Directive 2021/1883 - Conditions of entry and residence of third-country nationals for the purpose of highly qualified employment - Main contents

EN

Official Journal of the European Union

L 382/1

The Commission communication of 3 March 2010 entitled ‘Europe 2020: A strategy for smart, sustainable and inclusive growth’ sets the objectives of the Union becoming an economy based on knowledge and innovation, reducing the administrative burden on companies and better matching labour supply with demand. That communication identifies the need for a comprehensive labour migration policy and for better integration of migrants. Measures to facilitate the admission of highly qualified third-country workers have to be seen in that broader context.

The conclusions of the European Council of 26 and 27 June 2014 state that in order to remain an attractive destination for talents and skills, Europe must compete in the global race for talent. Strategies to maximise opportunities for legal migration should therefore be developed, including the streamlining of existing rules.

The Commission communication of 13 May 2015 entitled ‘European Agenda on Migration’ calls for an attractive Union-wide scheme for highly qualified third-country nationals and specifies that a review of Council Directive 2009/50/EC (4) is needed to enable the Union to more effectively attract talent and thereby to address both the demographic challenges faced by the Union and labour and skills shortages in key sectors of the Union economy. The call to review that Directive is reiterated in the Commission communication of 23 September 2020‘on a New Pact on Migration and Asylum’, which states that the reform of the EU Blue Card ‘must bring real EU added value in attracting skills through an effective and flexible EU-wide instrument’.

The European Parliament, in its resolution of 12 April 2016 (5), called for an ambitious and targeted review of Directive 2009/50/EC, including of its scope.

It is necessary to respond to the challenges identified in the Commission’s communication of 22 May 2014 on the implementation of Directive 2009/50/EC. The Union should aim to establish a more attractive and effective Union-wide scheme for highly qualified workers from third countries. The Union approach to attracting such highly qualified workers should be further harmonised and the EU Blue Card should be made the primary tool in that regard, with faster procedures, more flexible and inclusive admission criteria, and more extensive rights, including facilitated intra-EU mobility. As this would entail substantial changes to Directive 2009/50/EC, that Directive should be repealed and replaced by a new Directive.

A clear and transparent Union-wide admission system to attract and retain highly qualified workers from third countries and to promote the mobility of those workers should be established. This Directive should apply regardless of whether the initial purpose of residence of the third-country national is highly qualified employment or is another purpose which then changes to the purpose of highly qualified employment. It is necessary to take into account Member States’ priorities, the needs of their labour markets and their reception capacities. This Directive should be without prejudice to the competence of the Member States to issue national residence permits other than EU Blue Cards for the purpose of highly qualified employment. Moreover, this Directive should not affect the possibility for an EU Blue Card holder to enjoy additional rights and benefits under national law which are compatible with this Directive.

Member States should ensure a level playing field between EU Blue Cards and national residence permits for the purpose of highly qualified employment, in terms of procedural and equal treatment rights, procedures and access to information. In particular, Member States should ensure that the level of procedural safeguards and rights granted to EU Blue Card holders and their family members is not lower than the level of procedural safeguards and rights enjoyed by holders of national residence permits. Member States should also ensure that applicants for an EU Blue Card are not in a less favourable position than applicants for national residence permits with regard to recognition procedures for employers, and that they are not required to pay higher fees for the handling of their application. Finally, Member States should engage in the same level of information, promotion and advertisement activities with respect to the EU Blue Card as they do for national residence permits, for example with regard to information on national websites on legal migration, information campaigns and training programmes provided to the competent migration authorities.

In order to reinforce and promote the EU Blue Card scheme and to attract highly qualified workers from third-countries, Member States are encouraged to strengthen advertising activities and information campaigns concerning the EU Blue Card, including, where appropriate, activities and campaigns directed at third countries.

In implementing this Directive, Member States are not to discriminate on the basis of sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation, as required by Council Directives 2000/43/EC (6) and 2000/78/EC (7) in particular. For the principle of non-discrimination to be effective, EU Blue Card holders should be able to seek legal redress and to lodge complaints as provided for by national law if they face any kind of discrimination, including in the labour market.

Having regard to the Eurostat report of 21 February 2020 entitled ‘Hard-to-fill ICT vacancies: an increasing challenge’ and its conclusions regarding a widespread shortage of highly skilled workers in the information and communication technologies (ICT) sector in the labour markets of Member States, higher professional skills should be considered to be equivalent to higher education qualifications for the purpose of applying for an EU Blue Card in respect of two higher positions: Information and Communications Technology Services Managers (International Standard Classification of Occupation (ISCO)-08 classification 133) and Information and Communications Technology Professionals (ISCO-08 classification 25). Considering that a bachelor degree takes at least 3 years to complete, the relevant period of required professional experience should be 3 years. The length of that period is also justified given the fast pace of technological evolution in the ICT sector and the changing needs of employers.

Member States are encouraged to facilitate the assessment and validation of higher professional skills for the purposes of the EU Blue Card.

It is envisaged that the list of occupations set out in an annex to this Directive could be amended, in particular following assessments by the Commission to determine whether to do so, on the basis of, among other sources, the information provided by the Member States regarding the needs of their labour markets, for the purpose of recognising professional experience under this Directive in other fields of activity. The Commission should conduct such assessments every 2 years.

For occupations not listed in the annex, it should be possible for Member States to accept applications for an EU Blue Card on the basis of evidence of higher professional skills, attested by at least 5 years of professional experience at a level comparable to higher education qualifications and which is relevant to the profession or sector specified in the work contract or binding job offer.

