Overwegingen bij COM(2022)655 - Één enkele aanvraagprocedure voor een gecombineerde vergunning voor onderdanen van derde landen om te verblijven en te werken op het grondgebied van een lidstaat, alsmede inzake een gemeenschappelijk pakket rechten voor werknemers uit derde landen die legaal in een lidstaat verblijven (herschikking)

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(1)A number of amendments are to be made to Directive 2011/98/EU of the European Parliament and of the Council 38 . In the interests of clarity, that Directive should be recast.


🡻 2011/98/EU recital 1 (adapted)

For the gradual establishment of an area of freedom, security and justice, the Treaty on the Functioning of the European Union (TFEU) provides for measures to be adopted in the fields of asylum, immigration and protection of the rights of third-country nationals.


🡻 2011/98/EU recital 2 (adapted)

The European Council, at its special meeting in Tampere on 15 and 16 October 1999, acknowledged the need for harmonisation of national law governing the conditions for admission and residence of third-country nationals. In this context, it stated in particular that the European Union should ensure fair treatment of third-country nationals who are legally residing in the territory of the Member States and that a more vigorous integration policy should aim to grant them rights and obligations comparable to those of citizens of the Union. The European Council accordingly asked the Council to adopt the legal instruments on the basis of Commission proposals. The need for achieving the objectives defined at Tampere was reaffirmed by the Stockholm Programme, which was adopted by the European Council at its meeting of 10 and 11 December 2009.


🡻 2011/98/EU recital 3 (adapted)

(2)Provisions for a single application procedure leading to a combined title encompassing both residence and work permits within a single administrative act will contribute to simplifying and harmonising the rules currently applicable in Member States. Such procedural simplification has already been introduced by several Member States and has made for a more efficient procedure both for the migrants and for their employers, and has allowed easier controls of the legality of their residence and employment.


🡻 2011/98/EU recital 4

(3)In order to allow initial entry into their territory, Member States should be able to issue a single permit or, if they issue single permits only after entry, a visa. Member States should issue such single permits or visas in a timely manner.


🡻 2011/98/EU recital 5

(4)A set of rules governing the procedure for examination of the application for a single permit should be laid down. That procedure should be effective and manageable, taking account of the normal workload of the Member States’ administrations, as well as transparent and fair, in order to offer appropriate legal certainty to those concerned.


🡻 2011/98/EU recital 6

(5)The provisions of this Directive should be without prejudice to the competence of the Member States to regulate the admission, including the volumes of admission, of third-country nationals for the purpose of work.


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(6)This Directive should cover employment relationships between third-country workers and employers. Where a Member State’s national law allows admission of third-country nationals through temporary work agencies established on its territory and which have an employment relationship with the worker, such agencies should not be excluded from the scope of this Directive.


🡻 2011/98/EU recital 7 (adapted)

(7)Posted third-country nationals ⌦ subject to Directive 96/71/EC of the European Parliament and of the Council 39  ⌫ should not be covered by this Directive. This should not prevent third-country nationals who are legally residing and working in a Member State and posted to another Member State from continuing to enjoy equal treatment with respect to nationals of the Member State of origin for the duration of their posting, in respect of those terms and conditions of employment which are not affected by the application 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 40 .


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(8)Third-country nationals who are beneficiaries of protection in accordance with national law, international obligations or the practice of a Member State should be covered by the scope of this Directive in order to be granted an enhanced set of rights.


🡻 2011/98/EU recital 8 (adapted)

(9)Third-country nationals who have acquired long-term resident status in accordance with Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents 41 should not be covered by this Directive given their ⌦ globally ⌫ more privileged status and their specific type of residence permit ‘long-term resident-EU’.


🡻 2011/98/EU recital 9

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(10)Third-country nationals who have been admitted to the territory of a Member State to work on a seasonal basis ⇨ and have applied for admission or have been admitted to the territory of a Member State in accordance with Directive 2014/36/EU of the European Parliament and of the Council 42  ⇦ should not be covered by this Directive given ⇨ that they fall within the scope of Directive 2014/36/EU, which establishes a specific regime ⇦ their temporary status.


