Category Archives: Living and working in the internal market

The free movement of persons is one of the fundamental principles guaranteed by the European Union (EU). Any EU resident has the right to travel, live, study, work, become established or provide a service in another Member State without being subject to nationality-based discrimination. The EU works towards making freedom of movement effective and simple within its borders, in particular concerning social security schemes.
The counterpart of the free movement of persons is an external border policy which is designed to guarantee an area of freedom, security and justice and covers the entry and stay of non-Europeans.

Internal Market

Internal Market

Internal Market Contents

  • Internal market: general framework
  • Living and working in the internal market: Free movement of people, asylum and immigration, free movement of workers
  • Single Market for Goods: Free movement of goods, technical harmonisation, product labelling and packaging, consumer safety, pharmaceutical and cosmetic products, chemical products, motor vehicles, construction, external dimension
  • Single market for services: Free movement of services, professional occupations, services of general interest, transport, Information Society, postal services, financial services, banks, insurance, securities markets
  • Single market for capital: Free movement of capital, economic and monetary union, economic and private stakeholders, fiscal aspects, combating fraud, external relations
  • Businesses in the internal market: Company law, public procurement, intellectual property

See also

Living and working in the internal market.
Overviews of European Union: Internal market.
Further information: the Internal Market and Services Directorate-General of the European Commission.

European Year of Workers' Mobility

European Year of Workers’ Mobility

Outline of the Community (European Union) legislation about European Year of Workers’ Mobility

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

European Year of Workers’ Mobility (2006)

1. The European Commission has designated 2006 as the European Year of Workers’ Mobility. It will offer the various target audiences concerned a broad platform for exchange and discussion on the challenges of mobility in the context of the Lisbon strategy.

2. The Commission is encouraging all players to develop new initiatives in order to strengthen the impact of goegraphical and occupational mobility in the forward management of skills and the adaptability of European workers to the structural and economic changes that are affecting the continent.

Objectives

3. The objectives of the European Year are threefold:

  • to make all involved aware of the rights of workers to free movement, to the opportunities which exist and to the instruments which have been introduced to promote freedom of mobility (EURES, in particular);
  • to promote the exchange of good practices on mobility;
  • to expand the knowledge base (studies and surveys) on mobility flows in Europe, the obstacles to workers’ mobility and the motives that lead workers to undertake a period of mobility in another Member State.

Activities

4. The European Year was officially launched in Brussels on 20-21 February 2006. The conference entitled “Workers’mobility: a right, an option, an opportunity?” focused on the issues of the impact of globalisation on the European labour market, the benefits of temporary mobility and greater transparency across borders for qualifications. The conference was also the occasion for the launch of the new EURES platform, which provides citizens with direct access to more than a million job offers in 28 countries (European Economic Area and Switzerland). EURES is a network with a portal that is consulted each month by more than 500 000 people.

5. This conference will be followed by a series of events throughout the year:

  • (this took place at the start of April) a conference of the social partners (September 2006);
  • the first European Job Mart, to be organised simultaneously in nearly 100 European cities on 29-30 September 2006;
  • a week intended for lawyers (autumn 2006);
  • a closing conference in Lille (December 2006).

6. Several studies on the impact of mobility and projects to improve statistical data on the subject are also planned. A European prize will be awarded to the organisation that has made the greatest contribution to worker mobility.

Budget

7. The overall budget of EUR 10 million includes 4 million for awareness projects and an additional 2 million for pilot actions.

Background

8. Worker mobility, in both geographic and occupational terms, has been specifically pinpointed as one of the instruments for helping to implement the revised Lisbon objectives. Freedom of movement for workers is a right and, as such, is one of the founding principles recognised by the Treaty.

9. The role of mobility has also been stressed in the employment guidelines (2005-2008) as a factor contributing to the strengthening of the infrastructure of labour markets in Europe and as an instrument for more effectively anticipating the effects of economic restructuring.

10. The current figures show that very few Europeans work abroad. The percentage of Europeans residing in an EU country other than their country of origin has remained stable at around 1.5% over the last 30 years. As for job mobility, in nine countries of the European Union 40% of workers have been in the same job for more than 10 years.

