Lucia Brieskova, PhD candidate at Oxford
Brookes University
This post sets the scene for the new EU directive in the area of legal
labour (economic) migration - the Intra-Corporate
Transfers Directive (ICTD) - in three sections: a) it explains why this
Directive was introduced and its relationship with the other EU directives in
the area of economic migration; b) it outlines the main novelties brought about
by this Directive; and c) it highlights some of the potential issues. These
potential issues will be further developed and analysed in the subsequent
posts.
A.
BACKGROUND
The EU Commission introduced the Proposal for ICTD in July 2010 as a
part of a comprehensive package of different measures, which were proposed in
the Policy Plan on Legal Migration of 2005, the European Pact on Immigration and
Asylum, (adopted in 2008) and further endorsed by the Stockholm Programme (adopted by the EU Council in December 2009),
which called for the adoption of an overall European policy on migration. In
addition, the Europe 2020 strategy contemplated that a well-structured legal
immigration policy will have a role to play not only in filling shortages of
the labour markets and enhancing the competitiveness of EU but also in helping
to face demographic challenges which most of the Member States face or will
face in the near future.
To be more specific, the 2005 Policy Plan on Legal Migration sketched out the EU Commission's vision on how
a common policy on economic migration should be further developed by scheduling
the adoption of several legislative proposals (directives) on economic migration
between 2007 and 2009. As a result, the ICTD was adopted as a new legislative
instrument of the EU common policy on legal migration. It complements three
already existing Directives, also introduced as a result of the 2005 Policy
Plan on Legal Migration: the 2009 EU
Blue Card Directive on highly qualified workers setting out the admission
criteria for and the rights of highly qualified third country national (TCN)
workers (discussed here), the 2011 Single Permit Directive on TCN workers legally residing in an
EU Member States; and the 2014 Seasonal Workers Directive.
The EU Commission, backed up by some Member States in the Council, disagreed with the European Parliament
as regards some issues, for example, the right of equal treatment of ICTs and
the rights of their family members. After
lengthy negotiations (4 years), the text of the ICTD is a compromise between
the EU Council and EU Parliament, where EU Parliament accepted a number of EU
Council proposals, for instance in relation to the equality of treatment of
ICTs. The EU Council adopted the ICTD on 13 May 2014, following a positive vote
in the EU Parliament in April. The ICTD was published in the Official Journal
of the European Union on 27 May 2014 and entered into force on 28 May 2014. Now
the 25 participating EU Member States have 30 months to transpose this Directive (by 29
November 2016). As with other EU policies on legal migration
of third-country nationals, the UK, Denmark and Ireland are opting out of this
Directive.
It remains to
be seen how the Member States will implement this Directive into their national
legal systems and whether this Directive and its national implementation will
contribute to or hinder the protection of TCNs within the EU and whether it
will contribute to the enhancement of the EU’s competitiveness.
B.
NOVELTIES
So what is new in the EU legislation relating to the area of economic
migration after the introduction of the ICTD? Firstly, it covers a group of TCN
migrant workers not yet protected by any of the existing EU economic migration
directives; secondly it provides for “mixed” set of rules as regards the
equality of rights of ICTs; thirdly it creates a unique intra-EU mobility scheme
for ICTs; and lastly it offers favourable rights for family members.
Aims, Scope & Eligibility
The aims of
the ICTD are threefold: a) it should make it easier and quicker for
multinational companies to temporarily assign highly skilled TCNs to
subsidiaries situated in the Member States; b) it should facilitate intra-corporate
transferees’ (ICTs) mobility between Member States during their transfer; c) it
lays down a common set of rights for ICTs when working in the EU in order to
avoid their exploitation and distortion of competition.
The ICTD will facilitate intra-corporate transfers of managers, specialists
and trainee employees to the EU by setting up transparent and harmonised
conditions for admission, residence and work. To be eligible for an
intra-corporate transferee permit, managers and specialists must have worked at
least 3 up to 12 uninterrupted months for the multinational company immediately
preceding their transfer. For trainee employees this period is 3 to 6 uninterrupted
months. Member States retain the right to set the volumes of
admission of ICTs who apply to be admitted to their territory. The permit will
be valid for a maximum of 3 years in the case of managers and specialists and 1
year for trainee employees.
The Directive also aims to have speedy application procedures with
easily available information about the new ICT permit and fast-track
application processes, with only complex cases taking the maximum 90 days
allowed for review.
Equal Treatment Rights
The ICTD
provides for equality of treatment rights with nationals of Member States as
regards remuneration. The rationale for granting equal treatment with nationals
to ICTS as regards remuneration is the aim of ensuring that companies
established in a third country will not be able to benefit from lower labour
standards, thereby distorting competition. Therefore, Member States must
request, as a ground for admission, that the remuneration granted to the ICTs
is not less favourable than the remuneration granted to nationals occupying
comparable positions.