🡻 2011/98/EU recital 10 (adapted)

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(11)The obligation on the Member States to determine whether the application is to be made ⌦ submitted ⌫ by a third-country national or by his or her employer should be without prejudice to any arrangements requiring both to be involved in the procedure. The Member States should decide whether ⇨ allow ⇦ the application for a single permit is to be made ⌦ submitted ⌫ ⇨ both ⇦ in the Member State of destination or ⇨ and ⇦ from a third country. In cases where the third-country national is not allowed to make an application from a third country, Member States should ensure that the application may be made by the employer in the Member State of destination.


🡻 2011/98/EU recital 11

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(12)The provisions of this Directive on the single application procedure and on the single permit should not concern uniform or long-stay visas ⇨ , with the exception of the obligation for Member States to issue the requisite visa within the deadline of four months set out to adopt a decision on the Single Permit ⇦.


🡻 2011/98/EU recital 13

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(13)The deadline for adopting a decision on the application should not include the time required for the recognition of professional qualifications or the time required for issuing a visa ⇨ include both the time required for issuing a visa where needed, and the time required to comply with the checks of the labour market situations.⇦ This Directive should be without prejudice to national procedures on the recognition of diplomas.


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(14)To this end, Member States should only carry out one substantial check of the documentation submitted by the applicant for the issuing of both a single permit and the requisite visa in order to avoid duplication of work and prolonging the procedures. Furthermore, Member States should require applicants to submit the relevant documentation only once.


🡻 2011/98/EU recital 12

(15)The designation of the competent authority under this Directive should be without prejudice to the role and responsibilities of other authorities and, where applicable, the social partners, with regard to the examination of, and the decision on, the application.


🡻 2011/98/EU recital 13 (adapted)

(16)The deadline for adopting a decision on the application should, ⌦ however ⌫ , not include the time required for the recognition of professional qualifications or the time required for issuing a visa. This Directive should be without prejudice to national procedures on the recognition of diplomas. 


🡻 2011/98/EU recital 14 (adapted)

(17)The single permit should be drawn up in accordance with Council Regulation (EC) No 1030/2002, of 13 June 2002 laying down a uniform format for residence permits for third-country nationals 43 , enabling Member States to enter further information, in particular as to whether or not the person is permitted to work. A Member State should indicate, inter alia, for the purpose of better control of migration, not only on the single permit but also on all the issued residence permits, the information relating to the permission to work, irrespective of the type of the permit or the residence ⌦ permit ⌫ title on the basis of which the third-country national has been admitted to the territory and has been given access to the labour market of that Member State.


🡻 2011/98/EU recital 15

(18)The provisions of this Directive on residence permits for purposes other than work should apply only to the format of such permits and should be without prejudice to Union or national rules on admission procedures and on procedures for issuing such permits.


🡻 2011/98/EU recital 16

(19)The provisions of this Directive on the single permit and on the residence permit issued for purposes other than work should not prevent Member States from issuing an additional paper document in order to be able to give more precise information on the employment relationship for which the format of the residence permit leaves insufficient space. Such a document can serve to prevent the exploitation of third-country nationals and combat illegal employment but should be optional for Member States and should not serve as a substitute for a work permit thereby compromising the concept of the single permit. Technical possibilities offered by Article 4 of Regulation (EC) No 1030/2002 and point (a)2016 of the Annex thereto can also be used to store such information in an electronic format.


🡻 2011/98/EU recital 17

(20)The conditions and criteria on the basis of which an application to issue, amend or renew a single permit can be rejected, or on the basis of which the single permit can be withdrawn, should be objective and should be laid down in national law including the obligation to respect the principle of Union preference as expressed in particular in the relevant provisions of the 2003 and 2005 Acts of Accession. Rejection and withdrawal decisions should be duly reasoned.


🡻 2011/98/EU recital 18

(21)Third-country nationals who are in possession of a valid travel document and a single permit issued by a Member State applying the Schengen acquis in full, should be allowed to enter into and move freely within the territory of the Member States applying the Schengen acquis in full, for a period up to three months in any six-month period in accordance with Regulation (EU) 2016/399 of the European Parliament and of the Council 44  Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code) 45 and Article 21 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders 46 (Schengen Convention).