11. The European Union has of course made major efforts to create an environment conducive to worker mobility:

  • an action plan on skills and mobility was launched in 2002 and expired at the end of 2005;
  • a European health insurance card, launched in 13 Member States in June 2004, was expected to be distributed in the other Member States and the EFTA countries at the start of 2006;
  • the coordination of social security schemes was speeded up following the adoption of Regulation 883/04;
  • a proposal for a Directive on the portability of pension rights in the case of mobility for occupational reasons was adopted in October 2005.

12. The European Year will make it possible to identify new policy orientations to encourage mobility and remove barriers.

Related Acts

Decision No 2241/2004/EC of the European Parliament and of the Council of 15 December 2004 on a single Community framework for the transparency of qualifications and competences (  )

Council Resolution of 3 June 2002 on  [Official Journal C 162 of 6.07.2002].

Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions –  [COM(2002) 72 final] -not published in the Official Journal].

Agreement with the Swiss Federation: free movement of persons

Agreement with the Swiss Federation: free movement of persons

Outline of the Community (European Union) legislation about Agreement with the Swiss Federation: free movement of persons

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Agreement with the Swiss Federation: free movement of persons

Document or Iniciative

Decision 2002/309/EC, Euratom of the Council, and of the Commission as regards the Agreement on Scientific and Technological Cooperation, of 4 April 2002 on the conclusion of seven Agreements with the Swiss Confederation [Official Journal L 114 of 30.4.2002].

Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons [OJ L 114 of 30.4.2002].

Summary

This Agreement establishes the principle of free movement of persons between the territory of the European Community and that of the Swiss Confederation.

European and Swiss nationals both enjoy the right of entry, residence, access to paid work, establishment on a self-employed basis and the right to stay in the territory after their employment has finished. The right of entry and residence applies to everyone, including those without an economic activity in the host country.

The host State must accord foreign nationals the same living, employment and working conditions as those accorded to nationals. The Agreement provides protection against discrimination based on nationality.

There are other rights related to the free movement of persons. They concern:

  • the right to personal and geographical mobility;
  • the right of residence for members of the family and their right to pursue an economic activity, irrespective of their nationality;
  • the right to acquire immovable property, specifically in order to establish a main or secondary residence in the host State;
  • the right to return to the host State after the end of an economic activity or period of residence there.

The Agreement also provides for the coordination of social security systems under the principle of equal treatment, as well as the mutual recognition of professional qualifications.

Service provision

Service providers, including companies, may temporarily provide a service on the territory of another Contracting Party to the Agreement under the same conditions as nationals of that State. This right does not apply to services carried out on the territory of a Contracting Party for persons receiving services who are located in the territory of the other party.

This service must not exceed 90 days of work in a calendar year. After that period the provider must apply for a residence permit for the period of their service provision.

Persons receiving a service have the right of entry and residence in the territory of the other Party to the Agreement. They shall not require a residence permit if their stay is less than three months. After that period, a residence permit shall be issued by the competent authorities for the duration of the service provision.

Management by Joint Committee

A Joint EU-Swiss Committee made up of representatives from the two Parties shall be established to ensure compliance with, and application of, the Agreement. The Committee shall decide on any amendments required concerning specific annexes to the Agreement. They shall be responsible for settling any disputes related to compliance with the Agreement.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2002/309/EC, Euratom

1.6.2002

OJ L 114 of 30.4.2002

RELATED ACTS

Council Decision2006/245/EC of 27 February 2006 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties, of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic, pursuant to their accession to the European Union [Official Journal L 89 of 28.3.2006].

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties, of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic pursuant to their accession to the European Union [Official Journal L 89 of 28.3.2006].

Council Decision2009/392/EC of 27 November 2008 on the conclusion, on behalf of the European Community and its Member States, of a Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union[Official Journal L 124 of 20.5.2009].

Protocol to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, regarding the participation, as contracting parties of the Republic of Bulgaria and Romania pursuant to their accession to the European Union [Official Journal L 124 of 20.5.2009].

