Document 52014DC0287

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment (“EU Blue Card”)

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment (“EU Blue Card”)

52014DC0287

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purpose of highly qualified employment (“EU Blue Card”) /* COM/2014/0287 final */

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN
PARLIAMENT AND THE COUNCIL

on
the implementation of Directive 2009/50/EC on the conditions of entry and
residence of third-country nationals for the purpose of highly qualified
employment

The
EU Blue Card Directive[1]
was adopted to
facilitate the admission and mobility of highly qualified migrants[2] and
their family members by harmonising entry and residence conditions throughout
the EU and by providing for a legal status and a set of rights.

In
the increasing global competition for talent, the EU Blue Card intends to make
the EU more attractive to highly qualified workers from around the world and
strengthen its knowledge economy. The Directive also aims to minimise brain
drain in developing and middle-income countries and to encourage circular and
temporary migration.

Member
States (‘MS’) had until 19 June 2011 to transpose the Directive into their
national legislation. The Commission launched infringement proceedings against
20 MS[3] for not having transposed the Directive
in time, which have since all been closed.

All
MS bound by the Directive[4]
are now in a position to grant EU Blue Cards. In parallel, many MS have
national policies in place for attracting highly qualified migrants[5].
While some MS[6]
have imposed volumes of admission restricting the number of highly qualified migrants,
other MS[7]
have adopted or retained more favourable provisions in respect of specific
provisions of the Directive.

This
Communication[8]
responds to the Commission's obligation to report to the European Parliament
and the Council on the application of the Blue Card Directive[9].
First, it assesses the main aspects related to the attractiveness of the EU
Blue Card, followed by a brief overview of how measures were enacted in the
national legislations. Insofar as possible, particular
attention is paid to the impact of national schemes for highly qualified
migrants (Article 3(4)), the criteria for admission (Article 5), notably the
salary threshold, and the conditions for residence in other MS (Article 18).

1.
Attractiveness of the EU Blue Card
1.1.
Statistics

As a
result of the late transposition the Blue Card scheme was only in force for a
few months in 2012 in most MS[10]. Despite the delays, in
2012, 3 664 Blue Cards were granted and 1 107
family members were admitted[11].

Table
1 shows that in 2012, most Blue Cards were granted by DE (2 584; 70,52%),
ES (461; 12,58%) and LU (183; 4,99%). On the other side of the scale, PL, PT
and FI each granted 2 Blue Cards, NL and HU granted 1 while BE, CY, EL and MT
issued none[12]. CY set a volume of admission of zero.

In 2013, the
number of Blue Cards granted increased to at least 15 261[13].
Most Blue Cards were granted by DE (14 197)[14],
LU (306) and FR (304).

The
top countries of origin in 2012 were India (699), China (324), Russia (271), United States (313) and Ukraine (149), out of 96 countries. The first statistics for
2013 appear to confirm this ranking.

The
occupations of Blue Card holders in 2012 are only available for 294 out of 3 664
(8,02%)[15] which is not enough to be
representative.

In
DE, in the first 6 months of 2013, 6 131 migrants were granted a Blue Card
of whom 4 442 (72,45%) had entered before 2013[16]
while only 1 689 (27,55%) were new arrivals[17].

In
the first 9 months of 2013, 8 888 Blue Cards were granted in DE of which
4 100 (46,13%) in shortage occupations[18]
and 4 788 (53,87%) in standard occupations[19].
In this period, 6 971 (78,43%) were granted to men and 1 914 (21,53%)
to women in DE[20].

Many
MS have national policies in place for attracting highly qualified migrants
besides the EU Blue Card[22].

Some
MS have placed a specific focus on certain groups of individuals[23] or on precise areas of occupation in
which there are a specific national labour market needs and shortages[24].
Most promote themselves as destination countries for highly qualified workers
and facilitate their admission and entry, for instance, through fast-track
procedures for permits and visas, exemptions from general immigration
requirements and labour
market tests, information campaigns and other incentives. The systems in place
in these MS vary from points-based systems to employer-led, demand driven
systems.

