Activities of Elisabeth SCHROEDTER related to 2010/0209(COD)
Shadow opinions (1)
OPINION on the proposal for a directive of the European Parliament and of the Council on conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer
Amendments (56)
Amendment 24 #
Proposal for a directive
Citation 1
Citation 1
– having regard to the Treaty on the Functioning of the European Union, and in particular Article 79(2)(a) and (b) and Article 79(5) thereof,
Amendment 25 #
Proposal for a directive
Citation 5 a (new)
Citation 5 a (new)
– having regard to the Charter of Fundamental Rights of the European Union, and in particular Article 15(3), 27, 28, 31, 33 thereof,
Amendment 26 #
Proposal for a directive
Citation 5 b (new)
Citation 5 b (new)
– having regard to Convention 102 on Social Security (Minimum Standards) of the International Labour Organisation,
Amendment 27 #
Proposal for a directive
Citation 5 c (new)
Citation 5 c (new)
– having regard to Convention 118 on Equality of treatment (Social Security) of the International Labour Organisation,
Amendment 28 #
Proposal for a directive
Citation 5 d (new)
Citation 5 d (new)
– having regard to Convention 143 on Migrant Workers of the International Labour Organisation,
Amendment 29 #
Proposal for a directive
Citation 5 e (new)
Citation 5 e (new)
– having regard to Convention 97 on Migration for Employment of the International Labour Organisation,
Amendment 30 #
Proposal for a directive
Recital 3
Recital 3
(3) The Communication from the Commission entitled ‘"Europe 2020: A strategy for smart, sustainable and inclusive growth sets the objective of the Union becoming an economy based on knowledge and innovation, reducing the administrative burden on companies and better matching labour supply with demand. Measures to make it easierimprove procedures and set a common framework for equal rights for third-country managers, specialists or graduate trainees to enter the Union in the framework of an intra- corporate transfer shcould be seen in this broader context.
Amendment 31 #
Proposal for a directive
Recital 5 a (new)
Recital 5 a (new)
(5a) Third-country nationals who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union.
Amendment 33 #
Proposal for a directive
Recital 7
Recital 7
(7) The set of rules established by this Directive ismight also be beneficial to the migrants’ countries of origin as this temporary migration could under well-set conditions fosters transfers of skills, knowledge, technology and know-how.
Amendment 36 #
Proposal for a directive
Recital 8
Recital 8
(8) This Directive should be applied without prejudice to the principle of Union preference as regards access to Member States’ labour market as expressed in the relevant provisions of Acts of Accession. According to that principle, the Member States should, during any period when national measures or those resulting from bilateral agreements are applied, give preference to workers who are nationals of the Member States over workers who are nationals of third-countries as regards access to their labour market. While safeguarding the principle, this may not be used to deviate from the principle of equal pay for equal work, as regards both workers from Member States and third- country nationals. This Directive should be applied in full respect of the principle of free movement of workers within the Union, abolishing any discrimination based on nationality as regards employment, remuneration and other conditions of work and employment.
Amendment 37 #
Proposal for a directive
Recital 8 a (new)
Recital 8 a (new)
(8a) This Directive should set conditions and rights for third-country national workers in the framework of an intra- corporate transfer in full respect of the relevant ILO conventions.
Amendment 38 #
Proposal for a directive
Recital 10
Recital 10
(10) For the purpose of this Directive, intra-corporate transferees encompass managers, specialists and graduate trainees with a higher education qualification. Their definition builds on specific commitments of the Union under the General Agreement on Trade in Services (GATS) and bilateral trade agreements. Those commitments undertaken under the General Agreement on Trade in Services do not cover conditions of entry, stay and work. Therefore, this Directive complements and facilitates the application of those commitments. However, the scope of the intra-corporate transfers covered by this Directive is broader than that implied by trade commitments, as the transfers do not necessarily take place within the services sector and may originate in a third country which is not party to alinks to the European Qualifications Framework, which sets out a European reference framework to assess qualifications in a comparable and transparent manner while being compatible with the General Agreement on Trade in Services (GATS) and bilateral trade agreements.
