Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment COM(2007) 637 final — 2007/0228 (CNS)
Date: 2008-07-09
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU migration policy, foreign national, labour law, residence permit, skilled worker

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EN

Official Journal of the European Union

3.2.2009

Opinion of the European Economic and Social Committee on the ‘Proposal for a Council Directive
on the conditions of entry and residence of third-country nationals for the purposes of highly
qualified employment’

COM(2007) 637 final — 2007/0228 (CNS)

(2009/C 27/23)

On 7 February 2008, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the

Proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of
highly qualified employment.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 10 June 2008. The rapporteur was Mr Pariza
Castaños.

At its 446th plenary session, held on 9 and 10 July 2008 (meeting of 9 July), the European Economic and
Social Committee adopted the following opinion by 139 votes to three with nine abstentions.

1. Preliminary comments

1.1
Eight years have passed since the Tampere European
Council, when the EU decided to push forward a common
immigration policy. However, little progress has been made on
one of the key aspects — immigrant admission policy and legis-
legislation, with no
lation. This is still governed by national
harmonisation at EU level to regulate admission; national legis-
lation varies greatly and expresses contradictory policies.

It is regrettable that in the Council of

the European
1.4
Union some governments have vetoed the Commission's legisla-
tive proposals and are perpetuating the restrictive policies of
old. Meanwhile, the black economy and illegal employment are
growing, creating a real ‘pull factor’ for undocumented migrants,
for a Directive on sanctions against
which the Proposal
employers (4), on which the EESC has issued an opinion (5),
aims to reduce. In the absence of common European legislation,
the Member States are adopting new legislation with very
different political agendas, adding further barriers to harmonisa-
tion. These different political agendas and legislative disparities
cause confusion and uncertainty amongst citizens.

1.2
Over six years have passed since the Commission drew
up its 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 (1). The EESC and the
Parliament
the proposal.
However, the proposal did not make it past the first reading by
the Council. Since then, some States have drawn up new legisla-
different
immigration,
tion
approaches.

issued Opinions (2)

supporting

economic

taking

very

on

1.3
In the years to come, Europeans will need new economic
migrants to contribute to social and economic development (3).
The demographic situation indicates that the Lisbon Strategy
could fall apart if we do not change immigration policies. Active
policies for the admission of both highly qualified and less
qualified workers are needed.

(1) COM(2001) 386 final.
(2) See EESC opinion of 16 January 2002 on the Proposal for a Council Direc-
tive on the conditions of entry and residence of third-country nationals for the
purpose of paid employment and self-employed economic activities, Rappor-
teur: Mr Pariza Castaños (OJ C 80, 3.4.2002) and the EP report in
OJ C 43 E, 19.2.2004 (Rapporteur: Ms Terrón i Cusi).

(3) See the Council conclusions of December 2007 (Plan on legal migra-
tion) and the EESC opinion of 10 December 2003 on the Communica-
tion from the Commission to the Council, the European Parliament, the
European Economic and Social Committee and the Committee of the Regions
on immigration,
integration and employment, Rapporteur: Mr Pariza
Castaños (OJ C 80, 30.4.2004).

1.5
The EESC supports the inclusion of immigration legisla-
the ordinary procedure
tion in the Lisbon Treaty under
(Commission initiative, qualified majority in the Council and
co-decision with the Parliament).

However, this proposal for a directive is being debated in
1.6
the Council under the unproductive principle of unanimity.
Therefore, as the Committee proposed in its opinion on the
Hague programme (6), ‘This change must take place now, before the
study of new legislative proposals’. The EESC proposes that the
Council adopt the ‘bridging’ procedure already in force with
regard to asylum, so that these directives may be approved by
qualified majority and co-decision with the Parliament.

of

staying

illegally

(4) COM(2007) 249 final.
(5) See EESC opinion of 13 March 2008 on the Proposal for a Directive of the
European Parliament and of the Council providing for sanctions against
employers
third-country nationals, Rapporteur:
Ms Roksandić, Co-rapporteur: Mr Almeida Freire, adopted at the
plenary session of 12-13 March 2008. OJ C 204, 9.8.2008, p. 70.
(6) See EESC opinion of 15 December 2005 on the Communication from the
Commission to the Council and the European Parliament: The Hague
Programme: Ten priorities for the next five years — The Partnership for
European renewal in the field of Freedom, Security and Justice, Rapporteur:
Mr Pariza Castaños (OJ C 65, 17.3.2006).