Several
MS that have such national policies in place have a higher share of highly
qualified migrants[25] in their migrant population than some
of the MS that do not have such policies[26].

Table
3 suggests that the existence of national schemes for highly qualified workers
may impact on the EU Blue Cards issued by some MS. In 2012, in NL 5 514
national permits were issued compared to 1 Blue Card; in FR 3 030 compared
to 77 Blue Cards; in AT 1 158 compared to 124 Blue Cards; in ES 1 136
compared to 461 Blue Cards; in FI 748 compared to 2 Blue Cards.

Notable
exceptions in the other direction are DE with 210 national permits compared to
2.584 Blue Cards; LU with 21 national permits compared to 183 Blue Cards; and
RO with no national permits compared to 46 Blue Cards.

1.3.
Volumes of admission (Article 6)

While the
majority of MS have not opted to set volumes of admission of highly qualified
migrants, some MS[27]
have foreseen this possibility in line with Article 79(5) of the Treaty on the
Functioning of the EU. Those that have effectively imposed volumes of admission
have different approaches for setting these. MS are obliged to communicate if
measures imposing volumes of admission are enacted[28].

In some MS[29]
volumes of admission are calculated as a percentage of the national work force
or population, or in function of the unemployment level or labour market
requirements, sometimes by region and specialisation. In several MS[30]
the volumes of admission are set every 1 or 2 years by the relevant Ministers.

No MS have
informed the Commission of volumes of admission, except for two MS[31].

1.4.
Ethical recruitment (Articles 3(3) and 8(4))

No MS has
entered into an agreement with a third country that lists professions which
should not fall under the Directive in order to assure ethical recruitment in
sectors suffering from a lack of personnel in developing countries.

BE, CY, DE[32],
EL, LU and MT
have transposed the option to reject an application in order to ensure ethical
recruitment in such sectors. MS that make use of this provision are obliged to
communicate their decisions[33].
No rejections on these grounds have been reported.

Given the low
number of EU Blue Cards currently granted to highly qualified migrants from
least developed countries, the risk of brain drain remains limited for these
countries. Middle-income developing countries may however be at higher risk. Some
MS[34]
address brain drain and brain circulation through national legislation,
bilateral agreements and/or cooperation with countries of origin.

2.
Transposition by MS
2.1.
Definitions (Article 2)

The definitions
of ‘highly qualified employment’, ‘higher professional qualifications’, ‘higher
education qualification’, ‘professional experience’ and ‘regulated profession’
have been foreseen by most MS although with variations in terminology, scope
and within MS with federal structures.

DE[35], EE,
EL, ES, FR, LT, LU, MT, PL, PT, SE and SK opted to apply the derogation whereby
at least five years of relevant professional experience at a comparable level
to higher education qualifications suffices as evidence of higher professional
qualifications[36].

2.2.
Criteria for admission and salary threshold
(Article 5)

All MS require a
valid work contract or binding job offer, yet DE and LV do not explicitly
require a minimum duration of one year[37].

All MS require
valid travel documents but only CY, EL, FI, LT, MT, PT and SE have used the
option to require that the period of validity of the travel documents covers at
least the initial duration of the residence permit. As set out in the
Directive, all MS require sickness insurance, except ES where no corresponding
provision exists. Most MS[38]
require that the applicant does not pose a threat to public policy, security or
health.

Most MS have
made use of the option of Article 5(2) to require the applicant to provide his
address in the MS[39].
AT,
BE and NL
require notification of any change in address. IT and LU proof of adequate
housing.

