Belgium to overhaul the conditions of third-country nationals’ admission to the labour market

The Official Gazette of 21 December 2018 released the Flemish Government Decree of 7 December 2018 implementing the Foreign Workers (Employment) Act of 30 April 1999.

Several EU Directives are partially transposed into the regional legislation:

• Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents
• Directive 2009/50/EC on the conditions of entry and residence of third-country nationals for the purposes of highly qualified employment
• Directive 2011/98/EU on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State
• Directive 2014/66/EU on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer
• Directive 2016/801/EU on the conditions of entry and residence of third-country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or educational projects and au pairing
• Directive 2014/36/EU on the conditions of entry and stay of third-country nationals for the purpose of employment as seasonal workers

The decree overhauls the conditions of third-country nationals’ admission to the labour market in Flanders, inter alia:

• New criteria for determining the minimum wage threshold (with a very few exceptions)
• The definition of qualification on grounds of ISCED 2011.
• Prima facie a more restrictive definition of managerial positions.
• Prima facie a less restrictive definition of
• From now on, authorisations to work, will be issued to nationals of any country (and not only to nationals of countries that have entered into employment agreements with Belgium).
• The labour market test is deemed to be satisfied for occupations in short supply. Lists of shortages will be released each two years.
• The employer must notify the competent authority in the event of termination of employment (to read in conjunction with the employee’ right to remain for a period of 90 days, to search for a job).
• New categories of workers are exempt from the authorisation to work ,such as workers posted to attend a training (in the framework of a training agreement), at the Belgian quarter of the group of companies to which their company belongs, provided that the duration of stay does not exceed three consecutive months (regardless the country where the employer is established and the worker’ nationality).In the same context, holders of ICT mobile permits issued by another Member State and researchers, exercise the right to short term mobility, are authorised to work by law (provided that their remuneration complies with the law provisions). Certain exemptions currently into force are repealed.
• An additional criterion must be met to enforce the Van der Elst exemption (in our view, the provision is in breach of the EU law).
• The length of authorised stay of certain categories of workers posted to carry out specific activities, is amended.
• Third-country nationals hold a valid residence permit and bring proof of uninterrupted work for a period of four years during the five years immediately preceding the demand, will be authorised to work for an unlimited period (see the current residence permit type B, discretionary issued by the Immigration Office).
• In regard to the remuneration must be granted to third-country nationals during the intra-corporate transfer, the Dutch doctrine is adopted : the remuneration  is deemed to be not less favourable than the remuneration granted for comparable positions in accordance with applicable laws or collective agreements or practices if it complies with the minimum wage threshold  laid down for managerial positions (ICT managers), and respectively for highly qualified workers (ICT specialists and trainees). On the contrary, each case will be assessed on its merits.
• New grounds for rejection are provided for, inter alia, if the host entity was established for the main purpose of facilitating the entry of foreign workers and/or the host entity does not have a genuine activity.