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As already stated by the Committee,

1.7
‘For the new admis-
sion legislation, an overall, horizontal legislative framework is prefer-
able to sectoral legislation (7). The proposal for a Directive on admis-
sion drawn up by the Commission and supported by the EESC, with a
few changes (8),
remains a good legislative proposal. Additionally,
specific rules could be drawn up for sectoral issues and particular situa-
tions. If the Council of the European Union were to opt for a sectoral
approach, geared only towards the admission of highly skilled migrants,
it would not apply to much of migration, and would also be discrim-
inatory. This option might be easier for the Council, but it does
not respond to European needs.’

1.11.2
to establish the general framework for an approach
that is equitable and based on respect for migrant workers'
rights.

The Committee recently adopted two opinions (10)
1.12
proposing that immigration be managed in cooperation with
countries of origin in order to boost their development. In a
recent opinion (11), the EESC already proposed that the provi-
sions of Directive 2003/109/EC be made more flexible for long-
term residents, and made other proposals to be taken into
account when drawing up new directives on admission.

1.8
The Lisbon Treaty sets the limits for common legislation,
including Member States' right to ‘determine volumes of admis-
sion’ of migrants to their country. This limit does not prevent a
high degree of legislative harmonisation from being reached in
the EU. It is an incentive for national management of economic
migration to be dealt with using common, transparent proce-
dures. The power to issue work and residence permits would
belong to authorities in the Member States, but within the
framework of Community legislation. Thus, each Member State
could decide, in cooperation with the social partners, on what
kind of immigration it requires (9). National legislation should
take account of each country's specific circumstances, whilst
also respecting European legislation.

2. Proposal for a Directive

2.1
The proposal aims to facilitate the attraction of highly
qualified workers by harmonising fast-track entry procedures,
based on shared definitions and criteria and favourable residence
conditions.
includes a specific scheme for ‘young profes-
sionals’, and encourages intra-Community mobility.

It

1.9
The EESC believes that as legislation on the admission of
immigrant workers is linked to labour market trends, there
should be dialogue between the national authorities and social
partners.

2.2 Individual and physical scope

The Hague Programme of November 2004 recognised
1.10
that ‘legal migration will play an important role in enhancing
the knowledge-based economy
in advancing
economic development, and thus contributing to the implemen-
tation of the Lisbon strategy’.

in Europe,

1.11
The European Council of December 2006 approved the
Policy Plan on Legal Migration, which is intended to meet two
objectives:

1.11.1
to lay down admission conditions for specific cate-
gories of migrants (highly qualified workers, seasonal workers,
remunerated trainees and intra-corporate transferees)
in four
specific legislative proposals; and

(7) See EESC opinion of 9 June 2005 on the Green paper on an EU approach
to managing economic migration, Rapporteur: Mr Pariza Castaños
(OJ C 286, 17.11.2005).

(8) See EESC opinion of 16 January 2002 on the Proposal for a Council Direc-
tive on the conditions of entry and residence of third-country nationals for the
purpose of paid employment and self-employed economic activities, Rappor-
teur: Mr Pariza Castaños (OJ C 80, 3.4.2002).

(9) See footnote 4.

2.2.1
The objective is to establish conditions of entry and
residence for over three months of third-country nationals and
of their family members for the purpose of highly qualified
employment, and to regulate the criteria governing their resi-
dence in other Member States. ‘Highly qualified employment’ is
defined as the exercise of genuine and effective work under the
direction of someone else for which a person is paid and for
which higher education qualifications or at least three years of
equivalent professional experience is required.