In line with
Article 5(3), most MS set the salary threshold nominally at 1,5 times the
average gross annual salary but some made use of the possibility under the
Directive for higher thresholds[40].
Most MS put a calculation method in their legislation[41].
LV, EE,
HU, SK and LT calculate the threshold based on the average gross
monthly salary. Some use other formulas or criteria than the average gross
annual salary to calculate the threshold[42]. Most MS
appear to use national data to determine the salary threshold. MS
are invited to use Eurostat data[43], at
least as a benchmark[44].

MS are obliged
to define and publish the relevant salary thresholds. However, a review by the
Commission of the information available on the EU Immigration Portal[45]
and on national websites show that in many MS the salary thresholds are not
published or updated, difficult to find or only available in the national
language[46].
MS have not notified the salary thresholds or yearly updates to the Commission.
The Directive calls upon the Commission to assess the relevance of the salary
threshold[47]
which it can only do if the thresholds are notified annually.

A comparison of
available salary thresholds with Eurostat and OECD data on average gross annual
salaries suggests that in some MS the threshold
may not correspond to the minimum 1,5 times the average gross annual salary
(Table 4).

CY, DE, EE, EL,
ES, HU, LU, MT and PT have transposed the option to apply a
salary threshold of at least 1,2 times the average gross annual salary for
employment in professions which are in particular need of migrant workers and
belong to ISCO major groups 1 and 2. Only DE, EE, HU and
LU are known to effectively made use of this derogation possibility
to set a lower salary threshold, though none have communicated to the
Commission the required annual list of the professions for which a derogation
has been decided.

2.3.
Period of validity of the EU Blue Card (Article
7(2))

MS must set a standard period of validity of the EU
Blue Card in their legislation of between one and four years which, in
principle, applies to all applications and renewals in the respective MS.

As an exception,
if the work contract covers a period less than the standard period, the EU Blue
Card is to be issued or renewed for the duration of the work contract plus
three months. The minimum duration for an EU Blue Card is one year since this
is the minimum duration of the necessary work contract or job offer[48].
The possibility of renewal of the Blue Card is implicit in the Directive and
without limitation as long as the conditions are fulfilled[49].

The standard
period of validity[50]
of the EU Blue Card is one year in BG, CY, ES, LT, MT and PT, and
13 months in BE. AT, CZ, EL, FI, IT, LU, PL, RO, SE and SI set
the period at two years and EE at two years and three months. FR
and SK
set it at three years and DE, HU and NL at four years. LV set
it at five years.

In almost all MS[51],
if the work contract or binding job offer covers a period less than the
standard period of validity, the EU Blue Card is issued or renewed for the
duration of the work contract plus three months. Upon renewal, if the remainder
of the work contract is less than one year, this could mean that an EU Blue
Card is issued with a validity of less than one year. An initial work contract
or job offer with a duration of less than one year has to be rejected[52].
IT has differentiated between employment contracts of indefinite duration, for
which the period of validity is set at two years, and all other contracts, for
which the period is the duration of the work contract plus three months.

All MS appear to
allow for renewals but some MS[53]
have set a different (longer) period of validity for renewals than for the
initial EU Blue Card instead of applying one standard period of validity. SE
has limited the cumulative length of the initial Blue Card plus renewals to
four years.

2.4.
Labour market test (Article 8(2))[54]

AT, BE, BG, CY,
ES, HU, IT, LU, MT, PL, SK and SI transposed the option for performing a
labour market test. Most MS[55]
chose to apply the option to verify whether the concerned vacancy could not be
filled by national or EU workforce.

2.5.
Withdrawal or non-renewal of the EU Blue Card
(Article 9)

The option[56] to
withdraw or not renew the EU Blue Card for reasons of public policy, public
security or public health is by almost all MS[57]; in AT,
BE, ES, FI, FR and IT this is covered by
general provisions or the conditions for entry. AT,
BE, BG, DE, EE, IT, NL, PL and SK substituted the term ‘public policy’ by
‘public order’ and AT, BE, BG, EL, FR, IT and PL do
not mention the term ‘public health’.

