PUBLIC COUNCIL OF THE EUROPEAN UNION. Brussels, 25 November /03 LIMITE MIGR 89

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1 Conseil UE COUNCIL OF THE EUROPEAN UNION Brussels, 5 November /03 PUBLIC LIMITE MIGR 89 OUTCOME OF PROCEEDINGS of : Working Party on Migration and Expulsion on : October 003 No. prev. doc. : 986/0 MIGR 54 No. Cion prop. : 803/0 MIGR 73 Subject : Proposal for a Council Directive on the conditions of entry and residence of thirdcountry nationals for the purpose of paid employment and self-employed economic activities. At its meeting on October 003, the Working Party, which examined Articles 7-37, (Chapters III VI), concluded the first reading of the above proposal.. It is recalled that United Kingdom did not opt-in in the adoption and application of this Directive, under the terms of the Protocol concerning their position annexed in the Amsterdam Treaty. Ireland opted in by means of a letter sent on Delegations will find attached the whole text of this draft proposal, whose consideration commenced at four meetings in 00 (which were held on March, 6 April, 0 June and 8 July of 00) with their comments and reservations in footnotes. See 5084/0 MIGR. 3954/03 GK/MC/cr

2 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 General provisions Article The purpose of the Directive is: Recalling its concern on the legal basis of the Directive, A entered a reservation on Article. In the framework of the examination of this Article, D raised the question whether this Directive would prevent Member States from introducing some changes in their legislation, with a view to attracting labour forces from third-countries. Pointing out the need to fill the gaps in their labour market, this delegation considered that Member States should be granted some discretion. For that reason it said that it would be advisable to introduce, in this Directive, further exceptions to the rules it establishes. Cion observed that the approach followed in the Directive is different from other systems, such as the Canadian, to which D referred, which seeks to attract people for demographic reasons. On the basis of the approach suggested in the Directive, entry and residence in the European Union, with a view to exercising an economic activity, are only allowed when there are gaps to be filled and under the conditions that it establishes. 3954/03 GK/MC/cr

3 (a) to determine the conditions of entry and residence of third-country nationals for the purpose of paid employment and self-employed economic activities and (b) to determine standards on procedures for the issue by a Member State of permits to thirdcountry nationals to enter and reside 3 4 in its territory and to exercise activities as an employed or self-employed person. 3 4 The question as to whether this directive - which provides for rules on entry and residence of third-country nationals for labour purposes - would affect the visa requirements to which the person concerned may be subject, was raised by E, F and I. These delegations especially referred to the fact that, for his/her first entry, the third-country national may be requested, under the applicable Community legislation, to possess a visa issued by the Member State concerned. For that reason, E and EL wanted a reference to the visa regulations to be introduced in paragraph. Pres suggested adding a wording such as without prejudice to the rules concerning visas. Cion pointed out that this Directive is not intended to infringe the rules concerning visas. It explained that, as a worker, the third-country national is granted entry and residence in the Member State concerned in order to exercise an economic activity there. However, the thirdcountry national is only entitled to enter the territory of the Member State concerned after being issued the relevant permit by its authorities. It is up to the Member State concerned to issue the permit, either abroad or in its territory. Where the Member State concerned only provides for the issue of the permit within its territory, the third-country national needs to possess, if required, a visa for the first entry. Cion finally said that it would not oppose the introduction of an appropriate clarification, if delegations feel it necessary. I entered a reservation on Article. In the framework of the discussion on visa requirements, B drew attention to the need for addressing the question of entry (directly from country of origin or after a transit in the territory of other Member States) of the third-country national into the territory of the Member State concerned. E suggested adding the words and access to work after the words conditions of entry and residence. S entered a linguistic reservation (the words residence and reside in points a) and b) were not translated in the same way). E suggested adding the words for employment purposes after the words to enter and to reside. 3954/03 GK/MC/cr 3

4 Article For the purposes of this Directive : (a) "third-country national" means any person who is not a citizen of the Union within the meaning of Article 7() of the Treaty, including stateless persons; (b) activity as an employed person means any remunerated economic activity for and under the direction of another person; (c) activity as a self-employed person means any remunerated economic activity, which is not accomplished for and under the direction of another person ; (d) residence permit worker means a permit or authorisation issued by the authorities of a Member State allowing a third-country national to enter and reside in its territory and to exercise activities as an employed person 3 4 ; 3 4 NL wanted a definition of employer to be introduced in this provision. D drew attention to the fact that the categories of au pair and youth exchange, mentioned in Article 6, are not defined in this provision. Cion observed that the category of au pair is defined in Article 6 and that points g), h) and i) have to be examined in close connection with the Articles 3 and 4. Concerning this point, as well as point i), F wondered whether these definitions would be consistent with the corresponding definitions, as used in its national legislation. Cion pointed out that, since the definitions referred to in Article, as well as in the other relevant Articles are only intended to be used in the context of the application of this Directive, the Member States may maintain the definitions adopted in their national legislation. I found the definition contained in point d) not particularly clear and specific. EL, I and NL entered a reservation on this point, linked with the question of visa requirements (see footnote on page 5). Feeling that the persons concerned should be in possession of an authorisation in order to exercise the intended economic activity, prior to the issue of the residence permit, E, EL, NL and A entered a reservation on point d), as well as on point e). 3954/03 GK/MC/cr 4