The concept of highly qualified employment entails that the person employed not only has a high level of competence, as proven by higher professional qualifications, but also that the work to be carried out is inherently regarded as demanding such competence. While in the modern labour market a direct link between the qualifications and the job is not always and necessarily required, the tasks and duties related to the work contract for highly qualified employment should be so specialised and complex that the required level of competence to perform those duties is usually associated with the completion of educational programmes and the resulting qualifications at International Standard Classification of Education (ISCED) 2011 levels 6, 7 and 8, or, where appropriate, at the broadly equivalent European Qualifications Framework (EQF) levels 6, 7 and 8, in accordance with the law of the Member State concerned, or, for specific occupations, with comparable higher professional skills.

This Directive should 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 in accordance with Article 79(5) of the Treaty on the Functioning of the European Union (TFEU). On that basis, Member States should be able to either consider an application for an EU Blue Card to be inadmissible or to reject it.

Beneficiaries of international protection as defined in Article 2, point (a), of Directive 2011/95/EU of the European Parliament and of the Council (8) have a wide set of rights, including access to the labour market in the Member State that granted them international protection. In order to enhance their labour market opportunities across the Union, beneficiaries of international protection who are highly qualified should be entitled to apply for an EU Blue Card in Member States other than that which granted them international protection. In those other Member States, they should be subject to the same rules as any other third country national falling within the scope of this Directive, and this Directive should have no impact on their status in the Member State that granted them international protection. Beneficiaries of international protection are also entitled to apply for an EU Blue Card in the Member State that granted them international protection. In such cases, for reasons of legal clarity and coherence, the provisions on equal treatment and family reunification of this Directive should not apply. Those rights should remain regulated under the asylum acquis and, where applicable, under Council Directive 2003/86/EC (9).

The transfer of responsibility for beneficiaries of international protection is outside the scope of this Directive. The protected status and the rights associated with international protection should not be transferred to another Member State on the basis of the issuance of an EU Blue Card.

In order to facilitate the independent intra-EU mobility and business activities of highly qualified third-country nationals who are beneficiaries of the right to free movement, such third-country nationals should be given access to the EU Blue Card in accordance with the same rules as any other third-country national falling within the scope of this Directive. This entitlement concerns persons enjoying free movement rights based on family ties to a Union citizen in accordance with relevant legislation and should apply regardless of whether the Union citizen of reference has exercised the fundamental right to move and reside freely under Article 21 TFEU and regardless of whether the third-country national concerned was first an EU Blue Card holder or a beneficiary of the right to free movement. Such EU Blue Card holders should thus be entitled to engage in highly qualified employment, perform business trips and take up residence in different Member States regardless of whether the third-country national accompanies the Union citizen of reference. The rights that such third-country nationals acquire as EU Blue Card holders should be without prejudice to rights they may enjoy under Directive 2004/38/EC of the European Parliament and of the Council (10). For reasons of legal clarity and coherence, in terms of family reunification and equal treatment, the rules under Directive 2004/38/EC should prevail. All provisions regarding the beneficiaries of the right to free movement in this Directive should also apply to third-country nationals who enjoy rights of free movement equivalent to those of Union citizens under agreements either between the Union and the Member States on the one hand, and third countries on the other, or between the Union and third countries.

This Directive should not apply to third-country nationals who apply to reside in a Member State as researchers in order to carry out research projects, as they fall within the scope of Directive (EU) 2016/801 of the European Parliament and of the Council (11), which introduced a specific procedure for admitting third-country nationals for the purpose of research. However, legally residing third-country nationals admitted under Directive (EU) 2016/801 should be entitled to apply for an EU Blue Card under this Directive. Legally residing EU Blue Card holders should also be entitled to apply to reside as researchers under Directive (EU) 2016/801. In order to ensure such a possibility, Directive (EU) 2016/801 should be amended accordingly.

Although this Directive does not apply to third-country nationals who apply to be admitted to the Union as intra-corporate transferees pursuant to Directive 2014/66/EU of the European Parliament and of the Council (12), intra-corporate transferees legally residing in the Union should be entitled to apply for an EU Blue Card under this Directive for purposes other than those covered under Directive 2014/66/EU.

It is necessary to provide for a flexible, demand-driven, clear and balanced admission system based on objective criteria, such as the applicant having a work contract or binding offer for a job of at least 6 months duration, compliance with the applicable law, collective agreements or national practices in the relevant occupational branches, a salary threshold adaptable by the Member States to the situation in its labour market and the applicant having higher professional qualifications or, where appropriate, higher professional skills.

This Directive should be without prejudice to national procedures on the recognition of diplomas. In order to evaluate whether the third-country national concerned possesses higher education or equivalent qualifications, reference should be made to ISCED 2011 levels 6, 7 and 8 or, where appropriate, to the broadly equivalent EQF levels 6, 7 and 8, in accordance with the law of the Member State concerned.

Member States are encouraged to facilitate the recognition of documents attesting to the relevant higher professional qualifications of the third-country national concerned and, as regards beneficiaries of international protection who may not have the necessary documents, to establish arrangements for the appropriate assessment and validation of their prior higher education qualifications or, where relevant, higher professional skills.

