highly skilled workers and their interaction.

• Impact assessment

In the preparation of the proposal a broad range of policy options were examined, some of which – repealing the EU Blue Card Directive, introducing a point-based expression of interest system, extending the scope to international service providers – were discarded in the first stage of assessment.

2.

Options considered


Amongst the options retained for in-depth assessment are the following:

3.

0) Baseline scenario


The current EU Blue Card would continue to be applied without legislative changes. Existing monitoring and enforcement activities of the current legislation would continue, as well as activities to improve cross-national recognition of foreign qualifications either between Member States or in cooperation with third countries through exchanges of practice and further guidance to the national authorities.

4.

1) Extending the scope by making it accessible to a significantly wider group of workers, including (some) medium-skilled


This option would make the EU Blue Card available also to some medium-skilled workers, as salary and qualifications would be set as alternative instead of cumulative conditions. The level of rights would not be significantly enhanced from the current level.

5.

2) Modifying admission conditions and rights without extending the scope beyond highly skilled workers


This option has three sub-options depending on the target group (wider vs. more selective) and remains within the scope and basic framework of the current Directive, but with facilitation common to all sub-options as regards conditions, procedures and rights.

• 2a) Making the EU Blue Card accessible to a wider group of highly skilled workers

This sub-option would extend the scope of highly skilled workers eligible for the EU Blue Card, facilitate admission and provide enhanced residence and mobility rights. Member States would maintain some limited leeway for national adaptation of the scheme, but parallel national schemes would be abolished.

• 2b) Making the EU Blue Card a tool to attract a selected group of the most highly skilled workers

This option would make the EU Blue Card a rather selective instrument for the very highly skilled. Eligible workers would benefit from fast and easy admission and from extensive rights. Parallel national schemes would remain allowed.

• 2c) Creating a two-tiered Blue Card targeted at different skill levels of highly skilled workers

This sub-option would be a combination of the previous sub-options by creating an EU Blue Card with two levels to address different categories of highly skilled workers: first level for a wide group of highly skilled workers and a more selective second level with faster access to long-term residence and easier intra-EU mobility. Parallel national schemes would be abolished.

6.

3) A unified standard EU-wide Blue Card


This policy option package would introduce a standard EU-wide set of Blue Card rules applicable across the Member States. There would be no scope for the Member States to adapt any of the conditions or other rules of the EU Blue Card to national labour market circumstances. An EU Blue Card issued by one Member State would be mutually recognised by all Member States and provide unlimited intra-EU mobility. Parallel national schemes would be abolished.

7.

Horizontal/parallel legislative options


A number of horizontal legislative options have also been considered and also a non-legislative one. These options can be self-standing on top of the baseline situation or combined with any of the legislative packages:

8.

a) Non-legislative actions to improve the effectiveness of the EU Blue Card


This policy option aims at enhancing the implementation of the EU Blue Card and the practical cooperation between Member States, and reinforces the promotion of the brand through information sharing, promotion, and advertisement activities. It would include practical measures to make the use of the EU Blue Card scheme easier by improving the recognition of foreign qualifications and improve skills and job matching.

9.

b) Legislative action extending the EU Blue Card to innovative entrepreneurs


This option would extend the scope of the EU Blue Card from highly skilled employed workers to innovative entrepreneurs (thus self-employed workers), and a separate set of admission conditions and rights (including possibly intra-EU mobility) for this group would be created within the Directive.

10.

c) Legislative action extending the EU Blue Card to highly skilled beneficiaries of international protection and asylum applicants


This option would open access to the EU Blue Card to other categories of migrants who are applying for or have received international protection status. Two main sub-categories and sub-options can be distinguished: (i) including only beneficiaries of international protection (refugees, persons granted subsidiary protection); (ii) including also asylum seekers.

11.

Preferred option


After the assessment of the impacts, effectiveness and efficiency of the retained options, as well as of their feasibility, the preferred option is 2a) in combination with the horizontal options a) (non-legislative actions) and c), sub-option (i) (including only beneficiaries of international protection in the scope). The preferred option includes therefore the following main elements: modifying the admission conditions and making the EU Blue Card accessible to a wider group of highly skilled workers; improving the rights associated with the EU Blue Card, including intra-EU mobility; and not extending the scope beyond highly skilled workers. Furthermore, national schemes for third-country nationals falling within the scope of application of this Directive would no longer be allowed. The legislative measures would be complemented by non-legislative actions and potentially by making the EU Blue Card accessible to highly skilled beneficiaries of international protection.