5 (e) residence permit self-employed person means a permit or authorisation issued by the authorities of a Member State allowing a third-country national to enter and reside in its territory and to exercise activities as a self-employed person ; (f) seasonal workers means third-country nationals who retain their legal domicile in a third country but are employed in the territory of a Member State in a sector of activity dependent on the passing of the seasons, under a fixed-term contract for a specific job; (g) transfrontier workers means third-country nationals resident in the frontier zone of a neighbouring country who are employed in the frontier zone of an adjacent Member State and who return to the frontier zone of the neighbouring country each day or at least once a week 3 ; (h) intra-corporate transferees means third-country nationals working within a single legal entity and being temporarily transferred into the territory of a Member State, either to the principal place of business or to an establishment of that legal entity, provided that they have worked for the legal entity concerned for at least the -month period immediately preceding the transfer; 3 EL, I and NL entered a reservation on point e), linked with the question of visa requirements (see footnote on page 5). In reply to a question concerning points d) and e), Cion observed that the said points make reference to different permits, subject to different conditions. If, for example, a worker wishes to become a self-employed person, in order to be granted the corresponding permit he/she will then have to fulfil the relevant conditions. E, supported by A, wanted the words at least once a week to be deleted. A drew attention to the fact that its legislation, in addition to the transfrontier workers, also takes into account the category of commuters (persons who remain more than one day in its territory). However, this specific category of workers is limited to the nationals of the neighbouring countries. 3954/03 GK/MC/cr 5

6 (i) trainees means third-country nationals whose presence in the territory of a Member State is strictly limited in duration and is closely connected with increasing their skills and qualifications in their chosen profession before returning to their own country to pursue their career. Article 3. The provisions of this Directive shall apply to third-country nationals, except where provisions that are more favourable apply under: (a) bilateral or multilateral agreements concluded between the Community, or the Community and its Member States, on the one hand, and third countries on the other hand; (b) bilateral or multilateral agreements concluded between one or more Member States and third countries. D and A pointed out that this definition may give rise to some difficulties with respect to their vocational and training systems. D also queried what the relation would be between the provisions of this Directive and the proposal for a Council Directive on the conditions of entry and residence of third-country nationals for the purposes of studies, vocational training or voluntary service, which is currently being examined by the competent Council body. In reply to this query, Cion observed that a distinction should be introduced between paid and unpaid trainees, based on the criterion of remuneration. If learning is the predominant function of the traineeship, the person concerned will fall within the scope of the above students Directive. Where in the traineeship the element of remuneration is prevailing, the rules of this Directive will apply. However, it admitted that in the practice it would be not so easy to make such a distinction. Moreover, it suggested adding in point i) a wording such as who are paid. Pres considered that this suggestion may be appropriate, while D wondered whether such an addition would cover its concern. Cion felt that the German version of this point needs to be checked in more detail. In reply to a question from A, Cion observed that the Member States will be entitled to conclude, in the future, bilateral and multilateral agreements with third countries containing more favourable conditions. However it pointed out that these agreements must be compatible with the provisions of this Directive. 3954/03 GK/MC/cr 6

7 . The provisions of this Directive shall not apply to the exercise of activities which are directly linked to the supply of goods or services from third countries to the Community, as long as third-country nationals carrying out these activities do not stay for more than three months in the Community. 3. The provisions of this Directive shall not apply to : (a) third-country nationals established within the Community who are posted to another Member State for the purpose of providing cross-border services or who provide cross border services; (b) third-country nationals staying in a Member State as applicants for asylum, under subsidiary forms of protection or under temporary protection schemes ; (c) third-country nationals whose residence is not legal and whose deportation has been suspended for factual or legal reasons; (d) third-country nationals who are family members of citizens of the Union who have exercised their right to free movement within the Community; (e) third-country nationals staying in a Member State under family reunification rules. D wondered whether transfrontier workers should be excluded from the scope of this Directive. NL wanted refugees, as recognised under the rules of the Geneva Convention, to be mentioned in point b). Cion took the view that refugees are already covered in paragraph (a). Observing that the persons under temporary protection should be granted the same treatment as refugees, FIN entered a scrutiny reservation on this point. 3954/03 GK/MC/cr 7