In order to ensure a sufficient level of harmonisation of admission conditions throughout the Union, both a lower and an upper factor for the salary threshold should be determined. The lower and upper limits for setting the national salary threshold should be determined by multiplying those lower and upper factors by the average gross annual salary in the Member State concerned. A salary threshold should be chosen within the range of the lower and upper limits, after consulting the social partners in accordance with national practices. That salary threshold should determine the minimum salary which an EU Blue Card holder is to earn. Therefore, in order to obtain an EU Blue Card, applicants should earn a salary which is equal to or greater than the salary threshold chosen by the Member State concerned.

Member States should be able to provide for a lower salary threshold for specific professions where the Member State concerned considers that there is a particular shortage of available workers and where such professions belong to major group 1 or 2 of the ISCO classification. In any event, such a salary threshold should not be lower than 1,0 times the average gross annual salary in the Member State concerned.

In line with the priorities of the New Skills Agenda for Europe, set out in the Commission communication of 10 June 2016, in particular to improve skills matching and to tackle skills shortages, Member States are encouraged, where appropriate, after consulting the social partners, to compile lists of sectors of employment which face a shortage of highly qualified workers.

Member States should be able to provide for a lower salary threshold to benefit third-country nationals during a certain period following their graduation. That period should apply each time that the third-country national reaches a level of education relevant for the purposes of this Directive, namely ISCED 2011 level 6, 7 or 8 or, where appropriate, EQF level 6, 7 or 8, in accordance with the law of the Member State concerned. That period should apply where the third-country national applies for an initial or renewal of an EU Blue Card within 3 years from the date of obtaining the relevant qualifications and, in addition, where that third-country national applies for the renewal of an EU Blue Card within 24 months of the issuance of the initial EU Blue Card. After those grace periods, which could run in parallel, have elapsed, young professionals can reasonably be expected to have gained sufficient professional experience in order to fulfil the regular salary threshold. In any event, such a lower salary threshold should not be lower than 1,0 times the average gross annual salary in the Member State concerned.

The conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, including the eligibility criteria related to a salary threshold, should be defined. The salary threshold set by the Member State should not aim to determine salaries and therefore should not derogate from the rules or practices at Member State level or from collective agreements, and should not be used to constitute any harmonisation in that field. The salary paid to the EU Blue Card holder should not be lower than the applicable salary threshold but may be higher, as agreed between the employer and the third-country national, in line with market conditions, labour law, collective agreements and practices in the Member State concerned. This Directive should fully respect the competences of Member States, particularly as regards employment, labour and social matters.

Member States should be able to require the third-country national to provide his or her address at the time of the application. In the event that the third-country national does not yet know his or her future address, Member States should accept a temporary address, which could be the address of the employer.

The period of validity of the EU Blue Card should be at least 24 months. However, where the duration of the work contract is shorter, the EU Blue Card should be issued for at least the duration of the work contract plus 3 months, subject to a maximum of 24 months. If the third-country national holds a travel document whose period of validity is shorter than 24 months or shorter than the duration of the work contract, the EU Blue Card should be issued for at least the period of validity of the travel document. Third-country nationals should be allowed to renew their travel document while holding an EU Blue Card.

Member States should reject applications for EU Blue Cards and should be allowed to withdraw or refuse to renew EU Blue Cards where there is a threat to public policy, public security or public health. A threat to public health is to be understood as that term is defined in Article 2, point 21, of Regulation (EU) 2016/399 of the European Parliament and of the Council (13). Any rejection of an application on grounds of public policy or public security should be based on the individual behaviour of the person concerned, in accordance with the principle of proportionality. Illness or disability suffered after the third-country national was admitted to the territory of the first Member State should not constitute the sole ground for withdrawing or refusing to renew an EU Blue Card or for not issuing an EU Blue Card in a second Member State. Moreover, Member States should have the possibility of not withdrawing or not refusing to renew an EU Blue Card where the obligation to present a valid work contract or to meet the applicable salary threshold is temporarily not met due to illness, disability or parental leave.

Member States should be able to withdraw or refuse to renew an EU Blue Card where the EU Blue Card holder has failed to comply with the conditions for mobility under this Directive, including in cases of the abusive use of mobility rights, for example where the holder has not respected the allowed period for carrying out a business activity, has not submitted an application for long-term mobility within the required time frame in second Member States, or has applied for an EU Blue Card in a second Member State and begun employment sooner than allowed where it was clear that the conditions for mobility would not be fulfilled and the application would be rejected.

Any decision to reject an application for an EU Blue Card or to withdraw or refuse to renew an EU Blue Card should take into consideration the specific circumstances of the case and should be proportionate. In particular, where the ground for rejection, withdrawal or refusal to renew relates to the conduct of the employer, the minor misconduct of the employer should in no case constitute the sole ground for rejecting an application for an EU Blue Card or withdrawing or refusing to renew an EU Blue Card.

A decision rejecting an application for an EU Blue Card does not affect the right of the third-country national concerned to submit another application. The submission of such a new application does not authorise the third-country national concerned to remain in the territory of the Member State concerned, except where provided for by national law.

Once all the conditions for admission are fulfilled, Member States should issue an EU Blue Card within a specified time limit. If a Member State only issues residence permits on its territory and all the conditions of this Directive relating to admission are fulfilled, the Member State should grant the third-country national concerned the requisite visa. It should be ensured that the competent authorities cooperate effectively for that purpose. In the event that the Member State does not issue visas, it should grant the third-country national concerned an equivalent permit allowing entry.