A majority of MS[58] have
applied the option to withdraw or not renew the EU Blue Card wherever the EU
Blue Card holder does not have sufficient resources to maintain himself and the
members of his family, without having
recourse to the social assistance system of the MS concerned[59].

BE, BG, CY, EE,
ES, HU, MT and PL have applied the option to withdraw or not renew the
EU Blue Card if the person concerned has not communicated his address[60]. CY,
CZ, EE, EL, MT, RO and SK have opted for the possibility to
withdraw or not renew the EU Blue Card where the EU Blue Card holder applies
for social assistance, provided the appropriate written information was
provided in advance[61].

2.6.
Applications for admission (Article 10)

A majority of MS
require that the migrant makes the application for the EU Blue Card. CY,
ES, FR, IT and MT require the employer to do so. In BE
and LV
applications are to be made by the migrant and the employer, while NL, AT, PT
and SI
allow either the migrant or the employer to apply. AT and NL
allow submission by a lawyer.

Most MS[62]
provide that applications can be considered and examined when the applicant is
either outside or already residing in the MS as holder of a valid residence
permit or national long-stay visa[63].
Most MS[64]
applied the derogation that applications may be submitted when the applicant
does not have a valid residence permit but is legally present in the territory
of the MS (Article 10(3)). LU and SE applied the
standstill derogation of Article 10(4) that an application can only be
submitted from outside the territory[65].

2.7.
Procedural safeguards (Article 11)

Most MS set the
time limit for adopting a decision on a complete application and giving written
notification to the applicant at 90 days[66], yet some
set shorter time limits of 60 (EE, LT and PT; SK and PL for complicated
cases),
56 (AT), 45
(ES), 30
(LV, RO
and SI; SK and PL for non-complicated cases) and 7 (BG)
days. Most MS determined the consequence of a decision not having been taken by
the end of this period[67],
though BE,
EL, IT
and PL have foreseen an extension of the deadline.

In case of an
incomplete application, most MS have set a deadline for providing addition
information and suspend the processing time limit. All MS provide for a written
notification in case of rejection, non-renewal or withdrawal, and specify time
limits for initiating redress procedures.

2.8.
Rights

Labour market
access (Article 12)

A majority of MS[68]
applied the option that after the first two years of restricted labour market
access equal treatment with nationals is granted as regards access to highly
qualified employment.

Nearly all MS[69]
require the authorisation by competent authority in the case of change of
employer in the first two years. Many MS[70] require
communication or prior authorisation for modifications that affect the
conditions for admission.

Temporary
unemployment (Article 13)

These provisions
have been transposed by a majority of MS. Some MS apply more favourable
legislative provisions or limit the application to involuntary unemployment.

Equal treatment
(Article 14)

The equal
treatment provisions are applied by most MS, although there are variations in
scope of application, explicit transposition of some is absent in some MS and
some MS apply more favourable legislative provisions[71].

Most MS[72]
did not apply the option to limit equal treatment when the EU Blue Card holder
moves to a second Member State and a positive decision on the issuance of an EU
Blue Card has not yet been taken.

Family members
(Article 15)

In 2012, 1.107 permits for family members of Blue Card holders were
granted. In 2013 in DE, at least 1.421 spouses and 899 children joined an EU
Blue Card holder[73]. However, a large majority of Blue Card holders are
under 35 and may not yet have started a family[74]. The
Commission will analyse this further.

EU Long-term
resident status (Articles 16 and 17)

AT,
BG, CY, DE, EE, ES, EL, LT, MT, LV, NL and RO chose to apply the option of
Article 16(5) to restrict the derogations from Directive 2003/109/EC in
relation to periods of absence from the territory of the Community.

2.9.
Residence in other MS (Article 18 and 19)

An
EU Blue Card holder who wants to move to another MS after 18 months of legal
residence in a first MS, must apply for another EU Blue Card in the
second MS. In practical terms, this means a new assessment of whether the Blue
Card holder meets the conditions that apply in the second MS.

