Explanatory Memorandum to COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set of rights for third-country workers (Recast) - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2022)655 - Single application procedure for a single permit for third-country nationals to reside and work in the EU and a common set ... |
|---|---|
| source | COM(2022)655  |
| date | 27-04-2022 |
1. CONTEXT OF THE PROPOSAL
1.1.Reasons for and objectives of the proposal
This proposal aims at amending Directive 2011/98/EU 1 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (‘the Single Permit Directive’). This proposal is part the ‘Skills and talent’ package of measures proposed as a follow-up to the Commission’s Communication on a New Pact on Migration and Asylum 2 (hereinafter “the Pact”), adopted on 23 September 2020, which underlined the need to address the main shortcomings of the EU policy on legal migration, with the overall objective of attracting skills and talent the EU needs. The recast of the Single Permit Directive is part of these measures, with the objective, as set out in the Pact, ‘to look at ways to simplify and clarify the scope of the legislation’. The package also includes the recast of Directive 2003/109/EC on long-term residents 3 and an accompanying Communication setting out a new approach towards an ambitious and sustainable EU legal migration policy, attracting talents in our economies and creating safe channels to reach Europe 4 .
The vast majority of migrants arrive in Europe legally. In 2019, the EU Member States issued more than three million first residence permits to third-country nationals, of which over one million were for employment purposes.
In 2019 5 , 2 984 261 single permit decisions 6 were reported by Member States, of which 1 212 952 were for issuing first permits. The other decisions were for renewing or changing permits. Of all the permits issued in 2019, 1 172 028 (39 %) were issued for remunerated activities, 928 483 (31 %) for family reasons, 395 428 (13 %) for education and training and 368 509 (12 %) for other reasons based on available statistics 7 .
The main objectives of the Single Permit Directive are to establish a single application procedure for a combined work and residence permit and to guarantee a common set of rights for eligible third-country nationals, based on equal treatment with nationals of the Member State that grants the single permit. However, as highlighted already under the 2019 f itness check on legal migration and the implementation report , some outstanding issues continue to undermine full achievement of the objectives.
The proposal aims to streamline the application procedure and make it more effective. Currently, the overall duration of application procedures 8 deters employers from international recruitment. Reducing this duration is expected to help increase the EU’s attractiveness and address EU labour shortages. The proposal also includes new requirements to strengthen the safeguards and equal treatment of nationals of non-EU countries as compared to EU citizens and improve their protection from labour exploitation. This will facilitate labour matching and reduce vulnerability to labour exploitation.
During the 10 years of application of the Directive, the Commission has received a number of complaints on its implementation by the Member States (in particular on failure to comply with statutory deadlines for issuing a single permit, or issues relating to social security). Some complaints were followed up by infringement proceedings. The evaluation of the Directive under the fitness check on legal migration 9 (hereinafter: fitness check) adopted in 2019 and the implementation report 10 , also adopted in 2019, identified a number of personal and material gaps, inconsistencies and shortcomings as along with practical issues arising from the application of the Directive by the Member States. The fitness check, in particular, recommended in its conclusions ‘considering putting forward legislative measures to tackle the inconsistencies, gaps and other shortcomings identified, so as to simplify, streamline, complete and generally improve EU legislation’.
The European Parliament, in its Resolution of 21 May 2021 on new avenues for legal labour migration 11 , welcomed the Commission’s planned review of the Single Permit Directive, suggesting that ‘to reach a broader category of workers, the scope and the application of the directive should be expanded’.
1.2.Consistency with existing policy provisions in the policy area
This proposal is consistent with the Commission’s New Pact on Migration and Asylum 12 , adopted on 23 September 2020, which underlined the need to address the main shortcomings of EU policy on legal migration, responding to the overall objective of attracting the skills and talent the EU needs.
This proposal is complementary to other instruments adopted in the area of legal migration, in particular those Directives that regulate residence statuses: the EU Blue Card Directive 2009/50/EC on highly-qualified workers 13 , the long term residents Directive 2003/109/EC 14 , Directive (EU) 2016/801 on students and researchers 15 , Directive 2003/86/EC on family reunification 16 (hereinafter: legal migration Directives), and Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection 17 .