The rules on processing times for EU Blue Card applications should guarantee the swift issuance of permits in all cases. The processing time for examining an application for an EU Blue Card should not include the time required for the recognition of professional qualifications, where applicable, or the time required for issuing a visa, if required. In the event that an EU Blue Card expires during the renewal procedure, the third-country national should be entitled to stay, work and enjoy the rights provided for under this Directive in the territory of the Member State which issued the EU Blue Card, until the decision on the application is taken by the competent authorities, but that third-country national should not have the right to move to a second Member State.

Where a Member State has determined that an application for an EU Blue Card or for intra-EU mobility is to be made by the employer, that Member State should not restrict the procedural safeguards enjoyed by the third-country national concerned during the application procedure or the rights enjoyed by the EU Blue Card holder during the period of employment or the EU Blue Card renewal procedure.

The format of the EU Blue Card should comply with Council Regulation (EC) No 1030/2002 (14), thus enabling Member States to refer to the information on the conditions under which the person concerned is permitted to work. Member States should be able to provide additional information in paper form or to store such information in electronic form in accordance with Article 4 of that Regulation and point (a)(16) of the Annex to that Regulation, in order to provide more precise information on the employment activity concerned. The provision of such additional information should be optional for Member States and should not constitute an additional requirement that would compromise the single permit and the single application procedure.

The Member State concerned should ensure that applicants have the right to challenge, before a court or tribunal, any decision rejecting an application for an EU Blue Card or any decision not to renew or to withdraw an EU Blue Card. This should be without prejudice to the possibility of designating an administrative authority to carry out a prior administrative review of such decisions.

Since this Directive aims to address labour and skills shortages in key sectors in labour markets, a Member State should be able to check whether a vacancy which an applicant for an EU Blue Card intends to fill could instead be filled from the national or Union workforce, or by third-country nationals who are already lawfully resident in that Member State and who already form part of its labour market by virtue of Union or national law, or by EU long-term residents wishing to move to that Member State for highly qualified employment in accordance with Chapter III of Council Directive 2003/109/EC (15). In the event that Member States decide to make use of that possibility, they should communicate this in a clear, accessible and transparent way to applicants and employers, including through online media. Such checks should not be part of the EU Blue Card renewal procedure. In cases of long-term mobility, a Member State should only be able to take into account the labour market situation if that Member State has also introduced checks for applicants coming from third countries.

In implementing this Directive, Member States should refrain from pursuing active recruitment in developing countries in sectors suffering from a lack of personnel. Ethical recruitment policies and principles that apply to public and private sector employers should be developed in key sectors, for example in the health sector. This is consistent with the Union’s commitment to the 2010 World Health Organization’s Global Code on the International Recruitment of Health Personnel, as well as with the conclusions of the Council and the Member States of 14 May 2007 on the European Programme for Action to tackle the critical shortage of health workers in developing countries (2007-13), and to the education sector. It is appropriate to strengthen those principles and policies by the development and application of mechanisms, guidelines and other tools to facilitate, as appropriate, circular and temporary migration, as well as other measures that would minimise the negative impact, and maximise the positive impact, of highly qualified immigration on developing countries in order to turn brain drain into brain gain.

Member States should have the option of applying a simplified procedure for employers. That procedure should allow recognised employers to take advantage of simpler procedures and admission conditions under this Directive. However, Member States should include sufficient safeguards against abuse. In accordance with the principle of proportionality, those safeguards must take into account the gravity and nature of the misconduct. If, at the time of renewal of an EU Blue Card, the employer is no longer recognised, the regular admission conditions should apply to the renewal of that EU Blue Card, unless the third-country national concerned is employed by another recognised employer.

In order to ensure that the criteria for admission continue to be fulfilled, Member States should be allowed to require that, during the first 12 months of legal employment as an EU Blue Card holder, any change of employer or other significant changes be communicated to the competent authorities and that the competent authorities carry out a check of the labour market situation. After that 12-month period, Member States should only be allowed to require the EU Blue Card holder to inform competent authorities of a change of employer or a change that affects the fulfilment of the criteria for admission set out in this Directive, including, where necessary, the new work contract. No check of the labour market situation should be carried out. The assessment carried out by Member States should be limited to the elements that have changed.

In order to promote innovative entrepreneurship, Member States should be able to give third-country nationals admitted under this Directive the possibility of exercising a self-employed activity in parallel with their activity under this Directive without it affecting their rights of residence as EU Blue Card holders. This should be without prejudice to the continuing obligation to meet the conditions for admission under this Directive, and therefore the EU Blue Card holder should remain in highly qualified employment. Member States should be able to lay down the conditions for access to self-employed activity in their national law. Member States should also be entitled to limit the scope of the allowed self-employed activity. Member States should give EU Blue Card holders access to self-employed activities under conditions that are no less favourable than those provided for under existing national schemes. Any income derived from self-employment should not contribute towards meeting the salary threshold required to qualify as an EU Blue Card holder.

In order to enhance the EU Blue Card holder’s contribution through his or her higher professional qualifications, Member States should also be able to lay down provisions in their national law allowing EU Blue Card holders to engage in other professional activities which are complementary to their main activity as an EU Blue Card holder. Any income derived from those professional activities should not contribute towards meeting the salary threshold required to qualify as an EU Blue Card holder.

Equal treatment should be granted to EU Blue Card holders in respect of the branches of social security listed in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council (16). This Directive does not harmonise the social security legislation of Member States. It is limited to applying the principle of equal treatment in the field of social security to the third-country nationals falling within its scope.

