Abstract
This article discusses the recast Blue Card Directive (BCD) on the admission of highly qualified non-EU migrant workers. The recast Directive aims to facilitate employers in their demand of non-EU talent and enhances migrant workers’ rights. As this article demonstrates, challenges remain in view of the prerogative of Member States to maintain national schemes and benefit from wide discretion. We conclude that if Member States implement the recast restrictively, the recast BCD could be an example of ‘failing forward’, a next step in a continuous process failing to achieve the Commissions’ ambitions of harmonizing EU migration law. Yet, by engaging in a novel legislative approach which we coin ‘encapsulating harmonisation’ of EU and national migration law, the Commission manages to enhance the level playing field aimed for, especially on improving migrant workers’ rights. Whether the Recast BCD will indeed attract more highly qualified migrants to work in the EU, however, will depend on Member States’ implementation and their use of the discretion afforded by the BCD.
1 Introduction
This article discusses the recast Blue Card Directive (BCD), adopted in October 2021. We do so against the backdrop of the European Union’s ambitions to create a level playing field for attracting talented1 non-EU nationals to work in the EU in a time of increasing labour shortages, not just for highly qualified workers.2 The BCD is part of the patchwork of legal instruments that were developed after 2001, when the European Commission proposed an all-encompassing Directive on migration for the purpose of work and self-employment of third-country nationals into the EU.3 The failure to adopt such a general framework Directive, set in motion a piecemeal approach to labour migration policy at European Union (EU) level,4 which led to the gradual adoption of a set of five directives. These include the Blue Card Directive (BCD),5 the Student & Researchers Directive (SRD),6 the Intra-Corporate Transfer Directive (ICTD),7 the Seasonal Workers Directive (SWD)8 and the Single Permit Directive (SPD),9 which defines the applicable procedures and the rights of migrant workers. Together with the Family Reunification Directive (FRD)10 and the Long-Term Residence Directive (LTRD),11 these directives shape the EU legal migration acquis, based on Article 79 TFEU.
The 2009 BCD needed revisions as it did not succeed in bringing the added value envisaged by the European Commission, that of making the EU amongst the most attractive economies for international talent. The 2009 BCD had limited overall success in the EU, with mainly Germany, Poland and France making use of it.12 In the other Member States the Directive was of minor importance, although it remained in effect for labour migration even during the Covid-19 Pandemic.13 Among the reasons for this minor role were the demanding entry conditions, the favourable parallel national schemes for highly skilled migrants, as well as the lack of promotion of the BCD at the Member States level, which meant that potential migrants and employers knew little about it.14 Still, the demographic challenges faced by the EU and skills shortages in key sectors called for a more effective instrument to attract such workers. The recast BCD, which was agreed upon in October 2021, and must be implemented by the Member States by 18 November 2023, sets out to address these challenges.15
Implementing the Recast BCD is an opportunity to address in a more harmonised manner some of the major issues that the EU labour markets face. Firstly, with post-Covid-19 labour shortages rocketing, unemployment back at pre-COVID-19 levels, finding workers for health care and green jobs is essential.16 Secondly, with the arrival of Ukrainians17 fleeing the Russian attack on Ukraine in early 2022, the EU and its Member States have the opportunity to draw lessons from the post-2015 arrival of Syrian refugees and to better facilitate their quick labour market integration. As of 18 May, the Russian invasion of Ukraine led to the arrival within Europe of close to 6,4 million Ukrainian refugees. This triggered, for the first time ever, activation of the Temporary Protection Directive (TPD).18 Furthermore, to attract talent that does not necessarily qualify for a Blue Card, the European Commission proposed an additional set of legislative and policy initiatives.19
Each of these challenges puts forward a key reason why the EU is not the primary destination of choice of international talents: admission for migrant workers to the EU territory is, under EU law, always limited to one specific Member State.20 For that reason, intra-EU mobility is the ‘magical tool’ that the EU has to offer compared to national schemes, justifying harmonisation of the measures to attract and retain highly qualified migrants.
The EU legal migration acquis developed so far serves to reinforce rather than challenge the existing national choices,21 in line with the preference of ‘intergovernmentalism’ among Member States.22 The EU instruments adopted provide for minimum standards only, explicitly allowing for more favourable rules,23 parallel national schemes in some cases, and high level of discretion at the national level on the basis of optional provisions and references to national law. Furthermore, EU’s competence to adopt common rules in the field of labour migration does not restrict the prerogative of Member States enshrined in the TFEU to determine volumes of admission of migrant workers arriving from third countries to their territory.24 Nor does it stop them from applying labour market tests giving priority to local work force. All this implies that individual Member States have much liberty to interpret the directives’ objectives and principles as they deem fit, in line with their specific labour market realities and ambitions.
Since the BCD provides for employer-sponsored permits, making this Directive attractive for employers requires that it brings added value compared to the many existing parallel national schemes for labour migration of highly skilled workers, without necessarily abolishing them.25 From an employer’s perspective, this can be achieved by making the BCD’s admission conditions more attractive than national schemes. It also involves recognising professional skills when assessing eligibility to qualify as highly skilled migrant, as well as speeding up the processing time, inter alia by including the Blue Cards under the existing national fast-track procedures for recognised employers.26 To be attractive for businesses, the BCD should also facilitate access to the internal market through the possibility of short-term intra-EU mobility.27
On the other hand, to appeal to highly skilled migrant workers in the context of the so-called “global race for talent”, this instrument needs to give access to a secure status that allows for smooth integration through family reunification, facilitated access to long-term residence and long-term intra-EU mobility rights.28 Secure status also diminishes the ability of Member States to interfere with the interests of Blue Card holders.29
Following the above, we set out to answering the following questions. First, what was wrong with the previous Directive, and what changes with the recast (Section 2)? To what extent has the European Commission succeeded in harmonising the admission policy for highly qualified labour migration is addressed in Section 3. Next, in Section 4 we deal with the question of how the recast BCD answers employers’ demand for highly qualified migrant workers. In Section 5 we examine whether the recast improves the legal position of migrant workers in the EU. In our concluding Section 6, we return to the novelties of harmonisation and conclude that the recast BCD could be an example of what political scientists call “failing forward”, a next step in a continuous process failing to achieve the Commissions’ ambitions of harmonizing EU migration law.30 While full harmonization is not achieved, we do see that the Commission moved forward towards its goal of a “level playing field” and, importantly, it improved the positioning of the migrant workers involved.