8 4. In the absence of specific provisions of Community law, Member States may maintain or introduce more favourable provisions regarding the following categories of person : (a) researchers and academic specialists ; (b) priests and members of religious orders; (c) sport professionals; (d) artists; (e) journalists 3 ; (f) representatives of non-profit making organisations. 3 NL noted that in its national legislation, the list of categories of persons which may be entitled to be granted more favourable treatment is wider than the list contained in paragraph 4. It further added that some of these categories may also be subject to certain restrictions. A took the view that the list of categories referred to in paragraph 4 should be regarded as an indicative and not as an exhaustive one, since other categories of persons may be envisaged. Concerning the NL remark, Cion felt that its concern might be met by replacing the words more favourable with the words more specific.with respect to the A observation concerning the possibility of adding further categories of persons in this paragraph, it expressed some doubts about the opportunity of setting a list containing too many categories. D pointed out that in the German legislation a legal definition of highly qualified workers is used, which goes beyond the categories of persons referred to in point a). It also noted that these highly qualified workers are granted preferential treatment. S also noted that a different terminology is used in its legislation, which makes reference to persons with special skills. These persons, who do not need to be involved in academic activities, are granted more favourable treatment. Cion said that it could support the introduction of a new category covering highly qualified persons in this paragraph, if delegations deem it appropriate. A suggested replacing the word journalists with media workers. 3954/03 GK/MC/cr 8

9 Chapter II Entry and residence for the purpose of paid employment Section General rules Article 4. Member States shall only authorise third-country nationals to enter and reside in their territory for the purpose of exercising activities as an employed person where a residence permit worker has been issued by the competent authorities of the Member State concerned in accordance with this Directive.. A residence permit worker shall only be issued if, after verification of the particulars and documents, it appears that the applicant fulfils the requirements for obtaining a residence permit worker in accordance with Articles 5 and 6, subject to any limitations imposed by a Member State in accordance with Articles 6, 7 and When handling an application, the competent authorities shall comply with the procedural safeguards provided for in Article 9. 3 EL, I and NL entered a reservation on paragraph, linked with the question of visa requirements (see footnote on page 5). Stressing that in its legislation the work permit is not a right, but a concession, IRL suggested replacing the word shall with may. D, I and A supported this suggestion, which also applies to paragraph of this provision. Cion drew attention to the fact that, in accordance with Article 6, Member States may apply some restrictions to the issue of the 'residence permit - worker'. IRL felt that the reference to Article 6 is not sufficient to cover its concern. Pointing out that this Directive is not intended to create a right for the worker to be granted the said permit, Cion took the view that in the logic of Article 4 it seems more appropriate to maintain the word shall in paragraph and to use the word may in paragraph. B, EL, F and A recalled that, under the applicable rules of their national law, third-country nationals need to be granted two different permits, which are not necessarily issued at the same time. Cion insisted in the fact that one of main objectives of this Directive is the simplification of the existing national procedures. 3954/03 GK/MC/cr 9

10 Article 5. In order to obtain a residence permit worker, a third-country national intending to exercise activities as an employed person in a Member State shall apply to the competent authority of the Member State concerned. The future employer of a third-country national shall have the right to submit an application on behalf of the third-country national applicant.. Irrespective of the question of the existence of two different procedures for the issue of the residence permit and of the work permit, various delegations pointed out that the general rule contained in paragraph - according to which the application is to be submitted by the employee - is not consistent with the approach followed in their national legislation. I, supported by B, E, EL and F, felt that this provision should consider both possibilities on the same footing and therefore clearly state that the application may be submitted either by the employee or by the employer. For that reason, it suggested adding a wording such as or the future employer of a third-country national in the first sentence of paragraph and to delete the second sentence of this paragraph accordingly. These delegations, as well as D, FIN, IRL and S entered a scrutiny reservation on paragraph. NL further noted that in accordance with paragraph the employee is always offered the possibility of submitting an application, although the application for a work permit, under the applicable Dutch legislation, may be presented by the employer only if certain conditions are fulfilled. According to Cion, a fundamental distinction needs to be made between the applicant for a permit and the holder of a permit. It expressed its preference for the solution adopted in the current text of this provision, which in its view is more in line with an approach aimed at taking into account the rights of the workers. However, it took the view that the entitlement for submitting the application may also be extended to the employer, as long as the principle, according to which the employee is the holder of the permit, is maintained. Noting that in its national legislation some categories of persons are not issued a residence permit, D wondered whether some exceptions may be introduced to the general rule according to which the possession of a permit is an essential requirement. Cion noted that in particular cases (such as for diplomats, referred to in Article 3 () (a), as well as for some categories of persons listed in Article 3(4)) the Directive provides for exceptions to the general rule. 3954/03 GK/MC/cr 0

