Activities of Sari ESSAYAH 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 (29)
Amendment 40 #
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 and professional qualifications. Intra- corporate transferees are to be employed in highly qualified employment. 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 a trade agreement.
Amendment 45 #
Proposal for a directive
Recital 11
Recital 11
(11) Intra-corporate transferees should benefit from the same working conditions as posted workers whose employer is established on the territory of the European Unterms and conditions of employment which ensure at least the same level of protection, as defined byprovided for in 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. That requirement is 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 55 #
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 may require the transferee to have been employed within the same group of undertakings for at least 126 months prior to the transfer.
Amendment 61 #
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. Member States may restrict equal treatment where the intra-corporate transferee is protected by being subject to the social security branches in the country of origin or by other means and where according to the legislation of the Member State, the person concerned may be exempt from the social security legislation of the host Member State. 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 for third-country nationals who have cross-border interests between Member States.
Amendment 75 #
Proposal for a directive
Article 2 – paragraph 2 – point c a (new)
Article 2 – paragraph 2 – point c a (new)
(ca) third-country nationals carrying out activities as temporary agency workers.
Amendment 86 #
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 not resident within the territory of the Member States from an undertaking established outside the territory of a Member State and to which the third- country national is bound by a work contract, to an entity belonging to the undertaking or to the same group of undertakings which is established inside this territory; This transfer is intended to cover similar situations as provided for in Article 1(3)(b) of Directive 96/71/EC.
Amendment 87 #
Proposal for a directive
Article 3 – point c
Article 3 – point c
(c) ‘intra-corporate transferee’ means any third-country national not resident within the territory of the Member States who is subject to an intra- corporate transfer;
Amendment 92 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘manager’ means any person 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 98 #
Proposal for a directive
Article 3 – point f
Article 3 – point f
(f) ‘specialist’ means any person possessing uncommon knowledge essential and specific to the host entity, taking account not only ofwho is transferred for highly qualified employment, possesses specific knowledge specificessential to the host entity, but also of whether the person has and having a high level of qualification referring to a type of work or trade requiring specific technical knowledge;
Amendment 98 #
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 not resident within the territory of the Member States from an undertaking established outside the territory of a Member State and to which the third- country national is bound by a work contract, to an entity belonging to the undertaking or to the same group of undertakings which is established inside this territory; This transfer is intended to cover similar situations as provided for in Article 1(3)(b) of Directive 96/71/EC.
Amendment 102 #
Proposal for a directive
Article 3 – point c
Article 3 – point c
(c) ‘intra-corporate transferee’ means any third-country national not resident within the territory of the Member States who is subject to an intra- corporate transfer;
Amendment 106 #
Proposal for a directive
Article 3 – point e
Article 3 – point e
(e) ‘manager’ means any person 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 108 #
Proposal for a directive
Article 3 – point g
Article 3 – point g
(g) ‘graduate trainee’ means any person with a higher education qualification who is transferred to broaden his/her knowledge of and experience in a company in a paid contract in preparation for a managerial position within the company;
Amendment 110 #
Proposal for a directive
Article 3 – point g a (new)
Article 3 – point g a (new)
(ga ) ‘highly qualified employment’ means the employment that: – requires uncommon knowledge essential and specific to the host entity – is paid; and – guarantees appropriate working conditions.
Amendment 113 #
Proposal for a directive
Article 3 – point n
Article 3 – point n
Amendment 114 #
Proposal for a directive
Article 3 – point f
Article 3 – point f
(f) ‘specialist’ means any person possessing uncommon knowledge essential and specific to the host entity, taking account not only ofwho is transferred for highly qualified employment, possesses specific knowledge specificessential to the host entity, but also of whether the person has and having a high level of qualification referring to a type of work or trade requiring specific technical knowledge;
Amendment 123 #
Proposal for a directive
Article 3 – point g
Article 3 – point g
(g) ‘graduate trainee’ means any person with a higher education qualification who is transferred to broaden his/her knowledge of and experience in a company in a paid contract in preparation for a managerial position within the company;
Amendment 130 #
Proposal for a directive
Article 3 – point g a (new)
Article 3 – point g a (new)
(ga) ‘highly qualified employment’ means the employment that – requires qualified knowledge essential and specific to the host entity – that is paid – guarantees appropriate working conditions
Amendment 133 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2
Article 5 – paragraph 2 – subparagraph 2
In the absence of a system for declaring collective agreements to be of universal application, Member States may, if they so decide, base themselves on collective agreements which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned, and/or collective agreements which have been concluded by the most representative employers’ and labour organisations at national level and which are applied throughout national territory., according to the rules and traditions of the Member States;
Amendment 145 #
Proposal for a directive
Article 5 – paragraph 1 – point b
Article 5 – paragraph 1 – point b
(b) provide evidence of employment within the same group of undertakings, for at least 126 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 at the end of the assignment;
Amendment 154 #
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 in the Member State to which they have been admitted pursuant to this Directive.which ensure at least the same level of protection as provided for in Directive 96/71/EC;
Amendment 157 #
Proposal for a directive
Article 5 – paragraph 1 – point c – point iii
Article 5 – paragraph 1 – point c – point iii
(iii) the remunerationterms and conditions of employment granted during the transfer;
Amendment 160 #
Proposal for a directive
Article 14 – point 1 – subparagraph 2
Article 14 – point 1 – subparagraph 2
Amendment 167 #
Proposal for a directive
Article 5 – paragraph 1 – point g
Article 5 – paragraph 1 – point g
(g) without prejudice to existing bilateral agreements and notwithstanding the provisions of Article 14(2)(e) in regard to sickness benefits, present evidence of having or, if provided for by national law, having applied for sickness insurance for all the risks normally covered for nationals of the Member State concerned for periods where no such insurance coverage and corresponding entitlement to benefits are provided in connection with, or as a result of, the work contract;
Amendment 171 #
Proposal for a directive
Article 14 – point 2 – point c
Article 14 – point 2 – point c
(c) without prejudice to existing bilateral agreements, 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, Council Regulation (EC) No 859/200315 shall apply accordingly; Member State may restrict equal treatment with nationals under this paragraph where the intra-corporate transferee is protected by being subject to the social security branches in the country of origin or by other means and where, according to the legislation of the Member State, the person concerned may be exempt from the social security legislation of the host Member State;
Amendment 180 #
Proposal for a directive
Article 14 – paragraph 2 – point e
Article 14 – paragraph 2 – point e
(e) access to goods and services and the supply of goods and services made available to the public, except public housing and counselling services afforded bypublic employment services.
Amendment 181 #
Proposal for a directive
Article 5 – paragraph 2 – subparagraph 2
Article 5 – paragraph 2 – subparagraph 2
In the absence of a system for declaring collective agreements to be of universal application, Member States may, if they so decide, base themselves on collective agreements which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned, and/or collective agreements which have been concluded by the most representative employers‘ and labour organisations at national level and which are applied throughout national territory., according to the rules and traditions of the Member States;
Amendment 236 #
Proposal for a directive
Article 15 – paragraph 4
Article 15 – paragraph 4
4. By way of derogation from the first subparagraph of Article 5(4) of Directive 2003/86/EC, residence permits for family members shall be granted by the first Member State, if the conditions for family reunification are fulfilled, at the latest within two month30 days from the date on which the application was lodged.
Amendment 241 #
Proposal for a directive
Article 15 – paragraph 5 a (new)
Article 15 – paragraph 5 a (new)
5a. The family members of an intra- corporate transferee who have the right of residence in a Member State shall be entitled to take up employment or self- employment there.