Amendment 43 #
Proposal for a directive
Recital 11
Recital 11
(11) Intra-corporate transferee workers should benefit from the same working conditions as posted workers whose employer is established on the territory of the European Union, as defined by Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of service given at least equal treatment with nationals of the host Member States as regards their working conditions. Thatese requirement iss are intended to protect workers and guarantee fair competition between undertakings established in a Member State and those established in a third country, as it ensures that the latter will not be able to benefit from lower labour standards to take any competitive advantage.
Amendment 50 #
Proposal for a directive
Recital 11 a (new)
Recital 11 a (new)
(11a) Working conditions in this Directive are to be understood to cover at least pay and dismissal, health and safety at the workplace, working time and leave, family and professional life, taking into account collective agreements in force.
Amendment 51 #
Proposal for a directive
Recital 12
Recital 12
(12) In order to ensure that the skills of the intra-corporate transferee are specific to the host entity, Member States mayshould require the transferee to have been employed within the same group of undertakings for at least 12 months prior to the transfer.
Amendment 52 #
Proposal for a directive
Recital 13
Recital 13
(13) As intra-corporate transfers consist of temporary migration, the applicant should provide evidence that the work contract of the third-country national will be valid also after the end of the transfer and the worker will be able to transfer back to an entity belonging to the same group and established in a third country at the end of the assignment. That evidence may consist of the relevant provisions under the work contract. An assignment letter should be produced providing evidence that the third- country national manager or specialist possesses the professional qualifications needed in the Member State to which they have been admitted to occupy the post or the regulated profession.
Amendment 56 #
Proposal for a directive
Recital 18
Recital 18
(18) Member States should provide for appropriate penalties, such as financial penalties, to be imposed in the event of failure to comply with the conditions laid down in this Directive. The penalties could be imposed on the host entity as well as the necessary labour inspection to ensure compliance. The penalties could be imposed on the host entity. All sanctions should be adequate, proportionate and dissuasive. The worker and his or her family have the right to stay in the host Member State until the end of such proceedings.
Amendment 57 #
Proposal for a directive
Recital 22
Recital 22
(22) This Directive should not affect conditions for the provision of services in the framework of Article 56 of the Treaty. In particular, this Directive should not affect the terms and conditions of employment which, pursuant to Directive 96/71/EC, apply to workers posted by an undertaking established in a Member State to provide a service in the territory of another Member State. This Directive does not apply to third- country nationals posted by undertakings established in a Member State in the framework of a provision of services in accordance with Directive 96/71/EC. As a result, third- country nationals holding an intra- corporate transferee permit cannot avail themselves of the provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services. This Directive should not give undertakings established in a third country any more favourable treatment than undertakings established in a Member State, in line with Article 1(4) ofcovered by Directive 96/71/EC.
Amendment 60 #
Proposal for a directive
Recital 23
Recital 23
(23) Equal treatment should be granted under national law in respect of those branches of social security defined in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. Since this Directive is without prejudice to provisions included in bilateral agreements, the social security rights enjoyed by third country national intra- corporate transferees on the basis of a bilateral agreement concluded between the Member State to which the person has been admitted and his or her country of origin could be strengthened compared to the social security rights which would be granted to the transferee under national law. This Directive should not confer more rights than those already provided for in existing Union legislation in the field of social security forAdequate social security coverage for intra-corporate transferees and their family members is a key element of this Directive and important for ensuring decent working and living conditions while staying in the Union. Equal treatment should be granted to third- country nationals in the framework of an intra-corporate transfer. Special attention should be given to provisions ensuring equal treatment as regards social security under national law in respect of those branches of social security defined in Article 3 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. Without prejudice to bilateral agreements providing better social security coverage, this Directive should establish mechanisms which ensure the effective coverage under social security during the stay and the mechanisms for exporting acquired rights where applicable. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred in application of Regulation (EU) No1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third- country nationals who have cross-border interests between Member States. ies who are not already covered by these Regulations solely on the ground of their nationality¹. ____________ ¹ OJ L 344, 29.12.2010, p.1.