The preferred option strikes a mid-way balance between, on the one hand, a high level of inclusiveness, substantial flexibility for Member States to adapt to their national situation, and a high substitution potential for parallel national schemes, and, on the other hand, further facilitation of procedures, a higher level of rights, further facilitation of intra-EU mobility and a high level of harmonisation. Consequently, this preferred option represents a balanced combination between (high) effectiveness and efficiency, positive economic and social impacts. Such positive impacts would be maximised if combined with non-legislative actions such as active promotion of the scheme and improved matching between employers and potential migrants.

The estimated additional permits for this option are in the range of minimum 32 484 to maximum 137 690 highly skilled workers (per year, aggregate across participating Member States, variation depending on the salary threshold set by individual Member States). This would result in an estimated positive annual economic impact of between 1.4 billion to 6.2 billion EUR accruing from additional highly skilled workers coming to and working within the EU. Overall higher numbers of admitted highly skilled workers, and an increased retention potential of young talent trained in the EU, will create a larger pool of highly skilled workers from which employers can draw to fill shortages which would positively impact growth and the EU’s competitiveness. Combined with increased possibilities for occupational mobility between jobs and intra-EU mobility this would facilitate and lower the cost of recruitment for SMEs and make it easier for them to fill labour shortages and boost their growth perspectives. There would also be positive impact on the capacity of companies to conduct research and development (R&D) and would benefit the EU’s overall capacity for innovation, research and entrepreneurship. The high effectiveness and efficiency of this option would also reduce the administrative burden linked its application.

Social impacts will also be positive as EU citizens would benefit from the positive impact on overall economic growth through filling labour and skills shortages, which may indirectly contribute to reinforcing knowledge-based economy and job creation in the EU. Given that this scheme is targeted at highly skilled workers, demand-driven and fairly selective, and that appropriate safeguards are built in, the potential displacement effect on EU workers is expected to be limited. Blue Card holders would enjoy a positive impact in terms of enhanced family reunification rights, access to long term status and intra-EU mobility. Positive social impacts can also be expected due to the inclusion of beneficiaries of international protection as highly skilled beneficiaries would, by obtaining an EU Blue Card, become more visible to employers in their host Member State and be able to access labour markets also in other Member States than the one that granted them protection. This facilitates their labour market participation which favours their integration and their ability to provide for their own livelihood.

12.

Opinion of the Regulatory Scrutiny Board


On 5 February 2016 the impact assessment was submitted to the Regulatory Scrutiny Board (RSB) and a meeting was held on 2 March 2016. The Board issued a first opinion (negative) on 4 March 2016. The impact assessment was re-submitted on 14 March and a second opinion (positive) was issued on 18 March 2016. The main issues for improvement highlighted by the Regulatory Scrutiny Board's opinions were the following and were taken into account as follows:

13.

a) Clarify the addressed problems and their EU dimension


The impact assessment report has been strengthened in its analysis on the existing and future labour shortages across the EU and how they can be effectively addressed by the revised Blue Card and especially by enhanced intra-EU mobility of third-country national highly skilled workers. The interaction between intra-EU mobility of EU citizens and mobility of highly skilled workers, and the extent to which both contribute to addressing skills and labour shortages, has also been clarified. Figures and additional analysis have been added to better demonstrate the need for EU action in attracting highly skilled third-country national workers and the EU added value in comparison with national schemes. The interaction between the EU Blue Card review and other migrant categories such as beneficiaries of international protection/asylum seekers, service providers and entrepreneurs - as well as the need for their possible inclusion in its scope - has been further elaborated.

14.

b) Clarify the objectives and policy options


The general and specific objectives have been revised to be more consistent with both the problem definition and the proposed options. The underlying logic of the policy option packages has been explained, and the presentation simplified. Justifications for discarding certain options upfront have been strengthened, and the screening and selection of the policy options has been improved.

15.

c) Focus the impact analysis on the main labour market aspects


The presentation of the impact analysis has been simplified and made more reader-friendly and focus is more clearly on labour market aspects and economic impacts. Impacts per Member State have been identified where feasible. Differences between the various policy options and the baseline scenario have been better highlighted. While quantitative data remains limited, administrative costs and gains for different stakeholders have been analysed. A preferred option, consisting of one policy option package and horizontal elements, has been selected as a result of gradual elimination of options based on clear and objective criteria.