2 What Changes with the Recast?
Five years after the European Commission proposed an overhaul of the EU instrument regulating admission and residence of highly qualified TCNs,31 the recast BCD was finally agreed upon in September 2021.32 It replaces the current 2009 BCD, which was assessed to have failed in its objectives to increase the EU’s competitiveness in the global race for talent and to alleviate the persisting labour and skill shortages in the EU labour market.33 Among the main reasons for this failure were the Directive’s restrictive admission conditions, the limited possibility for intra-EU mobility and the option for Member States to retain their national schemes for highly qualified migrants,34 all of which resulted in the proliferation of myriad parallel rules regulating the same category of migrants and in limited use of this EU instrument.35 In addition, the Directive has been criticised for including the typical limitations of an employer-driven scheme and leaving ample discretion to Member States in its transposition and implementation in practice.36
The European Commission’s proposal from 2016 to revise the 2009 Directive was followed by difficult negotiations between the Council and the European Parliament, and stalling until the second half of 2020 when the negotiations resumed.37 The main points of contention concerned the Commission’s proposal to abolish the possibility for parallel national schemes for highly qualified migrants,38 as well as to lower the requirements for salary threshold and recognition of experience, which would have facilitated access to the EU for medium-skilled migrant workers.39 The Council had limited motivation to recast the Directive, since no Member State was willing to actively support such initiative, nor was there a prominent societal push for an improvement.40 In 2020 the German presidency re-opened the stalled negotiations and drafted compromise texts,41 and the following presidency, the Portuguese, reached an agreement on the recast in the spring of 2021. On 8 October 2021 it was approved by the Council.42
Even though many of the Commission’s proposed amendments were only partially accepted during the negotiations, the final text improves the conditions for entry and residence of Blue Card holders. For instance, the new Directive’s personal scope has been expanded to refugees and persons with subsidiary protection, as well as non-EU family members of EU citizens.43 In terms of admission conditions, the requirement of minimum contract duration has been reduced from 12 to 6 months.44 Furthermore, Member States are no longer allowed to ban in-country Blue Card applications from legally resident migrants, in case they had such national law provisions before.45 The new Directive also provides for harmonised Blue Card validity of two years minimum,46 as opposed to the malleable provision of one to four years contained in the 2009 Directive.47 When it comes to periods of unemployment before residence permits can be withdrawn, the new Directive distinguishes between migrant workers who have held a Blue Card for two years and can stay unemployed for up to six months, and those who have been Blue Card holders for less than two years and are entitled to three months of unemployment48 as under the current rules of the 2009 Directive.49 In order to appeal to Blue Card applicants wishing to be accompanied by their family members, the Directive has also simplified rules on admission and work for spouses.50 Intra-EU mobility rules have also been simplified, which can be considered as another improvement. Blue Card holders can now carry on business activities in another Schengen state for 90 out of 180 days without any authorisation being required.51 They will be able to move to another Member State after 12 instead of 18 months as required by the 2009 Directive52 and bring their family members along much more easily.53 In addition, it will be easier to accumulate the five years required to attain EU long-term resident status by using time spent in various Member States as a Blue Card holder, as well as on the basis of different residence titles, such as researcher, student, highly-qualified worker under national law, or beneficiary of international protection.54 Furthermore, Member States may choose to apply the Directive also to highly skilled workers with five years’ equivalent experience in other occupations.55
The final text of the Directive does liberalize labour market access for this category of migrant workers, even though the Commission’s proposal for full access to highly qualified employment for Blue Card holders had not been accepted. Therefore, Member States are still given the opportunity to apply labour market tests in case a Blue Card holder wants to change jobs in the first year of residence.56 Finally, like the text of the 2009 Directive, the recast leaves Member States ample opportunity for discretion with optional and flexible clauses, needed to reach agreement on the texts under negotiation.57 These “may” clauses do not provide transparency and legal certainty for employers that, as a consequence, might still prefer to resort to available national schemes, if these offer more favourable conditions.58
As already mentioned, the Commission’s proposal to abolish national parallel schemes for highly qualified migrants did not make it to the final text.59 However, to achieve the wished for level playing field, the new Directive introduced several novel obligations for Member States to apply to Blue Card applicants any existing more favourable rules stemming from national schemes concerning procedural safeguards,60 application fees,61 procedures for recognised employers,62 labour market access,63 equal treatment,64 rights of family members65 and access to information.66 Another innovation that the new Directive introduced as an optional clause is the opportunity to allow Blue Card holders to undertake self-employment, which needs to be subsidiary to their main employment.67 Indeed, attracting innovative entrepreneurs was among the initial reasons for this recast but did not make it into the Directive’s final text.68
3 The Commission’s Aim: Achieving Harmonisation
Although the Commission’s main objective of abolishing national admission schemes – to reduce competition between Member States in the labour market and to create a common ‘market’ for highly qualified third-country nationals – was not so successful, it has nevertheless moved forward at various levels of harmonisation. We distinguish five harmonising interactions in the recast Directive: i) for the first time, bridging the divide between legal migration law and asylum law, addressed in Section 3.1; ii) with national schemes for the admission of highly skilled TCNs, which we elaborate on in 3.2; iii) with the wider EU legal migration law acquis, included in our analyses in Sections 4 and 5, iv) with elements of European social and labour market policy, including policies on the fight against illegal employment and undeclared work, which we touch on in Section 4.2; and v) through the Directive’s repeatedly prescribed proportionality tests, which we illustrate in section 4.2, on the basis of which harmonisation may be achieved in future case law.69
3.1 Harmonising Protection and Highly Qualified Labour Migration
Uniquely, the recast BCD offers some harmonisation of the legal position of international protection beneficiaries and highly qualified TCNs arriving in Europe through legal migration. Beneficiaries of international protection will have access to the Blue Card scheme and employers can better benefit from the talent that is already within EU territory, given that they fulfil the admission criteria.
Before the adoption of the recast BCD an explicit harmonisation between the statuses of legal migrants, on the one hand, and of refugees and persons with subsidiary protection, on the other, was provided only in the LTRD as amended by Directive 2011/51/EU,70 under which beneficiaries of international protection can acquire a long-term residence status in addition to their international protection status. The recast BCD introduces a second explicit opportunity for dual status under EU migration law, which entitles recognised refugees under the Qualification Directive to apply for a Blue Card in their host Member State as well as in any other Member State, thus providing them with the opportunity of intra-EU mobility currently accessible only for refugees who obtained long-term residence or were naturalised in one of the Member States.71
Following the LTRD, the recast BCD contains a special safeguard against refoulement in cases where the Blue Card holder is also a beneficiary of international protection.72 However, like the LTRD, it leaves open any questions pertaining to the transfer of protection to the second Member State, merely stating that such issues are outside the scope of the Directive and that the protection status and any rights derived therefrom cannot be transferred on the basis of the issuance of a Blue Card.73 It has been suggested that this gap could make intra EU-mobility less attractive for refugees and persons with subsidiary protection.74 Yet, the literature on labour migration alternatives for people in need of protection points in a different direction, namely that refugees in many cases would prefer to avail themselves from legal statuses and channels that take away the ‘stigma’ of being a refugee.75
Asylum seekers will not be eligible for a Blue Card. The European Parliament tabled a proposal76 to that end, which was also present in the Commission’s impact assessment.77 The Council, however, did not support going beyond the limited right to work which asylum seekers have under the Reception Conditions Directive.78 This can be considered a missed opportunity, not only when it comes to increasing the EU’s highly skilled work force and meeting its future demographic and labour market demands, but also in terms of facilitating integration and preventing so called “brain waste” of highly qualified refugees through the provision of work.79
The activation of the TPD begs the question whether Ukrainians arriving in the EU can make use of the in-country applications of the Blue Card Directive.80 Once they have applied for or have been authorised to reside as temporary protection holders, Ukrainian refugees are ineligible to apply for a Blue Card, since the recast Directive retained the exclusion of this category from its personal scope.81 This means that they will need to switch to a national or EU status that ensures eligibility to apply for a Blue Card and which does not exclude temporary protection holders from its scope, such as seasonal workers, ICTs or beneficiaries of international protection. The European Commission’s proposal for a recast LTRD attempts to partially remedy this gap by proposing that all periods of legal residence should be fully counted towards long-term residence status, including residence periods as beneficiaries of temporary protection.82 That would serve as a litmus test whether the Member States are willing to continue with further harmonisation of the migration and asylum acquis.
