Business activity concept -a first step towards an EU autonomous definition?

Business activity concept -a first step towards an EU autonomous definition?

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The proposal for a new EU Blue Card Directive which will replace the existing Directive 2009/50/EC, provides for the right of a third-country national who holds a valid EU Blue Card issued by a Member State to enter and stay in one or several second Member States for a period of 90 days in any 180-day period for the purpose of carrying out a business activity, In context, the second Member State shall not require any authorisation for exercising such activity other than the EU Blue Card issued by the first Member State.[Article 19]

Article 2, lays down the definition of business activity:

"business activity" means a temporary activity related to the business interests of the employer, such as attending internal and external business meetings, attending conferences and seminars, negotiating business deals, undertaking sales or marketing activities, performing internal or client audits, exploring business opportunities, or attending and receiving training.

The detailed explanation of the specific provisions of the proposal, brings eventually more clarity:

As a novelty compared to Directive 2009/50/EC, the definition of “business activity” is provided in order to define which professional activities can be carried out by the EU Blue Card holder in the context of the specific rules for short-term mobility to other Member States” (emphasis added)

Interestingly, the Preamble provides:

“Existing legal uncertainty surrounding business trips of highly skilled workers should be addressed by defining this notion and setting a list of activities that in any case should be considered as business activities in all Member States’[40]

Having regard to the above provisions and detailed explanation:

  • The definition laid down by Article 2 of the proposal, may be enforced presumably only in the context of activities carried out by EU Blue Card holders.
  • Where about a new definition (“as a novelty”), the “existing legal uncertainty” underlined is widely affecting the business trips of highly skilled workers.

In my view, it will be difficult to distinguish between, on the one hand, a third-country national who holds a EU Blue Card and on the other hand the same third-country national, employed by a company established out of the Community, merely traveling to one of the Member States to carry out a similar activity.

In the same context, conferring a privilege exclusively to highly skilled workers holders of a EU Blue Card, will not reduce the current legal uncertainty. It must be noted that (e.g.), in Belgium, a EU Blue Card holder is presumably “less skilled” than a holder of a work permit type B for high qualified workers (the latter skills must be attested by the successful completion of a post-secondary higher education of at least four years).

Conclusion: Where Member States should have (eventually) discretion to decide in regards to the period of stay for the purpose of carrying out a business activity, the concept of business activity must be determined by an EU autonomous definition.

Go to the profile of Tanel Feldman

Tanel Feldman

Senior Partner , Immigration Law Associates

Immigration Law Associates provides in-depth advice on rights and obligations triggered by the cross-border element of a given legal situation. Our know-how is built on an extensive experience in EU law and is supported by a network of partners across the EU. Social security coordination : • Autonomous application of the social security coordination regulations and ECJ case-law, to any situation involves a cross-border element EU Company law : • Establishment -permanent activities • Establishment -self-employment activities International Private Law : • Law applicable to the employment relationship Labour and employment law : • Freedom of movement of workers-equal treatment, access to social benefits • Employment contracts and termination of employment • Working conditions • Employee benefits • Transfer of undertakings • Authorisations of work for third-country nationals Special regimes : • Posted workers • Frontier workers • Highly mobile workers • Employment of record • Intra-EU mobility of third-country nationals

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