• Fundamental rights

This initiative is fully consistent with the Charter of Fundamental Rights and enhances some of the rights enshrined therein. It in particular contributes to delivering the right to respect for private and family life (Article 7) — through facilitated provisions in relation to family reunification for highly skilled workers — and the right to engage in work and to pursue a freely chosen or accepted occupation (Article 15(1)). It is also fully consistent with the rights related to working conditions (Article 15(3)) and rights of workers (Articles 27 to 36) as it maintains the rights to equal treatment for highly skilled workers as regards working conditions, access to social security, to education and vocational training as well access to goods and services. Compatibility with Article 47 (right to an effective remedy and fair trial) is fully ensured as the current provisions in the EU Blue Card related to the right to appeal in case the application is rejected, as well as to be notified the grounds for rejection, are maintained.

4. BUDGETARY IMPLICATIONS

There are no implications for the European Union budget.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The Commission will check the correct and effective transposition into national laws of all participating Member States. Throughout the implementation phase the Commission will organise regular contact committee meetings with all Member States. The Commission will present to the European Parliament and the Council a report evaluating the implementation, functioning and impact of the EU Blue Card three years after the transposition deadline, and every three years thereafter.

The application of the EU Blue Card Directive will be monitored against the main policy objectives using a number of relevant and measurable indicators based on easily available, accepted and credible data sources. The communication of more types of information is made mandatory in the revised Directive to improve its timely provision and reliability. This would increase its value for the monitoring and evaluating the highly skilled migration policy. In addition, the exchange of information via the National Contact Points on the EU Blue Card will be improved.

• Explanatory documents

The proposed Directive has a wide personal scope as regards highly skilled third-country national that it covers. The proposal also contains a larger number of legal obligations compared to the existing Directive 2009/50/EC. Given this, and the fact that the proposal includes provisions on a number of groups not yet covered in a mandatory way by the current legal framework, explanatory documents, including a correlation table between national provisions and the Directive, accompanying the notification of transposition measures will be needed so that the transposition measures that the Member States have added to existing legislation are clearly identifiable.

• Detailed explanation of the specific provisions of the proposal

16.

Chapter I - GENERAL PROVISIONS


Article 1 - Subject matter

The objective of the proposal is to define the conditions for the entry and residence of third-country nationals applying to reside in the EU for the purpose of highly skilled employment, either from outside the EU or legally residing in the EU with another status, and their family members, and to define their rights. The proposal also determines the conditions in which third-country nationals who are legally residing in a Member State under the terms of this proposal may move and reside with their family members in other Member States. This provision remains essentially similar to the one in Directive 2009/50/EC but adapted to take account of the fact that the Blue Card will become the sole means for admitting highly skilled third country nationals.

Article 2 – Definitions

This Article sets out the definitions used in the proposal, which are to a large extent common to other existing legal migration Directives. A definition is given to 'highly skilled employment', which replaces the concept of 'highly qualified employment' in the current Directive. It refers to paid employment, in accordance with national law and practice, by a person having the necessary competence as proven by 'higher professional qualifications'. The latter can be attested by either 'higher education qualifications' (i.e. the successful completion of a post-secondary higher education or equivalent tertiary education programme, corresponding at least to level 6 of ISCED 23 2011 or to level 6 of the European Qualification Framework) or by 'higher professional skills' (i.e. skills attested by at least three years of professional experience of a level comparable to higher education qualifications and relevant to the work or profession to be carried out). The level of required skills remains unchanged, but it becomes mandatory for Member States to recognise professional experience as an alternative to education qualifications. Furthermore, the specific reference to ISCED and EQF levels is new, intended to provide added clarity.

As a novelty compared to Directive 2009/50/EC, the definition of 'business activity' is provided in order to define which professional activities can be carried out by the EU Blue Card holder in the context of the specific rules for short-term mobility to other Member States (see Article 19).

17.

Article 3 - Scope


The proposal, similarly to Directive 2009/50/EC, does not cover EU citizens, third-country nationals who are EU long-term residents and want to move to another Member State, seasonal workers nor posted workers. As there are potential overlaps between the scopes of Directive (EU) 2016/801 of the European Parliament and of the Council 24 and the present instrument, this Article expressly excludes from the scope of the Directive third-country nationals who apply to reside in a Member State as researchers, within the meaning of Directive (EU) 2016/801, in order to carry out a research project. However, once admitted under Directive (EU) 2016/801 legally residing researchers may apply for an EU Blue Card under this Directive for other purposes than those covered under Directive (EU) 2016/801.