The

covers

scope of

the proposal

third-country
2.2.2
nationals who apply to be admitted to the territory of a
Member State for the purpose of highly qualified employment.
The following categories are excluded: applicants for interna-
tional protection or persons under
temporary protection
schemes; refugees; researchers; family members of EU nationals
who are exercising their right to free movement; persons with
long-term resident status in the EU; beneficiaries of international
agreements.

(10) See EESC own-initiative opinion of 25 October 2007 on EU immigra-
tion and cooperation policy with countries of origin to foster development,
Rapporteur: Mr Pariza Castaños (OJ C 44, 16.2.2008) and EESC
own-initiative opinion of 12 December 2007 on Migration and develop-
ment: opportunities and challenges, Rapporteur: Mr Sharma, adopted at
the plenary session of 12-13 December 2007 (OJ C 120, 16.5.2008,
p. 82).

(11) See EESC own-initiative opinion of 25 October 2007 on EU immigra-
tion and cooperation policy with countries of origin to foster development,
Rapporteur: Mr Pariza Castaños (OJ C 44, 16.2.2008).

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2.2.3
The directive will be without prejudice to more favour-
able provisions included in bilateral and multilateral agreements
with third countries, and will not affect the Member States' right
to adopt or retain more favourable provisions, except with
regard to conditions of entry into the first Member State.

volumes of admission of
qualified employment.

third-country nationals for highly

2.3 Conditions, procedures and rights

2.3.1
sion criteria, under which individuals must:

The proposal establishes entry conditions and admis-

2.4 Blue Card

2.4.1
Third-country nationals fulfilling these criteria will be
granted an EU Blue Card. The initial validity of the Blue Card
will be two years and will be renewable for at least the same
duration (13). If the work contract covers a period less than two
years, the EU Blue Card will be issued for the duration of the
work contract.

a) present a valid work contract or a binding job offer of at

least one year;

2.4.2 Member States will determine whether applications
for a Blue Card are to be made by the immigrant worker or by
his/her employer.

b) fulfil the conditions set out under national legislation for the
exercise of the regulated profession specified in the work
contract or binding job offer;

c) for unregulated professions, present the documents attesting
the relevant higher professional qualifications in the occupa-
tion or sector specified;

d) present a valid travel document and valid residence permit;

2.4.3
As a general rule, the application will be considered
and examined when the third-country national concerned
is residing outside the territory of the EU. However, the proposal
in accordance with their national
also allows Member States,
legislation,
to accept an application submitted when the
third-country national concerned is legally present in its terri-
tory but not in possession of a residence permit.

e) have health insurance;

2.5 Rights

f) not be considered to pose a threat to public policy, public

security or public health.

2.3.2
The gross monthly salary specified in the work contract
or job offer must not be lower than a national salary threshold
defined and published for the purpose by the Member States,
which must be at least three times the minimum gross monthly
wage as set by national law (12).

two-thirds of

Third-country nationals of less than 30 years of age
2.3.3
and holding higher education qualifications are exempt from
some of these conditions. The gross monthly salary must be at
least
the national salary threshold. Moreover,
when the applicant has completed his/her higher education in
the Member State and obtained a Bachelor's and a Master's
degree in a higher education institution located within the Com-
munity, proof of professional experience in addition to the
higher education qualifications will not be required.

2.3.4
Under Articles 7 and 19.5, this will be without preju-
dice to the competence of the Member States to determine

2.5.1
For the first two years of legal residence in the Member
State concerned as holder of an EU Blue Card, access to the
labour market for the person concerned will be restricted to the
exercise of paid employment activities under the applicable
conditions for the award of the Blue Card. At the end of this
period, the immigrant worker will enjoy treatment comparable
to that of nationals of the Member State as regards access to the
labour market and highly skilled employment. Unemployment
in itself will not constitute a reason for revoking an EU Blue
Card, provided that
it does not exceed three consecutive
months.