Free movement of workers: taking stock of their rights

Free movement of workers: taking stock of their rights

Outline of the Community (European Union) legislation about Free movement of workers: taking stock of their rights

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Free movement of workers: taking stock of their rights

Document or Iniciative

Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions of 13 July 2010 – Reaffirming the free movement of workers: rights and major developments [COM(2010) 373 final – Not published in the Official Journal].

Summary

Since the establishment of the principle of the free movement of persons in the European Union (EU), many obstacles to mobility have been abolished. The Commission therefore presents the main legal developments which have improved the rights of European migrant workers. In addition, the promotion of mobility is an objective of the new Europe 2020 Strategy.

Free movement of workers

The principle of the free movement of persons applies to all European citizens whose period of residence does not exceed three months. After that period, the exercise of the freedom of movement is subject to certain conditions. However, migrant workers enjoy better conditions than non-active citizens.

The principle of free movement of workers entitles all European citizens to work in another EU country (Article 45 of the Treaty on the Functioning of the EU (TFEU)). Certain countries may impose registration formalities on workers after a period of three months, but no other residence condition.

Self-employed workers (Article 49 of the TFEU) and posted workers in the context of the provision of services are subject to other provisions.

Migrant workers are those who have:

  • an income, including a limited income or benefits in kind. Only voluntary work is excluded from the definition;
  • a relationship of subordination, which characterises gainful employment (i.e. the employer determines the choice of activity, remuneration, working conditions, etc.);
  • genuine and effective work, because the activity must not be marginal or accessory. However, part-time work, traineeships and certain forms of training are recognised;
  • a cross-border link, i.e. the worker must reside or work in an EU country other than his or her country of origin.

Other categories of citizen may benefit from the freedom of movement of workers if their period of residence exceeds three months:

  • members of the migrant worker’s family, irrespective of their nationality. They have access to the social advantages of the host country;
  • people retaining the status of worker, even if they are no longer employed in the host country (in the case of temporary inability to work, involuntary unemployment, etc.);
  • jobseekers, if they can prove that they are actively seeking employment.

Access to employment

Migrant workers must be able to pursue their professional activities under the same conditions as national workers. They may not be discriminated against with regard to:

  • the exercise of a regulated profession, because they can apply for recognition of their professional qualifications or training;
  • language requirements, which must only be reasonable and necessary for the job in question;
  • access to the public sector, except for certain types of job which require participation in the exercise of powers conferred by public law;
  • the free movement of professional and semi-professional sportsmen.

Jobseekers have access to public employment services and financial benefits intended to facilitate access to employment in the labour market of the host Member State.

Equal treatment of workers

Any discrimination with regard to employment, remuneration and working conditions is prohibited.

Migrant workers are treated in the same way as national workers:

  • they are subject to the laws and collective agreements of the host State;
  • they enjoy the same social advantages linked to their status as residents or workers, from the first day of their employment;
  • they may not be discriminated against in the area of tax on the basis of their nationality or their status as migrant workers.

Living and working in the internal market

Living and working in the internal market

Outline of the Community (European Union) legislation about Living and working in the internal market

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Living and working in the internal market

The free movement of persons is one of the fundamental principles guaranteed by the European Union (EU). Any EU resident has the right to travel, live, study, work, become established or provide a service in another Member State without being subject to nationality-based discrimination. The EU works towards making freedom of movement effective and simple within its borders, in particular concerning social security schemes.
The counterpart of the free movement of persons is an external border policy which is designed to guarantee an area of freedom, security and justice and covers the entry and stay of non-Europeans.

