COMMISSION STAFF WORKING DOCUMENT Summary of the Impact Assssment   Accompanying document to the   Proposal for a  Directive of the European Parliament and of the Council  on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer    {COM(2010) 378 final} {SEC(2010) 884}
Date: 2010-07-13
Institutions: European Commission
Subjects: free movement of workers, impact study, job mobility, labour law, migrant worker, multinational enterprise, residence permit, social rights, work permit

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EUROPEAN COMMISSION 

Brussels, 13.07.2010 
SEC(2010) 885 

COMMISSION STAFF WORKING DOCUMENT 

Summary of the Impact Assssment 

Accompanying document to the 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on conditions of entry and residence of third-country nationals in the framework of an intra-
corporate transfer 

{COM(2010) 378 final} 
{SEC(2010) 884} 

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1.  PROBLEM DEFINITION 

As a result of the globalisation of business and skills demand, movements of managerial and 
technical  employees  of  branches  and  subsidiaries  of  multinational  corporations,  temporarily 
relocated  for  short  assignments  to  other  units  of  the  company,  have  in  recent  years  become 
more  crucial.  However,  a  number  of  factors  currently  limit  the  scope  for  international 
companies to rely on mobility of third-country national intra-corporate transferees (ICTs): the 
lack  of  clear  specific  schemes,  the  complexity  and  diversity  of  visa  or  work  permit 
requirements,  rigidities,  costs  and  delays  in  transferring  foreign  ICTs  from  one  European 
corporate  headquarters  to  another  and  the  difficulties  with  securing  family  reunification.  In 
practice,  there  is  general  agreement  among  EU  Member  States  (MS)  on  the  categories 
admitted as ICTs, generally identified as ‘key personnel’, but the  admission criteria and the 
duration  of  work  permits  vary  widely  across  EU  MS  and  in  some  cases  the  procedures  for 
admission can be particularly long or difficult. In addition, rights granted to ICTs are highly 
variable  between  MS.  The  lack  of  data  does  not  allow  a  complete  and  objective  picture. 
Available  data  show,  however,  that  the  number  of  ICTs  in  individual  EU  MS  (e.g.  around 
4 500 third-country nationals in Germany, 3 000 in the Netherlands, 2 000 in France and 1 000 
in Spain, Italy and Slovenia) is much lower than in non-EU countries such as Canada, Japan 
and the United States. 

This situation is likely to influence the inflows of ICTs into the EU MS, leading to loss of the 
potential  benefits  that  they  could  bring  (innovation,  competition,  expansion  of  activities, 
putting  the  EU  in  a  stronger  position  in  its  relationships  with  international  partners  and, 
ultimately, creation of wealth and growth), and could have an adverse impact on investment 
location.  

In addition, these rigidities hamper effective implementation of GATS commitments relating 
to ‘mode 4’, which do not cover conditions of entry, stay and work, and also limit companies’ 
ability to harness their potential.  

2. 

SUBSIDIARITY PRINCIPLE 

The main reasons for common action at EU level stem from the following issues:  

•  Facilitating intra-EU mobility. Rigidities in transferring foreign ICTs from one European 
corporate headquarters to another take on particular relevance for multinational companies. 
Action  at  EU  level  is  the  only  way  to  remove  these  rigidities,  by  facilitating  intra-EU 
mobility  (in  the  framework  of  intra-corporate  movements),  which  requires  a  common 
system for admission of such workers.  

•  Enhancing the attractiveness of the EU as a whole. The treatment granted to ICTs along 
with  the  conditions  and  procedures  governing  their  movements  influence  the  extent  to 
which multinational companies decide to do business or invest in a certain area. Therefore, 
action  at  EU  level  could  help  to  make  the  EU  as  a  whole  more  attractive  for  foreign 
investments and send a clear message to third-country national ICTs.  

•  Promotion of such transnational movements requires a climate of fair competition. In this 
connection, there is a need to lay down common working conditions and other rights for 
ICTs. 

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•  Facilitating the EU’s international commitments in the context of the WTO. Action at 
EU level (rather than at MS level) on entry and residence conditions for ICTs could better 
ensure  full  consistency  and  complementarity  between  immigration  policy  and  the 
common commercial policy.  

EU added value 

The added value lies in the following aspects in particular: 

–  Third-country  national  ICTs  and  foreign  companies  would  benefit  from  a  common, 
transparent  and  attractive  European  framework  for  key  personnel,  reinforcing  the  EU 
knowledge economy, allowing better use of human resources of multinational companies 
and fostering investment. 

–  A  common  legal  framework  laying  down  common  conditions  of  admission  and  stay  for 

ICTs would guarantee fair competition.  

3. 

OBJECTIVES 

The overall goal that possible EU action should pursue is to support economic development of 
EU businesses by responding better to their needs for intra-corporate transfers of skills, while 
contributing to guaranteeing fair competition. 