This proposal is consistent with the 2021-2027 action plan on integration and inclusion 18 which provides a common policy framework to help Member States as they further develop and strengthen their national integration policies for third-country nationals and persons with a migrant background, including EU long-term residents.
1.3.Consistency with other Union policies
This proposal supports the objectives of the Commission's Communication of 27 May 2020 entitled ‘Europe's moment: Repair and Prepare for the Next Generation’, which sets out the EU’s path to recovery towards a greener, digital and more resilient economy and society. Improving and adapting skills, knowledge and competencies is a key part of this. Measures to improve the application procedure for a single permit and equal treatment rights are to be seen in this broader context.
The proposal is also in line with the European Skills Agenda 19 , which called for a more strategic approach to legal migration, oriented towards better attracting and keeping talent. This requires improved labour matching, clear immigration procedures and greater efficiency in the recognition of third-country nationals’ competences on the EU labour market.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
2.1.Legal basis
The legal basis of the proposal is Article 79(2) TFEU, which empowers the European Parliament and the Council to act in accordance with the ordinary legislative procedure and to adopt measures on: (a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits; and (b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States.
2.2.Subsidiarity (for non-exclusive competence)
The principle of subsidiarity applies since this is an area of shared competence 20 . A subsidiarity check was carried out in the impact assessment conducted for the first proposal on the Single Permit in 2007 (COM (2007) 638 final). The need for a common EU framework on legal migration is linked to the abolition of internal border controls within the EU and the creation of the Schengen area.
The fitness check showed that the legal migration Directives, including the Single Permit Directive, have had a number of positive effects that would not have been achieved by Member States acting alone, such as a degree of harmonisation of conditions, procedures and rights, helping to create a level playing field across Member States; simplified administrative procedures; improved legal certainty and predictability for third-country nationals, employers, and administrations; improved recognition of the rights of third-country nationals (namely the right to be treated on an equal basis with nationals in a number of important areas, such as working conditions, access to education and training and social security benefits, and procedural rights); and improved intra-EU mobility.
The recast of the Single Permit Directive aims to further simplify the procedure and enhance the equal-treatment rights and protection of third-country workers legally residing in the EU. In particular, procedures streamlined and shortened at the EU level will benefit both third-country nationals and their potential employers all over the EU, while improved rights will contribute to ensuring a level-playing field for third-country workers in different Member States and mitigating the risk of social dumping. Differences in implementation of the Directive have shown that if Member States act alone, there is a risk that differences in the treatment of third-country nationals in different Member States will continue and will not be further reduced or clarified. This could lead to continued distortion of competition within the single market between Member States that grant more rights than others, or have less cumbersome procedures for granting single permits.
2.3.Proportionality
The amendments to the Single Permit Directive introduced by this proposal are limited and targeted, aiming at effectively addressing the main shortcomings identified in the implementation and evaluation of the Directive. The proposed amendments are limited to those aspects that Member States cannot achieve satisfactorily on their own and where the administrative burden on stakeholders would not be disproportionate to the objectives to be achieved, as the measures would only update or complement the already existing procedures.
The administrative burden imposed on Member State in terms of change of legislation would be moderate as the Single Permit Directive already exists and the burden would be outweighed by the benefits.
In the light of the above, the proposal does not go beyond what is necessary in order to achieve the stated objectives.
2.4.Choice of the instrument
This proposal is intended to provide for targeted amendments to the Directive to address certain identified shortcomings. Since the proposed instrument is to recast the Single Permit Directive, the same legal instrument is the most appropriate. It sets binding minimum standards but, at the same time, gives Member States the necessary flexibility.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS
3.1.Ex-post evaluations/fitness checks of existing legislation
The fitness check on the EU Legislation on Legal Migration 21 adopted on 29 March 2019 presents an in-depth evaluation with a view to assessing whether the EU legal migration framework is still fit for purpose, identifying inconsistencies and gaps and looking for possible ways to streamline and simplify the existing rules. The evaluation of the Directive under the fitness check and the implementation report 22 , also adopted in 2019, identified a number of personal and material gaps, inconsistencies and shortcomings as well as practical issues arising from the application of the Directive by the Member States.