11 . Applications for a residence permit worker shall be submitted via the representation of a Member State competent for the country of legal residence of the applicant or directly in the territory of the Member State concerned, if the applicant is already resident or legally present there. Various delegations (E, EL, I, NL and A) opposed the fact that an application may be presented by a person who has already entered the territory of the Member State concerned. These delegations felt that, without prejudice to some exceptional circumstances, the application may exclusively be presented abroad, via the diplomatic representation of the Member State concerned. In addition, some concern was expressed by a number of delegations on the fact that, on the basis of the second part of paragraph, which refers to persons legally present, third-country nationals who entered the territory of the Member State concerned as tourists will be entitled to apply. E, I, NL and A entered reservations on the whole of paragraph. FIN and UK entered reservations, and D, EL, P and S scrutiny reservation on the second part of paragraph. S also entered a linguistic reservation on paragraph. Cion observed that in the perspective of a more liberal immigration policy, persons entered as tourists should be granted the possibility of submitting the application in the territory of the Member State concerned. It also drew attention to the fact that submitting an application does not entitle the third-country national to stay in its territory. With respect to a L remark concerning the relation between paragraph and Article 6 (f), it said that the last provision refers to the persons who may reside for a period of three months in the territory of the Member States of the Union, in accordance with the applicable Community law. 3954/03 GK/MC/cr

12 3. The application shall be accompanied by the following particulars and documents: (a) name and address of the applicant and the employer; (b) a valid work contract or a binding offer of work in the Member State concerned, covering the term of the residence permit applied for; 3 3 E, I, NL (which made reference in particular to point d), P and A observed that the list referred to in paragraph 3 contains documents which should be submitted by the employer, as well as documents which should be submitted by the employee. E wanted a clear distinction between the two categories of documents to be introduced in this provision. I said that a system could be envisaged whereby the application and the documents the employee is requested to provide are submitted by the employer, while the employee integrates the application with the remaining documents. EL noted that the documents and particulars referred to in paragraph 3 correspond to the particulars and documents which, under the legislation of the Member States, are requested for the issue of the residence permit and of the work permit. FIN welcomed the fact that this paragraph contains a comprehensive list of documents. However, according to D, this provision is too detailed and needs to be simplified. B entered a scrutiny reservation on paragraph 3. Noting that objective of this provision is to establish an integrated and simplified issue for the issue of a single permit, Cion expressed its favour for setting an exhaustive list of documents in paragraph 3. A suggested to add in the list referred to in paragraph 3 the requirement of the ability and commitment of the third-country national to integrate himself/herself in the society of the Member State concerned. I, supported by L and P, wanted the requirement of an appropriate accommodation to be introduced in this paragraph. Concerning the requirement of integration, Cion expressed some doubts about the opportunity of introducing such a criterion, due to the practical difficulties that it might rise. With respect to the requirement of an appropriate accommodation, it took the view that the condition of possessing sufficient resources referred to in point h) should also cover this requirement. Moreover I, supported by EL, wanted another requirement to be introduced in this provision, which is established in their national law: the commitment of the employer to pay the travel expenses - by appropriate means, such as a bank deposit or guarantee - of the employee in order to ensure that he/she return to his/her country when the work contract is ended or broken. Cion noted that, as far as seasonal workers are concerned, this requirement is expressly stated in Article (). Observing that its new immigration law follows an approach similar to that adopted by Canada (there is a selection of persons, but without a specific job offered), D entered a scrutiny reservation on point b). 3954/03 GK/MC/cr

13 (c) description of the envisaged activities as an employed person in the Member State concerned; (d) appropriate evidence of fulfilment of the requirement laid down in Article 6() as provided for in paragraphs to 5 there; (e) if required by the Member State concerned, a certificate or adequate proof of good character and conduct and a health certificate; (f) valid passport or equivalent travel documents and, if appropriate, evidence of valid residence title; (g) documents proving the skills which are necessary for the performance of the envisaged activities and evidence of fulfilment of all the conditions applicable to nationals of the Member State concerned for the exercise of the relevant activity as an employed person ; FIN, supported by L, wanted the requirement of submitting the criminal record to be included in this point. P stressed that the requirements referred to in this provision should be compulsory. According to B, the person should also prove that he/she does not constitute a danger or a threat to public order. Moreover, it wanted the requirement of 'health certificate' to be specified. With respect to the suggestion from FIN and L Cion took the view that the notion of certificate or adequate proof of good conduct covers the criminal record. Concerning the health certificate, it observed that it is up to the Member State concerned to decide what type of document it will request. In general terms, it noted that this point, which is introduced by the words if required, allows for a certain amount of discretion to the authorities of the Member State concerned. In reply to a query from L, Cion observed that the diploma/certificate obtained by the person concerned in a third-country needs to be formally recognised in the EU. 3954/03 GK/MC/cr 3