Free movement of workers

  • Free movement of workers: taking stock of their rights
  • Free movement of workers: general provisions
  • Right of Union citizens and their family members to move and reside freely within the territory of the Member States
  • Achieving the full benefits and potential of free movement of workers

Skills and mobility

  • System for the recognition of professional qualifications
  • Lawyers: freedom of establishment
  • European Qualifications Framework
  • EUROPASS – Serving citizen mobility
  • EURES: the European Employment and Job Mobility Network
  • European Job Mobility Action Plan (2007-2010)
  • Action plan for skills and mobility
  • European Year of Workers’ Mobility (2006)

Social Protection

  • Coordination of social security systems
  • European health insurance card
  • Combating social security fraud and undeclared work (Code of conduct)
  • Tackling tax obstacles to the cross-border provision of occupational pensions
  • Workers’ mobility: facilitating the acquisition and preservation of supplementary pension rights
  • Safeguarding supplementary pension rights

Nationals of non-EU member countries

  • Entry and residence of highly qualified workers (EU Blue Card)
  • Admission and residence of researchers from third countries
  • Conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service
  • Sanctions against the employment of illegally staying non-EU nationals
  • Policy plan on legal migration
  • Limitations on the admission of third-country nationals for employment
  • Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons
  • Agreement with the Swiss Federation: free movement of persons
  • Agreement on the European Economic Area

Sanctions against the employment of illegally staying non-EU nationals

Sanctions against the employment of illegally staying non-EU nationals

Outline of the Community (European Union) legislation about Sanctions against the employment of illegally staying non-EU nationals

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Sanctions against the employment of illegally staying non-EU nationals

Document or Iniciative

Directive 2009/52/EC of the European Parliament and of the Council of 18 June 2009 providing for minimum standards on sanctions and measures against employers of illegally staying third-country nationals.

Summary

The directive requires Member States to prohibit the employment of illegally staying non-EU nationals. It lays down common minimum standards on sanctions against employers who infringe the prohibition. Member States may decide not to apply the directive to illegally staying non-EU nationals whose removal has been suspended and who have been granted permission to work under national law.

Employers’ obligations

Employers are obliged to:

  • require non-EU nationals to produce a residence permit or another authorisation to stay before taking up employment;
  • keep copies of the permit or authorisation for the duration of the employment, in case of inspection by the national authorities;
  • notify the authorities within the period established by the Member State when they employ a non-EU national.

In cases where the employer is an individual who engages a non-EU national for private purposes, Member States may provide for a simplified procedure of notification. Member States may decide not to require notification when the non-EU national has been granted long-term residence status.

Sanctions

Member States must ensure that infringements are subject to effective, proportionate and dissuasive sanctions, including:

  • financial sanctions in relation to each illegally employed non-EU national;
  • payment of the costs for returning the illegally employed non-EU nationals.

The financial sanctions may be reduced for individuals employing illegally staying non-EU nationals for private purposes, provided that the working conditions were not exploitative.

Member States must ensure that employers are liable to make back payments, such as outstanding remuneration, including the cost of sending it to the employee’s country of origin, and social security contributions. To calculate the back payments, the employment relationship is presumed to have lasted for at least three months unless proved otherwise.

Member States must put in place the necessary mechanisms whereby illegally employed non-EU nationals may claim any outstanding remuneration from their employers. The non-EU nationals must be informed of their rights before their return is enforced.

Member States must ensure that employers are also, if appropriate, subject to other measures, such as:

  • exclusion from entitlement to some or all public benefits, including EU funding for up to five years;
  • exclusion from participation in a public contract for up to five years;
  • recovery of benefits granted up to 12 months prior the detection of the illegal employment;
  • temporary or permanent closure of the establishment.

Member States must also ensure that where an employer is a subcontractor, the contractor of which the employer is the direct subcontractor will be held liable in addition to or in place of the employer. However, contractors that have undertaken due diligence obligations defined by national law will not be liable. Member States may also provide for more stringent liability rules in relation to subcontracting.

An intentional infringement constitutes a criminal offence when the employer:

  • persists in his/her non-compliance;
  • employs a significant number of illegally staying non-EU nationals;
  • employs such persons in particularly exploitative working conditions;
  • employs victims of trafficking in human beings;
  • illegally employs minors.

Inciting, aiding and abetting this conduct must also constitute a punishable criminal offence.

Criminal sanctions may be accompanied by other measures, including publication of the judicial decision. Legal persons can also be held liable.