In the event of mobility between Member States, Regulation (EU) No 1231/2010 of the European Parliament and of the Council (17) applies. This Directive should not confer more rights on the mobile EU Blue Card holder than those already provided for in existing Union law in the field of social security for third-country nationals who have cross-border interests between Member States.

Professional qualifications acquired by a third-country national in another Member State should be recognised in the same way as those of Union citizens. Qualifications acquired in a third country should be taken into account in accordance with Directive 2005/36/EC of the European Parliament and of the Council (18). This Directive should be without prejudice to the conditions set out under national law for the exercise of regulated professions. It should not prevent a Member State from maintaining national restrictions on access to employment which entails at least occasional involvement in the exercise of public authority and the responsibility for safeguarding the general interest of the State, or from maintaining national rules on activities that are reserved to nationals of that Member State, Union citizens or citizens of another country in the European Economic Area (EEA citizen), including in cases of mobility to other Member States, where such restrictions or rules existed at the time of the entry into force of this Directive.

The rights acquired by a beneficiary of international protection as an EU Blue Card holder should be without prejudice to the rights enjoyed by that person under Directive 2011/95/EU and under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the New York Protocol of 31 January 1967 (the ‘Geneva Convention’) in the Member State which granted the international protection. In that Member State, in order to avoid conflicting rules, the provisions on equal treatment and family reunification of this Directive should not apply. Persons who are beneficiaries of international protection in one Member State and EU Blue Card holders in another should enjoy the same rights as any other EU Blue Card holder in the latter Member State, including equality of treatment with nationals of the Member State of residence and family reunification rights. The status of a beneficiary of international protection is independent of whether the beneficiary is also an EU Blue Card holder and the validity of that EU Blue Card.

Favourable conditions for family reunification and access to work for spouses should be a fundamental element of this Directive in order to better attract highly qualified workers from third-countries. Specific derogations from Directive 2003/86/EC, which is applicable in the first and the second Member State of residence, should be provided for in order to reach that aim. Member States should be able to restrict the scope of self-employed activities in which spouses may engage under the same conditions as apply to EU Blue Card holders. Conditions related to integration or waiting periods should not be applied before allowing family reunification, as highly qualified workers and their families are likely to have a favourable starting point regarding integration in the host community. With the aim of facilitating the swift entry of highly qualified workers, residence permits to their family members should be issued at the same time as the EU Blue Card where the relevant conditions are fulfilled and the applications were lodged simultaneously.

Derogations from Directive 2003/109/EC should be provided for in order to attract highly qualified workers from third countries and to encourage their continued stay in the Union, while enabling mobility within the Union and circular migration. EU Blue Card holders who have availed themselves of the possibility of moving from one Member State to another Member State should be granted easier access to EU long-term resident status in a Member State, in particular by allowing them to cumulate periods of residence in different Member States, provided that they can demonstrate the number of years of legal and continuous residence required under Article 4(1) of Directive 2003/109/EC as holders of an EU Blue Card, of a national permit for highly qualified employment or of an authorisation as a student or researcher in accordance with Directive (EU) 2016/801, or as beneficiaries of international protection. They should also demonstrate 2 years of legal and continuous residence as an EU Blue Card holder immediately prior to the submission of the relevant application in the territory of the Member State where the application for EU long-term resident status in a Member State is submitted. As provided for in Directive 2003/109/EC, only half of the periods of residence for study purposes are allowed to be taken into account in the calculation of the 5 years of legal and continuous residence in the Member States where periods of residence for study purposes are taken into account for the calculation of continuous residence.

In order to foster the mobility of highly qualified workers from third countries between the Union and their countries of origin, derogations from Directive 2003/109/EC should be provided for in order to allow longer periods of absence than those provided for in that Directive after highly qualified third-country workers have acquired EU long-term resident status in a Member State.

The occupational and geographical mobility of highly qualified workers from third countries should be recognised as an important contributor to improving labour market efficiency across the Union, to addressing skills shortages and to offsetting regional imbalances. Mobility within the Union should be facilitated.

This Directive is without prejudice to the provisions of Directives 96/71/EC (19) and 2014/67/EU (20) of the European Parliament and of the Council.

Existing legal uncertainty surrounding business trips taken by highly qualified workers from third countries should be addressed by defining the notion of business trips and setting out a list of activities that in any case should be considered as business activities in all Member States. Those activities are to be directly linked to the interests of the employer in the first Member State and should be related to the duties of the EU Blue Card holder in the employment for which the EU Blue Card was granted. Second Member States should not be allowed to require EU Blue Card holders engaging in business activities to have a visa, work permit or any authorisation other than the EU Blue Card. Where the EU Blue Card is issued by a Member State that does not apply the Schengen acquis in full, its holder should be entitled to enter and stay in one or several second Member States for the purpose of business activities for up to 90 days in any 180-day period.

EU Blue Card holders should be allowed to move to a second Member State under simplified conditions where they intend to apply for a new EU Blue Card on the basis of an existing work contract or binding job offer. Second Member States should not be allowed to require that EU Blue Card holders have any authorisation other than the EU Blue Card issued by the first Member State. As soon as an EU Blue Card holder submits a complete application for a new EU Blue Card in a second Member State within the deadline provided for in this Directive, it should be possible for that Member State to allow the EU Blue Card holder to begin employment. EU Blue Card holders should be entitled to begin employment at the latest 30 days after submitting the application for a new EU Blue Card. Mobility should be demand-driven and therefore a work contract should always be required in the second Member State, all the conditions under the applicable law, set in collective agreements or established by practices in the relevant occupational branches should be met and the salary should satisfy the threshold set by the second Member State in accordance with this Directive.