As a modification to Directive 2009/50/EC, all third-country national family members of EU citizens are given access to the EU Blue Card in order to enable them to engage in highly skilled employment and perform business trips in different Member States regardless of whether or not the EU citizen accompanies them. These highly skilled third-country national family members of EU citizens have the same short and long term professional intra-EU mobility needs as other highly skilled third-country nationals, and they should not be denied the possibility to apply for an EU Blue Card which they would have had in their country of origin simply due to the fact they are residing legally in the EU as family members of EU nationals.

The proposed Directive continues to not apply to persons seeking international protection and awaiting decision on their status or to those who are beneficiaries of temporary protection or residing in a Member State on a strictly temporary basis. As a novelty it does cover, however, beneficiaries of international protection under Directive 2011/95/EU (“Qualification Directive”). They will be able to apply for an EU Blue Card like any other third-country national, while retaining all the rights they enjoy as beneficiaries of protection (see also comments on Articles 15 and 16). Also third-country nationals to be resettled in Member States under future EU schemes, who will be granted similar rights as those laid down in Qualification Directive, are to be given access to the EU Blue Card. Highly skilled beneficiaries of international protection will thus become more accessible to employers and be able to take up employment in a more targeted way in accordance with their skills and education, filling shortages in sectors and occupations in any Member State. This allows them to actively participate in the labour market, which favours their integration, and to more easily secure their own livelihood. Furthermore, it avoids wasting their skills if there are no vacancies in their specific field in the Member State that granted them protection, leading to a more efficient labour market allocation. In the upcoming revision of the Qualification Directive the necessary references and modifications will be introduced to ensure consistency.

A provision is also included to safeguard international agreements concluded by the Union and/or its Member States to ensure ethical recruitment, i.e. to protect those sectors suffering from lack of personnel in developing countries.

As a distinction to Directive 2009/50/EC, the new proposal does not allow Member States to have parallel national schemes targeting the same group of highly skilled workers. In order to develop the EU Blue Card into a truly EU-wide scheme, Member States are obliged to grant an EU Blue Card instead of a national permit for highly skilled work to persons falling under its scope. Member States may only issue national permits in respect of third-country national workers not falling under the scope of the Directive, within the limitations set out in other EU legislation in the field of legal migration.

18.

Article 4 - More favourable provisions


The proposal harmonises admission conditions and procedures for third-country nationals falling under its scope, and for their family members, as well as for their subsequent mobility to other Member States..

Member States are nevertheless still allowed to grant more favourable conditions as regards rights, in particular in relation to equal treatment (Article 15) and rights of family members (Article 16). Member States may also have more favourable treatment of situations of temporary unemployment (Article 14), and allowed absences from the territory once long-term resident status has been acquired (Article 17(5)). In addition, Member States may introduce more favourable provisions regarding procedural safeguards (Article 10).


19.

Chapter II - CONDITIONS OF ADMISSION


Article 5 – Criteria for admission

Article 5 lays down the conditions the applicant must fulfil in order to be admitted as an EU Blue Card holder. Besides the general conditions similar to those included in Directive 2009/50/EC and other existing acquis on legal migration (i.e., having a valid travel document, sickness insurance and not posing a threat to public policy, public security or public health), specific conditions include:

- Paragraph 1(a): a work contract or a binding job offer with a duration of at least six months in the Member State concerned, as admission is demand-driven. The required length of contract is shortened from 12 to 6 months compared to the current Directive. This condition is intended to guarantee a certain level of continuity of residence and employment while offering a certain degree of flexibility in line with the demands of the labour market and Member States’ practices. However, an important share of national residence permits for highly skilled workers are currently issued for a validity period of less than twelve months and employers tend to offer a trial contract first, with a shorter duration, to ensure that the employee is suitable for the position in question, after which an extension may be granted if the trial period has been successfully completed.

- Paragraph 1(b): for regulated professions, similarly to Directive 2009/50/EC, the applicant must fulfil the requirements set out under national law for the exercise by Union citizens of the regulated profession concerned.