🡻 2011/98/EU recital 19

(22)In the absence of horizontal Union legislation, the rights of third-country nationals vary, depending on the Member State in which they work and on their nationality. With a view to developing further a coherent immigration policy and narrowing the rights gap between citizens of the Union and third-country nationals legally working in a Member State and complementing the existing immigration acquis, a set of rights should be laid down in order, in particular, to specify the fields in which equal treatment between a Member State’s own nationals and such third-country nationals who are not yet long-term residents is provided. Such provisions are intended to establish a minimum level playing field within the Union, to recognise that such third-country nationals contribute to the Union economy through their work and tax payments and to serve as a safeguard to reduce unfair competition between a Member State’s own nationals and third-country nationals resulting from the possible exploitation of the latter. A third–country worker in this Directive should be defined, without prejudice to the interpretation of the concept of employment relationship in other provisions of Union law, as a third-country national who has been admitted to the territory of a Member State, who is legally residing and who is allowed, in the context of a paid relationship, to work there in accordance with national law or practice.


🡻 2011/98/EU recital 20 (adapted)

(23)All third-country nationals who are legally residing and working in Member States should enjoy at least a common set of rights based on equal treatment with the nationals of their respective host Member State, irrespective of the initial purpose of or basis for admission. The right to equal treatment in the fields ⌦ covered ⌫ specified by this Directive should be granted not only to those third-country nationals who have been admitted to a Member State to work but also to those who have been admitted for other purposes and have been given access to the labour market of that Member State in accordance with other provisions of Union or national law, including family members of a third-country worker who are admitted to the Member State in accordance with Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification 47 ; third-country nationals who are admitted to the territory of a Member State in accordance with Directive (EU) 2016/801 of the European Parliament and of the Council 48 Council Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third-country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service 49 ;and researchers admitted in accordance with Council Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third-country nationals for the purposes of scientific research 50 .


🡻 2011/98/EU recital 21

(24)The right to equal treatment in specified fields should be strictly linked to the third-country national’s legal residence and the access given to the labour market in a Member State, which are enshrined in the single permit encompassing the authorisation to reside and work and in residence permits issued for other purposes containing information on the permission to work.


🡻 2011/98/EU recital 22

(25)Working conditions as referred to in this Directive should cover at least pay and dismissal, health and safety at the workplace, working time and leave taking into account collective agreements in force.


🡻 2011/98/EU recital 23

(26)A Member State should recognise professional qualifications acquired by a third-country national in another Member State in the same way as those of citizens of the Union and should take into account qualifications acquired in a third country in accordance with Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications 51 . The right to equal treatment accorded to third-country workers as regards recognition of diplomas, certificates and other professional qualifications in accordance with the relevant national procedures should be without prejudice to the competence of Member States to admit such third-country workers to their labour market.


🡻 2011/98/EU recital 24

(27)Third-country workers should enjoy equal treatment as regards social security. Branches of social security are defined in Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems 52 . The provisions on equal treatment concerning social security in this Directive should also apply to workers admitted to a Member State directly from a third country. Nevertheless, this Directive should not confer on third-country workers more rights than those already provided in existing Union law in the field of social security for third-country nationals who are in cross-border situations. This Directive, furthermore, should not grant rights in relation to situations which lie outside the scope of Union law, such as in relation to family members residing in a third country. This Directive should grant rights only in relation to family members who join third-country workers to reside in a Member State on the basis of family reunification or family members who already reside legally in that Member State.


🡻 2011/98/EU recital 25

(28)Member States should ensure at least equal treatment of third-country nationals who are in employment or who, after a minimum period of employment, are registered as unemployed. Any restrictions to the equal treatment in the field of social security under this Directive should be without prejudice to the rights conferred pursuant to Regulation (EU) No 1231/2010 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 countries who are not already covered by these Regulations solely on the ground of their nationality 53 .


🡻 2011/98/EU recital 26

(29)Union law does not limit the power of the Member States to organise their social security schemes. In the absence of harmonisation at Union level,  Iit  is for each Member State to lay down the conditions under which social security benefits are granted, as well as the amount of such benefits and the period for which they are granted. However, when exercising that power, Member States should comply with Union law.