As noted above, the fitness check recommended in its conclusions ‘considering putting forward legislative measures to tackle the inconsistencies, gaps and other shortcomings identified, so as to simplify, streamline, complete and generally improve EU legislation’.The main problems identified can be grouped into three areas:
complex and inefficient application procedure and unclear rights in some cases prolong the procedures and decrease the EU’s attractiveness for third country nationals;
certain categories of migrants are not covered by the scope of the Directive or any other EU legal instruments;
workers are not sufficiently protected from exploitation.
4. STAKEHOLDER CONSULTATIONS
A wide consultation, including a public consultation, was conducted as part of the fitness check on legal migration 23 . Between 23 September and 30 December 2020, another online public consultation on the future of legal migration was conducted via the Commission’s ‘Have your say’ portal 24 .
Targeted consultations, asking more technical questions on the recast of the Directive, took place in the first half of 2021. Some of these consultations were carried out by the Commission independently and some in the context of a study commissioned to an external contractor. Ad hoc queries were also launched under the impact assessment to the members of the European Migration Network.
Replies to the two above-mentioned public consultations came from EU citizens, organisations and third-country nationals (residing inside or outside the EU), business associations and organisations, non-governmental organisations, academic/research institutions, trade unions, ministries and public service entities. Targeted consultations included competent authorities in the Member States, business associations and organisations, non-governmental organisations, academia, legal practitioners, think tanks and public service entities.
The main problems identified in the consultations have been taken into account and addressed in the proposal.
4.1.Collection and use of expertise
The impact assessment on the recast of the Directive was supported by the study carried out by an external contractor 25 . Furthermore, a number of expert groups were consulted on the recast of the Directive: the Expert Group on the Views of Migrants in the field of Migration, Asylum and Integration on 2 March 2021, the European Network of Public Employment Services on 10 March 2021, the Commission Informal Expert Group on Economic Migration on 14 April 2021, and the EU Legal Migration Practitioners’ Network on 29 April 2021. The European Migration Network was also consulted with an ad-hoc query 26 .
4.2.Impact assessment
In line with its ‘Better Regulation’ policy, in the preparation of the proposal the Commission conducted an impact assessment. The impact assessment evaluated three policy options, with varying levels of EU intervention:
Option 1: actions to improve the effectiveness of the Directive. This policy option would involve new non-legislative actions aiming to enhance the implementation of the Directive, such as performing comparative analyses and targeted studies on specific aspects of the implementation of the Directive, and developing non-binding guidelines on the interpretation of the provisions of the Directive in the form of a Single Permit Directive Handbook; and recommendations on aspects currently not deemed to be covered by the single permit procedure; and promoting innovative approaches.
Option 2: Basic legislative revision of the Directive. This policy option would aim to simplify the application procedure and clarify which categories of third-country workers are covered by the Directive, as well as to cover beneficiaries of protection in accordance with national law. This option would also provide for the adoption of soft law measures (e.g. recommendations) to improve and harmonise the implementation of equal treatment rights provided for by the Single Permit Directive.
Option 3: Legislative revision of the Directive as in Option 2 plus regulating rights and protection. This option would include the legislative changes foreseen in Option 2 and, in addition, would aim to improve and clarify some equal treatment rights (access to housing, family benefits), ensure the permit is not linked to only one employer so as to avoid excessively frequent changes to the permit, and improve protection from labour exploitation by legislative action.
On the basis of an assessment of the social and economic impacts, the effectiveness and efficiency of the policy options, and their political feasibility and stakeholder acceptance, the preferred option is Option 3.
Option 3 involves a large set of policy measures that would address existing shortcomings of the Directive, further simplify and streamline the single application procedure, strengthening equal treatment rights, and further improve the Directive’s coherence with the wider EU legal migration law by clarifying the categories of third-country workers not covered by the Directive. In addition, Option 3 expands the personal scope of the Directive to beneficiaries of protection under national law who are currently not fully covered by the equal treatment provisions, and the extends material scope of the Directive to include provisions on labour inspections, monitoring and penalties against employers in the event of infringements of national provisions adopted pursuant to this Directive.