- Paragraphs 1(c) and 6: for unregulated professions, the applicant must prove that he/she has the necessary higher professional qualifications, i.e. either higher education qualifications or higher professional skills; Member States shall facilitate the validation and recognition of documents attesting the relevant higher professional qualifications. The changes compared to Directive 2009/50/EC have been described under Article 2.

- Paragraph 2: The salary specified in the work contract must be at least equal to a certain threshold determined by Member States within a range of minimum 1.0 and maximum 1.4 times the average gross annual salary in the Member State concerned. This threshold is lower than the one set in Directive 2009/50/EC (minimum 1.5 times the average gross annual salary in the Member State concerned, no maximum set), thus significantly increasing the inclusiveness of the EU Blue Card scheme, i.e. including a much higher number of potential highly skilled workers 25 . A fixed range increases the harmonising effect, while maintaining a certain level of flexibility for Member States to set the threshold in function of the particular situation in their labour market, their average income levels and divergence in income distribution. The use of Eurostat data (National Accounts) as the reference figure for calculating the salary threshold is made mandatory in order to increase transparency and harmonisation.

- Paragraphs 4 and 5: these provisions introduce a mandatory lower salary threshold (at 80 percent of the general threshold) for shortage occupations determined by the Member States, belonging to ISCO major groups 1 and 2 26 , as well as for young graduates. In Directive 2009/50/EC, there is only an optional lower salary threshold for shortage occupations at the minimum level of 1.2 times the average salary. The derogation for recent graduates – which was not foreseen in Directive 2009/50/EC – facilitates the access to the EU Blue Card for young professionals who are likely not to have enough professional experience to claim high salaries 27 . Such facilitation is consistent with recent amendments to EU legislation on students (Directive (EU) 2016/801), where graduates are allowed to look for employment in the host Member State for at least nine months.

20.

Articles 6 and 7 - Grounds for refusal, withdrawal or non-renewal of the EU Blue Card


These provisions lay down the mandatory and optional grounds for refusal, as well as for withdrawal and non-renewal. These are largely similar to the grounds included in Directive 2014/66/EU in relation to intra-corporate transferees and some provisions have been added compared to Directive 2009/50/EC.

As regards the possibility of carrying out a labour market test, whereas it is an unlimited right for Member States under Directive 2009/50/EC, in the proposal it is only allowed in circumstances where a Member State's labour market undergoes serious disturbances, for example a high level of unemployment in a given occupation or sector in a particular region in their territory. In case a Member States intends to carry out labour market tests, it shall send a justified notification to the Commission and communicate this to applicants and employers. The social partners may be involved by Member States in the assessment of the circumstances related to its labour market.


21.

Chapter III - EU BLUE CARD AND PROCEDURE


Articles 8, 9, 10 and 11 - EU Blue Card, applications for admission, procedural safeguards and fees

Applicants for whom a positive decision has been taken by the Member State concerned shall receive a residence permit called 'EU Blue Card' stating the conditions under which they are allowed to work. The standard period of validity for the EU Blue Card is at least 24 months. Only if the work contract covers a shorter period, the EU Blue Card validity should be at least the duration of the work contract plus three months. However, when an EU Blue Card is renewed, the period of validity should in any case be at least 24 months. In Directive 2009/50/EC, Member States are given the choice of a standard validity between 1 and 4 years or length of the contract plus three months, and it applies equally to first permits and renewals.

Applications for the EU Blue Card can be made either outside or inside the territory of the Member State, the latter on the condition that the applicant is legally present in the territory of that Member State, on whatever grounds (bearing in mind, however, the categories excluded from the scope under Article 3(2)). This is more generous than provisions in Directive 2009/50/EC, which only gives the possibility for Member States to allow all legally staying third-country nationals to apply on their territory.

Member States shall notify the applicant of a decision on an application at the latest within 60 days after the submission of the application. This is shortened from the 90 days in Directive 2009/50/EC.

Member States may decide to impose fees for handling applications. However, they should not be disproportionate or excessive. This is a new provision, modelled from Directive 2014/66/EU on intra-corporate transferees.

22.

Article 12 - Recognised employers


An optional system of recognised employers is introduced, which was not foreseen in Directive 2009/50/EC. The recognition procedure is regulated at national level; however, such procedure must be transparent and not entail disproportionate or excessive administrative burden and costs for employers. When an employer has been recognised in accordance with this Article, the application procedure for obtaining an EU Blue Card must be fast tracked (30 days maximum) and linked to procedural facilitation (i.e. no evidence required as regards the qualifications for unregulated professions and sickness insurance).