Where EU Blue Card holders intend to apply for an EU Blue Card in a second Member State in order to exercise a regulated profession, their professional qualifications should be recognised in the same way as those of Union citizens exercising the right to free movement, in accordance with Directive 2005/36/EC and other applicable Union and national law.

While some special rules are laid down in this Directive regarding entry and stay in a second Member State for the purpose of business activities and moving to a second Member State to reside and work there under the EU Blue Card in its territory, all the other rules governing the movement of persons across borders as laid down in the relevant provisions of the Schengen acquis apply.

Where the EU Blue Card is issued by a Member State that does not apply the Schengen acquis in full, and the EU Blue Card holder, in cases of mobility as provided for in this Directive, crosses an external border within the meaning of Regulation (EU) 2016/399 into the territory of a second Member State, that Member State should be entitled to require evidence that the EU Blue Card holder is entering its territory either for the purpose of business activities or in order to reside and work there under the EU Blue Card on the basis of a work contract or binding job offer. In the case of mobility for carrying out business activities, that second Member State should be able to require evidence of the business purpose of the stay, such as invitations, entry tickets, or documents describing the business activities of the relevant company and the position of the EU Blue Card holder in that company.

Where the EU Blue Card holder moves to a second Member State to apply for an EU Blue Card and he or she is accompanied by family members, that Member State should be able to require those family members to present their residence permits that were issued in the first Member State. In addition, in cases of the crossing of an external border within the meaning of Regulation (EU) 2016/399, Members States that apply the Schengen acquis in full should consult the Schengen Information System and should refuse entry to, or object to the mobility of, persons for whom an alert for the purposes of refusing entry or stay, as referred to in Regulation (EC) No 1987/2006 of the European Parliament and of the Council (21), has been issued in that system.

Where an EU Blue Card holder moves to a second Member State on the basis of an EU Blue Card issued by the first Member State and the second Member State rejects that EU Blue Card holder’s application for a new EU Blue Card, this Directive should allow the second Member State to request that the EU Blue Card holder leave its territory. Where the EU Blue Card holder still has a valid EU Blue Card issued by the first Member State, the second Member State should be able to request that the EU Blue Card holder go back to the first Member State in accordance with Directive 2008/115/EC of the European Parliament and of the Council (22). Where the EU Blue Card issued by the first Member State has been withdrawn or has expired during the examination of the application, it should be possible for the second Member State to decide either to return the EU Blue Card holder to a third country in accordance with Directive 2008/115/EC, or to request the first Member State to allow the re-entry of the EU Blue Card holder into its territory without unnecessary formalities or delay. In the latter case, the first Member State should issue the EU Blue Card holder with a document allowing re-entry into its territory.

For the purposes of the residence of beneficiaries of international protection, it is necessary to ensure that when such beneficiaries move to a Member State other than the Member State that granted them international protection, the other Member State is informed of the international protection background of the persons concerned in order to be able to comply with its obligations regarding the principle of non-refoulement.

Where a Member State intends to expel a person who has acquired an EU Blue Card in that Member State and who is a beneficiary of international protection in another Member State, that person should enjoy protection against refoulement in accordance with Directive 2011/95/EU and Article 33 of the Geneva Convention.

Where the expulsion of a beneficiary of international protection from the territory of a Member State is permitted under Directive 2011/95/EU, the Member State should ensure that all information is obtained from relevant sources, including, where appropriate, from the Member State that granted international protection, and that the information is thoroughly assessed with a view to guaranteeing that the decision to expel that beneficiary complies with Article 4 of the Charter of Fundamental Rights of the European Union (the ‘Charter’).

Specific reporting provisions should be provided for to monitor the implementation of this Directive, with a view to identifying and possibly counteracting its possible impact in terms of brain drain in developing countries and in order to avoid brain waste.

Since the objectives of this Directive, namely the establishment of a special admission procedure and the adoption of conditions of entry and residence applicable to third-country nationals for the purpose of highly qualified employment and their family members, and the establishment of rights in relation thereto, cannot be sufficiently achieved by the Member States, especially as regards ensuring their mobility between Member States and offering a clear and single set of admission criteria across the Member States in order to better exploit the Union’s overall attractiveness, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.

This Directive respects the fundamental rights and observes the principles recognised by the Charter in accordance with Article 6 TEU.

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application.

Directive 2009/50/EC should therefore be repealed,

the conditions of entry and residence for more than 3 months in the territory of the Member States, and the rights, of third-country nationals for the purpose of highly qualified employment and of their family members;

the conditions of entry and residence, and the rights, of third-country nationals and of their family members, referred to in point (a), in Member States other than the Member State which first granted an EU Blue Card.