Complaints and inspections

Member States must ensure that illegally employed non-EU nationals can lodge complaints against their employers either directly or through designated third parties. Those working in particularly exploitative conditions may be issued residence permits for the duration of their proceedings on a case-by-case basis, under arrangements comparable to those provided for by Directive 2004/81/EC on the residence permit issued to third-country nationals who are victims of trafficking in human beings and who cooperate with the competent authorities.

Member States are required to carry out effective and adequate inspections based on regular risk assessments to control the employment of illegally staying non-EU nationals.

Background

The Commission suggested these measures in its communication of 19 July 2006 on policy priorities in the fight against illegal immigration. The European Council (15-16 December 2006) endorsed this suggestion, inviting the Commission to present proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/52/EC

20.7.2009

20.7.2011

OJ L 168 of 30.6.2009

Entry and residence of highly qualified workers

Entry and residence of highly qualified workers

Outline of the Community (European Union) legislation about Entry and residence of highly qualified workers

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Entry and residence of highly qualified workers (EU Blue Card)

Document or Iniciative

Council Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment.

Summary

The object of this directive is to improve the European Union’s (EU) ability to attract highly qualified workers from third countries. The aim is not only to enhance competitiveness within the context of the Lisbon strategy, but also to limit brain drain. It is designed to:

  • facilitate the admission of these persons by harmonising entry and residence conditions throughout the EU;
  • simplify admission procedures;
  • improve the legal status of those already in the EU.

The directive applies to highly qualified third-country nationals seeking to be admitted to the territory of a Member State for more than three months for the purpose of employment, as well as to their family members.

Entry conditions

To be allowed into the EU, the applicant must produce:

  • a work contract or binding job offer with a salary of at least 1,5 times the average gross annual salary paid in the Member State concerned (Member States may lower the salary threshold to 1,2 for certain professions where there is a particular need for third-country workers);
  • a valid travel document and a valid residence permit or a national long-term visa;
  • proof of sickness insurance;
  • for regulated professions, documents establishing that s/he meets the legal requirements, and for unregulated professions, the documents establishing the relevant higher professional qualifications.

In addition, the applicant must not pose a threat to public policy in the view of the Member State. S/he may also be required to provide his/her address in that Member State.

Member States will determine the number of third-country nationals they admit.

Admission procedure, issuance and withdrawal of the EU Blue Card

Member States are free to decide whether the application for an EU Blue Card has to be made by the third-country national and/or his/her employer. If the candidate fulfils the above conditions and the national authorities decide to admit him/her, s/he is issued an EU Blue Card, which is valid for a standard period of one to four years. The application will be accepted or rejected within 90 days of filing. If the application is accepted, the applicant will be given every facility to obtain the requisite visas.

The application for an EU Blue Card can be rejected if it was drawn up on the basis of false or fraudulently acquired documents or if, given the state of the labour market, the Member State decides to give priority to:

  • EU citizens;
  • third-country nationals with a preferred status under Community law who are legal residents or who are EC long-term residents and wish to move to that Member State.

The application may also be rejected on the grounds of volumes of admission established by the Member State, ethical recruitment or if the employer has been sanctioned due to undeclared work or illegal employment.

The EU Blue Card may be withdrawn if the holder does not have sufficient resources to maintain him-/herself and family members without social assistance or if s/he has been unemployed for more than three consecutive months or more than once during the period of validity of the card.

Rights and residence in other Member States

With this card, third-country nationals and their families can:

  • enter, re-enter and stay in the issuing Member State and pass through other Member States;
  • work in the sector concerned;
  • enjoy equal treatment with nationals as regards, for example, working conditions, social security, pensions, recognition of diplomas, education and vocational training.

After two years of legal employment, they may receive equal treatment with nationals as regards access to any highly qualified employment. After 18 months of legal residence, they may move to another Member State to take up highly qualified employment (subject to the limits set by the Member State on the number of non-nationals accepted).

The procedure is the same as that for admission to the first Member State. An EU Blue Card holder and his family can, however, freely enter and stay in a second Member State, but must notify the authorities there within one month of their arrival. The second Member State may decide not to allow the third-country national to work until a positive decision on his/her application has been taken. However, the application may already be presented to the authorities of the second Member State while the EU Blue Card holder is still residing and working in the first Member State.