14 (h) evidence of having sufficient resources to support the applicant and his/her family members so as to avoid becoming a burden on the social assistance system of the host Member State for the duration of their stay and of having a sickness insurance covering all risks in the host Member State. Those resources shall be deemed sufficient where they are at, or above, the threshold below which the host Member State may grant social assistance to its nationals. Where this criterion is not applicable, the applicant s resources shall be deemed sufficient where they are no less than the amount of the minimum social security pension paid by the host Member State; ; (i) proof of payment of the fee for handling the application. 4. Third-country nationals who have been legally resident in a Member State and who have legally exercised activities there as an employed person for more than three years over the preceding five years shall not be required to provide evidence of fulfilment of the requirement laid down in Article 6() when submitting an application for a residence permit worker in that Member State. Observing that the level of sufficient resources should be determined on the basis of an individual assessment, rather than on the basis of general criteria as established in this provision, D entered a scrutiny reservation. EL felt that some discretion should be allowed to Member States in determining the level of resources which they consider sufficient. Concerning resources, Cion observed that this provision follows an approach similar to that adopted in the proposal for a Council Directive on the right of the citizens of the Union and their family members to move freely within the territory of the Member States, which is actually being examined by the competent Council bodies. It also added that regarding in particular the checks of the financial resources this Directive makes reference to the Council Directive on the status of third-country nationals who are long-term residents. This Directive enables the persons who have been granted the status of long-term resident in a Member States to move to a second Member States and to maintain this status, under certain conditions. It said that Article 6 is very similar to Article 5 of the said Directive, which concerns the checks carried out in the second Member State. Feeling that the payment of fees should fall within the competence of the Member States, A wanted point i) to de deleted. Cion observed that this Directive does not intend to regulate fees. The objective of this point is simply to state that, if the Member State requires the payment of fees for handling the application, the person concerned shall submit the proof that he/she has met this requirement. 3954/03 GK/MC/cr 4

15 Article 6. When submitting an application in accordance with Article 5, it must be demonstrated that a job vacancy in that Member State cannot be filled in the short term by any of the following categories : (a) citizens of the Union; (b) third-country nationals who are family members of citizens of the Union who have exercised their right to free movement within the Community 34 (c) third-country nationals already enjoying full access to the national labour market concerned under the agreements referred to in Article 3() 5 ; NL entered a reservation and I a scrutiny reservation on Article 6. FIN entered a scrutiny reservation on Article 6(). A felt that mention should be made the persons drawing an employment benefit in the list referred to in Article 6(). Cion felt that this concern from A is met, insofar as this provision covers all persons entitled to exercise an economic activity. Cion further took the view that points b), c), d) and g) of Article 5(3) should be moved to the list contained in this provision, insofar as they set requirements that need to be checked by the competent authorities. D felt that third-country nationals should not be granted treatment equivalent to that of EU citizens. For that reason it suggested separating points a) and b) from the points of paragraph, and moving them to a new paragraph. In its view the Directive should only apply to the categories referred to in points a) and b), while the categories covered in points c)-f) should remain subject to the provisions of the national legislation. In reply to query from L, Cion said that the family members referred to in this provision are those defined in Regulation 64/68. According to FIN, supported by NL, which felt that refugees should be covered by this provision, point c) should not only refer to Article 3(), but also to Article 3(3). Cion noted that in accordance with the provisions of the Geneva Convention, which is a multilateral agreement as defined in Article 3 (), refugees are granted access to the labour market. Therefore, the provisions of Article 6()(c) cover this category of third-country nationals. 3954/03 GK/MC/cr 5