‘third-country national’ means any person who is not a citizen of the Union within the meaning of Article 20(1) TFEU;

‘highly qualified employment’ means the employment of a person who:

‘EU Blue Card’ means a residence permit bearing the term ‘EU Blue Card’ that entitles its holder to reside and work in the territory of a Member State under the terms of this Directive;

‘first Member State’ means the Member State which first grants a third-country national an EU Blue Card;

‘second Member State’ means any Member State in which the EU Blue Card holder intends to exercise or exercises the right of mobility within the meaning of this Directive, other than the first Member State;

‘family members’ means third-country nationals who are family members as referred to in Article 4(1) of Directive 2003/86/EC;

‘higher professional qualifications’ means qualifications attested by evidence of higher education qualifications or higher professional skills;

‘higher education qualifications’ means any diploma, certificate or other evidence of formal qualifications issued by a competent authority attesting to the successful completion of a post-secondary higher education or equivalent tertiary education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution or equivalent tertiary educational institution by the State in which it is situated, where the studies needed to acquire those qualifications last at least 3 years and correspond at least to ISCED 2011 level 6 or, where appropriate, to EQF level 6, in accordance with national law;

‘higher professional skills’ means:

‘professional experience’ means the actual and lawful pursuit of the profession concerned;

‘regulated profession’ means a regulated profession as defined in Article 3(1), point (a), of Directive 2005/36/EC;

‘unregulated profession’ means a profession that is not a regulated profession;

‘business activity’ means a temporary activity directly related to the business interests of the employer and to the professional duties of the EU Blue Card holder based on the work contract in the first Member State, including attending internal or external business meetings, attending conferences or seminars, negotiating business deals, undertaking sales or marketing activities, exploring business opportunities, or attending and receiving training;

‘international protection’ means international protection as defined in Article 2, point (a), of Directive 2011/95/EU.

who seek international protection and are awaiting a decision on their status or who are beneficiaries of temporary protection in accordance with Council Directive 2001/55/EC (23) in a Member State;

who seek protection in accordance with national law, international obligations or practice of a Member State and are awaiting a decision on their status, or who are beneficiaries of protection in accordance with national law, international obligations or practice of a Member State;

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;

who enjoy EU long-term resident status in a Member State in accordance with Directive 2003/109/EC and exercise their right to reside in another Member State in order to carry out an economic activity in an employed or self-employed capacity;

who enter a Member State under commitments contained in an international agreement facilitating the entry and temporary stay of certain categories of trade- and investment-related natural persons, with the exception of third-country nationals who have been admitted to the territory of a Member State as intra-corporate transferees pursuant to Directive 2014/66/EU;

whose expulsion has been suspended for reasons of fact or law;

who are covered by Directive 96/71/EC for the duration of their posting to the territory of the Member State concerned; or

who, under agreements between the Union and the Member States on the one hand, and third countries on the other, as nationals of those third countries, enjoy rights of free movement equivalent to those of Union citizens.

Union law, including bilateral or multilateral agreements concluded between the Union or the Union and the Member States on the one hand, and one or more third countries on the other; and

bilateral or multilateral agreements concluded between one or more Member States and one or more third countries.

present a valid work contract or, as provided for in national law, a binding job offer for highly qualified employment for a period of at least 6 months in the Member State concerned;

for unregulated professions, present documents attesting to relevant higher professional qualifications in relation to the work to be carried out;

for regulated professions, present documents attesting to the fulfilment of the conditions set out under national law for the exercise by Union citizens of the regulated profession specified in the work contract or binding job offer, in accordance with national law;

present a valid travel document, as determined by national law, and, if required, an application for a visa, a valid visa or, where applicable, a valid residence permit or valid long-stay visa;

provide evidence of having or, if provided for by national law, having applied for, sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods when no such insurance coverage or corresponding entitlement to benefits is provided for in connection with, or resulting from, the work contract.

the initial period of 3 years has not elapsed; or

a period of 24 months after the issuance of the first EU Blue Card has not elapsed.

require the applicant to present the documents provided for in paragraph 1, point (b) or (c), if the relevant higher professional qualifications were already verified in the context of the application for the national residence permit;

require the applicant to present the evidence provided for in paragraph 1, point (e), of this Article unless the application is submitted in the context of a change of employment, in which case Article 15 shall apply accordingly; and

apply Article 7(2), point (a), unless the application is submitted in the context of a change of employment, in which case Article 15 shall apply accordingly.

Article 5 is not complied with;

the documents presented have been fraudulently acquired, falsified or tampered with;

the third-country national concerned is considered to pose a threat to public policy, public security or public health; or

the employer’s business was established or operates for the main purpose of facilitating the entry of third-country nationals.

where the competent authorities of the Member State, after checking the labour market situation, for example where there is a high level of unemployment, conclude that the vacancy concerned may be filled from the national or Union workforce, or by third-country nationals who are lawfully resident in that Member State and already form part of its labour market by virtue of Union or national law, or by EU long-term residents who wish to move to that Member State for highly qualified employment in accordance with Chapter III of Directive 2003/109/EC;

where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions;

where the employer’s business is being, or has been, wound up under national insolvency laws or carries out no economic activity;

where the employer has been sanctioned for the employment of illegally staying third-country nationals in accordance with Article 9 of Directive 2009/52/EC of the European Parliament and of the Council (24), or for undeclared work or illegal employment according to national law; or

to ensure ethical recruitment in professions suffering from a lack of qualified workers in the countries of origin, including on the basis of an agreement listing professions for that purpose either between the Union and the Member States on the one hand, and one or more third countries on the other, or between the Member States on the one hand, and one or more third countries on the other.

the EU Blue Card or the documents presented have been fraudulently acquired, falsified or tampered with;

the third-country national concerned no longer holds a valid work contract for highly qualified employment;

the third-country national concerned no longer holds the qualifications referred to in Article 5(1), point (b) or (c); or

the salary of the third-country national concerned no longer meets the salary threshold set in accordance with Article 5(3), (4) or (5), as applicable.