3.2 Harmonisation through Encapsulating National Schemes
The recast BCD establishes a harmonisation method that we refer to as ‘encapsulating’ national schemes. Encapsulating harmonisation allows Member States freedom to control their borders and labour markets, yet it also contributes to a harmonisation between EU and national migration law. This encapsulating approach employed by the Commission resembles the principle of equivalence developed by the CJEU, which aims to limit national procedural autonomy.83 National procedural autonomy denotes the distribution of power between the EU and the national systems, where the former provides for rights through EU substantive rules and the latter the remedies on the basis of national procedural rules.84 In other words, EU law must be enforced in line with the national procedural rules, without the requirement to create new rules.85 Such national rules must nonetheless respect the principle of equivalence, which essentially extends the general principle of non-discrimination to the law of remedies,86 requiring national courts to give the same level of protection that they afford in national law to cases pertaining to EU law.
An example of such encapsulating harmonisation is given in Article 5 (6) of the recast BCD, which limits administrative burdens for highly qualified migrants who want to switch from a national permit to a Blue Card residence permit, levelling administrative requirements as the principle of equivalence requires. Further-reaching effects of ‘encapsulating harmonisation’ can be seen where Blue Card holders and their family members must be granted the same rights as highly qualified TCNs who hold national residence permits, given that such rights are more favourable than those provided for in the recast BCD. This is the case with material rights on access to the labour market, equal treatment, and family members’ rights.87 Although this is an effective way to harmonize EU and national law in a specific Member State, we see two pitfalls. First, this method is likely to increase the differences between the Member States, as it leaves them ample room to compete among each other with attractive national schemes for access to highly qualified workers. Second, Member States may decide to lower the standards applicable to their national schemes to avoid having to offer more rights to Blue Card holders.
4 Employers Interest: Fast Track Access to Highly Qualified and Mobile Workforce
The interests of employers are best served with flexible entry conditions, e.g. various skills and lower salary threshold (Section 4.12), and fast procedures (Section 4.3) that allow for addressing their labour needs.88
4.1 Flexibility in Admission Criteria
The recast BCD’s purpose is to facilitate entry for ‘highly qualified employment’, meaning the employment of a person who is protected as an employee under national employment law or practice, is paid for that work, and has the required higher professional qualifications.89 As in the 2009 Directive, residence under the BCD is for the purpose of exercising genuine and effective work, irrespective of the legal relationship, under the direction of another person.90 Also remaining the same is the definition of ‘higher professional qualifications’, which means any diploma, certificate or other evidence of formal qualifications issued after completion of at least three years post-secondary higher education or equivalent tertiary education programme, and corresponding at least to a Bachelor level, in accordance with national law.91 The Commission, supported by the EP,92 wanted to impose the obligation on the Member States to include TCNs with three years (instead of five) of relevant professional experience in the profession or sector specified in their work contract.93 Many Member States opposed lowering the number of years of professional experience from five to three.94 Despite the ambitions of the Commission to facilitate labour migration into occupations facing shortages, such as healthcare professionals,95 three years of experience suffices only for managers and professionals in the information and communication technology (ICT) sector.96
The salary threshold was probably the most controversial admission criterion.97 It was already contested as a means of establishing skills levels during the making of the 2009 Directive.98 The Commission’s ambition was to have a lower salary threshold, with a lesser range from minimum 1.0 and maximum 1.4 times the average gross annual salary in the Member State concerned, in order to increase the harmonising effect and the inclusiveness of the Blue Card scheme. Although disputed, the outcome of the negotiations offers a more flexible threshold than the previous minimum 1.5 times average gross annual salary in the Member State concerned.99 In the recast BCD, the salary threshold is no longer a minimum, but can, at the discretion of the Member States, range from 1.0 to 1.6 times the average gross annual salary in the Member State concerned.100 It is up to Member States to reduce, adhere to the current salary threshold of 1.5 times, which will not require any change on their side, or to raise the threshold to 1.6 times the average gross annual salary, making the BCD into an even more exclusive migration scheme. Lowering the threshold could make the Blue Card more accessible for international graduates, contributing to the objective of the SRD to facilitate graduates’ access to the European labour market.101 At the same time, the range from 1.0 to 1.6 times the average gross annual salary will further prevent harmonisation and is likely to deepen income-based categorisation of migrants on the basis of the sectoral approach at EU level and the salary variations between the Member States.
How Member States should determine the threshold was yet another matter for discussion. The Commission was successful in including a mandatory point of reference to Eurostat data for the purpose of calculating the salary threshold,102 aiming to increase transparency and harmonisation.103 Yet, in the final compromise text it was added that, where appropriate, reference can also be made to national data.104 The significance of the question on how to calculate the salary threshold, cannot be underestimated. It goes to the heart of the ongoing debates on harmonisation of EU social policy, including the Adequate Minimum Wages Directive.105 The link between these legislative files can be seen in the last-minute addition, which requires Member States to consult social partners according to national practice before setting their salary threshold for Blue Card applicants.106 Setting the salary threshold will thus, to some extent, be a tripartite exercise. In times of labour shortages, we expect such consultation to be used by employers to plead for a lower threshold. A lower threshold can also be beneficial to migrant workers, as it offers a well-managed and rights-based pathway to the European labour market.
4.2 Fast-Track Procedures for Recognised Employers
To facilitate business interest in recruiting sought-after highly qualified workers, the Directive provides a fast-track procedure for so-called recognised employers. Obscure, bureaucratic, costly and time-consuming administrative procedures do not make for an attractive immigration scheme. Administrative burdens in immigration law can be seen as elements of restrictive migration policies, intended to establish extra borders for migrants perceived as less attractive. Digging into the ideological origins of administrative burdens, as Herd and Moynihan have done, such burdens are unmasked as “policymaking by other means”.107 The recast BCD, together with the ICTD and the SRD, present the inverse of covert restrictive migration policies: they offer an optional reduction of red tape as a policy instrument to give employers quick access to the qualified workforce to meet their evident needs.
The facility of fast-tracking the procedure for recognized employers has been part of the recast proposal from the start.108 It is included in Chapter III on procedures, and reads that Member States may provide for an administrative procedure resulting in the recognition of an employer for the purpose of a simplified procedure for obtaining a Blue Card.109 If a Member State decides to implement such a fast-track procedure, a decision on such application shall be adopted as soon as possible but not later than 90 days after submission. The decision on a residence permit shall be adopted not later than 30 days after the date on which the complete application was submitted, where the employer has been recognised in accordance with Article 13.110
Although the 2009 Directive did not offer such procedural privileges, the instrument of recognition of a trusted sponsor is not new. It is contained in the SRD, which allows Member States the opportunity to approve hosting organisations for research, studies, training, voluntary service, pupil exchange schemes or educational projects, but not for au pairing.111 Similarly, the recognised employer is a prominent instrument in the ICTD, offering a fast-track procedure for intra-corporate transfers as managers, specialists or trainee employees.112 The SWD, on the other hand, does not offer this option.113 The directives that offer a recognition procedure, including the recast BCD, allow for a national procedure. The conditions for recognition are not defined at the EU level, however, the Member States are obliged to apply only a limitative list of grounds for refusal and non-renewal.114 This possibly makes the facility less attractive for Member States. During the negotiations on the ICTD, some detailed requirements for recognition as a trusted sponsor were tabled and later withdrawn.115 For example, information on the financial standing of the group of undertakings had to be presented to ensure that the intra-corporate transferee will be guaranteed the required level of remuneration and rights as provided for in that Directive.