Under the
provisions of the ICTD, the ICTs are to be treated on equal footing with another
group of migrant workers – posted workers – as regards the terms and
conditions of employment other than remuneration (such as maximum work periods
or safety at work). This means that these terms and conditions of employment
in the Member State to which the ICT will be transferred will be governed by the
laws of his or her country of origin (the sending third country). According to
the ICTD the reason for this is that the ICTD should not
give undertakings established in a sending third country any more favourable
treatment than undertakings established in an EU Member State, in line with Article 1(4) of the Posted
Workers Directive (96/71/EC).
The ICTD also sets
out a clear list of rights for ICTs in relation to freedom of affiliation to a
trade union, recognition of diplomas, and access to public goods and services,
except housing.
Lastly, equal
treatment between ICTs and nationals applies to branches of social security, in
practice, in particular to benefits related to sickness, invalidity and
old-age. However, EU Member States can make an exemption where the national law
or a bilateral agreement with the host Member State establishes that the laws
of the country of origin of the ICT will apply. Also, Member States may decide
not to grant family benefits to ICTs who stay less than 9 months in the EU.
Intra-EU Mobility Scheme
The intra-EU
mobility provisions in the ICTD mean a significant and unique development in
comparison with national systems which do not permit ICTs to work in
subsidiaries established in another Member State. This is the first work permit
that will allow TCNs, under certain conditions, to work in several Member States
for entities belonging to the same group of undertakings. Responding to the strong
mobility needs of this type of TCN migrant workers, ICTs are not required to
obtain the Schengen visas. Subject to a number of conditions, they can enter,
stay and work in the Member States other than the one to which they were initially
admitted. The ICTD distinguishes between short-term (less than 90 days in any
180 day period) and long-term (more than 90 days) mobility.
Family Members’ Rights
During the
negotiations the EU Parliament succeeded in including crucial provisions in the
ICTD as regards the rights of family members of ICTs. This was advocated for with a view to removing
an important obstacle to accept an assignment in the EU, meaning that the family
members of ICTs will be able to accompany the ICTs at the start of their
assignment, if they apply at the same time. In addition, the family members are
also entitled to be employed or self-employed in the host Member State throughout
the duration of the ICT’s transfer.
C.
POTENTIAL ISSUES
It remains to be seen how Member States will implement the ICTD in their national laws
in the next two years given that the ICTD only sets minimum standards and
includes a number of optional (“may”) clauses. For some Member States, the
implementation process will mean modifying visa procedures, whereas others Member States will have to construct
an intra-corporate transfer process from scratch. The challenge will be making
sure that each Member State agrees to very similar definitions and terms for visas, so that there
is not a wide variation among them.
Moreover, one issue of particular concern is intra-EU mobility for ICTs,
where the ICTD includes a number of optional requirements (“may” clauses) that Member States may impose
and thus also different variants of the scheme for Member States to adopt,
which could render the scheme rather complicated. Furthermore, the conditions
for assignments lasting longer than 90 days are much stricter than those for
short-term transfers lasting less than three months.
In addition, it would appear that the ICTD is likely
to impede the wider principle of equal treatment that must be at the core of
all EU legislation in the field of migration – TCNs should be treated on equal
footing with nationals of Member States. The ICTD contains
provisions, advocated for by the EU Council and opposed by the EU Parliament, by which TCN workers
employed in the EU in the framework of the intra-corporate transfers would
enjoy a protection of rights granted to posted workers. Thus, the equal
treatment will be limited to the core provisions of the contentious Posted
Workers Directive (PWD). This means that the legislation of the sending third
country will be applicable rather than the legislation of the host EU Member State. It
was reasoned that ICTs should not be treated more favourably than posted
workers by granting ICTs rights equal to those of EU nationals, which would suggest
that the ICTD assumes that intra-corporate transfers and postings of workers
are of the same or similar character.
However, the ICTD and PWD belong to
different legislative spheres. The postings of workers function within the EU
single market in support of the provision of services, whereas the intra-corporate
transfers are aimed at allowing multinational companies to efficiently utilise their
human capital. It is possible to argue that these provisions of ICTD are likely
to lead to the bypassing of the EU labour legislation and national labour protection,
which was the case with the PWD (see the Laval
judgment). Thus, the equal treatment of ICTs could be endangered as potentially
laws from any sending
third country may be applicable to their situation. Consequently, TCNs could be
afforded less protection and be subjected to the different forms of
exploitation.
Barnard & Peers: chapter 26