2.5.2
The EU Blue Card gives holders the right to equal treat-
ment with nationals in the following fields: working conditions
(pay, dismissal, health and safety at the workplace); freedom of
association; affiliation and membership of an organisation repre-
senting workers or employers; education and vocational training
(study grants); recognition of degrees, certificates and other
professional qualifications;
social assistance;
social
payment of acquired pensions when moving to a third country;
tax benefits; access to goods and services and the supply of
public goods and services (procedures for obtaining housing
and the assistance afforded by employment offices); and free
access to the entire territory of the Member State concerned.

security;

(12) ‘Member States where minimum wages are not defined shall set the
national salary threshold to be at least three times the minimum
income under which citizens of the Member State concerned are
entitled to social assistance in that Member State’. Article 5.2.

(13) The format of the EU Blue Card should be in accordance with the
provisions of Regulation (EC) No 1030/2002 of 13.6.2002, laying
down a uniform format for residence permits for third-country
nationals (OJ L 157, 15.6.2002).

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2.5.3 Member States may
such as
restricting access to certain employment activities or social
rights.

apply derogations,

qualified majority and by co-decision with the Parliament, super-
seding the current unanimity rule that prevents truly common
legislation from being adopted.

2.5.4
The preamble to the proposal states that favourable
conditions for family reunification and for access to work for
spouses should be a fundamental element of any scheme aiming
to attract highly qualified workers to the EU. The proposal
therefore sets down a series of derogations to the conditions
laid down by Directive 2003/86/EC on the right to family reuni-
fication (14) in order to give these types of immigrants access to
this right.

2.5.5
The proposal also includes a number of derogations to
Directive 2003/109/EC concerning the status of third-country
nationals who are long-term residents (15). Highly qualified
third-country nationals will have access to more rights and
more favourable, flexible administrative treatment than other
individuals holding long-term resident status.

2.5.6 Member States will have
third-country
nationals whose applications have been accepted every facility
to obtain visas.

to grant

2.5.7
After two years of legal residence in the first Member
State as a holder of an EU Blue Card, the proposal allows for
the possibility of moving to a second Member State for the
purpose of highly qualified employment, subject to fulfilment of
the same conditions as for acquisition of the Blue Card in the
first Member State. The members of the individual's family may
accompany or join him/her.

3. General remarks

The European Economic and Social Committee believes
3.1
that there should be a common, fast, transparent procedure for
admitting workers,
in line with the provisions of the Lisbon
Treaty regarding the Member States' right to define the number
of immigrants that they will admit.

3.2
The EESC considers that, in line with the principles and
values of the EU, immigration legislation should comply with
the EU Charter of Fundamental Rights and anti-discrimination
legislation.

Once the Lisbon Treaty is ratified and enters into force,
3.3
the distribution of powers between the EU and the Member
States will be clearer, and the Council will adopt decisions by

(14) Council Directive 2003/86/EC of 22.9.2003 on the right to family

reunification (OJ L 251, 3.10.2003).

3.4
The European Economic and Social Committee proposes
that, when adopting legislation (this and subsequent directives)
on immigration, the Council use the ordinary procedure (as it
did when deciding on legislation on asylum), thus anticipating
the provisions of
the
Commission speed up its work on the other directives on
admission that it has planned for the coming months (covering
seasonal workers,
remunerated trainees and intra-corporate
transferees).

the Lisbon Treaty, and proposes that

3.5
The Committee hopes that the EU will have adequate,
sufficiently harmonised legislation so that immigration can be
channelled through legal,
in
which third-country nationals are fairly treated, with comparable
rights and obligations to EU citizens.

flexible, transparent procedures,

The rights and obligations for third-country nationals
3.6
contained in the proposed directive, based on equal treatment as
regards salaries, working conditions,
freedom of association,
education and vocational training, represent a good starting
point for immigration legislation, which should be extended to
all categories of immigrant workers.