Implementation and reporting obligations

Starting from 2013, the Commission annually collects statistics from the Member States on the number of third-country nationals to whom an EU Blue Card has been issued, renewed, withdrawn or refused, on their nationalities and occupations, and on their families. Starting from 2014, it reports on the application of the directive to the European Parliament and the Council every three years and proposes any changes it deems necessary.

Background

In its policy plan on legal migration, which was presented on 21 December 2005, the Commission made five legislative proposals concerning different categories of third-country nationals. This directive is the first of these proposals.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2009/50/EC

19.6.2009

19.6.2011

OJ L 155 of 18.6.2009

Free movement of workers: general provisions

Free movement of workers: general provisions

Outline of the Community (European Union) legislation about Free movement of workers: general provisions

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Free movement of workers: general provisions

Document or Iniciative

Council Regulation (EEC) No 492/2011 of 15 October 1968 on the free movement of workers within the Community (Text with EEA relevance).

Summary

Any person from a European Union (EU) Member State has the right to take up gainful employment on the territory of another Member State.

Similarly, an employer is free to circulate vacancies, and conclude and perform employment contracts with European citizens from other Member States.

3. No national legislation may limit offers of, access to, and pursuance of employment by European citizens from other Member States, except if related to the linguistic knowledge required by reason of the nature of the post.

Similarly, the Directive forbids any provision which subjects European citizens from other Member States to:

  • special recruitment procedures;
  • limits on the advertising of vacancies;
  • special conditions related to assistance in finding employment and registering with employment offices.

Exercising an occupation and equal treatment

The Regulation prohibits any discrimination between national workers and those from another Member State concerning:

  • working and employment conditions (dismissal, remuneration and reintegration into the workplace);
  • social and tax advantages;
  • vocational education and retraining;
  • collective or individual agreements;
  • membership to trade unions and the exercise of rights attaching thereto.

Workers’ families

The children of a European worker who is or has been employed in another Member State shall be admitted to that State’s general educational, apprenticeship and vocational training courses under the same conditions as the nationals of that State. All measures must be taken to ensure their education proceeds under the best possible conditions.

Clearance of vacancies and applications for employment

Member States cooperate and exchange information with each other concerning any study of employment, the labour market and the free movement of workers in the EU.

In addition, each Member State shall establish specialist services for the employment of workers from other European countries, in order to deal with vacancies and applications which may be targeted at them.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EU) No 492/2011

16.6.2011

OJ L 141, 27.5.2011

Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons

Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons

Outline of the Community (European Union) legislation about Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons

To lay down principles to guide the Member States in the application of the policy on admission for the purpose of pursuing activities as self-employed persons.

2) Union Measures

Council resolution of 30 November 1994 relating to the limitations on the admission of third-country nationals for the purpose of pursuing activities as self-employed persons.

3) Contents

The Council recalls that, in the report on immigration and asylum adopted by the Maastricht European Council in 1991, priority was given to the harmonisation of policies on admission for the purpose of pursuing self-employed occupation. The 1994 work programme in the field of justice and home affairs also included, as a priority measure, a decision to conclude the deliberations on the admission of self-employed persons.

The approach adopted by the Member States (Part A of the resolution) is to admit, for the purpose of pursuing self-employed occupation, only those third-country nationals who add value (investment, transfer of technology, job creation) to the economy of the host country. The general criteria for examining requests for admission of third-country nationals in search of employment are set out in Part C of the resolution. The main criterion is that Member States may allow third-country nationals wishing to pursue activities as self-employed persons to enter their territory where it has been duly established that that activity will benefit the economy of the host State.

Part C contains guidelines on the admission procedure. The admission procedure should ensure that persons who quite obviously wish to engage in paid employment or whose partnership or directorship amounts to disguised paid employment are not admitted as self-employed persons. Requests for admission must be accompanied by the following:

  • documents indicating the nature, scale and duration of the activity the person wishes to engage in;
  • documents indicating the number of staff likely to be required;
  • a description of the premises where the activity will be carried out; such premises must be appropriate for the activity concerned;
  • evidence of the funds available for the intended purpose.