🡻 2011/98/EU recital 27

(30)Equal treatment of third-country workers should not apply to measures in the field of vocational training which are financed under social assistance schemes.


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(31)To reinforce the equal treatment of third-country workers, Member States should provide for effective, proportionate and dissuasive penalties against employers in the event of infringements of national provisions adopted pursuant to this Directive, in particular with regard to working conditions, freedom of association and affiliation and access to social security benefits.

(32)To ensure the proper enforcement of this Directive, Member States should ensure that appropriate mechanisms are in place for the monitoring of employers and that, where appropriate, effective and adequate inspections are carried out on their respective territories. The selection of employers to be inspected should be based primarily on a risk assessment to be carried out by the competent authorities in the Member States taking into account factors such as the sector in which a company operates and any past record of infringement.

(33)Member States should also put in place effective mechanisms through which third-country workers may seek legal redress and lodge complaints directly or through third parties having, in accordance with the criteria laid down by the national law, a legitimate interest in ensuring compliance with this Directive, such as trade unions or other associations, or competent authorities. That is considered necessary to address situations where third-country workers are unaware of the existence of enforcement mechanisms or hesitant to use them in their own name, for example out of fear of possible consequences.

(34)The single permit should authorise the third-country national to change the employer during the period of its validity. Member States should be able to require a notification of the change and to check the labour market situation where a change of employer takes place. The single permit should not be withdrawn during a period of at least three months in the event of the unemployment of its holder.


🡻 2011/98/EU recital 28

(35)This Directive should be applied without prejudice to more favourable provisions contained in Union law and applicable international instruments.


🡻 2011/98/EU recital 29

(36)Member States should give effect to the provisions of this Directive without discrimination on the basis of sex, race, colour, ethnic or social origin, genetic characteristics, language, religion or beliefs, political or other opinions, membership of a national minority, fortune, birth, disabilities, age or sexual orientation in particular in accordance with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin 54 and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation 55 .


🡻 2011/98/EU recital 30

(37)Since the objectives of this Directive, namely laying down a single application procedure for issuing a single permit for third-country nationals to work in the territory of a Member State and a common set of rights for third-country workers legally residing in a Member State, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.


🡻 2011/98/EU recital 31

(38)This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union in accordance with Article 6(1) of the TEU.


🡻 2011/98/EU recital 32 (adapted)

In accordance with the Joint Political Declaration of Member States and the Commission on explanatory documents of 28 September 2011, Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.


🡻 2011/98/EU recital 33 (adapted)

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(39)In accordance with Articles 1 and 2 of the Protocol (No 21) on the position of the United Kingdom and Ireland ⌦ in respect of the area of freedom, security and justice ⌫ , annexed to the ⌦Treaty on European Union ⌫ (TEU) and to the ⌦ Treaty on the Functioning of the European Union ⌫ (TFEU), and without prejudice to Article ⇨ s 3 and ⇦ 4 of that Protocol, ⇨ Ireland ⇦  those Member States are ⇨ is ⇦  not taking part in the adoption of this Directive and are not bound by it or subject to its application.

[OR]

[In accordance with Articles ⇨ 4a ⇦ 1 and 2 of the Protocol No (21) on the position of the United Kingdom and Ireland ⌦ in respect of the area of freedom, security and justice ⌫, annexed to the ⌦Treaty on European Union ⌫ (TEU) and to the ⌦ Treaty on the Functioning of the European Union ⌫ (TFEU), and without prejudice to Article 4 of that Protocol, those Member States are not taking part in the adoption of this Directive and are not bound by it or subject to its application ⇨ Ireland has notified [, by letter of …,] its wish to take part in the adoption and application of Directive. ⇦ ]


🡻 2011/98/EU recital 34

(40)In accordance with Articles 1 and 2 of the Protocol (No 22) on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,.


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(41)The obligation to transpose this Directive into national law should be limited to those provisions which represent a substantive amendment as compared to the earlier Directive. The obligation to transpose the provisions which are unchanged arises under that earlier Directive.

(42)This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law of the Directives set out in Annex I, Part B,


🡻 2011/98/EU (adapted)

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