Amendment 64 #
Proposal for a directive
Recital 27
Recital 27
(27) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, and the relevant ILO Conventions, such as Convention 102 on Social Security (Minimum Standards), Convention 118 on Equality of treatment (Social Security), Convention 143 on Migrant Workers and Convention 97 on Migration for Employment of the International Labour Organisation.
Amendment 66 #
Proposal for a directive
Recital 29 a (new)
Recital 29 a (new)
(29a) Whatever the law applicable to the employment relationship, at least the laws, regulations and provisions of the place of work should apply.
Amendment 68 #
Proposal for a directive
Article 1 – point a
Article 1 – point a
(a) the conditions of entry to and residence for more thanup to three monthyears in the territory of the Member States of third-country national workers and of their family members in the framework of an intra-corporate transfer;
Amendment 70 #
Proposal for a directive
Article 1 – point b
Article 1 – point b
(b) the conditions of entry to and residence for more than three months of third- country national workers, referred to in point (a), in Member States other than the Member State which first grants the third- country national worker a residence permit on the basis of this Directive.
Amendment 72 #
Proposal for a directive
Article 2 – paragraph 1
Article 2 – paragraph 1
1. This Directive shall apply to third- country nationals who reside outside the territory of a Member State andorkers who apply to be admitted to the territory of a Member State in the framework of an intra- corporate transfer.
Amendment 73 #
Proposal for a directive
Article 2 – paragraph 2 – point c
Article 2 – paragraph 2 – point c
(c) third-country nationals carrying out activities on behalf of undertakings established in another Member State in the framework of a provision of services within the meaning of Article 56 of the Treaty on the Functioning of the European Union, including those posted by undertakings established in a Member State in the framework of a provision of services in accordance withcovered by Directive 96/71/EC.
Amendment 83 #
Proposal for a directive
Article 3 – point b
Article 3 – point b
(b) ‘intra-corporate transfer’ means the temporary secondment of a third-country national worker from an undertaking established outside the territory of a Member State and to which the third- country national worker is bound by a work contract with a minimum previous existence of one year before the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established inside this territory;
Amendment 88 #
Proposal for a directive
Article 3 – point c
Article 3 – point c
(c) ‘intra-corporate transferee’ means any third-country national worker subject to an intra- corporate transfer;
Amendment 95 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘manager’ means any personworker with qualifications equivalent to at least Level 7 of the European Qualifications Framework working in a senior position, who principally directs the management of the host entity, receiving general supervision or direction principally from the board of directors or stockholders of the business or equivalent; this position includes: directing the host entity or a department or sub-division of the host entity, supervising and controlling the work of other supervisory, professional or managerial employees, having the authority personally to hire and dismiss or recommend hiring, dismissing or other personnel actions;
Amendment 100 #
Proposal for a directive
Article 3 – point f
Article 3 – point f
(f) ‘specialist’ means any personworker with qualifications equivalent to at least Level 5 of the European Qualifications Framework possessing uncommon knowledge essential and specific to the host entity, taking account not only of knowledge specific to the host entity, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge;
Amendment 106 #
Proposal for a directive
Article 3 – point g
Article 3 – point g
(g) ‘graduate trainee’ means any personworker with a higher education qualification equivalent to at least level 5 of the European Qualifications Framework, with a trainee agreement including a description of the training programme and its duration who is transferred to broaden his/her knowledge of and experience in a company in preparation for a managerial position within the company;
Amendment 112 #
Proposal for a directive
Article 3 – point n
Article 3 – point n
Amendment 117 #
Proposal for a directive
Article 5 – paragraph 1 – introductory part
Article 5 – paragraph 1 – introductory part
Without prejudice to Article 10, a third- country national who applies to be admitted under the terms of this Directive and /or his or her employer shall:
Amendment 118 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) provide evidence of an employment contract within the same group of undertakings, for at least 12 months immediately preceding the date of the intra-corporate transfer, if required by national legislation, and that he or she will be able to transfer back to an entity belonging to that group of undertakings and established in a third country atand valid after the end of the assignment;
Amendment 122 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point iii
Article 5 – paragraph 1 – point c – point iii
(iii) the remuneration granted during the transfer, including overtime pay, benefits, boni and benefits in kind;
Amendment 127 #
Proposal for a directive
Article 5 – paragraph 1 – point e
Article 5 – paragraph 1 – point e
(e) present documentation certifying that he or she fulfils the conditions laid down under national legislation for citizens of the Union to exercise the regulated profession which the transferee will work in;, and as set out in the Directive 2005/36/EC of the European Parliament and the Council of 7 September 2005 on the recognition of professional qualifications¹; ____________ ¹ OJ L 255, 30.9.2005, p.22.