The following could for example be required for assessing compliance with legislation in force, in accordance with national legislation:

  • proof that the self-employed person meets the conditions of the host Member State regarding professional qualifications and access to the occupation;
  • in the case of companies or firms, the instrument of incorporation, evidence of publication or registration thereof, and the names of the directors and managerial staff of the associates authorised to act on their behalf;
  • proof such as police documentation or similar documents, showing the integrity of the person concerned.

Authorisation to engage in a self-employed activity will be granted in accordance with the provisions of national aliens legislation and in writing, for example in the form of a passport stamp or other document. Such authorisation will be personal and non-transferable.

All requests for renewal must, where so required under Member States’ national legislation, be accompanied by documentary evidence that the self-employed person offers guarantees for the continued orderly pursuit of his occupation.

Persons already present in the territory of a Member State as students, trainees, seasonal workers, service providers, contract workers or for other reasons will not as a general rule be permitted to extend their stay for the purpose of establishing themselves as self-employed persons. Such persons must leave the country once the purpose of stay on the basis of which there were given leave to enter the country has ceased to apply.

Nothing in the resolution prevents any Member State from reserving the right to admit to its territory, in compliance with its national legislation, third-country nationals who make substantial investments in the commerce and industry of that Member State if there are important economic grounds for derogating from the principles of the resolution.

The resolution concerns only individuals and does not affect the setting up of firms.
“Activity as a self-employed person” means any activity carried out in a personal capacity or in the legal form of a company or firm within the meaning of the second subparagraph of Article 58 of the EC Treaty, without the person concerned being answerable to an employer in either case.
Only those associates who are actively involved and whose presence is essential to the achievement of the company’s or firm’s aims and to its management may be authorised to establish themselves in the host Member State’s territory.

The resolution does not apply to (Part B of the resolution):

  • persons who have right of free movement under Community law and members of their families;
  • third-country nationals who have been allowed admission for the purpose of family reunification.
  • third-country nationals whose access to employment is covered by rights stemming from agreements concluded with third countries which are governed by Community law;
  • third-country nationals entering the Member States in order to engage in paid employment;
  • third-country nationals entering the Member States for study purposes.

4) Deadline For Implementation Of The Legislation In Member States

5) Date Of Entry Into Force (If Different From The Above)

09.10.1996

6) References

Official Journal C 274 of 19.09.1996

7) Follow-Up Work

8) Implementing Measures

Limitations on the admission of third-country nationals for employment

Limitations on the admission of third-country nationals for employment

Outline of the Community (European Union) legislation about Limitations on the admission of third-country nationals for employment

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Internal market > Living and working in the internal market

Limitations on the admission of third-country nationals for employment

To establish principles governing Member States’ policies of admission of third-country nationals to their territories for employment.

2) Document or Iniciative

Council Resolution of 20 June 1994 on limitations on admission of third-country nationals to the territory of the Member States for employment [Official Journal C 274 of 19.09.1996].

3) Summary

Current limitations are to be maintained or, where necessary, tightened up in accordance with the report on immigration and asylum policy adopted by the European Council in Maastricht in December 1991, which gave priority to the harmonisation of policies on admission.

While acknowledging the contribution of migrant workers to the economic development of their respective host countries, the Council notes that at present no Member State is pursuing an active immigration policy, which is why temporary admission for employment may be considered only in exceptional circumstances. Present high levels of unemployment increase the need to ensure that job vacancies are filled as far as possible by Community nationals or nationals of EFTA countries which are parties to the EEA agreement.

The Council consequently resolves that the principles set out below should not be relaxed by Member States in their national legislation or in any subsequent revisions of their national legislation. They should bring their national legislation into line with these principles by 1 January 1996, although the principles are not legally binding on them and do not afford grounds for proceedings by individual workers or employers.

Member States’ policies are to observe the principles set out below governing:

  • admission criteria;
  • admission procedures;
  • period of admission;
  • extension of stay;
  • business visitors;
  • third countries with close links with a Member State.