Interestingly, Article 13 (3) has been expanded over the course of the negotiations and in the final text116 it reads that Member States may only refuse to recognise those employers that have received sanctions for the employment of irregularly staying TCNs in accordance with the Employer Sanctions Directive 2009/52/EC,117 for undeclared work,118 illegal employment under national law, or who failed to meet their legal obligations regarding social security, taxation, labour rights or working conditions. Firstly, it can take a while before actual sanctions are imposed in practice, making these refusal grounds unfit for prompt exclusion. Secondly, we see here an intersection with EU policy against undeclared work as well as the newly introduced proportionality test: decisions to refuse to recognise an employer shall take account of the specific circumstances of the case, including the time that has passed since the sanction was imposed, and shall respect the principle of proportionality.119 If the facility is implemented at all, future case-law will need to clarify whether an employer who failed to comply with basic standards of labour and migration law would still be eligible for a reduction of red tape or for recruitment of migrant workers.
Finally, we note that the facility is not widely used by the Member States. France and Germany expressed concerns over competition among the Member States if only some apply the fast-track system.120 Indeed, two advocates of the scheme are Member States that have as their national modus operandum a recognized sponsorship: the Netherlands and Sweden. However, in the Netherlands, recognition is not just a procedural facility; instead, employer recognition is a precondition for admission.121 As a result, if a previously recognised employer no longer meets the conditions for recognition, the migrant can lose his or her legal residence, making the migrant unnecessary depending on the law-abiding attitude of their employer.122 On the contrary, the Swedish certified operator scheme does not alter the conditions for granting a work permit but only provides for faster processing.123 The recognition scheme contained in the recast BCD goes a bit further than the Swedish model, as alongside the procedural facility it also waives some of the admission conditions. Our assessment is that employer recognition in the recast BCD, which is a procedural facility and not a precondition, is more favourable than the Dutch and possibly also the Swedish national alternatives. Thus, as Article 13 (5) of the recast BCD stipulates, the procedures to establish recognition under the Directive do not need to converge with these less favourable national procedures.
5 Migrant Worker Interest: Measures to Make the EU Attractive
Several changes in the recast contribute to making the EU more attractive as a destination of choice for migrant workers. They benefit the migrant interest and as such also serve employers’ demand for talent. We highlight three specific measures: i) family reunification ii) intra-EU mobility and iii) access to long-term residence and circular migration.
5.1 Family Reunification
The recast BCD has improved significantly the conditions of entry, residence and work for family members of Blue Card holders. Despite the facilitating derogations from the FRD contained in the 2009 BCD, Blue Card holders and their families still experienced family life disruptions. They could not, for example, submit their residence permit and family reunification applications together from their home country.124 This meant that Blue Card applicants had to travel to the host Member State and apply for family reunification only after the grant of a Blue Card permit, or to bring their family members on a tourist visa, which subsequently required the family members to leave and reapply for visa D from abroad.125 The recast BCD addresses this issue by allowing families to submit applications and to receive the decisions on the applications simultaneously with the sponsor.126 Moreover, by allowing further derogations from the FRD, the recast BCD has liberalised labour market access for family members: Member States may no longer impose a waiting period of up to 12 months nor conduct labour market tests before authorising employed or self-employed activity.127 As in the 2009 Directive, family members can accumulate the residence periods required for an autonomous residence permit in different Member States.128 Still, the recast Directive allows Member States to impose a requirement of two years of legal and continuous residence in the territory of the Member State where the application for the autonomous residence permit is submitted; that raises concerns over increased dependency on the sponsor.
5.2 Intra-EU Mobility
The possibility for BC holders to benefit from intra-EU mobility represents probably the most fundamental added value (or the ‘magic tool’) of the recast BCD compared to the existing national parallel rules, making this EU instrument attractive to both employers and BC holders. The recast Directive enhanced this value by introducing an option for short-term mobility and simplifying the existing application procedure for long-term mobility. The short-term mobility provisions129 can be seen as an improvement brought by the recast as they introduce EU harmonisation concerning business activities abroad,130 which are generally subject to the national rules of Member States and create challenges to legal certainty and hindrances for businesses. Also, compared to the short-term mobility provisions under the ICTD,131 this harmonisation is limited as it excludes more “productive” work activities: Blue Card holders are allowed to negotiate contracts, but cannot engage in short-term service provisions at client’s sites in other Member States.132
The provisions on long-term intra-EU mobility were among the points of contention between the co-legislators.133 They eventually agreed to facilitate long-term intra-EU mobility by shortening the necessary residence in the first Member State from 18 to 12 months,134 requiring fewer criteria for admission compared to the initial entry procedures and the provisions of the 2009 Directive,135 and guaranteeing BC holders that they will be able to commence work in the second Member State no later than 30 days after the submission of their complete application.136 Furthermore, Member States were not given the possibility to turn the long-term intra-EU mobility application into a second family reunification procedure.137 Nevertheless, the recast BCD allows Member States to impose further optional requirements that can decrease the attractiveness of long-term intra-EU mobility to businesses and migrant workers, such as the possibility to apply a labour market test if provided for under national law138 and to request additional documents attesting higher professional qualifications for unregulated professions in some cases.139
5.3 Access to Long-Term Residence and Circular Migration
With the aim of attracting talent, the 2009 BCD provides several derogations from the LTRD in order to grant highly qualified migrants facilitated access to EU long-term residence status.140 To this end, the recast Proposal introduced access to this permit after only three consecutive years of residence in a Member State.141 This was supported by the Parliament, as well as by the Council’s mandate, as long as this was an optional provision.142 However, due to ‘serious legal and practical difficulties’ this idea was abandoned during the course of the negotiations.143 This is considered to be another missed opportunity to make this EU instrument more competitive in attracting and retaining highly skilled migrant workers, especially when compared with other Western destination countries with migrant-driven schemes, such as Australia, Canada and New Zealand, which provide immediate access to permanent residence.144 It also means that Germany might continue to be the main destination of Blue Card holders in Europe, as its legislation already allows Blue Card holders to access permanent residence after 33 months or less provided that they are proficient in the German language.145
This missed opportunity is partially mitigated by Article 18 (2) of the recast BCD, which derogates from Article 4 of the LTRD and reads that mobile Blue Card holders may accumulate residence periods, even on permits granted under national schemes, and become eligible for a long-term residence permit on the basis of several residence titles in different Member States (see Table 1 for an overview). For instance, a highly qualified migrant on a national permit can change that into a Blue Card permit, move to another Member State, obtain a Blue Card permit there and use all these years of residence, including the years with a national permit, to qualify for a long-term residence permit, as long as such person has staid legally and continuously in that Member State for two years before LTR application. It should be noted that the standard 5-year period of legal and continuous residence under Article 4 (1) of the LTRD is extended for students and some beneficiaries of international protection, and they would need to wait longer to access long-term residence.146
Possible different types of Blue Card LTR holders
Citation: European Journal of Migration and Law 24, 4 (2022) ; 10.1163/15718166-12340138
Possible different types of Blue Card LTR holders
Citation: European Journal of Migration and Law 24, 4 (2022) ; 10.1163/15718166-12340138
Possible different types of Blue Card LTR holders
Citation: European Journal of Migration and Law 24, 4 (2022) ; 10.1163/15718166-12340138
This new provision makes access to the facilitated LTR status more inclusive and is another example of the encapsulating harmonisation. Still, as a result of this new legislative approach to harmonisation, we may well witness at least six basic different types of Blue Card long-term residence permits, which could make it even more difficult for migrant workers to navigate the already complex EU labour market.
