Recast of the Single Permit Directive- what will eventually change?

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The proposal to recast the Directive 2011/98/EU, “aims to streamline the application procedure and make it more effective”.

The question is what will eventually change?

Concept of employer (Article 2)

Article 2 contains an autonomous definition of the concept of “employer” (the definition does not contain reference to national law, and consequently must be given an autonomous interpretation deriving from the European Court of Justice case-law).

The intended novelty is the inclusion of temporary work agencies: “‘employer’ means any natural person or any legal entity, including temporary work agencies, for or under the direction and/or supervision of whom the employment is undertaken”.

The definition should cover other forms of triangular employment relationship.

In the definition of “third-country worker”, the wording “paid employment” is replaced by “employment relationship”.

That definition must be read in conjunction with Preamble 22 : “A third–country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice”.

Scope (Article 3)

The proposal extends the scope of the Directive 2011/98/EU to beneficiaries of protection in accordance with national law, international obligations, or the practice of a Member State.

Intra corporate transferees (Directive 2014/66/EU), seasonal workers (Directive 2014/36/EU) and au pairs (Directive 2016/801/EU), are excluded from the scope of the Single Permit Directive (directives that were adopted after the entry into force of Directive 2011/98/EU, although au pair were excluded from the initial scope of the said directive).

As regards workers “who are posted for as long as they are posted”, excluded from the initial scope of Directive 2011/98/EU, the proposal amends that provision to “workers who are covered by Directive 96/71/EC as long as they are posted on the territory of the Member State concerned”. That exclusion “should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application of Directive 96/71/EC”.

What about intra corporate transferees (national schemes), and third-country nationals posted by undertakings established in a non-Member State, to work at customer premises within the territory of a Member State?

In accordance with Article 1(4) Directive 96/71/EC, undertakings established outside the Community may not receive more favourable treatment than undertakings established in the territory of a Member State, which means, in practice, that the provisions of that directive apply to these undertakings (and consequently, third country posted workers are covered by the said directive).

Another interpretation might be that the omission to exclude, reflects the discretion left to Member States to consider third-country nationals posted under schemes that do not directly stem from EU law, as being part of the labour market of the Member State to which they are posted, and consequently not necessarily excluded from the scope of the Single Permit Directive.

Single application procedure (Article 4)

If the application is to be submitted by the third-country national, Member States shall allow applications to be lodged both in the Member State of destination, and from a third country (under the version currently into force, applications in the Member State of destination may be lodged only if provided by national law).

Competent authority (Article 5)

The time limit of four months (i.e., maximum processing timeline), shall cover the time to perform labour market tests (where relevant), and the issuance of visas.

Fees (Article 10)

The level of fees charged shall be proportionate and shall be based on the services actually provided for the processing of applications.

Rights on the basis of the single permit (Article 11)

The explanatory memorandum contains the following statement: “On the basis of the proposed amendments, the single permit would also give the right to the third-country national to change employer during the period of its validity, which should also contribute to lowering administrative burden by limiting the need for repeated applications in case of a change of employment” (see 4.3 Regulatory fitness and simplification-emphasis added).

In the same memorandum, point 6.3 (Detailed explanation of the specific provisions of the proposal), contains the following reference to Article 11: “The recast proposal introduces new provisions (Article 11, paragraphs 2-4) aiming at improving the protection of third-country workers. On the basis of the proposed amendments, the single permit would give the right to the third-country national to change employer during the period of its validity. Member States should be able to require a notification of the change and be able to check the labour market situation in case a change of employer takes place” (emphasis added).

Article 11 lays down the conditions under which “Member States shall allow a single permit holder to be employed by a different employer than the first employer with whom the permit holder concluded a contract of employment”:

  • the notification of change is deemed to be a “communication” to the competent authorities in accordance with procedures laid down in national law (i.e., an application)
  • the right of the single permit holder to pursue such a change of employer may be suspended for a maximum of 30 days while the authorities concerned checks the labour market situation (where relevant), and verifies that the requirements are fulfilled (the authorities concerned may oppose the change of employer within those 30 days)

In simple words, Member States will be bound by an obligation to process applications for change of employer within maximum 30 days.

The same article is supplemented to ensuring that at least for a period of three months following unemployment, a third country national can reside legally in the Member State of destination. In case of change of employer, Member States shall allow the third-country national to stay in their territory until the competent authorities have taken a decision (i.e., on the “communication” lodged), even if that period of at least three months expired.

Right to equal treatment (Article 12)

Recital 24 is amended to codify the ECJ judgment of 25 November 2020, in Istituto nazionale della previdenza sociale (INPS) v WS (C-302/19).

The proposed amendment clarifies that equal treatment applies to access to private housing (possible restrictions by Member States may concern only access to public housing).

In accordance with Article 12.2 (b) as amended, third-country nationals who are allowed to work on the basis of a visa, shall be entitled to family benefits if they work in the Member State concerned for a period exceeding six months.

Monitoring, risk assessment, inspections and penalties and facilitation of complaints (Articles 13 and 14)

The recast proposal introduces new articles aiming at reinforcing the equal treatment provisions. Member States shall provide for effective, proportionate, and dissuasive penalties against employers in the event of infringements of national provisions transposing the directive. Such measures should include monitoring, risk assessment and, where appropriate, inspections in accordance with national law or administrative practice.

Moreover, “Member States shall ensure that there are effective mechanisms through which third-country workers may lodge complaints against their employers”.

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