The impact assessment showed that Option 3 will be highly effective in achieving the objectives and in reconciling a large part of the views expressed in the stakeholder consultations. Option 3 furthermore has the potential to bring societal benefits, as including beneficiaries of protection in accordance with national law in the Directive’s scope would grant them an enhanced set of rights as these third-country nationals currently do not, or only to some extent, benefit from equal treatment. It would also contribute to reinforcing the protection of all third-country workers covered by the Directive against exploitation. Therefore, Option 3 strikes a good balance between extending the personal and material scope of the Directive and further simplification.
Furthermore, the preferred policy option would best respond to the recommendations of the fitness check and the objectives of the Commission’s Pact on Migration and Asylum. It would also ensure coherence with the case law of the Court of Justice of the European Union 27 . While the Pact announced that the review of the Directive would look at ways to simplify and clarify the scope of the legislation, including admission and residence conditions for low and medium skilled workers, the option of including such conditions was rejected at an early stage of the Impact Assessment process.
Moreover, the scope of the Directive already covers all third-country nationals, regardless of the level of their skills, with regard to the single permit procedure and the attached rights. The majority of the consulted stakeholders expressed scepticism about the need of regulating admission conditions of low and medium-skilled workers as in their view they are sufficiently addressed by national legislation and the single permit procedure. Furthermore, experts have expressed the view that as the Directive is a horizontal ‘procedural’ Directive, it is not the appropriate legal instrument to introduce admission conditions only for specific categories of workers.
Contents
- Opinion of the Regulatory Scrutiny Board
- Article 4 - Single application procedure
- Article 5 - Competent authority
- Article 9 - Access to information
- Article 10 - Fees
- Article 11 - Rights on the basis of the single permit
- Article 12 - Equal treatment
- Articles 13-14 - Monitoring, risk assessment, inspections and penalties and facilitation of complaints
- Article 14 - Information to the general public
- Articles 15-18
On 22 September 2021, the impact assessment was submitted to the Regulatory Scrutiny Board (RSB) and a meeting was held on 20 October 2021. The Board issued a positive opinion with reservations on 25 October 2021. The Board pointed to a number of aspects of the impact assessment that should be addressed. Specifically, the Board requested further clarification on the narrow scope of the initiative, which could raise unfounded expectations as to the likely impact of the proposed measures. Furthermore, the Board requested more detail on the core differences in policy choices between the options, and better analysis of whether alternative approaches to the proposed measures are possible. The Board also asked for clarifications on how the proposed measures would affect the domestic labour markets and administrative systems of Member States.
These and other more detailed comments provided by the Board were addressed in the final version of the impact assessment, which, for instance, contains an improved depiction of the possible impacts of the proposed targeted measures on the attractiveness of the EU labour market as a whole, as well as on the Member States’ domestic labour markets and administrative systems. The policy options have been revised to follow the thematic areas identified in the problem definition. The Board’s comments have also been accounted for in the proposed directive that follows.
4.3.Regulatory fitness and simplification
This proposal aims to simplify the application procedure by allowing the applications to be lodged both in the Member State of destination and from a third country, as well as establishing that the time limit of four months laid down in the Directive covers the issuance of the requisite visa referred to in Article 4(3) and the time needed by the competent authorities to check the labour market situation. On the basis of the proposed amendments, the single permit would also give the right to the third-country national to change employer during the period of its validity, which should also contribute to lowering administrative burden by limiting the need for repeated applications in case of a change of employment. Furthermore, the proposal aims to improve some equal treatment rights and clarify which categories of third-country workers are covered by the Directive. In addition, the proposal extends the scope of the Directive to beneficiaries of protection in accordance with national law and improves the protection of third-country workers by introducing provisions on facilitating complaints, monitoring and penalties. The proposal introduces new provisions with a view to improving the protection of third country workers who may be dissuaded from lodging complaints against their employers for fear of losing their residence permit, by ensuring that at least for a period of three months following unemployment, the third country national can reside legally in the Member State.