Furthermore, the recast BCD could also contribute to the facilitation of circular migration of long-term residence applicants and permit holders between their host EU country and their home third country. This has been a longstanding policy aim of the European Commission since the Policy Plan on Legal Migration was adopted in 2005.147 The 2009 Directive derogates from the provisions of the LTRD148 in two ways, and this is changed slightly in the recast. Firstly, it facilitates circular migration by derogating from the main requirement under the LTRD, namely to remain in the country for five consecutive years. The LTRD allows for periods of absence of six months, while the BCD allows for absence during twelve months. During the drafting of the 2009 BCD, Poland remarked that this would raise practical issues.149 Indeed, the question how to actually use this right to circularity in practice has been raised before the Dutch courts.150 During those twelve months of absence it is unlikely that the migrant will still meet the conditions for having a Blue Card, as few employers will continue a labour contract and payment of salary above the threshold while the migrant is away; the Member States will nonetheless have to withdraw a permit if the migrant no longer fulfils the conditions. In our interpretation, the texts of the old and new Directives send ‘conflicting messages’ that ask for answers not provided in the recast. Guidelines from the Commission or ultimately the CJEU might be called upon.
Secondly, Article 18(4) allows Blue Card holders to be absent from the EU territory for 24 consecutive months151 compared to twelve months for regular long-term residence permit holders.152 However, for both derogations that the 2009 Directive offers, Member States retain the option to require evidence that this absence is due to economic activity, volunteering service or study in the country of origin.153 By dropping this restriction, the recast Directive provides better conditions for circular migration. Indeed, the right to be circular while building up rights towards EU long-term residence, is currently more favourable than the right to circularity of mobile EU citizens under the Citizenship Directive 2004/38/EC.154
6 Conclusions
The Recast BCD is designed to provide a common tool to address demographic challenges and labour shortages and offer a level playing field in attracting talent to work in the EU. Whether the Recast BCD will contribute to these objectives depends on its implementation, as it may also drive the Member States further apart. Indeed, if the Member States implement the recast restrictively, the recast BCD could be an example of ‘failing forward’, a next step in a continuous process failing to achieve the Commissions’ ambitions of harmonizing EU migration law. The novel legislative approach we coin ‘encapsulating’ of national migration law does enhance harmonisation, at least between different statuses at the national level. The Recast BCD offers plenty of opportunity to make the Blue Card scheme more attractive for employers, and even more so, to enhance migrant workers’ rights. The Member States’ prerogative to keep national schemes, their wide discretion and the right to set volumes of admission as enshrined in the TFEU allows them to downgrade labour migration as a potential solution for the said demographic and labour market needs.
Drawing from our analysis, we have four closing remarks. Firstly, our analysis of the recast Directive illustrates the complexity of EU labour migration law, as it spans several directives, different objectives and labour market realities that do not always fit EU legislation. Part of the complexity arises from the fact that Member States have the prerogative to set volumes of admission for labour migrants coming from third countries, which can more or less nullify the impact of the directives. Therefore, whether this instrument will be attractive for employers and workers and will achieve the level playing field envisaged by the Commission, depends on the Member States’ transposition, especially concerning provisions that allow ample discretion and leave room for competition, such as the salary thresholds and fast-track procedures.
Secondly, given the labour market shortages and ongoing “battle for brains” as well as “struggle for skills”155 in many of the Member States’ labour markets, we argue that Member States missed the given opportunity to assimilate professional skills and educational qualifications. The Directive can be seen as a first step towards such assimilation for ICT professionals. Yet, facilitation of qualification recognition procedures for other sectors with high labour market shortages, such as healthcare, are missing. Thus, the European Commission is back at the drawing table when it comes to attracting long-term care workers for the EU’s aging population with its latest Talent Package.
Thirdly, this Directive is the first to bridge the divide between labour migration and asylum law in the EU context. It levels the legal position of highly qualified people arriving in Europe through regular migration and for the purpose of international protection. Even though this bridging is a positive step forward, the complexities of the legislative patchwork remain unresolved, as demonstrated by the Ukrainian refugee arrival and the triggering of the TPD.
Finally, we highlight that the proposed recast SPD and LTRD can address some practical issues not covered by the recast BCD, such as complaint mechanisms for migrants and measures to retain international students. Still, if Member States implement the recast BCD restrictively, there will be little opportunity for recent graduates to meet the salary threshold to qualify for a Blue Card. Furthermore, none of these instruments address the (post) Covid-19 pandemic reality of remote working, a highly relevant topic for future research and, likely, for new legislation.156
Ackowledgements
The contribution of Zvezda Vankova has been supported by a Rubicon grant (project number 019.191SG.008) of the Dutch Research Council (NWO).
For a problematisation of the concept of ‘talent’, see Lucie Cerna and Meng-Hsuan Chou, ‘Defining “Talent”: Insights from Management and Migration Literatures for Policy Design’ (2019) Policy Studies Journal 47(3), 819–48.
Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, and repealing Council Directive 2009/50/EC, [2021] OJ L 382.
Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities, COM (2001) 386 final. It was withdrawn in 2005; see COM (2005) 462 final.
Cathryn Costello and Mark Freedland, ‘Seasonal Workers and Intra-Corporate Transferees in EU Law: Capital’s Handmaidens?’ in Joanna Howe and Rosemary Owens (Eds.), Temporary Labour Migration in a Globalised World: The Regulatory Challenges (Hart Publishing 2016), 43, 52.
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 [2009] OJ L 155.
Directive 2016/801 of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing, [2016] OJ L132/21.
Directive 2014/66/EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer [2014] OJ L 157.
Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers [2014] OJ L 94.
Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, [2011] OJ L 343. On 27 April 2022 the European Commission presented its Proposal of 27 April 2022 for a Directive on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State (recast), COM (2022) 655.
Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification [2003] OJ L 251.
Council Directive 2003/109/EC of 25 November 2003 concerning the status of third- country nationals who are long-term residents [2003] OJ L 16. On 27 April 2022 the European Commission presented its Proposal for a Directive concerning the status of third-country nationals who are long-term residents (recast), 2022 COM (2022) 650 final, 2022/0134 (COD).
No more than 40,000 Blue Card residence permits were granted annually by the Member States. In 2019, prior to the COVID-19 pandemic, Germany granted 28,858 Blue Cards, France 2,036 and Poland 2,104. Eurostat, MIGR_RESBC1 (accessed 1 March 2022).
