FRANCE: EU Parliament & Council of EU Adopted Directive Providing EU-Wide Immigration Status for Posting Assignees from Affiliates Outside the EU to Affiliates within EU
The European Parliament and the Council of the European Union (EU) have adopted a directive, with implications for France, that provides for an EU-wide immigration status for posting assignees from affiliates outside the EU to affiliates within EU.
Directive 2014/66 provides for simplified and transparent processing for assignees and their family members, and facilitates intra-EU mobility. Member States (except UK, Ireland, and Denmark, which opted out) must transpose this directive into national law by November 29, 2016.
Implications for France
The Directive creates an EU-wide immigration regime that is very similar to the French Salarié en Mission (SEM) regime in place since 2006. The main differences are:
- The Directive will facilitate the execution of tasks in affiliates located in other Member States.
- The Directive allows specific activities at the sites of clients, if allowed under national (i.e., French) laws, whereas in applying the SEM regime, French authorities tend to reject applications where the transferee is to work on a client site (as opposed to the host site). It is hoped that, as the French administration adapts the SEM regime when transposing the Directive into national law, work on client sites will be allowed.
- The Directive allows Member States to provide for a fast-track simplified process for assignees and their families, for pre-approved corporate groups.
This Directive applies to third-country nationals residing outside the EU who are assigned by their employers to one or several affiliate companies located within the EU. The assignees must be managers, specialists, or trainees.
Same corporate group: The transfer must be between companies of the same corporate group.
Prior employment: The assignee must be previously employed by the non-EU affiliate for a period of time that may vary, depending on the Member State, from 3 to 12 months for managers and specialists, and 3 to 6 months for trainees.
Salary and conditions of employment: The salary level and conditions of employment are determined by the national laws of the host entity.
Assignment period: The maximum assignment period will be 3 years for managers and specialists and 1 year for trainees. Member States may require a period of up to 6 months to elapse between the end of the maximum duration and a second application under this Directive made by the same assignee in the same Member State.
Professional Qualifications: Managers and specialists must have professional qualifications and experience needed by the host entity. Trainees must have university degrees, and be subject to training programs that aim at career development or providing business techniques or methods.
The Directive states that the assignee will have the right to exercise the specific employment activity authorized under the permit in accordance with national law in any host entity belonging to the undertaking or the group of undertakings. Furthermore, the Directive specifies in its preamble that it does not prevent intracorporate transferees from exercising specific activities at the sites of clients within the Member State where the host entity is established in accordance with the provisions applying in that Member State with regard to such activities.
No Labor Market Test
Unless the directive conflicts with the principle of preference for EU citizens as expressed in the relevant provision of the relevant Acts of Accession, no labor market test should be required.
The assignment may be to one or more affiliates in one or more Member States. The application is to be processed by the Member State of the first stay. If the first stay is not the longest, then the Member State with the longest cumulative stay processes the application.
The Member State processing the application informs other concerned Member States. Such latter Member States have limited time and grounds to refuse the execution of work on their territory. Mobility within the latter Member States may be short-term (less than 90 days) or long-term (more than 90 days) but within a total cumulative period of 3 years.
Member States must process the application within 90 days.
Simplification for Pre-Approved Groups
As noted above, Member States may provide for a simplified fast-track process for assignees and their families for preapproved corporate groups. Simplification includes reducing the need to produce certain documents, and shortened processing time for work permits and visa issuance.
The family of the assignee may accompany him or her and have access to employment and self-employed activity. Family members include spouses, minor children (with minority defined under national law), and certain first-degree relatives who are dependents (under national law). The accompanying family application may be simultaneous with the assignee's application, and must be processed within 90 days of filing.
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