There is some
degree of variation in the admission conditions and significant differences in
salary thresholds between MS.

It
is not yet possible to assess the impact of the intra-EU mobility aspect of the
EU Blue Card since the required period of 18 months has not yet been fulfilled
by a significant number of EU Blue Card holders.

3.
Conclusions and next steps

There are wide
variations between MS in the number of Blue Cards granted. While the size of
the MS and its economic situation may have an impact on its attractiveness, it
does not fully explain the wide variations. An answer can also be found in
policy choices by MS who apply and promote the Blue Card in considerably
different ways.

The Blue Card
Directive was negotiated and adopted before the entry into force of Treaty of
Lisbon. Under the former system unanimity was required in the Council, instead
of the current qualified majority, and the European Parliament was not
co-legislator. This led to long and difficult negotiations on the Commission’s
proposal. The resulting Directive only set minimum standards and left much
leeway to MS through many “may-clauses” and references to national legislation.

The national
schemes for attracting highly qualified migrants in many MS compete with the EU
Blue Card and with each other. However, some MS have made a policy choice in
favour of the EU Blue Card which reflects in the number of Blue Cards granted.
Other MS’ policies favour their national schemes.

While the number
of Blue Cards increased in most MS between 2012 and 2013, it is too early to
draw conclusions about the impact of the EU Blue Card on attracting highly
qualified migrants to the EU. The Commission is concerned about flaws in the
transposition, the low level of coherence, the limited set of rights and
barriers to intra-EU mobility.

This report
reveals a general lack of communication by MS of data and measures taken in
application of the Directive, e.g. on volumes of admission, labour market
tests, ethical recruitment, salary threshold[75]. The
availability of reliable, detailed and up-to-date information is essential for
the functioning of the EU Blue Card system, e.g. for intra-EU mobility, and to
evaluate its attractiveness.

A number of
deficiencies in the transposition of the Directive have been revealed. The
Commission will increase its efforts to ensure that the Directive is correctly
transposed and implemented across the EU. Three years after the deadline for
the transposition of the Directive, it is high time to put it to full use. In
order to achieve this, the Commission will organise meetings with MS and, where
necessary, make use of its powers under the Treaty.

Finally,
potential highly qualified migrants and employers should be better informed
about the EU Blue Card. The Commission will make the best use of existing
websites, e.g. the EU Immigration Portal, and encourages MS to improve their
provision of information and to raise awareness via other relevant channels.

On the basis of
the available information and in view of the short time of application no
amendments are currently proposed.

Table 1: EU Blue
Cards in 2012 and 2013

EU Blue Cards by type of decision || || Admitted family members of EU Blue Cards holders by type of decision

Eurostat, EU Blue Cards by type of
decision, occupation and citizenship [migr_resbc1]; Admitted family members of
EU Blue Cards holders by type of decision and citizenship [migr_resbc2],
Extracted on 16.04.14.

Data national
schemes: Eurostat, Remunerated activities reasons: Highly skilled workers,
First permits issued for remunerated activities by reason, length of validity
and citizenship [migr_resocc], Extracted on 17.02.14; LT: Migration Department
under the Ministry of the Interior of the Republic of Lithuania.

Notes 2013 data:

LT, RO: Provisional data

n.y.a.: not yet available

Table
4: Salary thresholds (where available) and ratios compared to gross annual
salaries per Member State

[2] Given that the Directive does not apply to third-country nationals
who enter a Member State under commitments contained in an international
agreement facilitating the entry and temporary stay of certain categories of
trade and investment-related natural persons [Article 3(2)(g)], nothing in this
report covers highly qualified mode 4 categories of service providers.

[30] EE, EL, HU, MT and RO. CY prohibits the
admission of highly qualified workers yet the Council of Ministers may, in
exceptional cases, allow their admission by sector, profession, specialty
and/or country of origin (review possible after 1 year).