None granted more than 1,000 Blue Card permits per year. Interestingly, the number of Blue Cards granted in 2020, the first year of the COVID-19 pandemic, did not go down in all countries. Instead, it increased in Belgium, Bulgaria, Lithuania, the Netherlands, Poland, and Slovenia. These numbers do not reveal whether these card holders actually arrived in the EU as due to COVID-19 entry bans in force or closed embassies entry might have been problematic. The number of withdrawals did not increase in 2020. The number of renewals did not go down in 2020 either, suggesting that holders of a Blue Card remained in the EU during the pandemic.
European Commission, Communication on the Implementation of the EU Blue Card COM (2014) 287, 10. A website was launched to provide such information but to our knowledge it is not regularly updated by the Member States: https://immigration-portal.ec.europa.eu/general-information/what-category-do-i-fit_en (accessed 1 October 2022). Another conclusion drawn in this Communication is that Member States appear reluctant to provide information on their BCD implementation.
Directive (EU) 2021/1883 of the European Parliament and of the Council of 20 October 2021 on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment, and repealing Council Directive 2009/50/EC, [2021] OJ L 382.
On shortages see European Labour Authority, Report on Labour Shortages and Surpluses, November 2021, 8. On the Recast BCD, sustainability, including green growths and green jobs, see Tesseltje De Lange, ‘A New Narrative for European Migration Policy: Sustainability and the Blue Card Recast’ (2021) Eur Law J 26 (3–4), 1–9.
Ukrainians were already the largest group among first residence permit recipients before the war. Eurostat, MIGR_RESFIRST. They were also the third largest group obtaining Blue Cards in the EU, migr_resbc1 (accessed 21 March 2022): For data on Ukrainian refugees, see UNHCR Operation Data Portal, https://data.unhcr.org/en/situations/ukraine#_ga=2.68602455.758864911.1646377487-1625719621.1638102309 (accessed 20 July 2022).
Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof [2001] OJ L 212 and Council Implementing Decision (EU) 2022/382.
European Commission, Communication ‘Attracting skills and talent to the EU’, COM (2022) 657.
Elspeth Guild, ‘The EU’s Internal Market and the Fragmentary Nature of EU Labour Migration’ in Cathryn Costello and Mark Freedland (Eds.), Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford University Press 2014), 117.
Jean-Baptiste Farcy, ‘Labour Immigration Policy in the European Union: How to Overcome the Tension between Further Europeanisation and the Protection of National Interests?’ (2020) European Journal of Migration and Law 22, 205.
Paul Minderhoud, ‘Regulation of EU Labour Migration: At a Crossroads after the New Pact on Migration and Asylum?’ (2022) Utrecht Law Review 17, 41–42.
Article 13 SPD, Article 4 BCD, Article 4 ICTD, Article 4 SWD and Article 4 SRD.
See Article 79 (5) of the TFEU. Bulgaria, Cyprus, Estonia, Lithuania and Romania imposed volumes of admission restricting the number of potential Blue Card candidates. See further European Commission (n 14) 2. However, migrants already present in EU territory, like international students, cannot be excluded through numerical limits.
Jo Antoons and Andreia Ghimis, ‘What it takes to have a successful new Blue Card scheme: The practitioner’s viewpoint’ (2021) Eur Law J 26, 272. In 2014 17 Member States had national schemes in place. See further European Commission (n 14) 4.
Ibid., 270. Johan Rochel, ‘The Blue Card Revision Is Stuck: How Might Legal Philosophy Help?’ (2020) Eur Law J 26, 270.
Antoons and Ghimis (n 25) 271.
Rochel (n 26) 251.
Ibid., 255.
Erik Jones, R. Daniel Kelemen and Sophie Meunier, ‘Failing forward? Crises and patterns of European integration’ (2021) Journal of European Public Policy 28, 1519–1536.
European Commission, Proposal for a Directive on the conditions of entry and residence of third-country nationals for the purpose of highly skilled employment, COM (2016) 387.
Referred to in the text as Recast BCD.
European Commission (n 31) 1.
See further Micheline van Riemsdijk, ‘(Re)scaling Governance of Skilled Migration in Europe: Divergence, Harmonisation, and Contestation’ (2012) Population, Space and Place 18, 344–358.
European Commission (n 31) 1. See further Claudia Finotelli and Holger Kolb, ‘“The Good, the Bad and the Ugly” Reconsidered: A Comparison of German, Canadian and Spanish Labour Migration Policies’ (2017) Journal of Comparative Policy Analysis: Research and Practice 19, 72–86.
Giovanni Facchini and Elisabetta Lodigiani, ‘Attracting Skilled Immigrants: An Overview of Recent Policy Developments in Advanced Countries’ (2014) National Institute Economic Review 229 (1), 10, 18. On the implementation challenges, see also Zvezda Vankova, Circular Migration and the Rights of Migrant Workers in Central and Eastern Europe: The EU Promise of a Triple Win Solution (Springer International Publishing 2020).
European Parliament, Revision of the Blue Card Directive, https://www.europarl.europa.eu/legislative-train/theme-towards-a-new-policy-on-migration/file-jd-revision-of-the-blue-card-directive (accessed 10 February 2022).
Article 3(4) in the Recast BCD Proposal. In 2017 the Estonian presidency proposed what one would call a cascade-clause: those migrants eligible for a BC residence permit must be granted a BC (supposedly even if they would ask for a national one). Those not eligible may receive a national permit. In Working Paper on First Reading WK 1284/2018 INIT, 2 February 2018, Council Document 6862/18, 71. This idea did not make it into the final text, though equal treatment of BC holders and national permit holders did, following a proposal from the German Presidency of 26 November 2020, Council Document 13407/20.
Article 5 (2–5) Recast BCD Proposal suggests a variety of salary thresholds from 1.0–1.4 time the average gross annual salary and 80% thereof as a derogation for workers belonging to major groups 1 and 2 of ISCO. A watered down version made it into the Annex; See further par. 4.1. below.
Tesseltje De Lange and Kees Groenendijk, ‘The EU’s legal migration acquis: Patching up the patchwork’ European Policy Centre, (2021) 9.
Council Document 13407/20, 26 November 2020.
Hungary voted against, Austria, Czechia and Slovakia abstained. In Council Document 40/202, 7 October 2021.
Compare Article 3 (2) (b) and (e) 2009 BCD and Article 3 (2) Recast BCD.
See Article 5 (1) (a) 2009 BCD and Recast BCD.
Compare Article 10 (4) 2009 BCD to Article 10 (2) Recast BCD. This was the case in Bulgaria until the end of 2017, for instance, where highly qualified migrants were disincentivised to switch to Blue Cards as they had to leave the country to apply from abroad and risk losing the residence status that they had already secured. See Vankova (n 36) 145–151.
Article 9 (2) Recast BCD.
Article 7 (2) 2009 BCD.
Article 8 (5) Recast BCD.
Article 13 (1) 2009 BCD.
Compare Article 15 2009 BCD to Article 17 Recast BCD.
Article 20 Recast BCD.
Compare Article 18 (1) 2009 BCD to Article 21 (1) Recast BCD. The opportunity to move was again mainly used by Blue Card holders from Germany (annually about 30 people since 2015, including family members; no data available for 2019 and 2020), EUROSTAT MIGR_RESBC3 (accessed 1 March 2022).
Compare Article 19 2009 BCD to Article 22 Recast BCD.
Article 18 (2) Recast BCD.
Article 2 (9) (b) Recast BCD. This was an option only on the basis of a derogation provided for by national law, Article 2 (g) 2009 BCD.