Amendment 130 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 1
Article 5 – paragraph 2 – subparagraph 1
Member States shall require that all conditions in the law, regulations or administrative provisions and/or universally applicable collective agreements applicable to posted workers in a similarcollective agreements in a comparable situation in the relevant occupational branches at the place of work are met with regard to the remunerationworking conditions including benefits and pay granted during the transfer.
Amendment 135 #
Proposal for a directive
Article 5 – paragraph 5
Article 5 – paragraph 5
5. Any modification during the stay that affects the conditions for admission set out in this Article shall be notified to the competent authorities of the Member State concerned and shall be in compliance with Art. 5 (1) to (4) and Article 14.
Amendment 139 #
Proposal for a directive
Article 7 – paragraph 1 – point b a (new)
Article 7 – paragraph 1 – point b a (new)
(ba) wherever the conditions laid down in Articles 5 and 14 were not met or are no longer met;
Amendment 140 #
Proposal for a directive
Article 8 – title
Article 8 – title
Penalties and inspections
Amendment 141 #
Proposal for a directive
Article 8 – paragraph 1 a (new)
Article 8 – paragraph 1 a (new)
1a. Member States may include other penalties such as:(a) exclusion from entitlement to public benefits or aid;(b) exclusion from participation in a public contract for up to five years;(c) temporary or permanent disqualification from the practice of agricultural, industrial or commercial activities;(d) placing under judicial supervision or (e) a judicial winding-up order. In respect of infringement of the employer relating to remuneration, taxes and social security contributions Member States shall ensure that the employer pays:(a) any outstanding remuneration to the third-country national coming in the framework of the intra-corporate transfer;(b) any outstanding taxes and social security contributions, including relevant administrative fines. Member States shall provide for effective mechanisms through which third-country nationals can lodge complaints against their employers, directly or through designated third parties.
Amendment 142 #
Proposal for a directive
Article 9 – title
Article 9 – title
Amendment 143 #
Proposal for a directive
Article 9
Article 9
Access to information Access to information Member States shall take the necessary measures to make available information on entry and residence, including rights, and all documentary evidence needed for an application, as well as rights regarding working conditions, social security and enforcement and complaint mechanism to all applicants and admitted transferees and workers in the host country.
Amendment 146 #
Proposal for a directive
Article 10 – paragraph 3
Article 10 – paragraph 3
3. The application shall be lodged to the authorities of the Member State whereof the first place of employment of the intra- corporate transfer mainly takes placee; conditions set out in Articles 5 and 14 have to be controlled by each admitting Member State.
Amendment 147 #
Proposal for a directive
Article 11 – paragraph 4
Article 11 – paragraph 4
4. Under the heading ‘type of permit’, the first host Member States shall enter ‘intra- corporate transferee’ and the name of the group of undertakings concerned. The first host Member States shall issue to the holder of an intra- corporate transferee permit an additional document containing a list of the entities authorised to host the third-country national and revise it whenever that list is modifiedfter control by each admitting Member State according to the conditions set out in Articles 5 and 14 and revise it whenever that list is modified in agreement with the relevant Member States.
Amendment 150 #
Proposal for a directive
Article 14 – paragraph -1 (new)
Article 14 – paragraph -1 (new)
-1. Whatever the law applicable to the employment relationship, at least the laws, regulations and provisions of the place of work shall apply.