for reasons of public policy, public security or public health;

where appropriate, where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions;

where the EU Blue Card holder 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 that Member State;

where the EU Blue Card holder is residing in that Member State for purposes other than those for which he or she was authorised to reside;

where the conditions under the applicable law, set in collective agreements or established by practices in the relevant occupational branches for highly qualified employment are no longer met;

where the EU Blue Card holder has not complied with the relevant procedures as provided for in Article 15(2), point (a), or in Article 15(3) or (4);

where the EU Blue Card holder no longer holds a valid travel document, provided that, prior to withdrawing the EU Blue Card, that Member State had set a reasonable deadline for that EU Blue Card holder to obtain and present a valid travel document; or

where the EU Blue Card holder fails to comply with the conditions of mobility under Chapter V.

the EU Blue Card holder cumulates a period of unemployment exceeding 3 months and has held an EU Blue Card for less than 2 years; or

the EU Blue Card holder cumulates a period of unemployment exceeding 6 months and has held an EU Blue Card for at least 2 years.

enter, re-enter and stay in the territory of the Member State issuing the EU Blue Card; and

enjoy the rights provided for in this Directive.

the employment of illegally staying third-country nationals in accordance with Directive 2009/52/EC;

undeclared work or illegal employment under national law; or

failing to meet its legal obligations regarding social security, taxation, labour rights or working conditions.

require that a change of employer or a change which may affect the fulfilment of the criteria for admission as set out in Article 5 be communicated to the competent authorities in that Member State, in accordance with procedures laid down in national law; and

subject any change of employer to a check of the labour market situation, provided that that Member State carries out such a check in accordance with Article 7(2), point (a).

terms of employment, including the minimum working age, and working conditions, including pay and dismissal, working hours, leave and holidays, as well as health and safety requirements at the workplace;

freedom of association and affiliation and membership of an organisation representing workers or employers or of any organisation whose members are engaged in a specific occupation, including the rights and benefits conferred by such organisations, without prejudice to the national provisions on public policy and public security;

education and vocational training;

recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures;

branches of social security referred to in Article 3 of Regulation (EC) No 883/2004; and

access to goods and services and the supply of goods and services made available to the public, including procedures for obtaining housing, as well as information and counselling services provided by employment offices.

the number of years of legal and continuous residence required under Article 4(1) of Directive 2003/109/EC as a holder of an EU Blue Card, a national residence permit for highly qualified employment, an authorisation as researcher or, where appropriate, an authorisation as a student in accordance with the second subparagraph of Article 4(2) of Directive 2003/109/EC or as a beneficiary of international protection within the territory of the Member States; and

2 years of legal and continuous residence as an EU Blue Card holder within the territory of the Member State where the application for EU long-term resident status is submitted immediately prior to the submission of the relevant application.

the valid EU Blue Card issued by the first Member State;

a valid work contract or, as provided for in national law, a binding job offer for highly qualified employment for a period of at least 6 months in the second Member State;

for regulated professions, documents attesting to the fulfilment of the conditions set under national law for the exercise by Union citizens of the regulated profession specified in the work contract or binding job offer as provided for in national law;

a valid travel document, as specified by national law; and

evidence of meeting the salary threshold set in the second Member State in application of Article 5(3) or, where applicable, of Article 5(4) or (5).

for unregulated professions, where the EU Blue Card holder has worked for less than 2 years in the first Member State, to present documents attesting to higher professional qualifications in relation to the work to be carried out, as provided for in national law;

to provide evidence of having, or if provided for by national law, having applied for, sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods when no such insurance coverage or corresponding entitlement to benefits is provided for in connection with, or resulting from, the work contract.

paragraph 4 is not complied with;

the documents presented have been fraudulently acquired, falsified or tampered with;

the employment does not comply with the conditions laid down under the applicable law, set in collective agreements or established by practices as referred to in Article 5(2); or

the EU Blue Card holder poses a threat to public policy, public security or public health.

where the conditions for mobility laid down in this Article are fulfilled, to issue an EU Blue Card and allow the third-country national to reside in its territory for the purpose of highly qualified employment; or

where the conditions for mobility laid down in this Article are not fulfilled, to reject the application and require the applicant and his or her family members, in accordance with the procedures provided for in national law, to leave its territory.

their residence permit in the first Member State and a valid travel document, or certified copies thereof;

evidence that they have resided as members of the family of the EU Blue Card holder in the first Member State;

documentary evidence as referred to in Article 7(1), point (b), of Directive 2003/86/EC.

business activities in the territory of the Member State concerned in which an EU Blue Card holder from another Member State as referred to in Article 20 is allowed to engage; and

the procedures applicable to obtaining an EU Blue Card and residence permits for family members in a second Member State, as referred to in Articles 21 and 22.

the factor they have set for determining the annual salary thresholds in accordance with Article 5(3) or, where applicable, Article 5(4) or (5), and the resulting nominal amounts;

the list of the professions for which a lower salary threshold in accordance with Article 5(4) applies;

a list of allowed business activities, for the purposes of Article 20;

information on legislative or regulatory measures as referred to in Article 6, where applicable;

information regarding any checks of the labour market situation provided for in Article 7(2), point (a), where applicable.

who apply to reside in a Member State for the purpose of highly qualified employment within the meaning of Directive (EU) 2021/1883 of the European Parliament and of the Council (*1).

133 Information and Communications Technology Services Managers;

25 Information and Communications Technology Professionals.