This  objective  is  consistent  with  the  EU  2020  Strategy,  which  sets  the  Community  the 
objective  of  becoming  an  economy  based  on  knowledge  and  innovation,  reducing  the 
administrative  burden  on  companies  and  better  matching  labour  supply  with  demand. 
Measures to make it easier for third-country managers, specialists or graduate trainees to enter 
Europe in the framework of an intra-corporate transfer should be seen in this broader context. 

The specific immediate objectives of possible EU action are:  

1.  to  provide  a  transparent  legal  framework,  including  a  set  of  common  conditions  of 
admission for third-country national ICTs entering the EU; 

2. to create more attractive conditions of stay for ICTs and their family; 

3. to facilitate (intra-EU) mobility of third-country ICTs; 

4. to guarantee fair competition, including a secure legal status for ICTs; 

5. to facilitate the EU’s international commitments in the context of the GATS. 

4. 

POLICY OPTIONS 

The following options were considered: 

Option  1:  Status  quo.  Current  developments  in  Member  States  would  continue  within  the 
existing  legal  framework.  However,  this  would  mean  that  the  EU  as  a  whole  would  not  be 
attractive for enterprises and companies, which would still face difficulties in making best use 
of their staff, although the need for highly qualified resources would be increasing.  

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Option  2:  Directive  dealing  with  the  conditions  of  entry  and  residence  of  intra-corporate 
transferees.  The  EU  legislation  would  provide  a  common  definition  of  intra-corporate 
transferee, either targeting some specific positions within the transnational corporation (2A), 
or  identifying  key  personnel  through  salary  and  qualifications  criteria  (2B),  as  in  the  Blue 
Card Directive. It would also lay down harmonised criteria for entry, a common set of rights, 
possibly  including  a  range  of  social  and  economic  rights  (2C)  in  addition  to  basic  working 
conditions  (2D),  and  a  maximum  duration  of  stay.  This  option  would  create  a  more 
transparent legal environment. However, the rules would still vary between Member States in 
terms of procedure and family rights and EU mobility would not be provided. 

Option  3:  Directive  providing  for  intra-EU  mobility  for  intra-corporate  transferees.  In 
addition  to  the  points  covered  by  option  2,  provisions  would  be  introduced  to  allow  intra-
corporate  transferees  to  move  within  the  EU  and  work  in  several  establishments  located  in 
different  Member  States.  Swift  and  simple  transfer  from  third-country  to  EU  companies 
would, however, not be ensured and family issues would not be tackled.  

Option 4: Directive facilitating family reunification and access to work for spouses. By way 
of derogation from Directive 2003/86/EC, family reunification would not be made dependent 
on obtaining the right to permanent residence and on the intra-corporate transferee having a 
minimum period of residence. Residence permits for family members would be granted more 
rapidly. Moreover, in respect of access to the labour market, the time limit of 12 months could 
possibly  be  removed.  As  a  result,  companies  would  be  able  to  attract  intra-corporate 
transferees more easily. However, the right to work for spouses could put the members of the 
family of ICTs in a more favourable situation than the members of the family of nationals of 
new Member States subject to transitional measures. 

Option 5: Directive laying down common admission procedures. A single document allowing 
the  holder  to  work  as  an  intra-corporate  transferee  and  to  reside  on  the  territory  of  the 
Member  State  would  be  issued.  In  parallel,  a  maximum  time  for  processing  applications 
would  be  set  (e.g.  1  month).  This  option  would  significantly  improve  the  ability  to  transfer 
key personnel easily and rapidly and reduce the time and costs for attracting intra-corporate 
transferees.  

Option 6: Communication, coordination and cooperation among Member States. This option 
would  contribute,  to  a  certain  extent,  to  approximating  national  practices  on  intra-corporate 
transfers  from  third-country  nationals  across  the  EU  and  creating  a  more  harmonised  legal 
framework.  However,  the  impact  is  likely  to  be  very  limited  if  the  measures  are  not 
mandatory. 

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5. 

COMPARING THE OPTIONS 

Table 1: Comparison between policy options — Intra-corporate transferees  

Assessment criteria 

PO 2A 

PO 
2B 

PO 
2C 

PO 
2D 

PO 3 

PO4 

PO5 

PO6 

Relevance to  

global objective 

VVV 

VVV  VVV 

VV 

VVV  VVV 

VVV 

V 

Economic impacts at 
EU level 

Social impacts at EU 
level 

Impacts on third 
countries 

Impacts on 
fundamental rights 

VVV 

VV 

VVV  VVV 

VVV 

0/V 

VVV 

VV 

VV 

VV 

VV 

V 

VV 

V 

VV 

0/V 

VVV 

VV 

VV 

VV 

VV 

VV 

VV 

VV  

VVV 

VVV 

VV 

VV   VVV 

VV  

Administrative 
burdens  

-V V 

-V 

-VV 

-VV 

VV 

V 

-V 
(business)/ 
-VV (MS) 

Difficulty/risks of 
transposition 

-VVV 

-VV 

-
VVV 

-
VVV 

-VV 

-V 

Financial impact  

-V  

-VV 

-V 

-V 

-VV 

-VV 

-VVV 

-V 
(business)/ 
-VV (MS) 

-VVV 

0 

0 

0 

0 

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6. 