23.

Chapter IV - RIGHTS


Articles 13 and 14 - Access to the labour market and temporary unemployment

Directive 2009/50/EC contains a multifaceted set of rules regulating access to the labour market and the procedures linked thereto. In the proposal access is simplified: EU Blue Card holders are granted full access to highly skilled employment. Member States can only require that they communicate changes of employer or changes that can affect the fulfilment of the EU Blue Card admission conditions. The purpose is to make the legal situation clear across Member States and to avoid unnecessary administrative burden. This will not affect the possibility for Member States to withdraw or not to renew an EU Blue Card, where conditions are no longer fulfilled. In addition, EU Blue Card holders are allowed to exercise a self-employed activity in parallel with their Blue Card occupation as a possible gradual path to innovative entrepreneurship. This entitlement does not change the fact that the admission conditions for the EU Blue Card have to be continuously fulfilled and, therefore, the EU Blue Card holder must remain in highly skilled employed activity.

Similarly to Directive 2009/50/EC, temporary unemployment is allowed without this affecting the right of residence as an EU Blue Card holder. Unemployment cannot last for more than three months or occur more than once during the validity of the EU Blue Card.

24.

Articles 15 and 16 - Equal treatment and family members


The provisions on equal treatment of EU Blue Card holders with Member State nationals largely correspond to the rights provided under Directive 2009/50/EC, only some updates have been introduced to match the more recent Directives.

Derogations from Directive 2003/86/EC are provided in order to facilitate family reunification of highly skilled workers. Like under Directive 2009/50/EC, no waiting period or integration measures can be imposed before reunification is allowed. As a further new facilitation, family members will be entitled to receive their permits immediately when the EU Blue Card is issued and thereby be able to join the worker without any delay. Moreover, Member States cannot apply limitations regarding family members' access to the labour market, but a labour market test can be carried out before granting access.

EU Blue Card holders are not covered by these provisions whenever they enjoy rights, in the areas covered by these Articles, as beneficiaries of the right to free movement. Likewise, beneficiaries of international protection are not covered by these provisions and remain covered by the rules that apply to them as beneficiaries of protection vis-à-vis the Member State which granted them protection.

25.

Articles 17 and 18 - EU long-term residence for EU Blue Card holders


These Articles provide for derogations from Directive 2003/109/EC and thereby give EU Blue Card holders facilitated access to EU long-term resident status. Compared to Directive 2009/50/EC, further facilitations are introduced while building on the existing model. In order to guarantee a sufficient level of integration in the host country, access can be gained first of all through a continuous residence period of three years in one Member State as an EU Blue Card holder. Alternatively, where the EU Blue Card holder has moved to another Member State under the EU Blue Card mobility provisions, the status can be obtained through five years of continuous residence cumulated in different Member States (also residence while holding another residence permit than the EU Blue Card will be accounted for). To reinforce the link to the country issuing the EU long-term resident status, it is required that the EU Blue Card holder has resided at least two years immediately prior to applying for the status in the Member State concerned. Where the period of three years applies, the EU long-term resident status may be withdrawn before a period of legal and continuous residence of five years within the territory of the Member States has been completed if the third-country national becomes unemployed and does not have sufficient resources to maintain himself or herself and, where applicable, the members of his or her family, without having recourse to the social assistance system of the Member State concerned, except in case of illness, accident, involuntary unemployment or vocational training. Where the period of five years applies, longer absences from the territory of Member States are allowed than under the general regime foreseen in Directive 2003/109/EC.

Directive 2009/50/EC already recognised a specific status for EU long-term residents who are former EU Blue Card holders. New provisions are introduced in the proposal to guarantee that no rights are lost in this transition: The short-term intra-EU mobility rights for business activities in a second Member State enjoyed under the EU Blue Card scheme will be maintained upon the issuance of the EU long-term resident status. For residence in a second Member State long-term residents who are former EU Blue Card holders will rely on the regime foreseen in Directive 2003/109/EC, with derogations where the EU Blue Card arrangements are more favourable.

26.