Admission criteria

Member States will consider requests for admission to their territories for the purpose of employment only where vacancies in a Member State cannot be filled by national and Community manpower or by non-Community manpower lawfully resident on a permanent basis in that Member State. In this context they will apply the procedure laid down in Part II of Regulation No 1612/68 on the free movement of workers within the Community.

Third-country nationals may be admitted on a temporary basis, where:

  • a job is offered to a named worker or named employee of a service provider and is of a special nature in view of the requirement of specialist qualifications (professional qualifications, experience, etc.);
  • an employer offers vacancies to named workers and the competent authorities consider that the grounds adduced by the employer are justified in view of a temporary manpower shortage on the national or Community labour market which would significantly affect the operation of the business or the employer himself.

Admission procedure

Vacancies are offered to:

  • seasonal workers in strictly controlled numbers for a specifically defined job;
  • trainees;
  • frontier workers;
  • intra-corporate transferees, i.e. persons temporarily transferred by their company as key personnel.

Third-country nationals will not be admitted unless they have been given prior authorisation to take up employment. The authorisation may be in the form of a work permit issued to either the employer or the employee.
Third-country nationals must also be in possession of any necessary visa or residence permit.
Initial authorisation for employment will normally be restricted to employment in a specific job with a specified employer.

Period of admission

A seasonal worker will be admitted for a maximum of six months in any twelve-month period, and must remain outside the territories of the Member States for a period of at least six months before being readmitted for employment.
Trainees will be admitted for a maximum period of one year in the first instance. This period may be fixed at more than a year and extended exclusively for the time needed to obtain a professional qualification recognised by the Member State concerned in the sphere of their activity. Other third-country nationals admitted to the territories of the Member States for employment will be admitted for a period not exceeding four years in the first instance.

Extension of stay

A person already present in the territory of a Member State as a visitor or student will not in principle be permitted to extend his stay for the purpose of taking or seeking employment. Such persons must return to their own countries on conclusion of their visit or studies. In principle a person admitted as a trainee or service provider or employee of a service provider will not be permitted to extend his stay in authorised employment except in order to complete the training or activity under contract for which he was admitted.

A seasonal worker will not be permitted to extend his stay for the purpose of taking employment of a different type. An extension of the period of his stay may be authorised to allow him to complete the work for which the original authorisation was granted. However, the total length of his stay may not exceed six months in any twelve-month period. Other workers may be permitted to extend their period of stay in authorised employment, but only if they continue to satisfy the criteria originally applied to the decision on whether to admit them for authorised employment.

The Member States will examine the desirability of issuing a permanent residence permit to third-country nationals who have had restrictions on their employment lifted.

Business visitors

It is possible to admit as workers third-country nationals not residing in the territory of a Member State who are seeking entry to:

  • negotiate for the supply of goods or services;
  • deliver goods or assemble machinery manufactured in a third country as part of a supply contract, provided that such persons will be dealing only with businesses in the territory of the Member State and not with the general public and that any one visit and possibly the work permit does not exceed six months.

Third countries with close links with a Member State

A Member State may continue to admit third-country nationals to its territory for the purpose of employment pursuant to pre-existing arrangements. The Member States will undertake as soon as possible to renegotiate such arrangements in accordance with the terms of this resolution.

The resolution does not apply to:

  • persons who have right of free movement under Community law and members of their families;
  • third-country nationals who have been allowed admission for the purpose of family reunification;
  • third-country nationals whose access to employment is covered by rights stemming from agreements governed by Community law concluded with third countries;
  • persons undertaking casual work in the course of youth exchange or youth mobility schemes, including “au pairs”;
  • persons entering Member States in order to pursue economic activities as self-employed persons or to set up and/or manage a business/undertaking which they effectively control;
  • applicants for asylum;
  • third-country nationals admitted for asylum;
  • displaced persons who are temporarily admitted;
  • persons exceptionally allowed to stay on humanitarian grounds.

The annex contains definitions of the following terms: “trainees”, “seasonal workers”, “frontier workers” and “intra-corporate transferee”.

4) Implementing Measures

5) Follow-Up Work