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European Intra Company Transfer Directive has to be implemented 29 November

21 October 2016 The Intra Corporate Transfer Directive (2016/44/EU) is a Directive of the European Parliament and the European Commission on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer. This Directive  has to be implemented into the legislation of the national European Union Member States, ultimately 29 November 2016. The Dutch legalislator has not yet published any draft articles to amend the Dutch Immigration Regulations to implement the Directive. 

The ICT Directive regulates the “temporary secondment of managers, specialists or trainees residing outside the EU, and working for an undertaking outside the EU, and to which this transferee is bound by a work contract prior to and during the transfer to an entity belonging to the same undertaking, or to the same group of undertakings which is established in an EU Member State to which the transferee is seconded”. 

Since there is no minimum annual turnover required, both small and large-sized multinationals can make use of this scheme. 

The ICT-Directive is applicable to intra corporate transfers for a duration longer than 90 days. 

This directive does not allow national Member States to have its own national intra corporate transfer work permit scheme. The ICT-Directive will therefore directly affect the Dutch Immigration rules for intra company transfer work permits. 

This ICT-Directive and its implementation is not applicable in situations in which there is a “new hire” on a Dutch local contract, in other worrd no intra company transfer. In these situations, the Dutch Highly Skilled Migrant Scheme (‘kennismigrantenregeling’) remains applicable. Vice versa, in a situation of an intra company transfer, the Highly Skilled Migrant Scheme can no longer be used. 

The type of permit that will be issued under the ICT-Directive is called an: ‘intra-corporate transferee permit’. 

What changes will the ICT-Directive bring? 

Definitions

The ICT-Directive is applicable to ‘managers’, ‘specialists’ and ‘trainee-employees’, or so-called ‘trainees’. 

Manager: is a person holding a senior position, who primarily directs the management of the host entity, receiving general supervision or guidance principally from the board of directors or shareholders of the business or equivalent; that position shall include: directing the host entity or a department or subdivision of the host entity;supervising and controlling work of the other supervisory, professional or managerial employees; having the authority to recommend hiring, dismissing or other personnel action. 

Specialist: is a person working within the group of undertakings possessing specialised knowledge essential to the host entity's areas of activity, techniques or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the host entity, but also of whether the person has a high level of qualification including adequate professional experience referring to a type of work or activity requiring specific technical knowledge, including the possible membership of an accredited professional association. 

Trainee employee: is a person with a university degree who is transferred to a host entity for career development purposes or in order to obtain training in business techniques or methods, and is paid during the transfer. 

Procedural

The permit can only be applied for when the transferee is still outside the Netherlands, and the applicant must remain outside the Netherlands until a decision is made, regardless of whether or not they require an entry visa (MVV-visa) for the Netherlands. 

Decision time

National authorities may take a maximum of 90 days to decide upon an application. However, the ICT Directive does allow national EU Member States to have a fast track procedure for companies that are recognised sponsors. The Dutch Immigration Authorities (IND) already work with recognised sponsors, so assumably this will also be applicable to intra corporate transfer permit applications. The decision time will in that case be between 2-3 weeks. 

Employment prior to transfer

Managers or specialists must be employed for at least 3 months to a maximum of 12 months by the sending undertaking before they can be transferred. For trainees this period is 3 to 6 months. It is not clear (yet) whether the Netherlands will require a minimum of 3 months or maximum of 6 to 12 months of prior employment. Under the current Dutch intra company transfer scheme there is no condition of prior employment at all. So presumably implemented into Dutch national legislation will be the minimum of 3 months. 

Duration of transfer

Managers or specialists can be seconded for a maximum duration of 3 years. Trainees for a maximum of 1 year. This period is not renewable and the transferees must leave the Netherlands. During their stay in the Netherlands, it is possible to change to a different immigration scheme, e.g. Highly Skilled Migrant scheme, or EU Blue Card, provided the conditions are met. In that case they can remain longer in the Netherlands based upon the validity of their new permit. 

Member States may also require a period of up to 6 months to elapse between the end of the maximum duration of the transfer, and a new application for the same foreigner. It is not clear yet if the Netherlands will require this. 

Required salary

There is no salary threshold. The offered salary must be market level according Dutch standard. This will be approximately the salary thresholds that are applicable for the Dutch Highly Skilled Migrant scheme: gross monthly of € 4,240 excl. 8% holiday allowance if above 30 years of age, and € 3,108 excl. 8% holiday allowance if under 30. 

Tranfer to another undertaking of the group in another EU Member State

The Directive allows a transferee who is in the possession of a intra-corporate transferee permit issued by the Netherlands to work for another undertaking of the group established in another EU Member State. The transferee is even allowed to work for clients of that other undertaking established in that other Member State. 

In situations as described above, in case of a transfer of a maximum duration of 90 days in a 180 day period (‘short-term mobility’), filing of a notification to the authorities of that other EU Member State is sufficient to start working immediately for that undertaking in the other Member State. No prior approval is required from that other Member State. In case of a transfer from an EU Member State to the Netherlands, a notification to the Dutch Labour Office will suffice.

In situations where the duration of work is longer than 90 days in a 180 day period (‘long-term mobility’), the other EU Member State can either choose to regulate in its national Immigration Act that a notification as required for ‘short-term mobility’ is sufficient to start working, or that an application for a ‘long-term mobility’ permit has to be applied for. In case of the latter, pending the application the transferee is allowed to work in that other Member State. 

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