This proposal was included in Annex II of the 2021 Commission work programme 28 , therefore it is part of the regulatory fitness programme (REFIT). The Fit for Future Platform also issued its opinion on how to simplify and reduce unnecessary burdens, including by modernising existing EU legislation through digitalisation, which is reflected in the proposal. The opinion was adopted on 10 December 2021. The Platform made the following two recommendations:
Suggestion 1: Streamline and digitalise the single permit application and visa applications to reduce the administrative burden and costs on applicants and authorities.
Suggestion 2: Simplifying procedures on change of employer and increasing ownership of workers will provide concrete benefits to national administrations and applicants.
These suggestions have been followed up in:
Article 4, which establishes that the Member States should allow an application for a single permit to be made both in the Member State of destination and from a third country, and requires Member States to issue the requisite visa where the requirements specified by EU or national law are fulfilled.
Article 5, which establishes that the time limit of 4 months laid down in the Directive covers the issuance of the requisite visa referred to in Article 4(3). This time limit must also cover the time needed by the competent authorities to check the labour market situation before a decision on the single permit is adopted.
Article 11, which provides that the single permit shall not be withdrawn in the event of unemployment of its holder. Member States shall allow the third-country national to stay in their territory for at least 3 months during the validity of the permit.
The first suggestion of the Platform also addresses digitalisation of the submission of applications for issuing permits for residence and work. The current proposal does not address this complex aspect and focuses instead on streamlining and simplifying procedures. However, digitalisation can help speed up the processing of applications and thereby reduce costs for applicants and employers. It would also enable job matching and reduce the risks of undeclared work. The Commission will therefore follow the experience with the digitalisation of Schengen visas in this context and carry out technical work within its relevant networks to discuss the opportunities that digitalisation could bring and further explore its benefits and impacts.
| REFIT Cost Savings – Preferred Option | ||
| Description | Amount | Comments |
| Cost savings from less application costs | Up to EUR 11.0 million per year (over a 10-year period) | Third-country nationals |
| Up to 3.0 million per year (over a 10-year period) | Employers | |
| Cost savings from less time spent on processing applications | EUR 89.0 million – EUR 278.0 million per year (over a ten-year period) | Third-country nationals |
| EUR 22.0 million – EUR 70.0 million per year | Employers 29 | |
| EUR 200,000 – EUR 4.0 million (over a ten-year period) | National authorities 30 . | |
| Cost savings from lower travel costs | Up to EUR 137.0 million per year (over a 10-year period) | Third-country nationals |
| Cost savings (lower intermediary fees) | Up to EUR 106.0 million per year (over a 10-year period) | Third-country nationals |
| Up to EUR 25.0 million per year (over a 10-year period) | Third-country nationals | |
| Cost savings (reduction in other application-related fees – e.g. certification fees, translation of documents, etc.) | Up to EUR 14.0 million per year (over a 10-year period). | Third-country nationals |
| Up to EUR 4.0 million per year (over a 10-year period). | Third-country nationals |
4.4.Fundamental rights
This proposal is consistent with the Charter of Fundamental Rights and enhances some of the rights enshrined therein. In particular, it contributes to strengthening specific fundamental rights, such as: the prohibition of slavery and forced labour (Article 5); the right to property (Article 17); equality (Article 20); fair and just working conditions (Article 31); family and professional life (Article 33) and social security and social assistance (Article 34).5.BUDGETARY IMPLICATIONS
There are no implications for the European Union budget.
6. OTHER ELEMENTS
6.1.Implementation plans and monitoring, evaluation and reporting arrangements
The Commission will verify 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 to discuss and clarify any issues that may arise during the transposition phase. The Commission will periodically present to the European Parliament and the Council a report evaluating the implementation, functioning and impact of the Single Permit Directive.
The application of the Single Permit 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 proposed recast Directive to improve its timely provision and reliability. Official statistics from Eurostat and Member States will continue to be used as much as possible to monitor the number of single permits issued, while existing EU agencies and networks, such as the Fundamental Rights Agency and the European Migration Network, can be used to undertake punctual research into themes related to single permit. The Commission will also continue making use of the existing expert groups that contributed to the impact assessment.