Amendment 153 #
Proposal for a directive
Article 14 – introductory part
Article 14 – introductory part
Whatever the law applicable to the employment relationship, intra-corporate transferees shall be entitled to at least equal treatment with nationals of the host Member State as regards:
Amendment 155 #
Proposal for a directive
Article 14 – point 1 – subparagraph 1
Article 14 – point 1 – subparagraph 1
the terms and conditions of employment applicable to posted workers in a similar situation, as laid down by law, regulation or administrative provision and/or universally applicable collective agreements inat the Member Statworking place to which they have been admitted pursuant to this Directive.
Amendment 163 #
Proposal for a directive
Article 14 – point 2 – introductory part
Article 14 – point 2 – introductory part
at least equal treatment with nationalresidents of the host Member State as regards:
Amendment 169 #
Proposal for a directive
Article 14 – point 2 – point c
Article 14 – point 2 – point c
(c) without prejudice to existing bilateral agreements providing for better conditions, provisions in national law regarding the branches of social security defined in Article 3 of Regulation (EC) No 883/2004. In the event of mobility between Member States and without prejudice to existing bilateral agreements, providing for better conditions, Regulation (EC) No 1231/10 or where still applicable Council Regulation (EC) No 859/200315 shall apply accordingly;
Amendment 173 #
Proposal for a directive
Article 14 – point 2 – point c a (new)
Article 14 – point 2 – point c a (new)
(ca) third-country workers moving to a third country, or the survivors of such workers residing in a third-country deriving rights from the worker, shall receive, in relation to old-age, invalidity and death, statutory pensions based on the workers’ previous employment and acquired in accordance with the legislation set out in Article 3 of Regulation (EC) No 883/2004, under the same conditions and at the same rates as the nationals of the Member States concerned;
Amendment 174 #
Proposal for a directive
Article 14 – point 2 – point c b (new)
Article 14 – point 2 – point c b (new)
(cb) non-discriminatory access to the social security system of the place of work similar to other EU citizens working in this Member states under Regulation (EC) N° 883/2004;
Amendment 175 #
Proposal for a directive
Article 14 – point 2 – point c c (new)
Article 14 – point 2 – point c c (new)
(cc) entitlement to benefits which may be due in respect of any employment injury suffered, to compensation in lieu of any holiday entitlement acquired but not used and to reimbursement of social security contributions which have not given and do not give rise to rights under national laws or regulation or international arrangement, when moving to a third country;
Amendment 186 #
Proposal for a directive
Article 16 – paragraph 1 – introductory part
Article 16 – paragraph 1 – introductory part
1. Third-country nationals who have been granted an intra-corporate transferee permit in a first Member State, who fulfil the criteria for admission as set out in Article 5 and who apply for an intra-corporate transferee permit in another Member State shall be allowed to work in any other entity established in that Member State and belonging to the same group of undertakings and at the sites of clients of that host entity if the conditions set out in Article 13(4) are fulfilled and admission criteria according to Articles 5 and 14 are checked by all permitting Member States, on the basis of the residence permit issued by the first Member State and the additional document provided for in Article 11(4), provided that:
Amendment 187 #
Proposal for a directive
Article 16 – paragraph 1 – point b
Article 16 – paragraph 1 – point b
(b) the applicant has submitted to the competent authority of the other Member State, before his or her transfer to that Member State, the documents referred to in Article 5(1) (2) and (3) relating to the transfer to that Member State and the conditions have been checked to be compatible with the conditions in another Member State and has provided evidence of such submission to the first Member State.
Amendment 188 #
Proposal for a directive
Article 16 – paragraph 1 – point b a (new)
Article 16 – paragraph 1 – point b a (new)
(ba) the principle of equal treatment at the place of work is not violated.
Amendment 191 #
Proposal for a directive
Article 16 – paragraph 3 a (new)
Article 16 – paragraph 3 a (new)
3a. The host Member State’s principle stating that the conditions at the place of work need to be respected must be safeguarded also in the context of mobility of Intra-corporate transferees between Member States.