The Committee agrees that the new immigration legisla-
3.7
tion should make less restrictive provisions for family reunifica-
tion than Directive 2003/86/EC.

3.8
The EESC concurs that immigration legislation should be
more flexible with regard to residence permits, as it suggested in
a recent opinion (16), so as to enable circular
immigration
in countries of
systems that would encourage development
origin and offset the more negative effects of the ‘brain drain’.
In the opinion, the EESC proposed a number of modifications
to the Directive on the
long-term residents
(2003/109/EC) in order to make procedures more flexible. The
opinion also included various proposals regarding the other
admission directives.

status of

4. Specific comments

The EESC considers that salary is not an appropriate

4.1
criterion for consideration as a highly qualified worker.

(15) Council Directive 2003/109/EC of 25.11.2003 concerning the status
of third-country nationals who are long-term residents (OJ L 16,
23.1.2004).

(16) See EESC opinion of 25 October 2007 on EU immigration and coopera-
tion policy with countries of origin to foster development, Rapporteur:
Mr Pariza Castaños (OJ C 44, 16.2.2008).

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The concept of

4.2
‘highly qualified’ should be linked to
higher education certificates and qualifications or equivalent
vocational skills rather than the salary that the worker is to
receive (17).

the requirements for
4.3 Moreover, making salary one of
access to the EU Blue Card will make it hard to achieve a
common policy in the EU. The major differences in national
minimum wage levels that currently exist between the Member
States hinder harmonisation.

4.4
The EU must make swift progress in recognising profes-
sional qualifications, bearing in mind the Bologna process
which aims to facilitate mutual recognition of degrees awarded
by European universities. While there is no European system for
the recognition of qualifications, there should be a national
authority which is responsible for
taking into
account Directive 2005/36 on the recognition of professional
qualifications, the criteria used by the ILO to define highly quali-
fied workers (18) and UNESCO's International Standard Classifi-
cation of Education (ISCED 1997 (19)).

recognition,

4.5
The EESC endorses the criterion of three years of equiva-
lent professional experience in the definition of ‘highly qualified
employment’. However, this could also pose practical problems
when it comes to professions requiring more extensive higher
education qualifications. In any event, it should be the national
authority that is responsible for assessing professional equiva-
lency, in cooperation with the social partners.

that

than

The EESC believes

the European Commission's
4.6
proposal
to offer preferential conditions to highly qualified
immigrant workers, by allowing them more favourable treat-
ment
2003/86/EC and
2003/109/EC, could lead to different categories of immigrants
being treated differently. It must be ensured that these excep-
tions do not affect the overall consistency of European immigra-
tion policy and the principle of equal treatment (20).

in Directives

established

4.6.1
employment will

The proposal

for a Directive on highly qualified
facilitate and increase family reunification

(17) See EESC opinion of 30 May 2007 on the Proposal for a Recommendation
of the European Parliament and of the Council on the establishment of the
European Qualifications Framework for
lifelong learning, point 5.6,
Rapporteur: Mr Rodríguez García-Caro (OJ C 175, 27.7.2007).

(18) See the ILO's International Standard Classification of Occupations

(ISCO-88).

(19) http:/www.unesco.org/education/information/nfsunesco/doc/

isced_1997.htm.

(20) Tampere European Council, Presidency conclusions, 15 and 16 October
1999. Point 18: ‘The European Union must ensure fair treatment of
third country nationals who reside legally on the territory of its
Member States. A more vigorous integration policy should aim at
granting them rights and obligations comparable to those of EU citi-
zens. It should also enhance non-discrimination in economic, social
and cultural
racism and
xenophobia’.

and develop measures

against

life

rights. The EESC believes that the right to family life is a funda-
mental
right which cannot be contingent on the type of
economic activity or employment of a worker. The EESC has
already proposed in earlier opinions that Directive 2003/86/EC
on family reunification be amended, as it should include the
exceptions provided for in the proposed Directive on highly
qualified employment (21).

