International companies find it easier to transfer employees to the EU
“Deloitte” has announced the results of an international study about the conditions of entry and residence of third-country nationals being relocated within a group of companies in different EU member states. National legal regimes have been harmonized following an implementation of Intra-Corporate Transfer Directive 2014/66/ES (ICT Directive).
According to Gintare Stoniene, a Managing Associate leading Employment & Immigration service line in Professional Partnership of Advocates “Deloitte Legal”, the main advantage of the ICT Directive is that a third-country national, holding an ICT permit issued by one EU member state, can move between different subjects belonging to the same group of companies and work for up to 90 days in a half a year period. The ICT Directive also provides more favourable entry and employment conditions for family members of non-EU nationals.
Lithuania chose a middle way approach
Gintare Stoniene points out that in most cases when implementing the ICT Directive Lithuania chose average requirements within the established limits. For instance, in Lithuania (as well as in Latvia, Germany, Czech Republic or Romania) to be eligible for an ICT permit managers or specialists must have worked within the sending organization or any company belonging to the same group of undertakings for at least 6 months prior to the transfer to the EU. Meanwhile, Estonia, Poland or Cyprus require at least 12 uninterrupted months of employment, a maximum term set by the ICT Directive. Gintare Stoniene emphasizes that “Previously it was mandatory for non-EU nationals to have worked in the sending organization for at least 12 months prior to the transfer, therefore, after implementing the ICT Directive Lithuania has cut this term by half”. The minimum employment requirement of 3 months permitted by ICT Directive has been adopted by Finland, France, Sweden, Italy, etc.
Allowed to work in the entire EU
A third-country national, holding an ICT permit granted by one EU member state, may move in the EU between different subjects of the same group of companies without restrictions and work there for up to 90 days in a 180-day period (in this case usually it is required to notify the competent authorities). Additional requirements apply in cases when a person intends to work in any second Member State for a longer than 90-days period (though they often correspond to the general requirements of acquiring an ICT permit).
Access to the labour market for family members
Lithuania has not introduced restrictions on the participation of family members of a third-country national in the labour market. This, in effect, means that a spouse of a non-EU national who has been granted a permit to reside in Lithuania is exempted from an obligation to obtain a work permit. Similar rules apply in other EU member states. However, a permission to work is not granted to family members in Sweden, Luxembourg, Hungary, Croatia, Bulgaria, etc.
Quotas and time limits for issuance of an ICT permit
Gintare Stoniene states that in comparison to previous regulation, in Lithuania the duration of ICT permit processing has been halved. An ICT permit to a manager or a specialist is issued in about 10 weeks from the day of filing an application (or within 5 weeks, as a matter of urgency). Deloitte study reveals that shorter time-limits on ICT permit issuance are established in Estonia, Latvia, Germany, Austria, France, Italy and others. Whilst, in Poland, Czech Republic, Sweden, Netherlands, Portugal, Malta, Cyprus, etc. ICT permit processing takes longer than in Lithuania.
“The fact that in Lithuania the host entity has a right to submit an application for an ICT permit on behalf of a third-country national has also contributed to a better investment climate in Lithuania”, says Gintare Stoniene.
Working at the sites of clients
Although the ICT Directive expressly provides that it does not prevent intra-corporate transferees from exercising specific activities at the sites of clients within a Member State where the host entity is established, Deloitte study shows that countries like Sweden, France, Italy, Czech Republic and Romania limit the right of non-EU nationals to work at the sites of clients.
Belgium failed to implement the ICT Directive
Up to the present moment 24 EU Member States have implemented the ICT Directive. Belgium is the only Member State that has not yet incorporated the Directive provisions into its national law. The United Kingdom, Denmark and Ireland have opted out of the Directive and as a result are not covered by it.
In Lithuania the ICT Directive has been implemented following the amendments to the Republic of Lithuania Law on the Legal Status of Foreigners which came into force on September 1, 2017