The Reform of the EU Blue Card Directive – Good Things Take Time

On 7 June 2016, the European Commission has published a proposal to amend the EU Blue Card Directive, the often criticized legal instrument regulating highly skilled immigration by Third Country Nationals into the EU. So far, the Directive has mostly been used by Germany – 12’108 Blue Cards out of a total of 13’852 issued in the EU in 2014 – whereas other Member States have been more reticent. Will the new proposal finally succeed in strengthening the EU’s competitiveness by attracting (and retaining) highly skilled workers?

Substantial Shortcomings of the “Old” Blue Card Directive

The existing EU Blue Card Directive (2009/50/EC) was adopted in 2009, with the objective of making the EU more attractive to highly qualified workers from all over the world and to strengthen its knowledge economy. The instrument was supposed to facilitate the admission and mobility of highly qualified migrants and their family members by harmonizing their entry and residence conditions throughout the EU Member States and creating a special legal status and a common set of rights for them.

However, in the meantime, it has become clear that the Directive has failed to achieve these aims: In an implementation report published by the EU Commission in May 2014, many shortcomings of the Directive were identified.

• First of all, the 2009 Blue Card Directive allows for the application of parallel national schemes. For example in 2012, the Netherlands issued 5’514 national permits – compared to only one Blue Card!
• Secondly, the definition of “highly qualified employment” (article 2 (b) of the Directive) remained diffuse and gave Member States a large margin of discretion.
• Thirdly, restrictive admission conditions (article 5), especially high salary thresholds – at least 1.5 times the average gross annual salary in the Member State concerned – and limited mobility in the EU (articles 18 et seq.) further contributed to the unattractiveness of the Blue Card scheme.
• Fourthly, the Directive foresees in its article 6 the right to set volumes of admission of highly qualified migrants (in line with article 79 (5) TFEU). Several Member States have used this possibility. For example in Cyprus, the volume is currently set at zero.

Desperate Attempt to Make the EU Attractive to “Brains”

In June 2016, the EU Commission has published a proposal for a revised Blue Card Directive, which is part of the strategy pursued by the EU Commission to tackle the current “refugee crisis”. The main changes proposed can be summarized as follows:

• The concept of „highly qualified employment“ in the current Directive is replaced by the term of “highly skilled employment”, as defined by the new proposal. Professional experiences are better taken into account.
• The scheme will be a truly EU-wide one; parallel national schemes are no longer allowed. The Blue Card scheme will become mandatory.
• The admission conditions will be eased:
  –  The proposal introduces a new salary threshold – with a sliding scale, according to the preference of the Member State, from 1.0 to 1.4 times the average gross salary in the respective Member State. Moreover, derogations are foreseen for recent graduates and shortage occupations.
  –  Short labor contracts (6 months instead of 12 months) will be included.
• The scheme will be extended to beneficiaries of international protection (refugees or beneficiaries of subsidiary protection) and family members of EU citizens.
• Intra-EU mobility is enhanced: Short-term business trips will be less complicated, procedures will be faster and a shorter residence is required in the first Member State.
• Applications can be submitted from inside or outside the EU.
• The maximum processing time of applications will be reduced to 60 days.
• Member States may introduce a fast-track procedure for trusted employers.
• The rights of Blue Card holders will be improved. For example, a self-employed parallel activity will be possible, access to other high-skill jobs is facilitated, and the status of a “long term resident” can be acquired more quickly.
• The possibility to conduct a labor market test in order to find out whether there is a need for foreign labor force is limited to special situations (“serious disturbances”).

All in all, the proposed changes go into the right direction. Regrettably, chances are low that the Member States will be able to agree on all of them, given the current restrictive tendencies in Europe, especially against the backdrop of the still ongoing “refugee crisis”. In addition, the possibility of the Member States to set the volumes for Third Country Nationals entering the EU (coming directly from third countries) in order to seek work remains, as this is enshrined in primary law. However, according to its explicit wording, the clause does not englobe Blue Cord holders already present (and who want to exercise their mobility rights). The system remains demand-driven, which means that qualified Third Country Nationals remain dependent on a certain employer.

The proposal might not change a lot about the (un)popularity of the Blue Card Directive among the Member States, but at least it is an attempt to really attract a significant number of highly skilled migrants to the EU – and not just to Germany.

Sarah Progin-Theuerkauf
Project Leader, nccr – on the move, University of Fribourg