[31] CY: volume currently set at zero; EL: due
to no demand EL has not yet activated its system to determine, by ministerial decision, the maximum number of
jobs for highly qualified employment granted to third-country nationals.

[32] DE foresees the option to use this derogation through a regulation
(currently not).

[35] DE foresees the option to use this derogation through a regulation
(currently not).

[36]MT: at least 10 years of professional experience.

[37] IT requires professionals to fall within levels 1, 2 and 3 of the national
ISTAT CP2011 classification of professions.

[38] Except LU (no threat to international relations) and RO (no
criminal record and medically fit for performing that specific work activity).

[39] Except EL, FI, PT and SE.

[40] RO (4 times) and LT (2 times).

[41] Except NL and PL: an exact amount that is indexed and published
annually.

[42] E.g.: DE: the level of salary amounts to 2/3 of the annual
contribution assessment ceiling for the statutory pension fund (which is linked
to the average gross salary); IT: 3 times the minimum level for exemption from
participation in health care spending; PT: 1,5 times national average gross
annual salary or 3 times the Indexing Social Aid (IAS).

[43] Gross annual earnings data (per employer) published by Eurostat for
firms with 10 or more employees [earn_ses10_an]. These data are collected every
four years through the Structure of Earnings Survey (SES) and provide a
comparable source across the EU.

[44] Article 20(3) and Recital 11.

[45] http://ec.europa.eu/immigration/

[46] Checks performed in February 2014.

[47] Article 21.

[48] Article 5(1)(a).

[49] Articles 7(2), 8(2), 9(1)-(3), 11(3), 14(3) and 20(2).

[50] Several MS link the period of validity of the EU Blue Card to the
length of the work contract plus three months and set a maximum period (between
1-4 years; 5 years in LV) instead of a standard period. This does not
clearly set a standard period of validity as required.

[51] Except in BE, FR and ES.

[52] The admission condition of Article 5(1)(a) requires a minimum
duration of one year. AT, BG, CY, DE, HU, LT and LV appear not to require a minimum
duration for the work contract or job offer in their legislation.

[53] PT: 1 year initially + 2 years for renewals; ES: 1 year initially +
2 years for renewals; BE: 13 months initially + 3 years for renewals; EL 2
years initially + 3 years for renewals; EE: 2 years and 3 months initially + 4
years and three months for renewals.

[54] For more info on labour market tests see: EMN Inform, Approaches
and tools used by Member States to identify labour market needs, December 2013.
http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/emn-studies/emn-informs/emn_inform_on_labour_market_tests_5dec2013_final.pdf;
and EMN Study, Intra-EU Mobility of third-country nationals, 2013, pp. 35-37. http://ec.europa.eu/dgs/home-affairs/what-we-do/networks/european_migration_network/reports/docs/emn-studies/intra-eu-mobility/emn-synthesis_report_intra_eu_mobility_final_august_2013.pdf

[62] Except in BG where applications can only be made in the territory.

[63] EL requires a pre-application for a visa outside and then a formal
application within the territory, with a visa for the issuance of a Blue Card.

[64] Except BG, EL, ES, FR, IT, LV, PL and RO.

[65] It appears that a corresponding national provision existed in LU
and SE prior to the adoption of the Directive.

[66] BE, CY, CZ, DE, EL, FI, FR, IT, HU, LU, MT, NL and SE.

[67] CY: only recourse possible to Supreme Court for omission by
authority, Article 146 Constitution; HU: only general administrative law: a
supervisory authority investigates and orders lower authority to take a decision
within 8 days, and fee reimbursement if delay cannot be attributed to the
applicant.

[68] Except BE, BG, CY, CZ, EL, LV, MT, PL and SE.

[69] Except FI and FR.

[70] Except DE, EE, ES, FI, FR, HU, IT, LT and SK.

[71] The Commission is analysing further and seeking clarification from
MS.