Chapter V - MOBILITY BETWEEN MEMBER STATES


Article 19 - Business activity in a second Member State

This completely new Article allows Blue Card holders to enter and stay in other Member States for the purpose of carrying out a business activity as defined in point (l) of Article 2. Second Member States are not allowed to require a work permit or any other authorisation than the EU Blue Card issued by the first Member State for carrying out such activity. Where the EU Blue Card is issued by a Member State applying the Schengen acquis in full, the EU Blue Card holder can move within the Schengen area and carry out a business activity for 90 days within a 180-day period. He or she can carry out a business activity for the same duration when moving to Member States participating in the EU Blue Card but not fully applying the Schengen acquis. Where the EU Blue Card is issued by a Member State not applying the Schengen acquis in full, second Member States must allow entry and stay on the basis of the EU Blue Card for the purpose of business activity, without requiring a separate visa or any other authorisation, also for a duration of 90 days within a 180-day period. The main purpose of this Article is to guarantee that intra-EU business activities, which may belong to the habitual tasks of highly skilled workers, can be carried out without legal uncertainty or excessive administrative burden.

27.

Articles 20 and 21- Residence in a second Member State for EU Blue Card holders and their family members


Compared to Directive 2009/50/EC, mobility between Member States is further facilitated in order to make the EU Blue Card a truly EU-wide scheme better equipped to attract the necessary skills to Europe. The residence period required in the first Member State is shortened from 18 to 12 months and, in line with the scheme for long-term mobility developed in the context of Directive 2014/66/EU, several conditions are waived when applying for an EU Blue Card in the second Member State. Notably, no labour market test is allowed for mobile EU Blue Card holders if it is not also introduced for first entry applications, no quotas are allowed and the second Member State cannot re-verify the qualifications for unregulated professions. The relevant procedure is simplified and speeded up, and work can begin immediately after the application for an EU Blue Card has been submitted. Family members can join the EU Blue Card holder without any delay and some conditions are waived for their residence in the second Member State.

28.

Article 22 - Safeguards and sanctions


New safeguards are introduced to match the more extensive rights given to EU Blue Card holders. Where the EU Blue Card is issued by a Member State not applying the Schengen acquis in full, Member States may require evidence of the purpose of the trip when an EU Blue Card holder crosses an external border for mobility purposes. Moreover, if an EU Blue Card is not eventually issued by the second Member State, the first Member State has to allow re-entry of the person concerned with possible family members. There are special safeguards against refoulement for situations where the EU Blue Card holder is also a beneficiary of international protection. These provisions are similar to those included in Directive 2011/51/EU, by which access to EU long-term resident status along with the relevant mobility rights was extended to beneficiaries of international protection. Member States are given the possibility to impose sanctions on employers not complying with their obligations.

29.

Chapter VI - FINAL PROVISIONS


Articles 23, 24, 25 and 26 – Access to information, statistics, reporting and cooperation between contact points

Article 23 requires, as a novelty compared to Directive 2009/50/EC, Member States to provide easily accessible information to applicants about entry and residence conditions, as well as rights. It also requires them to communicate to the Commission data on a number of aspects, such as the annual salary thresholds, the list of shortage occupations, the cases in which Member States make use of the clause on ethical recruitment, the allowed business activities in their territory,


Article 23 requires Member States to communicate to the Commission statistics on numbers of Blue Card issued, rejected, renewed or withdrawn, as well as on permits issued to their family members. Those statistics should be disaggregated by the period of validity of the permits, the gender and age of the applicants, and the economic sector. They should also allow disaggregating third-country nationals who have been granted an EU Blue Card and who are beneficiaries of international protection or the right to free movement, as well as EU Blue Card holders who have acquired long-term resident status. Some statistics are required already under Directive 2009/50/EC, but the proposal imposes further requirements on Member States, crucial for monitoring the implementation and developing the scheme.


Based on Article 25, the Commission shall report to the European Parliament and the Council on the application of this Directive – and particularly assess the impact of Articles 5, 12, 19 and 20 – every three years and propose any amendment that would be necessary. This is a standard provision, but the new mobility rules are a particular object of interest.


Article 26 requires Member States to designate contact points to exchange information related to Article 17 (long term status), 19 (business activities), 20 (long term mobility) and 23 (implementing measures). The aim is to broaden the information exchange compared to Directive 2009/50/EC.

Articles 27, 28, 29 and 30– Transposition, entry into force, addressees and repeal

Articles 26 to 28 are standard provisions. Article 29 provides for the repeal of Directive 2009/50/EC, which is replaced by the current proposal.