16 (d) third-country nationals already enjoying access to the national labour market concerned under existing national legislation or under Community legislation ; (e) third-country nationals who are legally resident in a Member State and who are and have been legally exercising activities as an employed person in that Member State for more than three years ; or (f) third-country nationals who have been legally resident in that Member State and who have legally exercised activities as an employed person in that Member State for more than three years over the preceding five years. 3 3 Feeling that this provision is redundant, D wanted point b) to be deleted. Cion favoured maintaining this provision, for reasons of consistency with the principle of Community preference, which was already affirmed in the Council resolution of 0 June 994 on limitations on admission of third-country national to the territory of the Member states for employment. Concerning a query from FIN, it said that this provision would cover persons admitted under family reunification rules and asylum seekers whose access to their labour market has been granted on the basis of the relevant national provisions or of applicable Community legislation. D, E, EL and NL entered a scrutiny reservation on this provision. D, supported by E and L, wanted a time limit of three years instead of five years to be set in this provision. Cion felt that three years is an average and reasonable period. E, EL and NL entered a scrutiny reservation on this provision. D and A wanted this point to be deleted. In particular D felt that, if a time-period of five years replaces the deadline of three years referred to in point e), this provision would no longer be necessary. Stressing the linking of Article 6()(f) with Article 5(4), Cion took the view that such a preferential treatment should be maintained, in order to favour the mobility of third-country nationals workers between the Member States of the EU and their countries of origin. It felt that a certain flexibility for allowing the person concerned to temporarily leave the territory of the EU and subsequently re-enter it, is appropriate and necessary, in particular with a view to reducing the risks of 'brain drain'. 3954/03 GK/MC/cr 6

17 . The requirement laid down in paragraph shall be deemed to be fulfilled if a specific job vacancy has been made public via the employment services of several Member States for a period of at least four weeks, and in particular, when appropriate, by means of the European Employment Services (EURES) network established by Commission Decision 93/569/EEC, and if no acceptable job application has been received from persons listed in paragraph or from third-country nationals who are citizens of countries with which accession negotiations have been started. The published job vacancy shall contain realistic, reasonable and proportionate requirements for the offered post. This shall be checked and scrutinised by the competent authorities when evaluating an application for a residence permit submitted in accordance with Article 5. OJ L 74, , p. 3. E and S entered a scrutiny reservation on this provision. Several delegations (D, EL, E, FIN, F, I, NL, S and UK) felt that the system and the procedure referred to in paragraph 3 appear to be quite complicated, bureaucratic and difficult to manage. FIN noted that this system should allow for more flexibility. A, which considered the system as utopian and unrealistic, pointed out that the compliance with the principle of the Community preference could only be checked if the job offer was published by the national employment authorities. D wanted the last two sentences of this provision to be deleted. Making reference to the fact that, according to the current wording, the published job vacancy shall contain realistic, reasonable and proportionate requirements, L wanted clear and concrete requirements to be provided for in this provision. Observing that EURES network was not particularly successful in practice (only 5% of the job vacancies were filled by using this system), NL said that a different mechanism should be envisaged in which the employer should play a more active role. D, E, EL and UK drew attention to the difficulties in applying this system, in particular in view of the enlargement. According to D, the clause concerning citizens of countries with which accession negotiations have been started should be deleted. Cion explained that the system envisaged in this provision aims at putting into practice the principle of Community preference referred to in paragraph while simplifying the procedure. It stressed the difficulties of finding a mechanism that needs to be quick and efficient while allowing, at the same time, for appropriate checks. Concerning the question of the enlargement, it felt that a distinction should be introduced between the free movement of the citizens of the acceding countries, which in its view should be addressed separately, and the issue of the preference to be granted, under the terms of this Directive, to the citizens of these countries. 3954/03 GK/MC/cr 7

18 3. Member States may adopt national provisions according to which the requirement laid down in paragraph is deemed to be fulfilled for a specific number of jobs, in a specific sector, for a limited time-period and, if appropriate, in a specific region without the need for an individual assessment. The national provisions shall lay down in detail the criteria according to which applications for work permits shall be ranked when the number of It was generally felt that the system outlined in this paragraph - which allows Member States to introduce, under certain conditions, "green card" programmes - is quite complex and bureaucratic and difficult to manage. For that reason it was considered that such a system needs to be simplified and made more flexible. In particular, opposing the introduction of a quota system, which would restrict access to the labour market to a maximum fixed amount of persons, F wanted the reference to a specific number of jobs to be deleted. Moreover, according to F and supported by B, the first sentence of this paragraph should be further simplified and make exclusive reference to a specific sector, while the other requirements (for a limited time-period and, if appropriate, in a specific region) should be deleted. However I, which applies a quota system in its national legislation, suggested only maintaining the requirement of a specific number of jobs and deleting the other requirements. Taking the view that a green card programme is a mechanism that should be as flexible as possible, D considered that this paragraph is a very restrictive provision. It also stressed its preference for a system, such as that adopted in its new immigration law. On the basis of this system, the person concerned will receive a certain number of points, depending on various criteria, such as qualifications - which is considered as being an essential element -, age, knowledge of the language, etc. Observing that its legislation provides for the access of a limited number of persons with high qualifications, A recalled that it did not favour the system outlined in paragraph, which, in its view, should be abandoned. It considered that the mechanism for the admission of third-country nationals for work purposes should be a combination of the systems referred to in paragraphs 3 and 4. Noting the existence of a general agreement on the need for opening the labour market, F wondered whether it might be possible to find a compromise solution between the different approaches followed in the Member States, taking also into account the different positions concerning the introduction of quotas. It felt that one possibility could be admitting certain categories of third-country nationals to a green card programme, without establishing a fixed number of eligible persons. Cion stressed that this paragraph is an optional provision. In its view it provides for a more flexible system than that referred to in paragraph, which is subject to further requirements and conditions. However, it added that for reasons of transparency, a certain number of requirements also needed to be introduced in the framework of the system envisaged in paragraph 3. Concerning in particular the remarks from D and A in whose legislation there is a preference for the access of highly qualified third-country nationals to their labour market - Cion said that it favoured setting a general rule and introducing, if appropriate, some specific exceptions, which might cover, for instance, the above-mentioned category. In this context D observed that a different approach might be followed, which would consist of admitting only highly qualified persons to the labour market, but at the same time, giving Member States the possibility of extending access to other categories. Pointing out that this Directive should aim at regulating access to the labour market irrespective of the qualifications of the persons concerned, I opposed the D suggestion. 3954/03 GK/MC/cr 8

