In May 2014, the European parliament adopted Directive 2014/66/EU. The so-called Intra-Corporate Transfers Directive (hereinafter: “Directive”) simplifies the transfer of employees and their families from outside the EU to one of the EU member states. Up to now, there was a lack of uniformity with regard to migration policy within the Union, and multinationals often encountered barriers when they wanted to transfer an employee. The purpose of the Directive is to remove such barriers. It is hoped that, in turn, more labour migration will lead to a better competitive position and more economic vitality within the EU. On 26 November 2016, the Directive came into effect in the Netherlands.
For whom is the Directive intended?
The Directive pertains to employees from outside the EU who, within the context of their responsibilities at a company, are transferred to another host country. Specifically, this involves so-called “third-country personnel” who are not residents of the EU. The Directive addresses three groups of employees: supervisory, specialist and trainee personnel. Under it, supervisory and specialist personnel must fulfil a key position within an organisation. Supervisory personnel provide leadership within an entity and answer primarily to the board of directors, shareholders or their peers. Specialist personnel have specialised knowledge and expertise of essential importance to the activities, methods or managing of the host entity. Trainee personnel have university diplomas and are located at a host entity for training purposes. Trainee personnel are also remunerated for this, in contrast to what is normally the case trainees.
The rights of employees
These third-country personnel are of course issued permits of stay in the country where their host entity is located. For supervisory and specialist personnel, these permits apply for a maximum of three years; for trainee personnel, they apply for a maximum of one year. Following expiry of this term, it will not be possible to apply for a permit of stay on the same grounds, and it will be expected that the personnel in question will then return to their country of origin, together with their family. Should they wish to stay in the host country longer, they must apply for a permit of stay on other grounds.
Based on the Directive, personnel can take their entire family with them to the host country, and their family members are permitted to take salaried employment or work on the basis of self-employment. They have the same rights as residents of the host country in which they reside and work, e.g., in the areas of equal pay, freedom of association and diploma recognition.
The Directive and the Netherlands
For a country within the EU, the Netherlands has a quite substantial number of intra-corporate transfer personnel, on average, some 3,000. In comparison: Germany has an average of 4,500 IT specialists, whilst France, Spain, Italy and Slovenia together have only 1,000. Prior to the Directive’s implementation, requisite legislation with regard to labour migration was already in place in the Netherlands, e.g., the Aliens Employment Act. Thus, the obvious question is: how do the new Directive and existing Dutch legislation relate to one another. For example, based on the Aliens Employment Act, it is in some cases possible to refuse an employee from outside the EU a work permit, e.g., if, for a given position, there are sufficient applicants available on the domestic labour market. Dutch law also employs a stricter check than does the Directive concerning the issue of a work permit – the Directive sets out substantially fewer reasons for refusal. However, based on generally applicable rules of priority, in principle, European law supersedes national law, and the Directive shall therefore, in many cases, prevail.
How to proceed?
The objective of the Directive is to simplify the immigration policy. Whereas up to now, member states each approached immigration policy individually, with the Directive, a more uniform framework is provided for labour migration amongst specific categories of employees outside the EU. The aim of this is to enable multinationals to transfer personnel more easily within different entities, as well as strengthening both the economic and competitive positions of the European Union. The Commission shall review the Directive in three years’ time.