6.2.Explanatory documents (for directives)
The proposed recast Directive has a wider personal scope as regards the third-country nationals that it covers. The proposal also contains a larger number of legal obligations compared to the existing Directive 2011/98/EU. In addition, the proposal includes provisions not yet covered in a mandatory way by the current legal framework. Therefore, Member States will need to provide explanatory documents, including a correlation table between national provisions and the Directive, accompanying the notification of transposition measures to ensure that the transposition measures that the Member States have added to existing legislation can be clearly identified.
6.3.Detailed explanation of the specific provisions of the proposal
CHAPTER I – GENERAL PROVISIONS
Articles 1 – 3
This Chapter sets out the subject matter, definitions, and scope of the proposal. The proposal introduces a definition of employer which includes employment or temporary work agencies to increase legal certainty and reinforce the protection of third-country workers.
A number of amendments in the proposal for a recast aim to clarify the scope of Directive 2011/98/EU, and in particular the exceptions from the scope of the Directive provided for in an exhaustive manner in Article 3(2). With regard to posted workers, a reference has been introduced to Council Directive 1996/71/EC. Posted third-country workers from another Member State are excluded from the scope as they are not considered part of the labour market of the Member State to which they are posted. In addition, references have been added to directives that were adopted after the entry into force of the Directive 31 , such as the Directive on Intra-corporate Transferees and the Seasonal Workers Directive 32 . Only third-country workers covered by these two directives are excluded from the scope of Directive 2011/98/EU. The current Article 3(2)(h) excludes from the scope third-country nationals who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State. It is currently not clear whether, if allowed to work, those third-country nationals are covered by the procedure of Chapter II and the equal treatment provisions of Chapter III. It is therefore proposed to include this category of third country nationals in the scope of the Directive by deleting Article 3(2)(h).
CHAPTER II – A single application procedure and a single permit
Article 4 of the Directive regulates key aspects of the single application procedure.
In line with Article 4(1), an application to issue, amend or renew a single permit should be submitted through a single application procedure. Currently, if the application is to be submitted by a third country national, Member States shall allow the application to be introduced from a third country or, if provided for by national law, in the territory of the Member State in which the third country national is legally present. In order to facilitate the procedure for the applicant, the proposal for a recast Directive provides for that the Member States should allow the application for a single permit to be made both in the Member State of destination and from a third country.
According to the current Article 4(3), the single application procedure is without prejudice to the visa procedures that may be required for initial entry. In order to align with other legal migration Directives, the proposal for a recast requires Member States to issue the requisite visa where the requirements laid down by Union or national law concerning the issuance of a single permit and the visa are fulfilled. The aim of this amendment is to avoid that the issuing of the entry visa is rejected or delayed if the requirements for issuing a single permit are fulfilled.
Article 5 provides for a number of procedural safeguards during the application procedure and the adoption of the decision on the single permit. In accordance with the current provisions, where applications for a single permit can only be lodged in the destination Member States, the procedure to first obtain an entry visa can significantly extend the duration of the overall procedure. The proposal for a recast directive establishes that the time limit of four months laid down in the Directive covers also the issuance of the requisite visa referred to in Article 4(3). This time limit must also cover the time needed by the competent authorities to check the labour market situation before a decision on the single permit is adopted.
Articles 6 and 7 regulate the format requirements for the single permit and the residence permits issued for purposes other than work. No amendments are introduced with respect to Directive 2011/98/EU.
Article 8 provides for certain procedural guarantees given to the applicant of the permit, namely the obligation to state reasons in writing for decisions rejecting an application to issue, amend or renew a permit, as well as the guarantee that written information will be provided about the authority with which the applicant may lodge an appeal and the time limits. No amendments are introduced with respect to Directive 2011/98/EU.
Article 9 obliges Member States to provide, upon request, adequate information to the third country national and the future employer on the documents required to make a complete application. The proposal for a recast introduces a provision regulating in more detail the information that must be provided by the competent authority including information on the rights, obligations and procedural safeguards of the third-country nationals.