Article 15 (2) and (3) Recast BCD.
See further Farcy (n 21) 198–223.
The authors wish to thank Fragomen for raising this point at the online Blue Card Recast Seminar held on 18 October 2021.
European Commission (n 31), draft Article 3 (4).
Article 11(6) Recast BCD.
Article 12 Recast BCD. This article also codified the existing case law stipulating that the fees that Member States impose shall not be disproportionate or excessive. See for instance Case C-508/10 European Commission v Kingdom of the Netherlands, ECLI:EU:C:2012:243, para 69, and C-309/14 Confederazione Generale Italiana del Lavoro (CGIL) and Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri and Others, ECLI:EU:C:2015:523, para 31.
Article 13 (5) Recast BCD.
Article 15 (6) Recast BCD.
Article 16 (7). We note that realising the equal treatment rights contained in this Directive requires certain procedures to be put in place to provide Blue Card holders with the opportunity to claim their rights, which is missing in the Recast. The recent proposed revisions of the SPD facilitate complaints and legal redress through third parties, such as NGOs or labour unions, which also extends to Blue Card holders. See European Commission (n 9), draft Article 14.
Article 17 (10) Recast BCD.
Article 24 (2) Recast BCD.
Article 15 (5) Recast BCD.
Inception Impact Assessment ‘Review of 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 (“EU Blue Card” Directive)’ HOME-B1 16 July 2015.
The proportionality requirement is mentioned in Article 7 (3) regarding the rejection of an application; Article 8(7) regarding withdrawal or refusal to renew; Article 13 (2) on the recognition of employers for fast tracks; Article 21(7) on the denial of intra-EU mobility. Whether these proportionality tests span the width of the more generally worded Article 17 FRD, on the right to protection of family life as enshrined in Article 8 European Convention on Human Rights, remains to be seen. As there is, to our knowledge, little national case law on the labour migration directives, we assume that it will take some time before harmonized CJEU case law will develop, if at all.
Directive 2011/51/EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/109/EC to extend its scope to beneficiaries of international protection [2003] OJ L 132.
See De Lange and Groenendijk (n 40) 20–23.
Recitals 62 and 63 and Article 23 (5) Recast BCD.
Recital 17. For detailed discussion see Steve Peers, ‘Transfer of International Protection and European Union Law’ (2012) International Journal of Refugee Law 24, 527–560. See also European Centre for the Development of Vocational Training, ‘Creating Lawful Opportunities for Adult Refugee Labour Market Mobility’ (2019) 33.
Steve Peers, EU Justice and Home Affairs Law: Volume I: EU Immigration and Asylum Law (Oxford University Press 2016), 428.
Zvezda Vankova, ‘Work-Based Pathways to Refugee Protection under EU Law: Pie in the Sky?’ (2022) European Journal of Migration and Law 24, 86–111.
European Parliament, Draft Report on the proposal for a directive of the European Parliament and of the Council on the conditions of entry and residence of third-country nationals for the purposes of highly skilled employment, Committee on Civil Liberties, Justice and Home Affairs (LIBE Committee), 2016/0176 (COD), A8-0240/2017 Amend- ment 33, 29.
European Commission (n 31) 9.
Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection [2013], OJ L 180.
UNHCR, Guidelines on International Legal Standards Relating to Decent Work for Refugees, https://www.refworld.org/docid/60e5cfd74.html (accessed 1 April 2022). Asylum seekers tend to work in unskilled jobs because their qualifications are not easily recognized. See Emily Cunniffe, ‘Non-Economic Migrants as Workers: Securing the Right to Work for Asylum Applicants in the EU’ (2022) European Journal of Migration and Law 24, 112–150.
Article 10 (4) BCD Recast. They have visa free access, see Article 10 (2) of Agreement between the European Union and Ukraine amending the Agreement between the European Community and Ukraine on the facilitation of the issuance of visas, [2013], L168/11.
Article 3 (2) (a) Recast BCD. To no avail EP Amendment 59 called for a conditional inclusion of asylum seekers and temporary protection status holders into the scope of the Directive. LIBE Committee, 2016/0176 (COD), A8-0240/2017.
European Commission (n 11) 2.
The authors wish to thank Prof. Bruno De Witte for highlighting this point. Even though he suggested that such approach leads to EU rules that parallel with the existing ones at national level, we argue that the encapsulating harmonisation reaches further.
Koen Lenaerts, ‘National Remedies for Private Parties in the Light of the EU Law Principles of Equivalence and Effectiveness’ (2011) Irish Jurist 46, 13.
Gráinne de Búrca and Paul Craig, EU Law: Text, Cases, and Materials (Oxford University Press 2020) 273.
Lenaerts (n 84).
Article 17 (10) Recast BCD.
Antoons and Ghimis (n 25) 272.
Article 2 (2) Recast BCD.
This definition clearly refers to the CJEU case law defining employment in the context of free movement of workers, e.g. C-66/85, Lawrie-Blum, ECLI:EU:C:1986:284, paras 16 and 17. The concept of ‘worker’ has a specific Community meaning and must not be interpreted narrowly. “Any person who pursues activities which are real and genuine, to the exclusion of activities on such a small scale as to be regarded as purely marginal and ancillary, must be regarded as a ‘worker’. Also, in C-456/02 Trojani, ECLI:EU:C:2004:488, para 16, the Court stipulates that the level of productivity of the person concerned does not affect the nature of the employment relationship.
Article 2(8) Recast BCD. The text refers to ISCED 2011 level 6 and EQF level 6, which are internationally standardized descriptions of a Bachelor level education.
Amendment 53, LIBE Committee 2016/0176 (COD), A8-0240/2017.
European Commission (n 31), draft Article 2(b) and (i); Council Document 13407/20 presents the compromise text.
Council Document 10788/16, 23.
The European Commission put forward in its proposal that healthcare, along with ICT and engineering, are those sectors facing structural skills shortages and mismatches and have the potential of limiting EU’s growth, productivity and innovation and thus its competitiveness to attract the talent needed. In European Commission (n 31) 3. So far, the 2009 Directive has hardly been used as an entry channel for health professionals (only 42 in 2019, and 36 in 2018) https://ec.europa.eu/eurostat/databrowser/view/MIGR_RESBC1__custom_2173657/default/table?lang=en (accessed 27 February 2022). Considering the high salary thresholds, the Blue Card is unlikely to be able to compete with national schemes. If Member States are inclined to recruit healthcare workers from outside the EU, they can likely compete through attractive measures in national migration schemes, or engage other EU facilities, such as the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L 18 (as amended in 2018) or the EU Talent Partnerships.
Article 2 (9) (a) Recast BCD referencing to the Annex which lists the shortage occupations for which an exception is made. This compromise was reached following the German Presidency’s suggestions, Council Document 13407/20, 6–8.
Article 5 (3) Recast BCD.
Bjarney Fridriksdottir, ‘Negotiations on the Blue Card Directive in the Working Party on Migration and Expulsion’ in Carolus Grütters and Tineke Strik Eds.) The Blue Card Directive: Central Themes, Problem Issues, and Implementation in Selected Member States (Wolf Legal Publishers 2013), 6–8.
Article 5 (3) 2009 BCD.
Article 5 (3) second paragraph Recast BCD.
Article 25 (1) SRD to this end allows 9-months of postgraduation residence for a job search.