19 applications received outnumber the published number of jobs. Member States shall consider in the first place applications from citizens of countries with which accession negotiations have been started. 4. Member States may adopt national provisions according to which the requirement laid down in paragraph is deemed to be fulfilled if the annual income offered to a third-country national exceeds a defined threshold 3. 3 B, D, F and FIN wanted the second sentence of paragraph 3 to be deleted. B, D and I wanted the third sentence of paragraph 3 to be deleted. D opposed the fact that, by means of this provision, nationals of acceding countries are granted treatment that is comparable to that of EU nationals. It further noted that the system outlined in paragraph 3 should be based on the qualifications of the persons concerned, irrespective of their nationality. Observing that this paragraph is an optional provision, Cion said that the system it refers to has been applied in two Member States. B, which is one of the Member States concerned, noted that, in practice, this system was quite successful. A drew attention to the fact that in Austria, under the new immigration law, the threshold will become the basic requirement for access to the labour market, together with the qualifications. 3954/03 GK/MC/cr 9

20 5..Member States may adopt national provisions according to which the requirement laid down in paragraph is deemed to be fulfilled for a specific third-country national, if a defined amount of money has been paid by the future employer of that person to the competent authorities. The money received from the employer shall be spent for measures promoting the integration of third-country nationals or for vocational training purposes. A entered a reservation and E, EL, F, I and FIN entered a scrutiny reservation on this provision. As stressed in particular by F, these delegations felt that this provision may lead to some distortions of the competition and favour large enterprises vis-à-vis small and medium enterprises, which might have difficulties in using such a procedure. A drew attention to the risk of the possible abuse of the system, insofar as the money to be paid to the competent authorities for measures promoting the integration of third-country nationals could be deducted from the salary of the person concerned. According to NL, this procedure might prove to be useful only in exceptional cases. While in its view this system is not an ideal one, Cion said that it wanted to leave this possibility open to the Member States that wished to apply it. In this context, recalling that paragraph 5 is an optional provision, it observed that this system has been applied in countries outside the European Union, such as South Africa. It also took the view that this system should not lead to any distortion of competition, insofar as it is open to all enterprises. For that reason, it added, the use of this procedure is not subject to a defined amount of money. Feeling that the provision contained in the second sentence should not be mandatory, D and IRL wanted the word shall to be replaced by may. D further wanted the words for vocational training purposes to be deleted, insofar as it felt that such purposes are already covered by the general notion of integration. Taking note of these remarks, Cion observed that the objective of this provision is to establish a link between the use of such a system and the promotion of integration measures. 3954/03 GK/MC/cr 0