Article 10 allows Member States to require applicants to pay fees, where appropriate, for processing applications. The recast requires Member States to establish fees that are proportionate and based on the services provided for processing and issuing permits.
Points (a) to (d) of Article 11 establish the rights granted on the basis of the single permit: entry and residence, free access to the entire territory, the right to exercise the specific employment activity authorised and the right to be informed about the holder’s own rights.
The recast proposal introduces new provisions (Article 11, paragraphs 2-4) aiming at improving the protection of third-country workers. On the basis of the proposed amendments, the single permit would give the right to the third-country national to change employer during the period of its validity. Member States should be able to require a notification of the change and be able to check the labour market situation in case a change of employer takes place. Paragraph 4 has been added to ensure that Member States that withdraw the single permit following the loss of employment allow third-country workers to remain in their territory for at least three months during the validity of the permit, in case the single permit holder loses his/her job.
Under the terms of Article 12 of Directive 2011/98/EU, single permit holders enjoy equal treatment with nationals in a number of areas, including working conditions, freedom of association, social security benefits, education and training, recognition of academic and professional qualifications, tax benefits, access to goods and services and employment advice services. However, the same article allows restrictions to equal treatment in respect of some areas.
In the current Article 12, the reference to equal treatment with regard to “procedures for obtaining housing as provided by national law, without prejudice to the freedom of contract” and its relation to the exemption of Article 12(2)(d)(ii) (allowing Member States to restrict access to housing) is unclear, in particular as to whether it includes access to private housing. The proposed amendment clarifies that equal treatment applies to access to private housing and that possible restrictions by Member States may concern only access to public housing.
In addition, Article 12(1)(e) provides for equal treatment with regard to access to social security coverage, as defined in Regulation (EC) No 883/2004 33 which includes family benefits. In a recent judgment referring to Italian legislation 34 , the European Court of Justice found that a national provision under which, for the purpose of determining entitlement to a social security benefit, the family members of the holder of a single permit who did not reside in the territory of that Member State but in a third country were not be taken into account when determining entitlement to a social security benefit, whereas account was taken of family members of nationals of that Member State residing in a third country, was not compatible with EU law. The proposal for a recast brings Recital 24 of Directive 2011/98/EU in line with this judgment by removing the last two sentences according to which the Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State. It is also proposed to remove the reference to third country nationals who are allowed to work on the basis of a visa in the second paragraph of Article 12(2)(b) on restrictions to access to family benefits. This would mean that third-country nationals who are allowed to work on the basis of a visa are entitled to family benefits if they work in the Member State concerned for a period exceeding 6 months.
Articles 13-14 - Monitoring, risk assessment, inspections and penalties and facilitation of complaints
New articles are introduced to reinforce the equal treatment provisions. Member States should provide for effective, proportionate and dissuasive penalties against employers in the event of infringements of national provisions adopted pursuant to this Directive, in particular with regard to working conditions, freedom of association and affiliation and access to social security benefits. Such measures should include monitoring, risk assessment and, where appropriate, inspections.
To make enforcement more effective, complaints mechanisms should be put in place. They should be open not only to single permit holders, but also to third parties which have, in accordance with the criteria laid down by the national law, a legitimate interest in ensuring compliance with this Directive as well as competent authorities of the Member States when provided for by national law. This is so because evidence suggests that third country nationals are often either not aware of the existence of such mechanisms or they are hesitant to use them in their own name, as they are afraid of the consequences in terms of the existing and/or future employment possibilities.
The proposal for a recast Directive lays down more detailed obligations on Member States with regard to information to the general public. The revised measures include the obligation to provide information on the documentary evidence needed for an application and on entry and residence conditions, including the rights, obligations and procedural safeguards of the third-country nationals.
These Articles lay down the rules on reporting, contact points, transposition, entry into force and addressees, as already provided for in Directive 2011/98/EU.
Article 19 provides that the proposal formally repeals the existing Directive 2011/98/EU on the Single Permit.
2011/98/EU