Article 25 (2) Recast BCD.
European Commission (n 31) 15.
Council Document 8585/21, 89.
Proposal for a Directive on adequate minimum wages in the European Union, COM/ 2020/682 final, Article 5 (1). In setting their minimum wage, Member States shall define those criteria in accordance with their national practices, either in relevant national legislation, in decisions of the competent bodies or in tripartite agreements. The criteria shall be defined in a stable and clear way.
Article 5(3) second paragraph Recast BCD as amended, Council Document 8585/21, 52. EP Amendment 69 proposed defining the threshold in agreement with social partners, LIBE Committee, 2016/0176(COD), A8-0240/2017, compromise explained in Council Document 1040/2021.
Pamela Herd and Donald P. Moynihan, Administrative Burden: Policymaking by Other Means (Russel Sage Foundation 2018).
European Commission (n 31), draft Article 12.
Tesseltje De Lange, ‘A “Guildian” Analysis of The Equivocal Trusted Sponsorship under EU Labour Migration Law’ in Paul Minderhoud, Sandra Mantu and Karin Zwaan (Eds.) Caught in between Borders. Citizens, Migrants and Humans (Wolf Legal Publishers 2019), 209–216.
Article 11(1) Recast BCD. This was one of the last issues decided. The EP proposed processing times of 30 days in general and 15 days in the case of recognised employers, which was welcomed by business but not by the Council and the Member States. Amendments 108–109 LIBE Committee A8-0240/2017 and 2016/0176(COD) and Council Doc. 2337/2021.
Article 15 SRD.
Article 11 ICTD.
Article 16 of SWD obliges Member States to offer a facilitated re-admission procedure for trustworthy seasonal workers, yet how precisely is left to their discretion. It can include an accelerated procedure, Article 16(2) (c) SWD. According to Preamble 34, this facility considers the circular nature of seasonal migration and the employer’s interest in engaging stable and already trained seasonal workers beyond a single season.
Article 13(3) BCD.
De Lange (n 109).
Confirmation of the final compromise text with a view to agreement, Council Document, 8585/21, 65. These grounds for exclusion of recognition are not present in the ICTD or the SRD, but can be grounds for refusal under national law or administrative practice, Article 11(6) ICTD.
This was included in the original proposal. Articles 7(2)(d) and 13(3)(a) Recast BCD make reference to the Employer Sanctions Directive 2009/52/EC, which obliges the Member States to impose (criminal) sanctions against employers illegally employing irregularly staying migrants. Sanctions under Directive 2005/52, for “undeclared labour” or “where the employer has failed to meet its legal obligations regarding social security, taxation, labour rights or working conditions” may be grounds for refusal.
Agreement confirmed at the trilogue on 27 November 2017. See Working Paper on First Reading WK 1284/2018 INIT, Council Document 6862/18, 115. The term “undeclared work”, also used in Article 7 (2) ICTD is to be interpreted in accordance with Decision (EU) 2016/344 of the European Parliament and of the Council of 9 March 2016 on establishing a European Platform to enhance cooperation in tackling undeclared work, which endorsed the definition of undeclared work as: ‘any paid activities that are lawful as regards their nature but not declared to public authorities’, European Commission, MIGRAPOL Contact Group, Mig-Dir 193 Discussion of 2 December 2021 https://ec.europa.eu/transparency/expert-groups-register/screen/meetings/consult?lang=en&meetingId=36495&fromExpertGroups=false (accessed 9 May 2022).
Article 13 (3) final sentence Recast BCD.
Council Document 2016/0176 (COD), 10788/16, 41.
De Lange (n 109).
Ibid.
For more information on the Swedish model, see SOU 2021:88, 239–241 https://www.regeringen.se/4aab41/contentassets/6b0761af21fa43e587abd35be3e5711b/ett-forbattrat-system-mot-arbetskraftsexploatering-m.m.-sou-2021-88-med-omslag.pdf (accessed 1 May 2022). For the problems related to its implementation, see Sveriges Ingenjörer (2021) Legal handel av arbetstillstånd. En granskning av certifieringssystemet för högkvalificerad arbetskraftsinvandring, https://www.sverigesingenjorer.se/aktuellt-ochpress/nyheter/210303-rapport-arbetstillstand/ (accessed 1 May 2022).
In line with Article 5 (3) FRD, applications have to be submitted when family members are outside the territory of the MS and in-country applications are possible only by way of derogation in ‘appropriate circumstances’ (second paragraph).
Vankova (n 36) 221.
Article 17 (4) Recast BCD.
Article 14 (2) FRD.
Article 17 (7) Recast BCD.
Article 20 Recast BCD.
These include activities related to the professional duties of the Blue Card holder, such as internal or external business meetings, attending conferences or seminars, negotiating business deals, undertaking sales or marketing activities, exploring business opportunities, or attending and receiving training in a second Member States (Article 2 (13) Recast BCD).
Article 21 ICTD.
Posting under Directive 96/71/EC is excluded from the scope in Article 3(2)(g) Recast BCD.
Final Compromise Text, 2016/0176 (COD), 6. See for instance the additional explanation on the proposed equal treatment with EU nationals in respect of recognition of non-EU qualifications in the case of long-term mobility (Article 21(4) Recast BCD) in Council Document 14263/2020.
Compare Article 18 (1) 2009 BCD to Article 21 (1) Recast BCD.
Compare Article 5 Recast BCD to Article 21 (4) Recast BCD. For 2009 BCD, see Article 18.
Article 21 (3), second paragraph Recast BCD. Prior to that, Member States had wider discretion, see current Article 18 (2) 2009 BCD.
Compare Article 19 (4) 2009 BCD to Article 22 (2) Recast BCD.
Article 21 (8) Recast BCD.
Article 21 (4), third paragraph and 5 (a) Recast BCD.
Article 16 BCD.
European Commission (n 31), draft Article 17 (2).
Final Compromise Text, 2016/0176 (COD), 8.
Final Compromise Text, 2016/0176 (COD), 8.
See Facchini and Lodigiani (n 36).
For more details see Holger Kolb, ‘From Brakeman to Booster: Policy change in Germany’s EU Labour Migration Policy’ (2017) International Migration 55, 11–21.
See Article 4 (2), para 1 and 2 LTRD. This restriction might be lifted by the Recast LTRD. See draft Article 4 in European Commission (n 11).
European Commission, Communication on Policy Plan on Legal Migration, COM (2005) 669, 13. See further Vankova (n 36).
Article 9 (1) (c) LTRD.
Interinstitutional File 2007/0228 (CNS), Council Document 12320/08, 20, footnote 43.
Case 20/7665 BEPTDN, appeal pending at the time of writing.
Article 18 (4) Recast BCD.
Article 9 LTRD.
Article 16 (5) BCD.
According to Article 16(3) Directive 2004/38/EC circular migration for EU citizens, allowing them to return home without interrupting the continuity of their stay and losing rights, is only for “important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.” See for a discussion Tesseltje De Lange, Welcoming Talent. European Migration Law has a Part to Play (inaugural lecture Radboud University, Faculty of Law) (2021) 21–23.
Ibid.
On this topic Ana Sofia Walsh “Remote Work in the European Union – Back to the fEUture”, 2021 <https://www.fragomen.com/insights/remote-work-in-the-european-union-back-to-the-feuture.html>, (last visited 20 May 2022).