THE PREFERRED OPTION 

Comparing the options and their impact, the preferred option is a combination of options 2, 3, 
4 and 5. A harmonised definition of intra-corporate transferee based on the specific positions 
occupied by ICTs within the group of undertakings (option 2A), enlarged social and economic 
rights  (option  2C),  intra-EU  mobility  (option  3),  enhanced  family  rights  (option  4,  without 
access to the labour market for partners) and fast-track procedures (option 5) would contribute 
to better allocation of intra-corporate staff across third-country and EU entities and make the 
EU  more  attractive  for  third-country  national  key  personnel  of  multinational  corporations, 
while offering guarantees against unfair competition.  

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Table 2: Intra-corporate transferees — Preferred policy option  

Main field of EU 
action 

Key feature of the preferred policy option 

Policy options and sub-options 
considered 

Definition of 
ICTs 

Common definition based on the specific positions 
occupied by ICTs (managers, specialists and graduate 
trainees) 

PO 2A 

Work contract with a company located in a third-
country and belonging to the multinational 
corporation 

A duration of prior employment, if required 

Conditions of 
admission  

Professional qualifications in line with the position 
taken 

PO 2A 

Higher education qualifications and a training plan for 
graduate trainees 

 No labour market test 

A common set of rights including working conditions 
as referred to in Directive 1996/71 and an enlarged set 
of further socio-economic rights  

Intra-EU mobility 

Family reunification  

Conditions of 
residence 

Admission 
procedure 

Single permit for work and residence 

Maximum time for processing applications 

PO 2C 

PO 3 

PO 4 

PO 5 

PO 5 

Main advantages 

Common conditions of admission are an advantage to the competitiveness and attractiveness 
of  EU  enterprises  belonging  to  transnational  corporations,  while  the  reference  to  working 
conditions laid down by Directive 96/71 and the application of equal treatment in a series of 
rights  principle  ensures  a  fair  competition  between  EU  workers  and  third  country  national 
intra-corporate transferees.  

Facilitating  family  reunification  for  ICTs'  spouses  (without  access  to  work)  and  supporting 
intra-EU mobility strengthen the attractiveness of EU for ICTs.  

The  single  permit  for  work  and  residence,  joint  with  the  maximum  time  for  processing 
applications contribute to a rapid application and facilitates the transfers of key personnel. 

All  the  above-mentioned  advantages  will  contribute  to  the  EU’s  competitiveness  and 
attractiveness for enterprises and investments by facilitating movement of ICTs.  

Main disadvantages 

The  main  disadvantage  of  the  preferred  policy  option  will  be  the  costs  involved:  Member 
States will have to make modifications to their legislative frameworks in order to adapt to the 
provisions  of  the  preferred  policy  option,  mainly  concerning  the  common  definition,  the 

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single  permit  and  intra-EU  mobility.  From  the  employers'  perspective,  additional  time  and 
resources  will  also  be  involved  to  comply  with  the  new  conditions  of  admission,  but  the 
simplifications  flowing  from  a  common  framework  will  far  outweigh  this  necessary 
investment. 

Administrative costs 

The  number  of  ICTs  is  estimated  to  be  roughly  16 500  a  year.  The  hourly  tariffs  of  MS 
personnel are estimated at €

 23. Examination of an application takes six hours. 

The preferred option would give rise to the following additional administrative costs for MS 
authorities:  start-up  costs  in  the  first  two  years  for  familiarisation  with  the  obligations  (one 
working  day  and  50  officials  per  Member  State  concerned);  costs  for  processing  an 
application and issuing a residence permit (most of these costs connected with processing the 
application already arise at present); costs resulting from the coordination needed for intra-EU 
mobility;  obligation  to  submit  annual  statistics  to  the  Commission  and  other  MS  on  the 
numbers  of  residence  permits  or  visas  issued  to  third-country  national  ICTs  (10 hours  per 
Member State). 

7. 

MONITORING AND EVALUATION 

Monitoring  and  evaluation  arrangements  will  take  the  form  of  a  Commission  evaluation 
report  three  years  after  the  deadline  for  transposition  of  the  Directive,  based  on  Member 
States’ reports. Member States would also be required to send the Commission and the other 
Member States statistics on the numbers of third-country nationals who were granted a single 
permit or had their permit renewed or withdrawn during the previous calendar year, indicating 
their nationality and their occupation.  

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