21 Article 7. A residence permit worker shall be issued for a predetermined period. The initial residence permit worker granted shall be valid for a period of up to three years to be determined in accordance with national legislation. It shall be renewable for periods of up to three years, to be determined in accordance with national legislation, on application by the P entered a scrutiny reservation on paragraph. D, F, I, NL and A entered reservations on paragraph, concerning the maximum period of validity - three years - of the "residence permit - worker". In particular D, F, I and A expressed some concern about the fact that after three years persons with a contract of unlimited duration, who met the requirements established for their admission, should be submitted to a new economic - needs test. Stressing that such a restriction could lead to situations of legal uncertainty, on both sides of employee and of employer, these delegations opposed the introduction of a new - needs test in cases where the permit is renewed. Moreover, according to D and S, the Member States should be allowed the possibility of issuing, to the person concerned, a permanent residence permit. Drawing attention to the fact that in their legislation the maximum period of validity for a permit is five years, NL and UK took the view that the deadline referred to in this provision is too short. EL supported the deadline of three years indicated in the proposal. Taking note of the delegations' remarks, Cion considered that two different approaches might be envisaged in the framework of this provision. The first possibility, which is reflected in the current text, is that the person concerned is issued a permit with a limited duration and has to be submitted to a new economic - needs test when his/her permit is renewed. This approach may imply that the third-country national is obliged to return to his/her country if he/she no longer meets the requirements established in the Directive (if, for instance, the economic situation of the Member State concerned has changed). A different approach could consist of issuing the person with a permit of a longer duration, without requesting a new economic - needs test in case of renewal. Pointing out that the Commission is open to take into account both solutions, it invited the Working Party to consider this question and to reach an agreement on the approach to be followed. D, F, I and A insisted that the first approach appears to be unrealistic and that a more flexible system needs to be found. In this context NL drew attention to the fact that, in accordance with its legislation, a permit cannot be renewed: after three years the person concerned has no restrictions on the labour market, but if, for example, he/she was issued a permit for one year, once this period has elapsed he/she must return to his/her country. FIN, NL and S drew attention to the need of establishing a link between Article 7 and the provisions of the Directive on the status of third-country nationals who are long-term residents. 3954/03 GK/MC/cr

22 holder, to be submitted at least three months before the expiry date and after consideration by the competent authority of a file containing updated information on the items enumerated in Article 5(3) and in particular detailed information on the activities exercised as an employed person.. Applicants for renewal who have been holding a residence permit worker in the Member State concerned for more than three years shall not be required to provide evidence of fulfilment of the requirement laid down in Article 6(). Various delegations (D, E, FIN, NL, A, S and UK) felt that the requirement of submitting the application at least three months before the expiry date of the permit might give rise to some difficulties. In particular NL, S and UK took the view that this provision should not set any deadline, insofar as the person concerned should be entitled to submit his/her application until the expiry date of the permit. E wondered what the consequences would be in cases of late applications. A drew attention to the fact that a similar system was applied in Austria and abandoned, due to the problems it created (loss of access to the labour market and of the residence permit). EL found the three - month deadline reasonable, insofar as the competent authorities need to be allowed a certain period of time for examining the application. According to Cion, the introduction of such a deadline aims at avoiding that, in the moment between the expiry of the permit and its renewal, the person concerned could fall in a sort of 'grey area'. D and A entered a reservation on paragraph. According to P, this provision needs to specify that the period of residence to be taken into account should be uninterrupted. Cion supported the introduction of such a clarification. 3954/03 GK/MC/cr

23 Article 8 A residence permit worker shall initially be restricted to the exercise of specific professional activities or fields of activities. It may also be restricted to the exercise of activities as an employed person in a specific region. After three years, it shall not be subject to these restrictions. Article 9. After a residence permit - worker has been issued, its holder shall notify to the competent authorities any changes to the information provided in accordance with Article 5(3). If these changes relate to points (b) or (c) of Article 5(3) they shall be subject to the approval of the competent authority of the Member State concerned.. During the period of validity of a residence permit - worker, competent authorities shall not consider changes that relate to Article 5(3) (d). Taking the view that this provision should be optional, B, D, E, EL, F, IRL and I entered a reservation on Article 9. NL entered a reservation linked with its reservation on Article 6(). It also suggested adding at the end of the first sentence the words with a specific employer at the end of the first sentence. Cion said that the question of whether this provision should be mandatory or optional depends on the approach that the Working Party considers the most appropriate. Two different approaches are possible: either a more restrictive one, which is reflected in the current text, or a more liberal one, which would imply that the Member State should not be bound to apply the restrictions provided for in Article 8. Concerning the remark from NL, it observed that in some national legislation the work authorisation refers to a specific employer. However, it expressed its preference for granting to the employee the possibility of working for another employer (for example, a nurse should be able to move from one hospital to another). Pres noted that the majority of delegations preferred to adopt a more flexible approach in Article 8. D and A entered a reservation and F entered a scrutiny reservation on this provision. These delegations felt that, if Article 8 is considered as being an optional provision, Article 9 should be amended accordingly. In particular D, which found this provision over-restrictive, and F, which found it too detailed, took the view that such rules should not be contained in a Directive. FIN wondered what changes in the information provided in accordance with Article 5(3) should be subject to the requirement of the notification referred to in this Article. It further took the view that it should be clarified when and how the approval of the competent authorities of the Member State concerned is to be given. Pres felt that the controls referred to in this provision are only justified if the restrictions provided for in Article 8 are maintained. It also noted that this provision should allow for more flexibility. 3954/03 GK/MC/cr 3