The EESC is concerned that

the proposed directive
4.6.2
does not establish the right to work for family members of Blue
Card holders who move to another Member State.

4.6.3 Moreover, those third-country nationals who, after a
residence period of five years, have long-term European resident
status will have a less favourable legal status than highly quali-
fied migrant workers. The criterion of stable, permanent resi-
dence will become a secondary factor when it comes to estab-
lishing legal certainty and integration in the EU. The EESC has
already proposed in a recent opinion (22) that the provisions of
Directive 2003/109/EC should be made more flexible for all
long-term residents.

There are some aspects of the proposal whose compat-
4.7
ibility with Member States'
legal obligations is
international
debatable. For instance, the requirement that the professional
mobility of EU Blue Card holders be restricted during the first
two years of legal residence does not comply with the provi-
sions of the European Convention on the legal status of migrant
workers (1977), Article 8 of which establishes a maximum
period of one year.

Under

4.8
the proposed directive, an individual who is
unemployed for three consecutive months would not be able to
renew the EU Blue Card. However, this three-month limit does
not match the five months set down in the European Conven-
tion on the legal status of migrant workers (Article 9.4).

The EESC suggests that a period of unemployment of six
4.9
months be considered,
in order to comply with international
agreements and make it easier for workers to find new employ-
ment. This period is particularly necessary when the worker is
attending a training course in order to obtain a new job.

(21) In the coming months, the Commission is to issue an assessment

report on the operation of the directive.

(22) See footnote 16.

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4.10
The EESC considers that the interim measures which
temporarily limit the free movement of workers from the new
Member States are a derogation which, particularly with regard
to the employment of highly qualified workers, should be
swiftly revoked, and the principle of preference for EU citizens
should be guaranteed.

It

is not acceptable that

4.11
the directive
should exclude refugees and asylum seekers. As the EESC has
proposed, persons in need of international protection should be
able to work (23), including those with high qualifications.

the scope of

4.12
for a more
flexible system for under-30 year-olds (lower salary bracket)

the proposal provides

The fact

that

Brussels, 9 July 2008.

could be considered discriminatory, and the EESC does not
endorse this.

Lastly, the EESC wishes to highlight the importance of
4.13
integration. It has drawn up a number of own-initiative opinions
promoting integration policies (24) and has held conferences and
hearings on the subject. The EU and the national authorities
should work together to promote integration policies, because
integration, the promotion of equal treatment and the fight
against discrimination are all challenges facing European society,
especially local authorities, social partners and civil society orga-
nisations. The Committee
is working together with the
European Commission to set up the European Integration
Forum (25).

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(24) EESC opinion of 21 March 2002 on Immigration, integration and the
role of civil society organisations, Rapporteur: Mr Pariza Castaños
(OJ C 125, 27.5.2002).
EESC opinion of 10/11 December 2003 on the Communication from
the Commission to the Council, the European Parliament, the European
Economic and Social Committee and the Committee of the Regions on
immigration,
integration and employment, Rapporteur: Mr Pariza
Castaños (OJ C 80, 30.3.2004).
EESC opinion of 13 September 2006 on Immigration in the EU and
integration policies: cooperation between regional and local governments
and civil
society organisations, Rapporteur: Mr Pariza Castaños
(OJ C 318, 23.12.2006).
Conference on The role of civil society in promoting integration, Brussels,
9 and 10 September 2002.

(25) http://integrationforum.teamwork.fr/

(23) EESC opinion of 12 March 2008 on the Green Paper on the future
Common European Asylum System, Rapporteur: Ms Le Nouail-Marlière,
adopted at the plenary session of 12 and 13 March 2008 (OJ C 204,
9.8.2008, p. 77).